UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE
SECURITIES EXCHANGE ACT OF 1934
For
the month of September 2023
Commission
File Number: 001-40145
Jowell
Global Ltd.
2nd
Floor, No. 285 Jiangpu Road
Yangpu
District, Shanghai
China
200082
(Address
of principal executive office)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
Form 20-F ☒ Form 40-F ☐
SIGNATURES
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 thereunto duly authorized.
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Jowell Global Ltd. |
|
|
Date: September 15, 2023 |
By: |
/s/
Haiting Li |
|
Name: |
Haiting Li |
|
Title: |
Chief Executive Officer |
Exhibit
Index
2
Exhibit 99.1
Jowell
Global Ltd.
2nd Floor, No. 285 Jiangpu Road
Yangpu District, Shanghai, China 200082
September 15, 2023
Dear Shareholder:
You are cordially invited
to attend the 2023 Extraordinary General Meeting (the “Extraordinary Meeting”) of Shareholders of Jowell Global Ltd. (the
“Company”) to be held at the corporate headquarters of the Company, located at 2nd Floor, No. 285 Jiangpu Road, Yangpu District,
Shanghai, China 200082 on October 25, 2023, at 10:30 a.m. local time.
Information regarding each
of the matters to be voted on at the Extraordinary Meeting is contained in the attached Proxy Statement and Notice of Extraordinary Meeting
of Shareholders. We urge you to read the proxy statement carefully.
The proxy statement and proxy
card are expected to be mailed to all shareholders of record on or about September 21, 2023.
Because it is important that
your shares be voted at the Extraordinary Meeting, we urge you to complete, date and sign the enclosed proxy card and return it as promptly
as possible in the accompanying envelope, whether or not you plan to attend in person. Even after returning your proxy, if you are a shareholder
of record and do attend the meeting and wish to vote your shares in person, you still may do so.
Sincerely,
|
/s/
Haiting Li |
|
Haiting Li
Chief Executive Officer and
Chairman of the Board of Directors |
Jowell
Global Ltd.
2nd Floor, No. 285 Jiangpu Road
Yangpu District, Shanghai, China 200082
NOTICE OF Extraordinary
GENERAL MEETING OF SHAREHOLDERS
To Be Held October 25, 2023
TO THE SHAREHOLDERS OF JOWELL GLOBAL LTD.:
NOTICE HEREBY IS GIVEN that
the 2023 Extraordinary General Meeting of Shareholders (the “Extraordinary Meeting”) of Jowell Global Ltd. (the “Company”)
will be held at the corporate headquarters of the Company, located at 2nd Floor, No. 285 Jiangpu Road, Yangpu District, Shanghai, China
200082 on October 25, 2023, at 10:30 a.m. local time, to consider and act upon the following:
|
1. |
Proposal 1. To approve by an ordinary resolution of a share consolidation (the “Share Consolidation”) that (i) every sixteen (16) issued and unissued ordinary shares of the Company, par value $0.0001 each (the “Ordinary Shares”) be consolidated into one (1) ordinary share par value $0.0016 each and (ii) every sixteen (16) issued and unissued preferred shares of the Company, par value $0.0001 each (the “Preferred Shares”) be consolidated into one (1) preferred share, par value $0.0016 each, so that following the Share Consolidation the authorized share capital of the Company will be changed from (a) $50,000 divided into 500,000,000 shares with a nominal or par value of $0.0001 per share of which (x) 450,000,000 shares are designated as ordinary shares with a nominal or par value of $0.0001 per share and (y) 50,000,000 shares are designated as preferred shares with a nominal or par value of $0.0001 per share, to (b) $50,000 divided into 31,250,000 shares of which (x) 28,125,000 shares are designated as ordinary shares with a nominal or par value of $0.0016 per share and (y)3,125,000 shares are designated as preferred shares with a nominal or par value of $0.0016 per share (the “Share Consolidation Proposal”); |
| 2. | Proposal 2.
Immediately following the Share Consolidation, to approve by an ordinary resolution of share capital increase that the authorized
share capital of the Company be increased from (a) $50,000 divided into 31,250,000 shares of which (x) 28,125,000 shares are designated
as ordinary shares with a nominal or par value of $0.0016 per share and (y) 3,125,000 shares are designated as preferred shares with
a nominal or par value of $0.0016 per share, to (b) $800,000 divided into 500,000,000 shares of which (x) 450,000,000 shares are designated
as ordinary shares with a nominal or par value of $0.0016 per share, and (y) 50,000,000 shares are designated as preferred shares with
a nominal or par value of $0.0016 per share (the “Share Capital Increase”) by newly creation of 421,875,000 ordinary
shares with a nominal or par value of $0.0016 per share and 46,875,000 preferred shares with a nominal or par value of $0.0016 per share
(the “Share Capital Increase Proposal”); |
| 3. | Proposal 3.
To approve by a special resolution of the third amended and restated memorandum and articles of association of the Company (the “Third
Amended and Restated Memorandum and Articles of Association”), which contains all the proposed amendments mentioned in this
proxy statement and a copy of which has been produced to this meeting and marked as “Annex A” of the proxy statement (“Amendment
to M&A Proposal”). |
Shareholders of record at
5:00 p.m., New York time on September 5, 2023 are entitled to receive notice of and to vote at the 2023 Extraordinary General Meeting
and any adjournments thereof. A complete list of these sthareholders will be open for the examination of any shareholder of record at
the Company’s principal executive offices located at 2nd Floor, No. 285 Jiangpu Road, Yangpu District, Shanghai, China 200082 for
a period of ten days prior to the Extraordinary General Meeting. The list will also be available for the examination of any shareholder
of record present at the Extraordinary General Meeting. The Extraordinary General Meeting may be adjourned or postponed from time to time
without notice other than by announcement at the meeting.
All
shareholders must present a form of personal photo identification in order to be admitted
to the Extraordinary Meeting. In addition, if your shares are held in the name of your
broker, bank or other nominee and you wish to attend the Extraordinary Meeting, you must
bring an account statement or letter from the broker, bank or other nominee indicating that you were the owner of the ordinary shares
on September 5, 2023.
By Order of the Board of Directors
|
/s/ Haiting Li |
|
Haiting Li
Chief Executive Officer and
Chairman of the Board of Directors |
Shanghai, China
September 15, 2023
IMPORTANT NOTICE REGARDING THE AVAILABILITY
OF PROXY MATERIALS FOR THE
Extraordinary
GENERAL MEETING OF SHAREHOLDERS TO BE HELD ON OCTOBER 25, 2023:
WHETHER OR NOT YOU PLAN TO ATTEND OUR 2023
Extraordinary GENERAL MEETING OF SHAREHOLDERS, YOUR VOTE IS IMPORTANT. PLEASE FOLLOW THE
INSTRUCTIONS IN THE PROXY MATERIALS TO VOTE YOUR PROXY VIA THE INTERNET OR BY EMAIL OR REQUEST AND PROMPTLY COMPLETE, EXECUTE AND RETURN
THE PROXY CARD BY FOLLOWING THE INSTRUCTIONS ON THE PROXY CARD. IF YOU ATTEND OUR 2023 Extraordinary
GENERAL MEETING OF SHAREHOLDERS, YOU MAY REVOKE YOUR PROXY AND VOTE IN PERSON IF YOU SO DESIRE.
Jowell
Global Ltd.
2nd Floor, No. 285 Jiangpu Road
Yangpu District, Shanghai, China 200082
PROXY STATEMENT
FOR THE EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS
To Be Held October 25, 2023
The enclosed proxy is
solicited on behalf of the board of directors (the “Board”) of Jowell Global Ltd., a Cayman Islands corporation (the “Company”),
for use at the 2023 Extraordinary General Meeting of Shareholders (the “Extraordinary Meeting”) to be held at the corporate
headquarters of the Company, located at 2nd Floor, No. 285 Jiangpu Road, Yangpu District, Shanghai, China 200082, at 10:30 a.m. local
time on October 25, 2023, or at any adjournment(s) or postponement(s) thereof, for the purposes set forth herein and in the accompanying
Notice of Extraordinary General Meeting of Shareholders. This Proxy Statement and the accompanying form of proxy card are expected
to be mailed on or about September 21, 2023, to the shareholders of the Company entitled to vote at the Extraordinary Meeting.
GENERAL INFORMATION
Purpose of the Extraordinary Meeting
The
purposes of the Extraordinary Meeting are to seek shareholders’
approval of the following resolutions:
|
1. |
Proposal 1. To approve by an ordinary resolution of a share consolidation (the “Share Consolidation”) that (i) every sixteen (16) issued and authorized ordinary shares of the Company, par value $0.0001 each (the “Ordinary Shares”) be consolidated into one (1) ordinary share par value $0.0016 each and (ii) every sixteen (16) issued and authorized preferred shares of the Company, par value $0.0001 each (the “Preferred Shares”) be consolidated into one (1) preferred share, par value $0.0016 each, so that following the Share Consolidation the authorized share capital of the Company will be changed from (a) $50,000 divided into 500,000,000 shares with a nominal or par value of $0.0001 per share of which (x) 450,000,000 shares are designated as ordinary shares with a nominal or par value of $0.0001 per share and (y) 50,000,000 shares are designated as preferred shares with a nominal or par value of $0.0001 per share, to (b) $50,000 divided into 31,250,000 shares of which (x) 28,125,000 shares are designated as ordinary shares with a nominal or par value of $0.0016 per share and (y)3,125,000 shares are designated as preferred shares with a nominal or par value of $0.0016 per share (the “Share Consolidation Proposal”); |
| 2. | Proposal 2.
Immediately following the Share Consolidation, to approve by an ordinary resolution of share capital increase that the authorized
share capital of the Company be increased from (a) $50,000 divided into 31,250,000 shares of which (x) 28,125,000 shares are designated
as ordinary shares with a nominal or par value of $0.0016 per share and (y) 3,125,000 shares are designated as preferred shares with
a nominal or par value of $0.0016 per share, to (b) $800,000 divided into 500,000,000 shares of which (x) 450,000,000 shares
are designated as ordinary shares with a nominal or par value of $0.0016 per share, and (y) 50,000,000 shares are designated as preferred
shares with a nominal or par value of $0.0016 per share (the “Share Capital Increase”) by newly creation of 421,875,000
ordinary shares with a nominal or par value of $0.0016 per share and 46,875,000 preferred shares with a nominal or par value of $0.0016
per share (the “Share Capital Increase Proposal”); |
| 3. | Proposal 3.
To approve by a special resolution of the third amended and restated memorandum and articles of association of the Company (the “Third
Amended and Restated Memorandum and Articles of Association”), which contains all the proposed amendments mentioned in this
proxy statement and a copy of which has been produced to this meeting and marked as “Annex A” of the proxy statement (“Amendment
to M&A Proposal”). |
The Board recommends a vote FOR all the resolutions.
Will there be any other items of business on
the agenda?
The Board is not aware of any
other matters that will be presented for consideration at the Extraordinary Meeting. Nonetheless, in case there is an unforeseen need,
the accompanying proxy gives discretionary authority to the persons named on the proxy with respect to any other matters that might be
brought before the Extraordinary Meeting or at any postponement or adjournment of the Extraordinary Meeting. Those persons intend to vote
that proxy in accordance with their judgment.
Who is entitled to vote at the Extraordinary
Meeting?
Only
shareholders of record of our Ordinary Shares at 5:00 p.m., New
York time on September 5, 2023 (the “Record Date”) are entitled
to notice and to vote at the Extraordinary Meeting and any adjournment or postponement thereof.
As
of the Record Date, there were 34,174,065 Ordinary Shares and 750,000 Preferred Shares issued and outstanding. Each shareholder
of Ordinary Shares on the Record Date is entitled to one (1) vote for each Ordinary Share then held and each shareholder of Preferred
Shares on the Record Date is entitled to two (2) votes for each Preferred Share then held.
The enclosed proxy card or voting instruction card shows the number of shares you are entitled to vote at the Extraordinary Meeting.
Shareholder of Record: Shares Registered in
Your Name
If on the Record Date your
shares were registered directly in your name with the Company, then you are a shareholder of record. As a shareholder of record, you may
vote in person at the Extraordinary Meeting or vote by proxy. Whether or not you plan to attend the Extraordinary Meeting, to ensure your
vote is counted, we encourage you to vote either by Internet or by filling out and returning the enclosed proxy card.
Beneficial Owner: Shares Registered in the
Name of a Broker or Bank
If on the Record Date your
shares were held in an account at a brokerage firm, bank, dealer, or other similar organization, then you are the beneficial owner of
shares held in “street name” and these proxy materials are being forwarded to you by that organization. The organization holding
your account is considered the shareholder of record for purposes of voting at the Extraordinary Meeting. As the beneficial owner, you
have the right to direct your broker or other agent on how to vote the shares in your account. Your broker will not be able to vote your
shares unless your broker receives specific voting instructions from you. We strongly encourage you to vote.
What constitutes a quorum and how will votes
be counted?
The
Extraordinary Meeting will be held if at least one or more shareholders
holding shares which carry in aggregate (or representing by proxy) not less than one-third of all votes attaching to all shares in issue
and entitled to vote at the meeting, either in person or by proxy. Abstentions will be counted as entitled to vote for purposes of determining
a quorum. Broker non-votes and abstentions will not be taken into account in determining the outcome of the proposal. In the event that
there are not sufficient votes for a quorum, the Extraordinary Meeting may be adjourned or postponed in order to permit the further solicitation
of proxies.
Votes Required
How many votes are required to approve a proposal?
Assuming a quorum as referenced
above is reached:
| A. | Proposal No.
1 will be approved if passed by a simple majority of the votes cast by the shareholders
entitled to vote at the Extraordinary Meeting, in person or by proxy. |
| B. | Proposal No.
2 will be approved if passed by a simple majority of the votes cast by the shareholders
entitled to vote at the Extraordinary Meeting, in person or by proxy. |
| C. | Proposal No. 3 will be approved if passed by a majority of not
less than two-thirds of votes cast by such shareholders entitled to vote at the Extraordinary Meeting, in person or by proxy. |
Only shares that are voted
are taken into account in determining the proportion of votes cast for the proposals. Any shares not voted (whether by abstention, broker
non-vote or otherwise) will not impact any of the votes.
How do I vote?
Your shares may only be voted
at the Extraordinary Meeting if you are entitled to vote and present in person or are represented by proxy. Whether or not you plan to
attend the Extraordinary Meeting, we encourage you to vote by proxy to ensure that your shares will be represented.
You may vote using any of the
following methods:
| ● | By
Internet. You may vote by using the Internet in accordance with the instructions included in the proxy card.
The Internet voting procedures are designed to authenticate shareholders’
identities, to allow shareholders to vote their shares and to confirm
that their instructions have been properly recorded. |
| ● | By
Mail. Shareholders of record as of the Record
Date may submit proxies by completing, signing and dating their proxy cards and mailing them in the accompanying pre-addressed envelopes.
If you return your signed proxy but do not indicate your voting preferences, your shares will be voted on your behalf “FOR”
each of the Proposals. Shareholders who hold shares beneficially in street
name may provide voting instructions by mail by completing, signing and dating the voting instruction forms provided by their brokers,
banks or other nominees and mailing them in the accompanying pre-addressed envelopes. |
|
● |
By Fax. You may vote by proxy by marking the enclosed proxy card, dating and signing it, and faxing it according to the fax number provided on the enclosed proxy card or instruction forms. |
| ● | In person at the Extraordinary Meeting. Shares
held in your name as the shareholder of record may be voted in person at the Extraordinary Meeting or at any postponement or adjournment
of the Extraordinary Meeting. Shares held beneficially in street name may be voted in person only if you obtain a legal proxy from the
broker, bank or nominee that holds your shares giving you the right to vote the shares. Even if you plan to attend the Extraordinary
Meeting, we recommend that you also submit your proxy or voting instructions by mail or Internet so that your vote will be counted if
you later decide not to attend the Extraordinary Meeting. |
Revoking Your Proxy
Even if you execute a proxy,
you retain the right to revoke it and to change your vote by notifying us at any time before your proxy is voted. Mere attendance at the
meeting will not revoke a proxy. Such revocation may be effected by following the instructions for voting on your proxy card or vote instruction
form. Unless so revoked, the shares represented by proxies, if received in time, will be voted in accordance with the directions given
therein. However, if you are shareholder of record, delivery of a proxy would not preclude you from attending and voting in person at
the meeting convened and in such event, the instrument appointing a proxy shall be deemed to be revoked.
If the Extraordinary Meeting
is postponed or adjourned for any reason, at any subsequent reconvening of the Extraordinary Meeting, all proxies will be voted in the
same manner as the proxies would have been voted at the original convening of the Extraordinary Meeting (except for any proxies that have
at that time effectively been revoked or withdrawn), even if the proxies had been effectively voted on the same or any other matter at
a previous Extraordinary Meeting that was postponed or adjourned.
Proxy Solicitation Costs
We
will bear the entire cost of this solicitation of proxies, including the preparation, assembly, printing, and mailing of the proxy materials
that we may provide to our shareholders. Copies of solicitation material
will be provided to brokerage firms, fiduciaries and custodians holding shares in their names that are beneficially owned by others so
that they may forward the solicitation material to such beneficial owners. We may solicit proxies by mail, and the officers and employees
of the Company, who will receive no extra compensation therefore, may solicit proxies personally or by telephone. The Company will reimburse
brokerage houses and other nominees for their expenses incurred in sending proxies and proxy materials to the beneficial owners of shares
held by them.
PROPOSAL NO. 1
SHARE CONSOLIDATION
Purpose of Share Consolidation
The Company’s ordinary
shares are listed on The Nasdaq Capital Market under the trading symbol of “JWEL.” In order for the ordinary shares to continue
to be listed on The Nasdaq Capital Market, the Company must satisfy various listing standards established by Nasdaq. Among others, Nasdaq
Listing Rule 5550(a)(2) requires that listed shares maintain a minimum bid price of US$1.00 per share (the “Bid Price
Rule”). On December 29, 2022, the Company received a letter from Nasdaq indicating that it is no longer in compliance with the Bid
Price Rule. The Company was provided 180 calendar days, or until June 26, 2023, to regain compliance. The listed security of the
Company did not regain compliance with the minimum $1 bid price per share requirement by June 26, 2023. However, Nasdaq Staff has on June
27, 2023 determined that the Company is eligible for an additional 180 calendar day period, or until December 26, 2023, to regain
compliance. If at any time during this additional time period the closing bid price of the Company’s ordinary shares is at least
$1 per share for a minimum of 10 consecutive business days, Nasdaq will provide written confirmation of compliance and this matter
will be closed. If compliance cannot be demonstrated by December 26, 2023, Staff will provide written notification that the Company’s
securities will be delisted. At that time, the Company may appeal the Staff’s determination to a Hearings Panel of NASDAQ.
In order to retain the compliance
with the Bid Price Rule under NASDAQ Listing Rule, the closing bid price of the Company’s ordinary shares should be at least $1.00
for a minimum of ten consecutive business days. As of the date of this proxy statement, the Company has not yet regained the compliance
with the Bid Price Rule.
The Board believes that the
delisting of the Ordinary Shares from The Nasdaq Capital Market would likely result in decreased liquidity. Such decreased liquidity would
result in the increase in the volatility of the trading price of the Ordinary Shares, a loss of current or future coverage by certain
analysts and a diminution of institutional investor interest. In addition, the Board believes that such delisting could also cause a loss
of confidence of corporate partners, customers and employees, which could harm the Company’s business and future prospects.
To
enhance the Company’s ability to regain the compliance of the Bid Price Rule, the Board believes that it is in the best interest
of the Company and its shareholders to effectuate a Share Consolidation
to increase the market price of the Ordinary Shares. As a result, the Board is soliciting shareholders’
approval and authorization for a share consolidation of the issued and authorized ordinary shares and preferred shares of the Company
(the “Shares”) at a ratio of one (1)-for-sixteen (16), accompanied by a corresponding increase in the par values of
the Company’s Shares, to regain the compliance with Nasdaq.
In evaluating whether or not
to conduct the share consolidation, the Board also took into account various negative factors associated with such corporate action. These
factors include: the negative perception of share consolidation held by some investors, analysts and other stock market participants;
the fact that the share prices of some companies that have effected of share consolidation have subsequently declined back to pre-consolidation
levels; the adverse effect on liquidity that might be caused by a reduced number of shares outstanding; and the costs associated with
implementing a share consolidation.
The
Board considered these factors, and the potential harm of being delisted from The Nasdaq Capital Market. The Board determined that continued
listing on The Nasdaq Capital Market is in the best interest of the Company and its shareholders,
and that the Share Consolidation is probably necessary to maintain the listing of the Company’s ordinary shares on The Nasdaq Capital
Market.
In
addition, there can be no assurance that, after the Share Consolidation, the Company would be able to maintain the listing of the Ordinary
Shares on The Nasdaq Capital Market. The Nasdaq Capital Market maintains several other continued listing requirements currently applicable
to the listing of the Ordinary Shares. Shareholders should recognize that
if the Share Consolidation is effected, they will own a smaller number of Ordinary Shares than they currently own. While the Company expects
that the Share Consolidation will result in an increase in the market price of the Ordinary Shares, it may not increase the market price
of the Ordinary Shares in proportion to the reduction in the number of Ordinary Shares outstanding or result in a permanent increase in
the market price (which depends on many factors, including our performance, prospects and other factors that may be unrelated to the number
of shares outstanding).
If the Share Consolidation
is effected and the market price of the Company’s ordinary shares declines, the percentage decline as an absolute number and as
a percentage of the Company’s overall market capitalization may be greater than would occur in the absence of the Share Consolidation.
Furthermore, the liquidity of the Company’s ordinary shares could be adversely affected by the reduced number of shares that would
be outstanding after the Share Consolidation. Accordingly, the Share Consolidation may not achieve the desired results that have been
outlined above.
Fractional Shares
No fractional shares shall
be issued upon the Share Consolidation. Upon approval of Proposal No. 1 and passing of Ordinary Resolution (1), any fractions of
Ordinary Shares will be rounded up to the nearest whole number of shares in order to bring the number of shares held by such shareholder
up to the next whole number of Ordinary Shares following or as a result of the Share Consolidation.
Effects of the Share Consolidation
Authorized Shares and Unissued Shares
At the time the Share Consolidation is effective,
our authorized Shares, will be consolidated at the ratio of one-for-sixteen, accompanied by a corresponding increase in the par value
of the Company’s Shares. Accordingly, the number of unissued Shares will be reduced at the same ratio.
As a result of and following the Share Consolidation,
the authorized share capital of the Company will be changed from (a) $50,000 divided into 500,000,000 shares with a nominal or par value
of $0.0001 per share of which (x) 450,000,000 shares are designated as ordinary shares with a nominal or par value of $0.0001 per share
and (y) 50,000,000 shares are designated as preferred shares with a nominal or par value of $0.0001 per share, to (b) $50,000 divided
into 31,250,000 shares of which (x) 28,125,000 shares are designated as ordinary shares with a nominal or par value of $0.0016 per share
and (y) 3,125,000 shares are designated as preferred shares with a nominal or par value of $0.0016 per share
Issued and Outstanding Shares
The Share Consolidation will also reduce the number
of issued and outstanding Shares at the ratio of one-for-sixteen. The par value of Shares will be increased by the same ratio.
Each shareholder’s proportionate ownership
of the issued and outstanding Shares immediately following the effectiveness of the Share Consolidation would remain the same, with the
exception of adjustments related to the treatment of fractional shares (see above).
Proportionate adjustments will be made based on the
ratio of the Share Consolidation to the per share exercise price and the number of shares issuable upon the exercise or conversion of
all outstanding options, warrants, convertible or exchangeable securities entitling the holders to purchase, exchange for, or convert
into, our ordinary shares. This will result in approximately the same aggregate price being required to be paid under such options, warrants,
convertible or exchangeable securities upon exercise, and approximately the same value of ordinary shares being delivered upon such exercise,
exchange or conversion, immediately following the Share Consolidation as was the case immediately preceding the Share Consolidation. Mr.
Zhiwei Xu, our former chief executive officer and Chairman of the Board, currently through Jowell Holdings Ltd., beneficially owns all
of the 750,000 issued and outstanding Preferred Shares.
Procedure for Implementing the Share Consolidation
As
soon as practicable after the effective date of the Share Consolidation, the Company’s shareholders
will be notified that the Share Consolidation has been effected through filing with SEC by the Company. The Company expects that its transfer
agent, VStock Transfer, LLC, will act as exchange agent for purposes of implementing the exchange of share certificates for Ordinary Shares.
If needed, holders of pre-consolidation shares will be asked to surrender to the exchange agent certificates representing pre-consolidation
Ordinary Shares in exchange for certificates representing post-consolidation Ordinary Shares or, in the case of holders of non-certificated
shares, such proof of ownership as required by the exchange agent, in accordance with the procedures to be set forth in a letter of transmittal
that the Company will send to its registered shareholders. No new share
certificates will be issued to a shareholder until such shareholder has surrendered such shareholder’s outstanding share certificate(s) together
with the properly completed and executed letter of transmittal to the exchange agent. The
Company will make the exchange of certificates for the issued and outstanding Preferred Shares after the Share consolidation.
SHAREHOLDERS SHOULD NOT DESTROY ANY SHARE CERTIFICATE(S) AND
SHOULD NOT SUBMIT ANY CERTIFICATE(S) UNTIL REQUESTED TO DO SO.
Banks,
brokers or other nominees will be instructed to effect the Share Consolidation for their beneficial holders holding shares in “street
name.” However, these banks, brokers or other nominees may have different procedures from those that apply to registered shareholders
for processing the Share Consolidation. If a shareholder holds shares with a bank, broker or other nominee and has any questions in this
regard, shareholders are encouraged to contact their bank, broker or other
nominee.
Vote Required
Assuming that a quorum is present, the affirmative
vote of a simple majority of the votes cast by the shareholders entitled to vote at the Extraordinary Meeting, in person or by proxy,
is required to approve Proposal No. 1 Share Consolidation.
Recommendation of the Board
THE
BOARD UNANIMOUSLY RECOMMENDS A VOTE “FOR” THE APPROVAL OF PROPOSAL No. 1 Share Consolidation.
PROPOSAL
No. 2
SHARE CAPITAL INCREASE
On August 31, 2023, the Board approved, and directed
that there be submitted to the shareholders of the Company for approval, that immediately following the approval of the Share Consolidation
proposal by the shareholders, the share capital of the Company be increased to $800,000 divided into 500,000,000 shares of which (x) 450,000,000
shares are designated as ordinary shares with a nominal or par value of $0.0016 per share, and (y) 50,000,000 shares are designated as
preferred shares with a nominal or par value of $0.0016 per share by newly creation of 421,875,000 ordinary shares with a nominal or par
value of $0.0016 per share and 46,875,000 preferred shares with a nominal or par value of $0.0016 per share (the “Share Capital
Increase”).
If the Share Consolidation proposal is not approved, then this Share
Capital Increase proposal will not be applicable.
Vote Required
Assuming that a quorum is present, the affirmative vote of a simple
majority of the votes cast by the shareholders entitled to vote at the Extraordinary Meeting, in person or by proxy, is required to approve
Proposal No. 2.
Recommendation of the Board
THE BOARD UNANIMOUSLY
RECOMMENDS A VOTE “FOR” THE APPROVAL OF PROPOSAL No. 2 Share Capital Increase.
PROPOSAL NO. 3
TO APPROVE THE THIRD AMENDED AND RESTATED MEMORANDUM
AND ARTICLES OF ASSOCIATION
To consider and approve by special resolution the
Amendment and Restatement of the Company’s current Memorandum and Articles of Association in the form of the Third Amended and Restated
Memorandum and Articles of Association, attached as an Annex A hereto, to reflect the above Share Consolidation and Share
Capital Increase and other minor housekeeping amendments. Upon receipt of the approval of the shareholders of the Company by a special
resolution, the Third Amended and Restated Memorandum and Articles of Association of the Company be adopted as the Memorandum and Articles
of the Association of the Company to the exclusion of the existing Memorandum and Articles of Association.
Vote Required
Assuming that a quorum is present, Proposal 3
will be approved only it receives the affirmative vote of a majority of not less than two-thirds of votes cast by such shareholders entitled
to vote at the Extraordinary Meeting, in person or by proxy.
Recommendation of the Board
THE BOARD UNANIMOUSLY RECOMMENDS A VOTE “FOR”
THE PROPOSAL NO. 3 TO APPROVE TO THE THIRD AMENDED AND RESTATED THE MEMORANDUM AND ARTICLES
OF ASSOCIATION OF THE cOMPANY
OTHER MATTERS
Our Board is not aware of any business to come
before the Extraordinary Meeting other than those matters described above in this Proxy Statement. However, if any other matters should
properly come before the Extraordinary Meeting, it is intended that proxies in the accompanying form will be voted in accordance with
the judgment of the person or persons voting the proxies.
Transfer Agent and Registrar
The transfer agent and registrar for our ordinary
shares is VStock Transfer, LLC. Its address is 18 Lafayette Place, Woodmere, New York 11598, and its telephone number is +1(212)828-8436.
Where You Can Find More Information
We
file annual report and other documents with the SEC under the Exchange Act. Our SEC filings made electronically through the SEC’s
EDGAR system are available to the public at the SEC’s website at http://www.sec.gov. You may also read and copy any document we
file with the SEC at the SEC’s public reference room located at 100 F Street, NE, Room 1580, Washington, DC 20549. Please call the
SEC at (800) SEC-0330 for further information on the operation of the public reference room. This Proxy Statement and Meeting Notice
are also available on the Company’s website at http://ir.1juhao.com. Upon request, and without charge, the Company will
furnish each person to whom the meeting notice is delivered with a copy of the proxy statement. To request a copy, please email
to Jessie Zhao, at: ir@1juhao.com or write to Investor Relations, Jowell Global Ltd. at 2nd Floor, No. 285 Jiangpu Road, Yangpu
District, Shanghai, China 200082.
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BY ORDER OF THE BOARD OF DIRECTORS |
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September 15, 2023 |
/s/ Haiting Li |
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Haiting Li |
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Chairman of the Board and Chief Executive Officer |
Annex A
THE THIRD AMENDED AND RESTATED MEMORANDUM
AND ARTICLES OF ASSOCIATION OF THE COMPANY
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
THIRD AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
Jowell Global Ltd.
聚好全球股份有限公司
(Adopted by Special Resolution passed on [ ] 2023)
1. | The name of the Company is Jowell Global Ltd. 聚好全球股份有限公司. |
2. | The Registered Office of the Company will be situated at the offices
of Vistra (Cayman) Limited, P. O. Box 31119, Grand Pavilion, Hibiscus Way, 802 West Bay Road, Grand Cayman,
KY1 - 1205 Cayman Islands or at such other location within the Cayman Islands as the Directors may from
time to time determine. |
3. | The objects for which the Company is established
are unrestricted and the Company shall have full power and authority to carry out any object
not prohibited by the Companies Act or any other law of the Cayman Islands. |
4. | The Company shall have and be capable of exercising
all the functions of a natural person of full capacity irrespective of any question of corporate
benefit as provided by the Companies Act. |
5. | The Company will not trade in the Cayman Islands
with any person, firm or corporation except in furtherance of the business of the Company
carried on outside the Cayman Islands; provided that nothing in this section shall be construed
as to prevent the Company effecting and concluding contracts in the Cayman Islands, and exercising
in the Cayman Islands all of its powers necessary for the carrying on of its business outside
the Cayman Islands. |
6. | The liability of each Shareholder is limited to
the amount, if any, unpaid on the Shares held by such Shareholder. |
7. | The authorised share capital of the Company is $800,000
divided into shares of which (i) 450,000,000 shares are designated as ordinary shares with
a nominal or par value of $0.0016 per share, and
(ii) 50,000,000 shares are designated as preferred shares with a nominal or par value of
$0.0016 per share. Subject to the Companies Act
and the Articles, the Company shall have power to redeem or purchase any of its Shares and
to increase or reduce its authorised share capital and to sub-divide or consolidate the said
Shares or any of them and to issue all or any part of its capital whether original, redeemed,
increased or reduced with or without any preference, priority, special privilege or other
rights or subject to any postponement of rights or to any conditions or restrictions whatsoever
and so that unless the conditions of issue shall otherwise expressly provide every issue
of shares whether stated to be ordinary, preference or otherwise shall be subject to the
powers on the part of the Company hereinbefore provided. |
8. | The Company has the power contained in the Companies
Act to deregister in the Cayman Islands and be registered by way of continuation in some
other jurisdiction. |
9. | Capitalised terms that are not defined in this Memorandum
of Association bear the same meanings as those given in the Articles of Association of the
Company. |
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
THIRD AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
Jowell Global Ltd.
聚好全球股份有限公司
(Adopted by Special Resolution passed on [ ] 2023)
TABLE A
The regulations contained or incorporated in Table
‘A’ in the First Schedule of the Companies Act shall not apply to the Company and the following Articles shall comprise the
Articles of Association of the Company.
INTERPRETATION
1. | In these Articles the following defined terms will have the meanings
ascribed to them, if not inconsistent with the subject or context: |
“Affiliate” |
means in respect of a Person, any other Person that, directly or indirectly, through one (1) or more intermediaries, controls, is controlled by, or is under common control with, such Person, and (i) in the case of a natural person, shall include, without limitation, such person’s spouse, parents, children, siblings, mother-in-law, father-in-law, brothers-in-law and sisters-in-law, a trust for the benefit of any of the foregoing, and a corporation, partnership or any other entity wholly or jointly owned by any of the foregoing, and (ii) in the case of an entity, shall include a partnership, a corporation or any other entity or any natural person which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” shall mean the ownership, directly or indirectly, of shares possessing more than fifty per cent (50%) of the voting power of the corporation, partnership or other entity (other than, in the case of a corporation, securities having such power only by reason of the happening of a contingency), or having the power to control the management or elect a majority of members to the board of directors or equivalent decision-making body of such corporation, partnership or other entity; |
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“Articles” |
means these articles of association of the Company, as amended or substituted from time to time; |
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“Board” and “Board of Directors” and “Directors” |
means the directors of the Company for the time being, or as the case may be, the directors assembled as a board or as a committee thereof; |
“Chairman” |
means the chairman of the Board of Directors; |
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“Class” or “Classes” |
means any class or classes of Shares as may from time to time be issued by the Company; |
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“Commission” |
means the Securities and Exchange Commission of the United States of America or any other federal agency for the time being administering the Securities Act; |
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“Company” |
means Jowell Global Ltd. 聚好全球股份有限公司, a Cayman Islands exempted company; |
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“Companies Act” |
means the Companies Act (As Revised) of the Cayman Islands and any statutory amendment or re-enactment thereof; |
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“Company’s Website” |
means the main corporate/investor relations website of the Company, the address or domain name of which has been disclosed in any registration statement filed by the Company with the Commission in connection with its initial public offering of Shares, or which has otherwise been notified to Shareholders; |
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“Designated Stock Exchange” |
means the stock exchange in the United States on which any Shares or are listed for trading; |
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“Designated Stock Exchange Rules” |
means the relevant code, rules and regulations, as amended, from time to time, applicable as a result of the original and continued listing of any Shares on the Designated Stock Exchange; |
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“electronic” |
has the meaning given to it in the Electronic Transactions Act and any amendment thereto or re-enactments thereof for the time being in force and includes every other law incorporated therewith or substituted therefor; |
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“electronic communication” |
means electronic posting to the Company’s Website, transmission to any number, address or internet website or other electronic delivery methods as otherwise decided and approved by not less than two-thirds of the vote of the Board; |
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“Electronic Transactions Act” |
means the Electronic Transactions Act (As Revised) of the Cayman Islands and any statutory amendment or re-enactment thereof; |
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“electronic record” |
has the meaning given to it in the Electronic Transactions Act and any amendment thereto or re-enactments thereof for the time being in force and includes every other law incorporated therewith or substituted therefor; |
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“Memorandum of Association” |
means the memorandum of association of the Company, as amended or substituted from time to time; |
“Ordinary Resolution” |
means a resolution: |
|
(a) |
passed
by a simple majority of the votes cast by such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed,
by proxy or, in the case of corporations, by their duly authorised representatives, at a general meeting of the Company held in accordance
with these Articles; or |
|
(b) |
approved in writing by all of the Shareholders
entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and
the effective date of the resolution so adopted shall be the date on which the instrument, or the last of such instruments, if more
than one, is executed; |
“Ordinary Share” |
means an Ordinary Share of a par value of US$0.0016 in the capital of the Company; |
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“paid up” |
means paid up as to the par value in respect of the issue of any Shares and includes credited as paid up; |
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“Person” |
means any natural person, firm, company, joint venture, partnership, corporation, association or other entity (whether or not having a separate legal personality) or any of them as the context so requires; |
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“Preferred Share” |
means an Preferred Share of a par value of US$0.0016 in the capital of the Company; |
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“Register” |
means the register of Members of the Company maintained in accordance with the Companies Act; |
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“Registered Office” |
means the registered office of the Company as required by the Companies Act; |
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“Seal” |
means the common seal of the Company (if adopted) including any facsimile thereof; |
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“Secretary” |
means any Person appointed by the Directors to perform any of the duties of the secretary of the Company; |
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“Securities Act” |
means the Securities Act of 1933 of the United States of America, as amended, or any similar federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time; |
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“Share” |
means a share in the capital of the Company. All references to “Shares” herein shall be deemed to be Shares of any or all Classes as the context may require. For the avoidance of doubt in these Articles the expression “Share” shall include a fraction of a Share; |
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“Shareholder” or “Member” |
means a Person who is registered as the holder of one or more Shares in the Register; |
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“Share Premium Account” |
means the share premium account established in accordance with these Articles and the Companies Act; |
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“signed” |
means bearing a signature or representation of a signature affixed by mechanical means or an electronic symbol or process attached to or logically associated with an electronic communication and executed or adopted by a person with the intent to sign the electronic communication; |
“Special Resolution” |
means a special resolution of the Company passed in accordance with the Companies Act, being a resolution: |
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(a) |
passed by not less than two-thirds of the votes cast by such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy or, in the case of corporations, by their duly authorised representatives, at a general meeting of the Company of which notice specifying the intention to propose the resolution as a special resolution has been duly given; or |
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(b) |
approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the special resolution so adopted shall be the date on which the instrument or the last of such instruments, if more than one, is executed; |
“Treasury Share” |
means a Share held in the name of the Company as a treasury share in accordance with the Companies Act; and |
“United States” |
means the United States of America, its territories, its possessions and all areas subject to its jurisdiction. |
2. | In these Articles, save where the context requires
otherwise: |
| (a) | words
importing the singular number shall include the plural number and vice versa; |
| (b) | words
importing the masculine gender only shall include the feminine gender and any Person as the
context may require; |
| (c) | the
word “may” shall be construed as permissive and the word “shall”
shall be construed as imperative; |
| (d) | reference
to a dollar or dollars (or US$) and to a cent or cents is reference to dollars and cents
of the United States of America; |
| (e) | reference
to a statutory enactment shall include reference to any amendment or re- enactment thereof
for the time being in force; |
| (f) | reference
to any determination by the Directors shall be construed as a determination by the Directors
in their sole and absolute discretion and shall be applicable either generally or in any
particular case; |
| (g) | reference
to “in writing” shall be construed as written or represented by any means reproducible
in writing, including any form of print, lithograph, email, facsimile, photograph or telex
or represented by any other substitute or format for storage or transmission for writing
including in the form of an electronic record or partly one and partly another; |
| (h) | any requirements as to delivery under
the Articles include delivery in the form of an electronic record or an electronic communication; |
| (i) | 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 as defined in the Electronic Transaction Act;
and |
| (j) | Sections 8 and 19(3) of the Electronic Transactions Act
shall not apply. |
3. | Subject to the last two preceding Articles, any words defined in the
Companies Act shall, if not inconsistent with the subject or context, bear the same meaning in these
Articles. |
PRELIMINARY
4. | The business of the Company may be conducted as the Directors see fit. |
5. | The Registered Office shall be at such address in the Cayman Islands
as the Directors may from time to time determine. The Company may in addition establish and maintain
such other offices and places of business and agencies in such places as the Directors may from time
to time determine. |
6. | The expenses incurred in the formation of the Company and in connection
with the offer for subscription and issue of Shares shall be paid by the Company. Such expenses may be
amortised over such period as the Directors may determine and the amount so paid shall be charged against
income and/or capital in the accounts of the Company as the Directors shall determine. |
7. | The Directors shall keep, or cause to be kept, the Register at such place
as the Directors may from time to time determine and, in the absence of any such determination, the Register
shall be kept at the Registered Office. |
SHARES
8. | Subject to these Articles, all Shares for the time being unissued shall
be under the control of the Directors who may, in their absolute discretion and without the approval
of the Members, cause the Company to: |
| (a) | issue, allot and dispose of Shares (including,
without limitation, preferred shares) (whether in certificated form or non-certificated form)
to such Persons, in such manner, on such terms and having such rights and being subject to
such restrictions as they may from time to time determine; |
| (b) | grant rights over Shares or other securities
to be issued in one or more classes or series as they deem necessary or appropriate and determine
the designations, powers, preferences, privileges and other rights attaching to such Shares
or securities, including dividend rights, voting rights, conversion rights, terms of redemption
and liquidation preferences, any or all of which may be greater than the powers, preferences,
privileges and rights associated with the then issued and outstanding Shares, at such times
and on such other terms as they think proper; and |
| (c) | grant options with respect to Shares and
issue warrants, convertible securities or similar instruments with respect thereto. |
9. | The Directors may authorise the division of Shares into any number of
Classes and the different Classes shall be authorised, established and designated (or re-designated as
the case may be) and the variations in the relative rights (including, without limitation, voting, dividend
and redemption rights), restrictions, preferences, privileges and payment obligations as between the
different Classes (if any) may be fixed and determined by the Directors or by an Ordinary Resolution.
The Directors may issue Shares with such preferred or other rights, all or any of which may be greater
than the rights of Ordinary Shares, at such time and on such terms as they may think appropriate. Notwithstanding
Article 17, the Directors may issue from time to time, out of the authorised share capital of the Company
(other than the authorised but unissued Ordinary Shares), series of preferred shares in their absolute
discretion and without approval of the Members; provided, however, before any preferred shares of any
such series are issued, the Directors shall by resolution of Directors determine, with respect to any
series of preferred shares, the terms and rights of that series, including: |
| (a) | the designation of such series, the number
of preferred shares to constitute such series and the subscription price thereof if different
from the par value thereof; |
| (b) | whether the preferred shares of such series
shall have voting rights, in addition to any voting rights provided by law, 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, and the preference or relation
which such dividends shall bear to the dividends payable on any shares of any other class
or any other series of shares; |
| (d) | whether the preferred shares of such series
shall be subject to redemption by the Company, and, if so, the times, prices and other conditions
of such redemption; |
| (e) | whether the preferred shares of such series
shall have any rights to receive any part of the assets available for distribution amongst
the Members upon the liquidation of the Company, and, if so, the terms of such liquidation
preference, and the relation which such liquidation preference shall bear to the entitlements
of the holders of shares of any other class or any other series of shares; |
| (f) | whether the preferred 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 thereof; |
| (g) | whether the preferred shares of such series
shall be convertible into, or exchangeable for, shares of any other class or any other series
of preferred 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 preferred shares of 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 preferred 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 preferred shares; and |
| (j) | any other powers, preferences and relative,
participating, optional and other special rights, and any qualifications, limitations and
restrictions thereof; |
and, for such purposes, the Directors may reserve an appropriate
number of Shares for the time being unissued. The Company shall not issue Shares to bearer.
10. | The Company may insofar as may be permitted by law, pay a commission
to any Person in consideration of his subscribing or agreeing to subscribe whether absolutely or conditionally
for any Shares. Such commissions may be satisfied by the payment of cash or the lodgement of fully or
partly paid-up Shares or partly in one way and partly in the other. The Company may also pay such brokerage
as may be lawful on any issue of Shares. |
11. | The Directors may refuse to accept any application for Shares, and may
accept any application in whole or in part, for any reason or for no reason. |
ORDINARY SHARES AND PREFERRED SHARES
12. | Each Ordinary Share shall entitle the holder thereof to one (1) vote
on all matters subject to vote at general meetings of the Company, and each Preferred Share shall entitle
the holder thereof to two (2) votes on all matters subject to vote at general meetings of the Company. |
13. | Each Preferred Share is convertible into 1 Ordinary Share at any time
at the option of the holder thereof. The right to convert shall be exercisable by the holder of the
Preferred Share delivering a written notice to the Company that such holder elects to convert a specified
number of Preferred Share into Ordinary Shares. In no event shall Ordinary Shares be convertible into
Preferred Shares. |
14. | Upon any sale, transfer, assignment or disposition of any Preferred
Share by a Shareholder to any person who is not an Affiliate of such Shareholder, or upon a change of
control of any Preferred Share to any Person who is not an Affiliate of the registered shareholder of
such Share, such Preferred Share shall be automatically and immediately converted into one Ordinary
Share. For the avoidance of doubt, (i) a sale, transfer, assignment or disposition shall be effective
upon the Company’s registration of such sale, transfer, assignment or disposition in its Register;
and (ii) the creation of any pledge, charge, encumbrance or other third party right of whatever description
on any Preferred Share to secure a holder’s contractual or legal obligations shall not be deemed
as a sale, transfer, assignment or disposition unless and until any such pledge, charge, encumbrance
or other third party right is enforced and results in the third party holding legal title to the relevant
Preferred Shares, in which case all the related Preferred Shares shall be automatically converted into
the same number of Ordinary Shares. |
15. | Any conversion of Preferred Shares into Ordinary Shares pursuant to
these Articles shall be effected by means of the re-designation of each relevant Preferred Share as
an Ordinary Share. Such conversion shall become effective forthwith upon entries being made in the Register
to record the re-designation of the relevant Preferred Shares as Ordinary Shares. |
16. | Save and except for voting rights and conversion rights as set out in
Articles 12 to 15(inclusive), the Ordinary Shares and the Preferred Shares shall rank pari passu
with one another and shall have the same rights, preferences, privileges and restrictions. |
MODIFICATION OF RIGHTS
17. | Whenever the capital of the Company is divided into different Classes,
the rights attached to any such Class may, subject to any rights or restrictions for the time being
attached to any Class, only be materially adversely varied with the consent in writing of the holders
of all of the issued Shares of that Class or with the sanction of an Ordinary Resolution passed at a
separate meeting of the holders of the Shares of that Class. To every such separate meeting all the
provisions of these Articles relating to general meetings of the Company or to the proceedings thereat
shall, mutatis mutandis, apply, except that the necessary quorum shall be one or more Persons holding
or representing by proxy at least one-third in nominal or par value amount of the issued Shares of the
relevant Class (but so that if at any adjourned meeting of such holders a quorum as above defined is
not present, those Shareholders who are present shall form a quorum) and that, subject to any rights
or restrictions for the time being attached to the Shares of that Class, every Shareholder of the Class
shall on a poll have one vote for each Share of the Class held by him. For the purposes of this Article,
the Directors may treat all the Classes or any two or more Classes as forming one Class if they consider
that all such Classes would be affected in the same way by the proposals under consideration, but in
any other case shall treat them as separate Classes. |
18. | The rights conferred upon the holders of the Shares of any Class issued
with preferred or other rights shall not, subject to any rights or restrictions for the time being attached
to the Shares of that Class, be deemed to be materially adversely varied by, inter alia, the creation,
allotment or issue of further Shares ranking pari passu with or subsequent to them or the redemption
or purchase of any Shares of any Class by the Company. The rights of the holders of Shares shall not
be deemed to be materially adversely varied by the creation or issue of Shares with preferred or other
rights including, without limitation, the creation of Shares with enhanced or weighted voting rights. |
CERTIFICATES
19. | Every Person whose name is entered as a Member in the Register may,
without payment and upon its written request, request a certificate within two calendar months after
allotment or lodgement of transfer (or within such other period as the conditions of issue shall provide)
in the form determined by the Directors. All certificates shall specify the Share or Shares held by
that Person, provided that in respect of a Share or Shares held jointly by several persons, the Company
shall not be bound to issue more than one certificate, and delivery of a certificate for a Share to
one of several joint holders shall be sufficient delivery to all. All certificates for Shares shall
be delivered personally or sent through the post addressed to the Member entitled thereto at the Member’s
registered address as appearing in the Register. |
20. | Every share certificate of the Company shall bear legends required under
the applicable laws, including the Securities Act. |
21. | Any two or more certificates representing Shares of any one Class held
by any Member may at the Member’s request be cancelled and a single new certificate for such Shares
issued in lieu on payment (if the Directors shall so require) of one dollar (US$1.00) or such smaller
sum as the Directors shall determine. |
22. | If a share certificate shall be damaged or defaced or alleged to have
been lost, stolen or destroyed, a new certificate representing the same Shares may be issued to the
relevant Member upon request, subject to delivery up of the old certificate or (if alleged to have been
lost, stolen or destroyed) compliance with such conditions as to evidence and indemnity and the payment
of out-of-pocket expenses of the Company in connection with the request as the Directors may think fit. |
23. | In the event that Shares are held jointly by several persons, any request
may be made by any one of the joint holders and if so made shall be binding on all of the joint holders. |
FRACTIONAL SHARES
24. | The Directors may issue fractions of a Share and, if so issued, a fraction
of a Share shall be subject to and carry the corresponding fraction of liabilities (whether with respect
to nominal or par value, premium, contributions, calls or otherwise), limitations, preferences, privileges,
qualifications, restrictions, rights (including, without prejudice to the generality of the foregoing,
voting and participation rights) and other attributes of a whole Share. If more than one fraction of
a Share of the same Class is issued to or acquired by the same Shareholder such fractions shall be accumulated. |
LIEN
25. | The Company has a first and paramount lien on every Share (whether or
not fully paid) for all amounts (whether presently payable or not) payable at a fixed time or called
in respect of that Share. The Company also has a first and paramount lien on every Share registered
in the name of a Person indebted or under liability to the Company (whether he is the sole registered
holder of a Share or one of two or more joint holders) for all amounts owing by him or his estate to
the Company (whether or not presently payable). The Directors may at any time declare a Share to be
wholly or in part exempt from the provisions of this Article. The Company’s lien on a Share extends
to any amount payable in respect of it, including but not limited to dividends. |
26. | The Company may sell, in such manner as the Directors in their absolute
discretion think fit, any Share on which the Company has a lien, but no sale shall be made unless an
amount in respect of which the lien exists is presently payable nor until the expiration of fourteen
calendar days after a notice in writing, demanding payment of such part of the amount in respect of
which the lien exists as is presently payable, has been given to the registered holder for the time
being of the Share, or the Persons entitled thereto by reason of his death or bankruptcy. |
27. | For giving effect to any such sale, the Directors may authorise a Person
to transfer the Shares sold to the purchaser thereof. The purchaser shall be registered as the holder
of the Shares comprised in any such transfer and he shall not be bound to see to the application of
the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity
in the proceedings in reference to the sale. |
28. | The proceeds of the sale after deduction of expenses, fees and commission
incurred by the Company shall be received by the Company and applied in payment of such part of the
amount in respect of which the lien exists as is presently payable, and the residue shall (subject to
a like lien for sums not presently payable as existed upon the Shares prior to the sale) be paid to
the Person entitled to the Shares immediately prior to the sale. |
CALLS ON SHARES
29. | Subject to the terms of the allotment, the Directors may from time to
time make calls upon the Shareholders in respect of any moneys unpaid on their Shares, and each Shareholder
shall (subject to receiving at least fourteen calendar days’ notice specifying the time or times
of payment) pay to the Company at the time or times so specified the amount called on such Shares. A
call shall be deemed to have been made at the time when the resolution of the Directors authorising
such call was passed. |
30. | The joint holders of a Share shall be jointly and severally liable to pay calls in respect thereof. |
31. | If a sum called in respect of a Share is not paid before or on the day
appointed for payment thereof, the Person from whom the sum is due shall pay interest upon the sum at
the rate of eight percent per annum from the day appointed for the payment thereof to the time of the
actual payment, but the Directors shall be at liberty to waive payment of that interest wholly or in
part. |
32. | The provisions of these Articles as to the liability of joint holders
and as to payment of interest shall apply in the case of non-payment of any sum which, by the terms
of issue of a Share, becomes payable at a fixed time, whether on account of the amount of the Share,
or by way of premium, as if the same had become payable by virtue of a call duly made and notified. |
33. | The Directors may make arrangements with respect to the issue of partly
paid Shares for a difference between the Shareholders, or the particular Shares, in the amount of calls
to be paid and in the times of payment. |
34. | The Directors may, if they think fit, receive from any Shareholder willing
to advance the same all or any part of the moneys uncalled and unpaid upon any partly paid Shares held
by him, and upon all or any of the moneys so advanced may (until the same would, but for such advance,
become presently payable) pay interest at such rate (not exceeding without the sanction of an Ordinary
Resolution, eight percent per annum) as may be agreed upon between the Shareholder paying the sum in
advance and the Directors. No such sum paid in advance of calls shall entitle the Member paying such
sum to any portion of a dividend declared in respect of any period prior to the date upon which such
sum would, but for such payment, become presently payable. |
FORFEITURE OF SHARES
35. | If a Shareholder fails to pay any call or instalment of a call in respect
of partly paid Shares on the day appointed for payment, the Directors may, at any time thereafter during
such time as any part of such call or instalment remains unpaid, serve a notice on him requiring payment
of so much of the call or instalment as is unpaid, together with any interest which may have accrued. |
36. | The notice shall name a further day (not earlier than the expiration
of fourteen calendar days from the date of the notice) on or before which the payment required by the
notice is to be made, and shall state that in the event of non-payment at or before the time appointed,
the Shares in respect of which the call was made will be liable to be forfeited. |
37. | If the requirements of any such notice as aforesaid are not complied
with, any Share in respect of which the notice has been given may at any time thereafter, before the
payment required by notice has been made, be forfeited by a resolution of the Directors to that effect. |
38. | A forfeited Share may be sold or otherwise disposed of on such terms
and in such manner as the Directors think fit, and at any time before a sale or disposition the forfeiture
may be cancelled on such terms as the Directors think fit. |
39. | A Person whose Shares have been forfeited shall cease to be a Shareholder
in respect of the forfeited Shares, but shall, notwithstanding, remain liable to pay to the Company
all moneys which at the date of forfeiture were payable by him to the Company in respect of the Shares
forfeited, but his liability shall cease if and when the Company receives payment in full of the amount
unpaid on the Shares forfeited. |
40. | A certificate in writing under the hand of a Director that a Share has
been duly forfeited on a date stated in the certificate shall be conclusive evidence of the facts in
the declaration as against all Persons claiming to be entitled to the Share. |
41. | The Company may receive the consideration, if any, given for a Share
on any sale or disposition thereof pursuant to the provisions of these Articles as to forfeiture and
may execute a transfer of the Share in favour of the Person to whom the Share is sold or disposed of
and that Person shall be registered as the holder of the Share and shall not be bound to see to the
application of the purchase money, if any, nor shall his title to the Shares be affected by any irregularity
or invalidity in the proceedings in reference to the disposition or sale. |
42. | The provisions of these Articles as to forfeiture shall apply in the
case of non-payment of any sum which by the terms of issue of a Share becomes due and payable, whether
on account of the amount of the Share, or by way of premium, as if the same had been payable by virtue
of a call duly made and notified. |
TRANSFER OF SHARES
The instrument of transfer of any
Share shall be in writing and in any usual or common form or such other form as the Directors may, in their absolute discretion, approve
and be executed by or on behalf of the transferor and if in respect of a nil or partly paid up Share, or if so required by the Directors,
shall also be executed on behalf of the transferee and shall be accompanied by the certificate (if any) of the Shares to which it relates
and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer. The transferor
shall be deemed to remain a Shareholder until the name of the transferee is entered in the Register in respect of the relevant Shares.
43. | (a) | The Directors may in their absolute
discretion decline to register any transfer of Shares which is not fully paid up or on which
the Company has a lien. |
| (b) | The Directors may also decline to register
any transfer of any Share unless: |
| (i) | the instrument of transfer
is lodged with the Company, accompanied by the certificate for the Shares to which it relates
and such other evidence as the Board may reasonably require to show the right of the transferor
to make the transfer; |
| (ii) | the instrument of transfer is in respect of
only one Class of Shares; |
| (iii) | the instrument of transfer is properly stamped, if required; |
| (iv) | in the case of a transfer to joint holders,
the number of joint holders to whom the Share is to be transferred does not exceed four;
and |
| (v) | a fee of such maximum sum as the Designated
Stock Exchange may determine to be payable, or such lesser sum as the Board of Directors
may from time to time require, is paid to the Company in respect thereof. |
44. | The registration of transfers may, on ten calendar days’ notice
being given by advertisement in such one or more newspapers, by electronic means or by any other means
in accordance with the Designated Stock Exchange Rules, be suspended and the Register closed at such
times and for such periods as the Directors may, in their absolute discretion, from time to time determine,
provided always that such registration of transfer shall not be suspended nor the Register closed for
more than thirty calendar days in any calendar year. |
45. | All instruments of transfer that are registered shall be retained by
the Company. If the Directors refuse to register a transfer of any Shares, they shall within three calendar
months after the date on which the instrument of transfer was lodged with the Company send notice of
the refusal to each of the transferor and the transferee. |
TRANSMISSION OF SHARES
46. | The legal personal representative of a deceased sole holder of a Share
shall be the only Person recognised by the Company as having any title to the Share. In the case of
a Share registered in the name of two or more holders, the survivors or survivor, or the legal personal
representatives of the deceased survivor, shall be the only Person recognised by the Company as having
any title to the Share. |
47. | Any Person becoming entitled to a Share in consequence of the death
or bankruptcy of a Shareholder shall, upon such evidence being produced as may from time to time be
required by the Directors, have the right either to be registered as a Shareholder in respect of the
Share or, instead of being registered himself, to make such transfer of the Share as the deceased or
bankrupt Person could have made; but the Directors shall, in either case, have the same right to decline
or suspend registration as they would have had in the case of a transfer of the Share by the deceased
or bankrupt Person before the death or bankruptcy. |
48. | A Person becoming entitled to a Share by reason of the death or bankruptcy
of a Shareholder shall be entitled to the same dividends and other advantages to which he would be entitled
if he were the registered Shareholder, except that he shall not, before being registered as a Shareholder
in respect of the Share, be entitled in respect of it to exercise any right conferred by membership
in relation to meetings of the Company, provided however, that the Directors may at any time give notice
requiring any such person to elect either to be registered himself or to transfer the Share, and if
the notice is not complied with within ninety calendar days, the Directors may thereafter withhold payment
of all dividends, bonuses or other monies payable in respect of the Share until the requirements of
the notice have been complied with. |
REGISTRATION OF EMPOWERING INSTRUMENTS
49. | The Company shall be entitled to charge a fee not exceeding one dollar
(US$1.00) on the registration of every probate, letters of administration, certificate of death or marriage,
power of attorney, notice in lieu of distringas, or other instrument. |
ALTERATION OF SHARE CAPITAL
50. | The Company may from time to time by Ordinary Resolution increase the
share capital by such sum, to be divided into Shares of such Classes and amount, as the resolution shall
prescribe. |
51. | The Company may by Ordinary Resolution: |
| (a) | increase its share capital by new Shares of such amount as it thinks
expedient; |
| (b) | consolidate and divide all or any of its
share capital into Shares of a larger amount than its existing Shares; |
| (c) | subdivide its Shares, or any of them,
into Shares of an amount smaller than that fixed by the Memorandum, provided that in the
subdivision 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 |
| (d) | cancel any Shares that, at the date of
the passing of the 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. |
Unless the Board in its sole discretion
determines otherwise, all new Shares created in accordance with the provisions of the preceding Article shall be subject to the same
provisions of the Articles with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise as the Shares
in the original share capital. The Board may settle as they consider expedient any difficulty which arises in relation to any consolidation
and division under the preceding Article and in particular but without prejudice to the generality of the foregoing may issue certificates
in respect of fractions of shares or arrange for the sale of the shares representing fractions and the distribution of the net proceeds
of sale (after deduction of the expenses of such sale) in due proportion amongst the Members who would have been entitled to the fractions,
and for this purpose the Board may authorize some person to transfer the shares representing fractions to their purchaser or resolve
that such net proceeds be paid to the Company for the Company’s benefit. Such purchaser will not be bound to see to the application
of the purchase money nor will his title to the shares be affected by any irregularity or invalidity in the proceedings relating to the
sale.
52. | The Company may by Special Resolution reduce its share capital and any
capital redemption reserve in any manner authorised by law. |
REDEMPTION, PURCHASE AND SURRENDER OF SHARES
53. | Subject to the provisions of the Companies Act and these Articles, the Company may: |
| (a) | issue Shares that are to be redeemed or
are liable to be redeemed at the option of the Shareholder or the Company. The redemption
of Shares shall be effected in such manner and upon such terms as may be determined, before
the issue of such Shares, by either the Board or by the Shareholders by Special Resolution; |
| (b) | purchase its own Shares (including any
redeemable Shares) on such terms and in such manner and terms as have been approved by the
Board or by the Members by Ordinary Resolution, or are otherwise authorised by these Articles;
and |
| (c) | make a payment in respect of the redemption
or purchase of its own Shares in any manner permitted by the Companies Act,
including out of capital. |
54. | The purchase of any Share shall not oblige the Company to purchase any
other Share other than as may be required pursuant to applicable law and any other contractual obligations
of the Company. |
55. | The holder of the Shares being purchased shall be bound to deliver up
to the Company the certificate(s) (if any) thereof for cancellation and thereupon the Company shall
pay to him the purchase or redemption monies or consideration in respect thereof. |
56. | The Directors may accept the surrender for no consideration of any fully paid Share. |
TREASURY SHARES
57. | The Directors may, prior to the purchase, redemption or surrender of
any Share, determine that such Share shall be held as a Treasury Share. |
58. | The Directors may determine to cancel a Treasury Share or transfer a
Treasury Share on such terms as they think proper (including, without limitation, for nil consideration). |
In the event that the Directors do not specify that the
relevant Shares are to be held as Treasury Shares, such Shares shall be cancelled.
GENERAL MEETINGS
59. | All general meetings other than annual general meetings shall be called
extraordinary general meetings. |
60. |
(a) | The Company may (but shall not be obliged
to, unless as required by applicable law or Designated Stock Exchange Rules) in each calendar
year hold a general meeting as its annual general meeting and shall specify the meeting as
such in the notices calling it. The annual general meeting shall be held at such time and
place as may be determined by the Directors. |
| (b) | At
these meetings the report of the Directors (if any) shall be presented. |
61. | (a) | The
Chairman or a majority of the Directors may call general meetings, and they shall on a Shareholders’
requisition forthwith proceed to convene an extraordinary general meeting of the Company. |
| (b) | A
Shareholders’ requisition is a requisition of Members holding at the date of deposit
of the requisition Shares which carry in aggregate not less than one-third (1/3) of all votes
attaching to all issued and outstanding Shares of the Company that as at the date of the
deposit carry the right to vote at general meetings of the Company. |
| (c) | The
requisition must state the objects of the meeting and must be signed by the requisitionists
and deposited at the Registered Office, and may consist of several documents in like form
each signed by one or more requisitionists. |
| (d) | If
there are no Directors as at the date of the deposit of the Shareholders’ requisition,
or if the Directors do not within twenty-one (21) calendar days from the date of the deposit
of the requisition duly proceed to convene a general meeting to be held within a further
forty-five (45) calendar days, the requisitionists, or any of them representing more than
one-half of the total voting rights of all of them, may themselves convene a general meeting,
but any meeting so convened shall not be held after the expiration of two calendar months
after the expiration of the said forty-five (45) calendar days. |
| (e) | A general meeting convened as aforesaid
by requisitionists shall be convened in the same manner as nearly as possible as that in
which general meetings are to be convened by Directors. |
NOTICE OF GENERAL MEETINGS
62. | At least seven (7) calendar days’ notice shall be given for any
general meeting. Every notice shall be exclusive of the day on which it is given or deemed to be given
and of the day for which it is given and shall specify the place, the day and the hour of the meeting
and the general nature of the business and shall be given in the manner hereinafter mentioned or in
such other manner if any as may be prescribed by the Company, 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 the Shareholders (or their proxies) entitled to attend and vote thereat; and |
| (b) | in the case of an extraordinary general
meeting, by two-thirds (2/3rd) of the Shareholders having
a right to attend and vote at the meeting, present in person or by proxy or, in the case
of a corporation or other non-natural person, by its duly authorised representative or proxy. |
63. | The accidental omission to give notice of a meeting to or the non-receipt
of a notice of a meeting by any Shareholder shall not invalidate the proceedings at any meeting. |
PROCEEDINGS AT GENERAL MEETINGS
64. | No business except for the appointment of a chairman for the meeting
shall be transacted at any general meeting unless a quorum of Shareholders is present at the time when
the meeting proceeds to business. One or more Shareholders holding Shares which carry in aggregate (or
representing by proxy) not less than one-third of all votes attaching to all Shares in issue and entitled
to vote at such general meeting, present in person or by proxy or, if a corporation or other non-natural
person, by its duly authorized representative, shall be a quorum for all purposes. |
65. | If within half an hour from the time appointed for the meeting a quorum
is not present, the meeting shall be dissolved. |
66. | If the Directors wish to make this facility available for a specific
general meeting or all general meetings of the Company, participation in any general meeting of the
Company may be by means of a telephone or similar communication equipment by way of which all Persons
participating in such meeting can communicate with each other and such participation shall be deemed
to constitute presence in person at the meeting. |
67. | The Chairman, if any, of the Board of Directors shall preside as chairman
at every general meeting of the Company. |
68. | If there is no such Chairman of the Board of Directors, or if at any
general meeting he is not present within fifteen minutes after the time appointed for holding the meeting
or is unwilling to act as chairman of the meeting, any Director or Person nominated by the Directors
shall preside as chairman of that meeting, failing which the Shareholders present in person or by proxy
shall choose any Person present to be chairman of that meeting. |
69. | The chairman may with the consent of any general meeting at which a
quorum is present (and shall if so directed by the meeting) adjourn a meeting from time to time and
from place to place, but no business shall be transacted at any adjourned meeting other than the business
left unfinished at the meeting from which the adjournment took place. When a meeting, or adjourned meeting,
is adjourned for fourteen (14) calendar days or more, notice of the adjourned meeting shall be given
as in the case of an original meeting. Save as aforesaid it shall not be necessary to give any notice
of an adjournment or of the business to be transacted at an adjourned meeting. |
70. | The Directors may cancel or postpone any duly convened
general meeting at any time prior to such meeting, except for general meetings requisitioned
by the Shareholders in accordance with these Articles, for any reason or for no reason, upon
notice in writing to Shareholders. A postponement may be for a stated period of any length
or indefinitely as the Directors may determine. Notice of the business to be transacted at
such postponed general meeting shall not be required. If a general meeting is postponed in
accordance with this Article, the |
appointment of a proxy will be valid
if it is received as required by the Articles not less than 48 hours before the time appointed for holding the postponed meeting.
71. | At any general meeting a resolution put to the vote of the meeting shall
be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show
of hands) demanded by the chairman of the meeting or any Shareholder holding not less than ten per cent
(10%) of the votes attaching to the Shares present in person or by proxy, and unless a poll is so demanded,
a declaration by the chairman of the meeting that a resolution has, on a show of hands, been carried,
or carried unanimously, or by a particular majority, or lost, and an entry to that effect in the book
of the proceedings of the Company, shall be conclusive evidence of the fact, without proof of the number
or proportion of the votes recorded in favour of, or against, that resolution. |
72. | If a poll is duly demanded it shall be taken in such manner as the chairman
of the meeting directs, and the result of the poll shall be deemed to be the resolution of the meeting
at which the poll was demanded. |
73. | All questions submitted to a meeting shall be decided by an Ordinary
Resolution except where a greater majority is required by these Articles or by the Companies Act. In
the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting
at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second
or casting vote. |
74. | A poll demanded on the election of a chairman of the meeting or on a
question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken
at such time as the chairman of the meeting directs. |
VOTES OF SHAREHOLDERS
75. | Subject to any rights and restrictions for the time being attached to
any Share, on a show of hands every Shareholder present in person or by proxy (or, if a corporation
or other non- natural person, by its duly authorised representative or proxy) shall, at a general meeting
of the Company, each have one vote and on a poll every Shareholder present in person or by proxy (or,
if a corporation or other non-natural person, by its duly authorised representative or proxy) shall
have one (1) vote for each Ordinary Share and two (2) votes for each Preferred Share of which he is
the holder. |
76. | In the case of joint holders the vote of the senior who tenders a vote
whether in person or by proxy (or, if a corporation or other non-natural person, by its duly authorised
representative or proxy) shall be accepted to the exclusion of the votes of the other joint holders
and for this purpose seniority shall be determined by the order in which the names stand in the Register. |
77. | Shares carrying the right to vote that are held by a Shareholder of
unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy,
may be voted, whether on a show of hands or on a poll, by his committee, or other Person in the nature
of a committee appointed by that court, and any such committee or other Person may vote in respect of
such Shares by proxy. |
78. | No Shareholder shall be entitled to vote at any general meeting of the
Company unless all calls, if any, or other sums presently payable by him in respect of Shares carrying
the right to vote held by him have been paid. |
79. | On a poll votes may be given either personally or by proxy. |
80. | Each Shareholder, other than a recognised clearing house (or its nominee(s))
or depositary (or its nominee(s)), may only appoint one proxy on a show of hand. The instrument appointing
a proxy shall be in writing under the hand of the appointor or of his attorney duly authorised in writing
or, if the appointor is a corporation, either under Seal or under the hand of an officer or attorney
duly authorised. A proxy need not be a Shareholder. |
81. | An instrument appointing a proxy may be in any usual or common form
or such other form as the Directors may approve. |
82. | The instrument appointing a proxy shall be deposited at the Registered
Office or at such other place as is specified for that purpose in the notice convening the meeting,
or in any instrument of proxy sent out by the Company: |
| (a) | not less than 24 hours before the time
for holding the meeting or adjourned meeting at which the person named in the instrument
proposes to vote; or |
| (b) | in the case of a poll taken more than
48 hours after it is demanded, be deposited as aforesaid after the poll has been demanded
and not less than 12 hours before the time appointed for the taking of the poll; or |
| (c) | where the poll is not taken forthwith
but is taken not more than 48 hours after it was demanded be delivered at the meeting at
which the poll was demanded to the chairman or to the secretary or to any director; |
provided that the Directors may in
the notice convening the meeting, or in an instrument of proxy sent out by the Company, direct that the instrument appointing a proxy
may be deposited at such other time (no later than the time for holding the meeting or adjourned meeting) at the Registered Office or
at such other place as is specified for that purpose in the notice convening the meeting, or in any instrument of proxy sent out by the
Company. The Chairman may in any event at his discretion direct that an instrument of proxy shall be deemed to have been duly deposited.
An instrument of proxy that is not deposited in the manner permitted shall be invalid.
83. | The instrument appointing a proxy shall be deemed to confer authority
to demand or join in demanding a poll. |
84. | A resolution in writing signed by all the Shareholders for the time
being entitled to receive notice of and to attend and vote at general meetings of the Company (or being
corporations by their duly authorised representatives) shall be as valid and effective as if the same
had been passed at a general meeting of the Company duly convened and held. |
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
85. | Any corporation which is a Shareholder may by resolution of its directors
or other governing body authorise such Person as it thinks fit to act as its representative at any meeting
of the Company or of any meeting of holders of a Class, and the Person so authorised shall be entitled
to exercise the same powers on behalf of the corporation which he represents as that corporation could
exercise if it were an individual Shareholder. |
DEPOSITARY AND CLEARING HOUSES
86. | If a recognised clearing house (or its nominee(s)) or depositary (or
its nominee(s)) is a Member of the Company it may, by resolution of its directors or other governing
body or by power of attorney, authorise such Person(s) as it thinks fit to act as its representative(s)
at any general meeting of the Company or of any Class of Shareholders provided that, if more than one
Person is so authorised, the authorisation shall specify the number and Class of Shares in respect of
which each such Person is so authorised. A Person so authorised pursuant to this Article shall be entitled
to exercise the same powers on behalf of the recognised clearing house (or its nominee(s)) or depositary
(or its nominee(s)) which he represents as that recognised clearing house (or its nominee(s)) or depositary
(or its nominee(s)) could exercise if it were an individual Member holding the number and Class of Shares
specified in such authorisation, including the right to vote individually on a show of hands. |
DIRECTORS
87. | (a) Unless otherwise determined by the Company in general meeting, the
number of Directors shall not be less than three (3) Directors, the exact number of Directors to be
determined from time to time by the Board of Directors. |
| (b) | The Board of Directors shall have a Chairman
elected and appointed by a majority of the Directors then in office. The period for which
the Chairman will hold office will also be determined by a majority of all of the Directors
then in office. The Chairman shall preside as chairman at every meeting of the Board of Directors.
To the extent the Chairman is not present at a meeting of the Board of Directors within fifteen
minutes after the time appointed for holding the same, the attending Directors may choose
one of their number to be the chairman of the meeting. |
| (c) | The Company may by Ordinary Resolution appoint any person to be a
Director. |
| (d) | The Board may, by the affirmative vote
of a simple majority of the remaining Directors present and voting at a Board meeting, appoint
any person as a Director, to fill a vacancy on the Board arising from the office of any Director
being vacated in any of the circumstances described in Article 108, or as an addition to
the existing Board. |
| (e) | An appointment of a Director may be on
terms that the Director shall automatically retire from office (unless he has sooner vacated
office) at the next or a subsequent annual general meeting or upon any specified event or
after any specified period in a written agreement between the Company and the Director, if
any; but no such term shall be implied in the absence of express provision. Each Director
whose term of office expires shall be eligible for re-election at a meeting of the Shareholders
or re- appointment by the Board. |
88. | A Director may be removed from office by Ordinary Resolution of the
Company, notwithstanding anything in these Articles or in any agreement between the Company and such
Director (but without prejudice to any claim for damages under such agreement). A vacancy on the Board
created by the removal of a Director under the previous sentence may be filled by Ordinary Resolution
or by the affirmative vote of a simple majority of the remaining Directors present and voting at a Board
meeting. The notice of any meeting at which a resolution to remove a Director shall be proposed or voted
upon must contain a statement of the intention to remove that Director and such notice must be served
on that Director not less than ten (10) calendar days before the meeting. Such Director is entitled
to attend the meeting and be heard on the motion for his removal. |
89. | The Board may, from time to time, and except as required by applicable
law or Designated Stock Exchange Rules, adopt, institute, amend, modify or revoke the corporate governance
policies or initiatives of the Company and determine on various corporate governance related matters
of the Company as the Board shall determine by resolution of Directors from time to time. |
90. | A Director shall not be required to hold any Shares in the Company by
way of qualification. A Director who is not a Member of the Company shall nevertheless be entitled to
attend and speak at general meetings. |
91. | The remuneration of the Directors may be determined by the Directors
or by Ordinary Resolution. |
92. | The Directors shall be entitled to be paid for their travelling, hotel
and other expenses properly incurred by them in going to, attending and returning from meetings of the
Directors, or any committee of the Directors, or general meetings of the Company, or otherwise in connection
with the business of the Company, or to receive such fixed allowance in respect thereof as may be determined
by the Directors from time to time, or a combination partly of one such method and partly the other. |
ALTERNATE DIRECTOR OR PROXY
93. | A Director shall attend the Board meetings in person or by telephone
or similar communication equipment by way of which all Persons participating in such meeting can communicate
with each other. |
94. | Any Director may not appoint any Person, whether or not a Director,
to be the proxy of that Director to attend and vote on his behalf at any Board meetings. |
POWERS AND DUTIES OF DIRECTORS
95. | Subject to the Companies Act, these Articles and any resolutions passed
in a general meeting, the business of the Company shall be managed by the Directors, who may pay all
expenses incurred in setting up and registering the Company and may exercise all powers of the Company.
No resolution passed by the Company in general meeting shall invalidate any prior act of the Directors
that would have been valid if that resolution had not been passed. |
96. | Subject to these Articles, the Directors may from time to time appoint
any natural person, whether or not a Director to hold such office in the Company as the Directors may
think necessary for the administration of the Company, including but not limited to, chief executive
officer, one or more other executive officers, president, one or more vice-presidents, treasurer, assistant
treasurer, manager or controller, and for such term and at such remuneration (whether by way of salary
or commission or participation in profits or partly in one way and partly in another), and with such
powers and duties as the Directors may think fit. Any natural person so appointed by the Directors may
be removed by the Directors. The Directors may also appoint one or more of their number to the office
of managing director upon like terms, but any such appointment shall ipso facto terminate if any managing
director ceases for any cause to be a Director, or if the Company by Ordinary Resolution resolves that
his tenure of office be terminated. |
97. | The Directors may appoint any natural person to be a Secretary (and
if need be an assistant Secretary or assistant Secretaries) who shall hold office for such term, at
such remuneration and upon such conditions and with such powers as they think fit. Any Secretary or
assistant Secretary so appointed by the Directors may be removed by the Directors or by the Company
by Ordinary Resolution. |
98. | The Directors may delegate any of their powers to committees consisting
of such member or members of their body as they think fit; any committee so formed shall in the exercise
of the powers so delegated conform to any regulations that may be imposed on it by the Directors. |
99. | The Directors may from time to time and at any time by power of attorney
(whether under Seal or under hand) or otherwise appoint any company, firm or Person or body of Persons,
whether nominated directly or indirectly by the Directors, to be the attorney or attorneys or authorised
signatory (any such person being an “Attorney” or “Authorised Signatory”, respectively)
of the Company for such purposes and with such powers, authorities and discretion (not exceeding those
vested in or exercisable by the Directors under these Articles) and for such period and subject to such
conditions as they may think fit, and any such power of attorney or other appointment may contain such
provisions for the protection and convenience of Persons dealing with any such Attorney or Authorised
Signatory as the Directors may think fit, and may also authorise any such Attorney or Authorised Signatory
to delegate all or any of the powers, authorities and discretion vested in him. |
100. | The Directors may from time to time provide for the management of the
affairs of the Company in such manner as they shall think fit and the provisions contained in the three
next following Articles shall not limit the general powers conferred by this Article. |
101. | The Directors from time to time and at any time may establish any committees,
local boards or agencies for managing any of the affairs of the Company and may appoint any natural
person to be a member of such committees or local boards and may appoint any managers or agents of
the Company and may fix the remuneration of any such Person. |
102. | The Directors from time to time and at any time may delegate to any
such committee, local board, manager or agent any of the powers, authorities and discretions for the
time being vested in the Directors and may authorise the members for the time being of any such local
board, or any of them to fill any vacancies therein and to act notwithstanding vacancies and any such
appointment or delegation may be made on such terms and subject to such conditions as the Directors
may think fit and the Directors may at any time remove any natural person or corporation so appointed
and may annul or vary any such delegation, but no Person dealing in good faith and without notice of
any such annulment or variation shall be affected thereby. |
103. | Any such delegates as aforesaid may be authorised by the Directors
to sub-delegate all or any of the powers, authorities, and discretion for the time being vested in
them. |
BORROWING POWERS OF DIRECTORS
104. | The Directors may from time to time at their discretion exercise all
the powers of the Company to raise or borrow money and to mortgage or charge its undertaking, property
and assets (present and future) and uncalled capital or any part thereof, to issue debentures, debenture
stock, bonds and other securities, whether outright or as collateral security for any debt, liability
or obligation of the Company or of any third party. |
THE SEAL
105. | The Seal shall not be affixed to any instrument except by the authority
of a resolution of the Directors provided always that such authority may be given prior to or after
the affixing of the Seal and if given after may be in general form confirming a number of affixings
of the Seal. The Seal shall be affixed in the presence of a Director or a Secretary (or an assistant
Secretary) or in the presence of any one or more Persons as the Directors may appoint for the purpose
and every Person as aforesaid shall sign every instrument to which the Seal is so affixed in their
presence. |
106. | The Company may maintain a facsimile of the Seal in such countries
or places as the Directors may appoint and such facsimile Seal shall not be affixed to any instrument
except by the authority of a resolution of the Directors provided always that such authority may be
given prior to or after the affixing of such facsimile Seal and if given after may be in general form
confirming a number of affixings of such facsimile Seal. The facsimile Seal shall be affixed in the
presence of such Person or Persons as the Directors shall for this purpose appoint and such Person
or Persons as aforesaid shall sign every instrument to which the facsimile Seal is so affixed in their
presence and such affixing of the facsimile Seal and signing as aforesaid shall have the same meaning
and effect as if the Seal had been affixed in the presence of and the instrument signed by a Director
or a Secretary (or an assistant Secretary) or in the presence of any one or more Persons as the Directors
may appoint for the purpose. |
107. | Notwithstanding the foregoing, a Secretary or any assistant Secretary
shall have the authority to affix the Seal, or the facsimile Seal, to any instrument for the purposes
of attesting authenticity of the matter contained therein but which does not create any obligation
binding on the Company. |
DISQUALIFICATION OF DIRECTORS
108. | The office of Director shall be vacated, if the Director: |
| (a) | becomes bankrupt or makes any arrangement or composition with his
creditors; |
| (b) | dies or is found to be or becomes of unsound mind; |
| (c) | resigns his office by notice in writing to the Company; |
| (d) | without special leave of absence from
the Board, is absent from meetings of the Board for three consecutive meetings and the Board
resolves that his office be vacated; or |
| (e) | is removed from office pursuant to any other provision of these Articles. |
PROCEEDINGS OF DIRECTORS
109. | The Directors may meet together (either within or without the Cayman
Islands) for the despatch of business, adjourn, and otherwise regulate their meetings and proceedings
as they think fit. Questions arising at any meeting shall be decided by a majority of votes. At any
meeting of the Directors, each Director shall be entitled to one (1) vote. In case of an equality of
votes the Chairman shall have a second or casting vote. A Director may, and a Secretary or assistant
Secretary on the requisition of a Director shall, at any time summon a meeting of the Directors. |
110. | A Director may participate in any meeting of the Directors, or of any
committee appointed by the Directors of which such Director is a member, by means of telephone or similar
communication equipment by way of which all Persons participating in such meeting can communicate with
each other and such participation shall be deemed to constitute presence in person at the meeting. |
111. | The quorum necessary for the transaction of the business of the Board
may be fixed by the Directors, and unless so fixed, the quorum shall be a majority of Directors then
in office. A Director represented by proxy or by an alternate Director at any meeting shall be deemed
to be present for the purposes of determining whether or not a quorum is present. |
112. | A Director who is in any way, whether directly or indirectly, interested
in a contract or transaction or proposed contract or transaction with the Company shall declare the
nature of his interest at a meeting of the Directors. Subject to the Designated Stock Exchange Rules
and disqualification by the chairman of the relevant Board meeting, a Director may vote in respect
of any contract or transaction or proposed contract or transaction notwithstanding that he may be interested
therein and if he does so his vote shall be counted and he may be counted in the quorum at any meeting
of the Directors at which any such contract or transaction or proposed contract or transaction shall
come before the meeting for consideration, provided that: |
| (a) | such Director, if his interest (whether
direct or indirect) in such contract or arrangement is material, has declared the nature
of his interest at the earliest meeting of the Board at which it is practicable for him to
do so, either specifically or by way of a general notice. A general notice given to the Directors
by any Director to the effect that he is a member of any specified company or firm and is
to be regarded as interested in any contract or transaction which may thereafter be made
with that company or firm shall be deemed a sufficient declaration of interest in regard
to any contract so made or transaction so consummated; and |
| (b) | if such contract of arrangement is a transaction
with a related party, such transaction has been approved by the audit committee of the Company. |
113. | A Director may hold any other office or place of profit under the Company
(other than the office of auditor) in conjunction with his office of Director for such period and on
such terms (as to remuneration and otherwise) as the Directors may determine and no Director or intending
Director shall be disqualified by his office from contracting with the Company either with regard to
his tenure of any such other office or place of profit or as vendor, purchaser or otherwise, nor shall
any such contract or arrangement entered into by or on behalf of the Company in which any Director
is in any way interested be liable to be avoided, nor shall any Director so contracting or being so
interested be liable to account to the Company for any profit realised by any such contract or arrangement
by reason of such Director holding that office or of the fiduciary relation thereby established. A
Director, notwithstanding his interest, may be counted in the quorum present at any meeting of the
Directors whereat he or any other Director is appointed to hold any such office or place of profit
under the Company or whereat the terms of any such appointment are arranged and he may vote on any
such appointment or arrangement. |
114. | Subject to the Designated Stock Exchange Rules, any Director may act
by himself or through his firm in a professional capacity for the Company, and he or his firm shall
be entitled to remuneration for professional services as if he were not a Director; provided that nothing
herein contained shall authorise a Director or his firm to act as auditor to the Company. |
115. | The Directors shall cause minutes to be made for the purpose of recording: |
| (a) | all appointments of officers made by the Directors; |
| (b) | the names of the Directors present at
each meeting of the Directors and of any committee of the Directors; and |
| (c) | all resolutions and proceedings at all meetings of the Company, and
of the Directors and of committees of Directors. |
116. | When the chairman of a meeting of the Directors signs the minutes of
such meeting the same shall be deemed to have been duly held notwithstanding that all the Directors
have not actually come together or that there may have been a technical defect in the proceedings. |
117. | A resolution in writing signed by all the Directors or all the members
of a committee of Directors entitled to receive notice of a meeting of Directors or committee of Directors,
as the case may be , shall be as valid and effectual as if it had been passed at a duly called and
constituted meeting of Directors or committee of Directors, as the case may be. When signed a resolution
may consist of several documents each signed by one or more of the Directors. |
118. | The continuing Directors may act notwithstanding any vacancy in their
body but if and for so long as their number is reduced below the number fixed by or pursuant to these
Articles as the necessary quorum of Directors, the continuing Directors may act for the purpose of
increasing the number, or of summoning a general meeting of the Company, but for no other purpose. |
119. | Subject to any regulations imposed on it by the Directors, a committee
appointed by the Directors may elect a chairman of its meetings. If no such chairman is elected, or
if at any meeting the chairman is not present within fifteen minutes after the time appointed for holding
the meeting, the committee members present may choose one of their members to be chairman of the meeting. |
120. | A committee appointed by the Directors may meet and adjourn as it thinks
proper. Subject to any regulations imposed on it by the Directors, questions arising at any meeting
shall be determined by a majority of votes of the committee members present and in case of an equality
of votes the chairman shall have a second or casting vote. |
121. | All acts done by any meeting of the Directors or of a committee of
Directors shall notwithstanding that it be afterwards discovered that there was some defect in the
appointment of any such Director acting as aforesaid, or that they or any of them were disqualified,
be as valid as if every such Person had been duly appointed and was qualified to be a Director. |
PRESUMPTION OF ASSENT
122. | A Director who is present at a meeting of the Board of Directors at
which an action on any Company matter is taken shall be presumed to have assented to the action taken
unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written
dissent from such action with the person acting as the chairman or secretary of the meeting before
the adjournment thereof or shall forward such dissent by registered post to such person immediately
after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted
in favour of such action. |
DIVIDENDS
123. | Subject to any rights and restrictions for the time being attached
to any Shares, the Directors may from time to time declare dividends (including interim dividends)
and other distributions on Shares in issue and authorise payment of the same out of the funds of the
Company lawfully available therefor. |
124. | Subject to any rights and restrictions for the time being attached
to any Shares, the Company by Ordinary Resolution may declare dividends, but no dividend shall exceed
the amount recommended by the Directors. |
125. | The Directors may, before recommending or declaring any dividend, set
aside out of the funds legally available for distribution such sums as they think proper as a reserve
or reserves which shall, in the absolute discretion of the Directors, be applicable for meeting contingencies
or for equalising dividends or for any other purpose to which those funds may be properly applied,
and pending such application may in the absolute discretion of the Directors, either be employed in
the business of the Company or be invested in such investments (other than Shares of the Company) as
the Directors may from time to time think fit. |
126. | Any dividend payable in cash to the holder of Shares may be paid in
any manner determined by the Directors. If paid by cheque it will be sent by mail addressed to the
holder at his address in the Register, or addressed to such person and at such addresses as the holder
may direct. Every such cheque or warrant shall, unless the holder or joint holders otherwise direct,
be made payable to the order of the holder or, in the case of joint holders, to the order of the holder
whose name stands first on the Register in respect of such Shares, and shall be sent at his or their
risk and payment of the cheque or warrant by the bank on which it is drawn shall constitute a good
discharge to the Company. |
127. | The Directors may determine that a dividend shall be paid wholly or
partly by the distribution of specific assets (which may consist of the shares or securities of any
other company) and may settle all questions concerning such distribution. Without limiting the generality
of the foregoing, the Directors may fix the value of such specific assets, may determine that cash
payment shall be made to some Shareholders in lieu of specific assets and may vest any such specific
assets in trustees on such terms as the Directors think fit. |
128. | Subject to any rights and restrictions for the time being attached
to any Shares, all dividends shall be declared and paid according to the par value of the Shares. No
amount paid on a Share in advance of calls shall, while carrying interest, be treated for the purposes
of this Article as paid on the Share. |
129. | If several Persons are registered as joint holders of any Share, any
of them may give effective receipts for any dividend or other moneys payable on or in respect of the
Share. |
130. | No dividend shall bear interest against the Company. |
131. | Any dividend unclaimed after a period of six calendar years from the
date of declaration of such dividend may be forfeited by the Board of Directors and, if so forfeited,
shall revert to the Company. |
ACCOUNTS, AUDIT AND ANNUAL RETURN AND DECLARATION
132. | The books of account relating to the Company’s affairs shall
be kept in such manner as may be determined from time to time by the Directors. |
133. | The books of account shall be kept at the Registered Office, or at
such other place or places as the Directors think fit, and shall always be open to the inspection of
the Directors. |
134. | The Directors may from time to time determine whether and to what extent
and at what times and places and under what conditions or regulations the accounts and books of the
Company or any of them shall be open to the inspection of Shareholders not being Directors, and no
Shareholder (not being a Director) shall have any right to inspect any account or book or document
of the Company except as conferred by law or authorised by the Directors or by Ordinary Resolution. |
135. | The accounts relating to the Company’s affairs shall be audited
in such manner and with such financial year end as may be determined from time to time by the Directors
or failing any determination as aforesaid shall not be audited. |
136. | The Directors or audit committee of the Board may appoint an auditor
of the Company who shall hold office until removed from office by a resolution of the Directors and
may fix his or their remuneration. |
137. | 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 auditors. |
138. | The 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, and at any time during their term of office, upon request of the Directors or any
general meeting of the Members. |
139. | The Directors in each calendar year shall prepare, or cause to be prepared,
an annual return and declaration setting forth the particulars required by the Companies Act and deliver
a copy thereof to the Registrar of Companies in the Cayman Islands. |
CAPITALISATION OF RESERVES
140. | Subject to the Companies Act, the Directors may: |
| (a) | resolve to capitalise an amount standing
to the credit of reserves (including a Share Premium Account, capital redemption reserve
and profit and loss account), which is available for distribution; |
| (b) | appropriate the sum resolved to be capitalised
to the Shareholders in proportion to the nominal amount of Shares (whether or not fully paid)
held by them respectively and apply that sum on their behalf in or towards: |
| (i) | paying up the amounts (if any) for the time being unpaid on Shares held
by them respectively, or |
| (ii) | paying up in full unissued Shares or debentures of a nominal amount
equal to that sum, |
and allot the Shares or debentures,
credited as fully paid, to the Shareholders (or as they may direct) in those proportions, or partly in one way and partly in the other,
but the Share Premium Account, the capital redemption reserve and profits which are not available for distribution may, for the purposes
of this Article, only be applied in paying up unissued Shares to be allotted to Shareholders credited as fully paid;
| (c) | make any arrangements they think fit to
resolve a difficulty arising in the distribution of a capitalised reserve and in particular,
without limitation, where Shares or debentures become distributable in fractions the Directors
may deal with the fractions as they think fit; |
| (d) | authorise a Person to enter (on behalf
of all the Shareholders concerned) into an agreement with the Company providing for either: |
| (i) | the allotment to the Shareholders respectively,
credited as fully paid, of Shares or debentures to which they may be entitled on the capitalisation,
or |
| (ii) | the payment by the Company on behalf of
the Shareholders (by the application of their respective proportions of the reserves resolved
to be capitalised) of the amounts or part of the amounts remaining unpaid on their existing
Shares, |
and any such agreement made under this authority being
effective and binding on all those Shareholders; and
| (e) | generally do all acts and things required to give effect to the resolution. |
141. | Notwithstanding any provisions in these Articles, the Directors may
resolve to capitalise an amount standing to the credit of reserves (including the share premium account,
capital redemption reserve and profit and loss account) or otherwise available for distribution by
applying such sum in paying up in full unissued Shares to be allotted and issued to: |
| (a) | employees (including Directors) or service
providers of the Company or its Affiliates upon exercise or vesting of any options or awards
granted under any share incentive scheme or employee benefit scheme or other arrangement
which relates to such persons that has been adopted or approved by the Directors or the Members;
and |
| (b) | any trustee of any trust or administrator
of any share incentive scheme or employee benefit scheme to whom shares are to be allotted
and issued by the Company in connection with the operation of any share incentive scheme
or employee benefit scheme or other arrangement which relates to such persons that has been
adopted or approved by the Directors or Members. |
SHARE PREMIUM ACCOUNT
142. | The Directors shall in accordance with the Companies Act establish
a Share Premium Account and shall carry to the credit of such account from time to time a sum equal
to the amount or value of the premium paid on the issue of any Share. |
143. | There shall be debited to any Share Premium Account on the redemption
or purchase of a Share the difference between the nominal value of such Share and the redemption or
purchase price provided always that at the discretion of the Directors such sum may be paid out of
the profits of the Company or, if permitted by the Companies Act, out of capital. |
NOTICES
144. | Except as otherwise provided in these Articles, any notice or document
may be served by the Company or by the Person entitled to give notice to any Shareholder either personally,
or by posting it by airmail or a recognised courier service in a prepaid letter addressed to such Shareholder
at his address as appearing in the Register, or by electronic mail to any electronic mail address such
Shareholder may have specified in writing for the purpose of such service of notices, or by facsimile
to any facsimile number such Shareholder may have specified in writing for the purpose of such service
of notices, or by placing it on the Company’s Website should the Directors deem it appropriate.
In the case of joint holders of a Share, all notices shall be given to that one of the joint holders
whose name stands first in the Register in respect of the joint holding, and notice so given shall
be sufficient notice to all the joint holders. |
145. | Notices sent from one country to another shall be sent or forwarded
by prepaid airmail or a recognized courier service. |
146. | Any Shareholder present, either personally or by proxy, at any meeting
of the Company shall for all purposes be deemed to have received due notice of such meeting and, where
requisite, of the purposes for which such meeting was convened. |
147. | Any notice or other document, if served by: |
| (a) | post, shall be deemed to have been served
five calendar days after the time when the letter containing the same is posted; |
| (b) | facsimile, shall be deemed to have been
served upon production by the transmitting facsimile machine of a report confirming transmission
of the facsimile in full to the facsimile number of the recipient; |
| (c) | recognized courier service, shall be deemed
to have been served 48 hours after the time when the letter containing the same is delivered
to the courier service; or |
| (d) | electronic mail, shall be deemed to have
been served immediately upon the time of the transmission to the electronic mail address
supplied by the Shareholder to the Company; or |
| (e) | placing it on the Company’s Website,
shall be deemed to have been served immediately upon the time of its placement on the Company’s
Website. |
In proving service by post or courier
service it shall be sufficient to prove that the letter containing the notice or documents was properly addressed and duly posted or
delivered to the courier service.
148. | Any notice or document delivered or sent by post to or left at the
registered address of any Shareholder in accordance with the terms of these Articles shall notwithstanding
that such Shareholder be then dead or bankrupt, and whether or not the Company has notice of his death
or bankruptcy, be deemed to have been duly served in respect of any Share registered in the name of
such Shareholder as sole or joint holder, unless his name shall at the time of the service of the notice
or document have been removed from the Register as the holder of the Share, and such service shall
for all purposes be deemed a sufficient service of such notice or document on all Persons interested
(whether jointly with or as claiming through or under him) in the Share. |
149. | Notice of every general meeting of the Company shall be given to: |
| (a) | all Shareholders holding Shares with the
right to receive notice and who have supplied to the Company an address for the giving of
notices to them; and |
| (b) | every Person entitled to a Share in consequence
of the death or bankruptcy of a Shareholder, who but for his death or bankruptcy would be
entitled to receive notice of the meeting. |
No other Person shall be entitled
to receive notices of general meetings.
INFORMATION
150. | No Member shall be entitled to require discovery of any information
in respect of any detail of the Company’s trading or any information which is or may be in the
nature of a trade secret or secret process which may relate to the conduct of the business of the Company
and which in the opinion of the Board would not be in the interests of the Members of the Company to
communicate to the public. |
151. | The Board shall be entitled to release or disclose any information
in its possession, custody or control regarding the Company or its affairs to any of its Members including,
without limitation, information contained in the Register and transfer books of the Company. |
INDEMNITY
152. | Every Director, Secretary, assistant Secretary, or other officer for
the time being and from time to time of the Company (but not including the Company’s auditors)
and the personal representatives of the same (each an “Indemnified Person”) shall be indemnified
and secured harmless against all actions, proceedings, costs, charges, expenses, losses, damages or
liabilities incurred or sustained by such Indemnified Person, other than by reason of such Indemnified
Person’s own dishonesty, willful default or fraud, in or about the conduct of the Company’s
business or affairs (including as a result of any mistake of judgment) or in the execution or discharge
of his duties, powers, authorities or discretions, including without prejudice to the generality of
the foregoing, any costs, expenses, losses or liabilities incurred by such Indemnified Person in defending
(whether successfully or otherwise) any civil proceedings concerning the Company or its affairs in
any court whether in the Cayman Islands or elsewhere. |
153. | No Indemnified Person shall be liable: |
| (a) | for the acts, receipts, neglects, defaults
or omissions of any other Director or officer or agent of the Company; or |
| (b) | for any loss on account of defect of title to any property of the
Company; or |
| (c) | on account of the insufficiency of any
security in or upon which any money of the Company shall be invested; or |
| (d) | for any loss incurred through any bank, broker or other similar Person;
or |
| (e) | for any loss occasioned by any negligence,
default, breach of duty, breach of trust, error of judgement or oversight on such Indemnified
Person’s part; or |
| (f) | for any loss, damage or misfortune whatsoever
which may happen in or arise from the execution or discharge of the duties, powers, authorities,
or discretions of such Indemnified Person’s office or in relation thereto; |
unless the same shall happen through such Indemnified
Person’s own dishonesty, willful default or fraud.
FINANCIAL YEAR
154. | Unless the Directors otherwise prescribe, the financial year of the
Company shall end on December 31st in each calendar year and shall begin on January 1st in each calendar
year. |
NON-RECOGNITION OF TRUSTS
155. | No Person shall be recognised by the Company as holding any Share upon
any trust and the Company shall not, unless required by law, be bound by or be compelled in any way
to recognise (even when having notice thereof) any equitable, contingent, future or partial interest
in any Share or (except only as otherwise provided by these Articles or as the Companies Act requires)
any other right in respect of any Share except an absolute right to the entirety thereof in each Shareholder
registered in the Register. |
WINDING UP
156. | If the Company shall be wound up the liquidator may, with the sanction
of a Special Resolution of the Company and any other sanction required by the Companies Act, divide
amongst the Members in species or in kind the whole or any part of the assets of the Company (whether
they shall consist of property of the same kind or not) and may for that purpose value any assets and
determine how the division shall be carried out as between the Members or different classes of Members.
The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon
such trusts for the benefit of the Members as the liquidator, with the like sanction, shall think fit,
but so that no Member shall be compelled to accept any asset upon which there is a liability. |
157. | If the Company shall be wound up, and the assets available for distribution
amongst the Members shall be insufficient to repay the whole of the share capital, such assets shall
be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion
to the par value of the Shares held by them. If in a winding up the assets available for distribution
amongst the Members shall be more than sufficient to repay the whole of the share capital at the commencement
of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value
of the Shares held by them at the commencement of the winding up subject to a deduction from those
Shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls
or otherwise. This Article is without prejudice to the rights of the holders of Shares issued upon
special terms and conditions. |
AMENDMENT OF ARTICLES OF ASSOCIATION
158. | Subject to the Companies Act, the Company may at any time and from
time to time by Special Resolution alter or amend these Articles in whole or in part. |
CLOSING OF REGISTER OR FIXING RECORD DATE
159. | For the purpose of determining those Shareholders that are entitled
to receive notice of, attend or vote at any meeting of Shareholders or any adjournment thereof, or
those Shareholders that are entitled to receive payment of any dividend, or in order to make a determination
as to who is a Shareholder for any other purpose, the Directors may provide that the Register shall
be closed for transfers for a stated period which shall not exceed in any case thirty calendar days
in any calendar year. |
160. | In lieu of or apart from closing the Register, the Directors may fix
in advance a date as the record date for any such determination of those Shareholders that are entitled
to receive notice of, attend or vote at a meeting of the Shareholders and for the purpose of determining
those Shareholders that are entitled to receive payment of any dividend the Directors may, at or within
ninety (90) calendar days prior to the date of declaration of such dividend, fix a subsequent date
as the record date for such determination. |
161. | If the Register is not so closed and no record date is fixed for the
determination of those Shareholders entitled to receive notice of, attend or vote at a meeting of Shareholders
or those Shareholders that are entitled to receive payment of a dividend, the date on which the resolution
of the Directors declaring such dividend is adopted shall be the record date for such determination
of Shareholders. When a determination of those Shareholders that are entitled to receive notice of,
attend or vote at a meeting of Shareholders has been made as provided in this Article, such determination
shall apply to any adjournment thereof. |
REGISTRATION BY WAY OF CONTINUATION
162. | The Company may by Special Resolution resolve to be registered by way
of continuation in a jurisdiction outside the Cayman Islands or such other jurisdiction in which it
is for the time being incorporated, registered or existing. In furtherance of a resolution adopted
pursuant to this Article, the Directors may cause an application to be made to the Registrar of Companies
to deregister the Company in the Cayman Islands or such other jurisdiction in which it is for the time
being incorporated, registered or existing and may cause all such further steps as they consider appropriate
to be taken to effect the transfer by way of continuation of the Company. |
MERGERS AND CONSOLIDATIONS
163. | The Company shall have the power to merge or consolidate with one or
more other constituent companies (as defined in the Companies Act) upon such terms as the Directors
may determine and (to the extent required by the Companies Act) with the approval of a Special Resolution. |
DISCLOSURE
164. | The Directors, or any service providers (including the officers, the
Secretary and the registered office agent of the Company) specifically authorised by the Directors,
shall be entitled to disclose to any regulatory or judicial authority or to any stock exchange on which
securities of the Company may from time to time be listed any information regarding the affairs of
the Company including without limitation information contained in the Register and books of the Company. |
A-32
Exhibit 99.2
![](https://www.sec.gov/Archives/edgar/data/1805594/000121390023077045/ex99-2_001.jpg)
![](https://www.sec.gov/Archives/edgar/data/1805594/000121390023077045/ex99-2_002.jpg)
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