Form 8-K
8-K — OFA Group
Accession: 0001493152-26-046519
Filed: 2026-10-09
Period: 2026-10-05
CIK: 0002036307
SIC: 8711 (SERVICES-ENGINEERING SERVICES)
Item: Submission of Matters to a Vote of Security Holders
Item: Financial Statements and Exhibits
Documents
8-K — form8-k.htm (Primary)
EX-3.1 (ex3-1.htm)
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8-K
8-K (Primary)
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0002036307
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2026-10-05
2026-10-05
iso4217:USD
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xbrli:shares
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported): October 5, 2026
OFA
GROUP
(Exact
name of registrant as specified in its charter)
Cayman
Islands
001-42592
98-1824417
(State
or other jurisdiction
of
incorporation)
(Commission
File
Number)
(I.R.S.
Employer
Identification
No.)
609 Deep Valley Drive, Suite 200 Rolling Hills, CA
92074
(Address
of principal executive offices)
(Zip
Code)
Registrant’s
telephone number, including area code: (800) 418-5160
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under
any of the following provisions (see General Instruction A.2. below):
☐
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
Trading
Symbol(s)
Name
of each exchange on which registered
Class
A Ordinary Shares, $0.001 par value per share
OFAL
The
Nasdaq Capital Market LLC
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
5.07 Submission of Matters to a Vote of Security Holders
On
October 5, 2026, OFA Group (the “Company”) held an annual meeting of shareholders (the “Meeting”). As of September
17, 2026, the record date of the Meeting, there were 6,453,481 Class A ordinary shares of the Company issued and outstanding, each entitling
its holder to one vote, and 20,000,000 Class B ordinary shares of the Company issued and outstanding, each entitling its holder to 25
votes. At the Meeting, the Company’s shareholders approved the following nine proposals:
1.
To
approve, as ordinary resolutions, the re-election of each of Larry Wong, Keith Chong, John Chiang, Andrew Scott, Erwin Baquiran Pineda,
and Yan Xu to serve as a director on the Company’s board of directors (the “Board”) for a term that expires at
the next annual general meeting of the Company (being the 2027 annual meeting of shareholders).
Nominee
Votes
For
Votes
Against
Abstentions
Broker
Non-Votes
Larry
Wong
501,075,333
13,697
10,325
N/A
Keith
Chong
501,075,333
13,697
10,325
N/A
John
Chiang
501,075,233
13,797
10,325
N/A
Andrew
Scott
501,075,363
13,647
10,345
N/A
Yan
Xu
501,075,333
13,697
10,325
N/A
Erwin
Baquiran Pineda
501,075,233
13,697
10,425
N/A
2.
To
approve and ratify, as an ordinary resolution, the appointment of M&K CPAS, PLLC as the Company’s independent registered
public accounting firm for the fiscal year ending March 31, 2027.
Votes
For
Votes
Against
Abstentions
Broker
Non-Votes
501,084,089
11,586
3,680
N/A
3.
To
approve and ratify, as a special resolution, the form of Third Amended and Restated Memorandum and Articles of Association filed
with the Registrar of Companies of the Cayman Islands as the memorandum and articles of association of the Company in connection
with the 10-for-1 consolidation of the Company’s Class A ordinary shares approved by the Company’s shareholders at the
extraordinary general meeting held on May 21, 2026.
Votes
For
Votes
Against
Abstentions
Broker
Non-Votes
501,071,204
28,051
100
n/a
4.
To
approve, as an ordinary resolution, a proposal to immediately effect a share consolidation of all of the Company’s authorized
but undesignated and unissued shares of a par value of US$0.001 each, of such class or classes (however designated) as the board
of directors may determine in accordance with Article 2 of the Articles of Association of the Company at a ratio of 10-for-1 (the
“Undesignated Shares Consolidation”).
Votes
For
Votes
Against
Abstentions
Broker
Non-Votes
501,071,038
26,717
1,600
N/A
5.
To
approve, as an ordinary resolution, subject to and immediately following the Undesignated Share Consolidation being effected, a proposal
authorizing an increase of the authorized share capital of the Company (the “Authorized Share Capital Increase”).
Votes
For
Votes
Against
Abstentions
Broker
Non-Votes
501,061,273
36,482
1,600
N/A
6.
To
approve, as a special resolution, subject to and immediately following the Authorized Share Capital Increase being effected, the
adoption by the Company of amended and restated memorandum and articles of association (the “Fourth M&AA”) to reflect
the Undesignated Share Consolidation and the Authorized Share Capital Increase.
Votes
For
Votes
Against
Abstentions
Broker
Non-Votes
501,061,271
36,484
1,600
N/A
7.
To
approve, as an ordinary resolution, subject to the approval of the Undesignated Share Consolidation and the Authorized Share Capital,
a proposal to allow the Board to effect one or more share consolidations of the Company’s authorized, issued and outstanding
Class A ordinary shares of a par value of US$0.01 each, and the Company’s authorized but undesignated and unissued shares of
a par value of US$0.01 each, at any one time or multiple times during the period between the date of the Annual Meeting and the date
of the Company’s next annual general meeting, at the exact consolidation ratio and effective time as the Board may determine
in its sole discretion, provided always that the accumulated consolidation ratio for all such share consolidation(s) (together, “Share
Consolidations”, and each a “Share Consolidation”) shall not be less than 2-for-1 nor greater than 25-for-1, and
to authorize the Board to implement each Share Consolidation at its discretion.
Votes
For
Votes
Against
Abstentions
Broker
Non-Votes
501,061,271
36,484
1,600
N/A
8.
To
approve, as a special resolution, the adoption of amended and restated memorandum and articles of association to reflect the Share
Consolidation(s).
Votes
For
Votes
Against
Abstentions
Broker
Non-Votes
501,061,271
36,484
1,600
N/A
9.
To
approve, as an ordinary resolution, that in accordance with Nasdaq Listing Rule 5635(d), the issuance of Class A ordinary shares
pursuant to the purchase agreement, dated July 14, 2025, (the “ELOC Purchase Agreement”) with Atsion Opportunity Fund
LLC – Series 1 (“Atsion”), which provides that, upon the terms and subject to the conditions and limitations set
forth therein, the Company has the right, but not the obligation, to sell to Atsion up to $100,000,000 of its Class A ordinary shares
from time to time over the 36-month term of the ELOC Purchase Agreement.
Votes
For
Votes
Against
Abstentions
Broker
Non-Votes
501,062,966
34,789
1,600
N/A
Following
the approval of Proposal 6, the Fourth M&AA became effective on the date of the Meeting. A copy of the Fourth M&AA to be filed
with the Registrar of Companies in the Cayman Islands is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
Description
3.1
Fourth Amended and Restated Memorandum and Articles of Association
104
Cover
Page Interactive Data File (embedded within the Inline XBRL document).
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 hereunto duly authorized.
Date:
October 9, 2026
OFA
Group
By:
/s/
Li Hsien Wong
Name:
Li
Hsien Wong
Title:
Chief
Executive Officer
EX-3.1
EX-3.1
Filename: ex3-1.htm · Sequence: 2
Exhibit
3.1
Companies
Act (Revised)
Company
Limited by Shares
fourth
amended and restated
memorandum
of association
OF
OFA
Group
(Adopted
by special resolution passed on 5 October 2026 and effective from 5 October 2026)
Companies
Act (Revised)
Company
Limited by Shares
Fourth
Amended and Restated
Memorandum
of Association
Of
OFA
Group
(Adopted
by special resolution passed on 5 October 2026 and effective from 5 October 2026)
1 The
name of the Company is OFA Group.
2 The
Company’s registered office will be situated at the office of Ogier Global (Cayman)
Limited, 89 Nexus Way, Camana Bay, Grand Cayman, KY1-9009, Cayman Islands or at such other
place in the Cayman Islands as the directors may at any time decide.
3 The
Company’s objects are unrestricted. As provided by section 7(4) of the Companies Act
(Revised), the Company has full power and authority to carry out any object not prohibited
by any law of the Cayman Islands.
4 The
Company has unrestricted corporate capacity. Without limitation to the foregoing, as provided
by section 27 (2) of the Companies Act (Revised), the Company has and is capable of exercising
all the functions of a natural person of full capacity irrespective of any question of corporate
benefit.
5 Nothing
in any of the preceding paragraphs permits the Company to carry on any of the following businesses
without being duly licensed, namely:
(a) the
business of a bank or trust company without being licensed in that behalf under the Banks
and Trust Companies Act (Revised); or
(b) insurance
business from within the Cayman Islands or the business of an insurance manager, agent, sub-agent
or broker without being licensed in that behalf under the Insurance Act (Revised);or
(c) the
business of company management without being licensed in that behalf under the Companies
Management Act (Revised).
6 Unless
licensed to do so, the Company will not trade in the Cayman Islands with any person, firm
or corporation except in furtherance of its business carried on outside the Cayman Islands.
Despite this, the Company may effect and conclude contracts in the Cayman Islands and exercise
in the Cayman Islands any of its powers necessary for the carrying on of its business outside
the Cayman Islands.
7 The
Company is a company limited by shares and accordingly the liability of each member is limited
to the amount (if any) unpaid on that member’s shares.
8 The
authorised share capital of the Company is US$22,520,000 divided into:
(a) 250,000,000
Class A Ordinary Shares of a par value of US$0.01 each,
(b) 20,000,000
Class B Ordinary Shares of a par value of US$0.001 each, and
(c) 2,000,000,000
undesignated shares of a par value of US$0.01 each, of such class or classes (however designated)
as the board of directors may determine in accordance with Article 2 of the Articles of Association
of the Company.
Subject
to the Companies Act and the Articles, the board of directors shall have power to redeem or purchase any of the Company’s Shares
and to increase or reduce its authorized 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 board of directors hereinbefore provided.
9 The
Company has power to register by way of continuation as a body corporate limited by shares
under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the
Cayman Islands.
Companies
Act (Revised)
Company
Limited By Shares
fourth
amended and restated
articles of association
of
OFA
Group
(Adopted
by special resolution passed on 5 October 2026 and effective from 5 October 2026)
Contents
1
Definitions, interpretation and exclusion of Table A
1
Definitions
1
Interpretation
4
Exclusion
of Table A Articles
5
2
Shares
5
Power
to issue Shares and options, with or without special rights
5
Power
to issue fractions of a Share
7
Power
to pay commissions and brokerage fees
8
Trusts
not recognised
8
Security
interests
8
Rights
of Shares
8
Power
to vary class rights
9
Effect
of new Share issue on existing class rights
10
No
bearer Shares or warrants
10
Treasury
Shares
10
Rights
attaching to Treasury Shares and related matters
10
Register
of Members
11
Annual
Return
11
3
Share certificates
11
Issue
of share certificates
11
Renewal
of lost or damaged share certificates
12
4
Lien on Shares
12
Nature
and scope of lien
12
Company
may sell Shares to satisfy lien
13
Authority
to execute instrument of transfer
13
Consequences
of sale of Shares to satisfy lien
13
Application
of proceeds of sale
14
5
Calls on Shares and forfeiture
14
Power
to make calls and effect of calls
14
Time
when call made
14
Liability
of joint holders
14
Interest
on unpaid calls
15
Deemed
calls
15
Power
to accept early payment
15
Power
to make different arrangements at time of issue of Shares
15
Notice
of default
15
Forfeiture
or surrender of Shares
16
Disposal
of forfeited or surrendered Share and power to cancel forfeiture or surrender
16
Effect
of forfeiture or surrender on former Member
16
Evidence
of forfeiture or surrender
17
Sale
of forfeited or surrendered Shares
17
6
Transfer of Shares
17
Form
of Transfer
17
Power
to refuse registration for Shares not listed on a Designated Stock Exchange
18
Suspension
of transfers
18
Company
may retain instrument of transfer
18
Notice
of refusal to register
19
7
Transmission of Shares
19
Persons
entitled on death of a Member
19
Registration
of transfer of a Share following death or bankruptcy
19
Indemnity
20
Rights
of person entitled to a Share following death or bankruptcy
20
8
Alteration of capital
20
Increasing,
consolidating, converting, dividing and cancelling share capital
20
Dealing
with fractions resulting from consolidation of Shares
21
Reducing
share capital
21
9
Conversion, redemption and purchase of own Shares
21
Power
to issue redeemable Shares and to purchase own Shares
22
Power
to pay for redemption or purchase in cash or in specie
22
Effect
of redemption or purchase of a Share
22
No
conversion rights
22
10
Meetings of Members
22
Annual
and extraordinary general meetings
22
Power
to call meetings
23
Content
of notice
23
Period
of notice
24
Persons
entitled to receive notice
24
Accidental
omission to give notice or non-receipt of notice
25
11
Proceedings at meetings of Members
25
Quorum
25
Lack
of quorum
25
Chairman
26
Right
of a Director to attend and speak
26
Accommodation
of Members at Virtual Meeting
26
Security
26
Adjournment,
postponement and cancellation
27
Method
of voting
27
Taking
of a poll
27
No
casting vote
27
Written
resolutions
27
Sole-Member
Company
29
12
Voting rights of Members
29
Right
to vote
29
Rights
of joint holders
30
Representation
of corporate Members
30
Member
with mental disorder
30
Objections
to admissibility of votes
30
Form
of proxy
31
How
and when proxy is to be delivered
31
Voting
by proxy
32
13
Number of Directors
33
14
Appointment, disqualification and removal of Directors
33
First
Directors
33
No
age limit
33
Corporate
Directors
33
No
shareholding qualification
33
Appointment
of Directors
33
Board’s
power to appoint Directors
34
Removal
of Directors
34
Resignation
of Directors
34
Termination
of the office of Director
34
15
Alternate Directors
35
Appointment
and removal
35
Notices
36
Rights
of alternate Director
36
Appointment
ceases when the appointor ceases to be a Director
36
Status
of alternate Director
36
Status
of the Director making the appointment
36
16
Powers of Directors
37
Powers
of Directors
37
Directors
below the minimum number
37
Appointments
to office
37
Provisions
for employees
38
Exercise
of voting rights
38
Remuneration
38
Disclosure
of information
39
17
Delegation of powers
39
Power
to delegate any of the Directors’ powers to a committee
39
Local
boards
40
Power
to appoint an agent of the Company
40
Power
to appoint an attorney or authorised signatory of the Company
40
Borrowing
Powers
41
Corporate
Governance
41
18
Meetings of Directors
41
Regulation
of Directors’ meetings
41
Calling
meetings
41
Notice
of meetings
41
Use
of technology
42
Quorum
42
Chairman
or deputy to preside
42
Voting
42
Recording
of dissent
42
Written
resolutions
43
Validity
of acts of Directors in spite of formal defect
43
19
Permissible Directors’ interests and disclosure
43
20
Minutes
44
21
Accounts and audit
44
Financial
year
44
Auditors
44
22
Record dates
45
23
Dividends
45
Source
of dividends
45
Declaration
of dividends by Members
45
Payment
of interim dividends and declaration of final dividends by Directors
45
Apportionment
of dividends
46
Right
of set off
46
Power
to pay other than in cash
47
How
payments may be made
47
Dividends
or other monies not to bear interest in absence of special rights
48
Dividends
unable to be paid or unclaimed
48
24
Capitalisation of profits
48
Capitalisation
of profits or of any share premium account or capital redemption reserve;
48
Applying
an amount for the benefit of Members
48
25
Share Premium Account
49
Directors
to maintain share premium account
49
Debits
to share premium account
49
26
Seal
49
Company
seal
49
Duplicate
seal
49
When
and how seal is to be used
49
If
no seal is adopted or used
50
Power
to allow non-manual signatures and facsimile printing of seal
50
Validity
of execution
50
27
Indemnity
50
Release
51
Insurance
51
28
Notices
52
Form
of notices
52
Electronic
communications
52
Persons
entitled to notices
53
Persons
authorised to give notices
53
Delivery
of written notices
53
Joint
holders
53
Signatures
53
Giving
notice to a deceased or bankrupt Member
54
Date
of giving notices
54
Saving
provision
54
29
Authentication of Electronic Records
55
Application
of Articles
55
Authentication
of documents sent by Members by Electronic means
55
Authentication
of document sent by the Secretary or Officers of the Company by Electronic means
55
Manner
of signing
56
Saving
provision
56
30
Transfer by way of continuation
56
31
Winding up
57
Distribution
of assets in specie
57
No
obligation to accept liability
57
32
Amendment of Memorandum and Articles
57
Power
to change name or amend Memorandum
57
Power
to amend these Articles
57
Companies
Act (Revised)
Company
Limited by Shares
Fourth
Amended and Restated
Articles of Association
of
OFA
Group
(Adopted
by special resolution passed on 5 October 2026 and effective from 5 October 2026)
1 Definitions,
interpretation and exclusion of Table A
Definitions
1.1 In
these Articles, the following definitions apply:
Act
means the Companies Act (Revised) of the Cayman Islands, including any statutory modification or re-enactment thereof for the time being
in force;
Articles
means, as appropriate:
(a) these
articles of association as amended from time to time: or
(b) two
or more particular articles of these Articles;
and
Article refers to a particular article of these Articles;
Auditors
means the auditor or auditors for the time being of the Company;
Board
means the board of Directors from time to time;
Board
Resolution means (a) a resolution approved at a duly convened and constituted meeting of the Directors by an affirmative vote of
a majority of the Directors present at the meeting who voted on the matter, or (b) a written resolution of the Directors passed in accordance
with Article 18.14.
Business
Day means a day when banks in Grand Cayman, the Cayman Islands are open for the transaction of normal banking business and for the
avoidance of doubt, shall not include a Saturday, Sunday or public holiday in the Cayman Islands;
Cayman
Islands means the British Overseas Territory of the Cayman Islands;
1
Class
or Classes mean any class or classes of Shares as may from time to time be issued by the Company;
Class
A Ordinary Share means the class A ordinary shares of US$0.01 par value each of the Company, which have the rights set forth in these
Articles;
Class
B Ordinary Share means the class B ordinary shares of US$0.001 par value each of the Company, which have the rights set forth in
these Articles;
Clear
Days, in relation to a period of notice, means that period of calendar days excluding:
(a) the
calendar day when the notice is given or deemed to be given; and
(b) the
calendar day for which it is given or on which it is to take effect;
Commission
means Securities and Exchange Commission of the United States of America or other federal agency for the time being administering the
U.S. Securities Act;
Company
means the above-named company;
Default
Rate means ten per cent per annum;
Designated
Stock Exchanges means the NASDAQ Capital Market in the United States of America for so long as any class of the Company’s Shares
are there listed and any other stock exchange on which any class of the Company’s Shares are listed for trading;
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 Exchanges;
Directors
means the directors for the time being of the Company and the expression Director shall be construed accordingly;
Electronic
has the meaning given to that term in the Electronic Transactions Act (Revised) of the Cayman Islands;
Electronic
Communication Facilities means video, video-conferencing, internet or online conferencing applications, telephone or tele-conferencing
and/or any other video-communications, internet or online conferencing application or telecommunications facilities by means of which
all persons participating in a meeting are capable of hearing and being heard by each other;
Electronic
Record has the meaning given to that term in the Electronic Transactions Act (Revised) of the Cayman Islands;
Electronic
Signature has the meaning given to that term in the Electronic Transactions Act (Revised) of the Cayman Islands;
2
Fully
Paid Up means:
(a) in
relation to a Share with par value, means that the par value for that Share and any premium
payable in respect of the issue of that Share, has been fully paid or credited as paid in
money or money’s worth; and
(b) in
relation to a Share without par value, means that the agreed issue price for that Share has
been fully paid or credited as paid in money or money’s worth;
General
Meeting means a general meeting of the Company duly constituted in accordance with the Articles;
Independent
Director means a Director who is an independent director as defined in the Designated Stock Exchange Rules as determined by the Board
by Board Resolution;
Member
means any person or persons entered on the register of Members from time to time as the holder of a Share;
Memorandum
means the memorandum of association of the Company as amended from time to time;
month
means a calendar month;
Officer
means a person appointed to hold an office in the Company including a Director, alternate Director or liquidator and excluding the Secretary;
Ordinary
Resolution means a resolution of a General Meeting passed by a simple majority of the votes by Members who (being entitled to do
so) vote in person or by proxy or, in the case of corporation, by their duly authorised representatives, at that meeting. The expression
includes a written resolution signed by the requisite majority in accordance with Article 11.14;
Partly
Paid Up means:
(a) in
relation to a Share with par value, that the par value for that Share and any premium payable
in respect of the issue of that Share, has not been fully paid or credited as paid in money
or money’s worth; and
(b) in
relation to a Share without par value, means that the agreed issue price for that Share has
not been fully paid or credited as paid in money or money’s worth;
Register
of Members means the register of Members maintained in accordance with the Act and includes (except where otherwise stated) any branch
or duplicate register of the Members;
Secretary
means a person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary;
3
Share
means a share in the capital of the Company and the expression:
(a) includes
stock (except where a distinction between shares and stock is expressed or implied); and
(b) where
the context permits, also includes a fraction of a Share;
all
references to “Shares” herein shall be deemed to be Shares of any or all Classes as the context may require.
Special
Resolution means a resolution of a General Meeting or a resolution of a meeting of the holders of any class of Shares in a class
meeting duly constituted in accordance with the Articles in each case passed by a majority of not less than two-thirds of the votes by
Members who (being entitled to do so) vote in person or by proxy at that meeting. The expression includes a unanimous written resolution
signed by all Members entitled to vote at such meeting;
Treasury
Shares means Shares held in treasury pursuant to the Act and Article 2.15; and
U.S.
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; and
Virtual
Meeting means any general meeting of the Members at which the Members (and any other permitted participants of such meeting, including
without limitation the chairman of the meeting and any Directors) are permitted to attend and participate solely by means of Electronic
Communication Facilities.
Interpretation
1.2 In
the interpretation of these Articles, the following provisions apply unless the context otherwise
requires:
(a) A
reference in these Articles to a statute is a reference to a statute of the Cayman Islands
as known by its short title, and includes:
(i) any
statutory modification, amendment or re-enactment; and
(ii) any
subordinate legislation or regulations issued under that statute.
Without
limitation to the preceding sentence, a reference to a revised Act of the Cayman Islands is taken to be a reference to the revision of
that Act in force from time to time as amended from time to time.
(b) Headings
are inserted for convenience only and do not affect the interpretation of these Articles,
unless there is ambiguity.
(c) If
a day on which any act, matter or thing is to be done under these Articles is not a Business
Day, the act, matter or thing must be done on the next Business Day.
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(d) A
word which denotes the singular also denotes the plural, a word which denotes the plural
also denotes the singular, and a reference to any gender also denotes the other genders.
(e) A
reference to a person includes, as appropriate, a company, trust, partnership, joint
venture, association, body corporate or government agency.
(f) Where
a word or phrase is given a defined meaning another part of speech or grammatical form in
respect to that word or phrase has a corresponding meaning.
(g) All
references to time are to be calculated by reference to time in the place where the Company’s
registered office is located.
(h) The
words written and in writing include all modes of representing or reproducing
words in a visible form, but do not include an Electronic Record where the distinction between
a document in writing and an Electronic Record is expressed or implied.
(i) The
words including, include and in particular or any similar expression
are to be construed without limitation.
(j) The
term “present” means, in respect of any person attending a meeting, such
person’s presence at a general meeting of Members (or any meeting of the holders of
any class of Shares), which may be satisfied by means of such person or, if a corporation
or other non-natural person, its duly authorized representative (or, in the case of any Member,
a proxy which has been validly appointed by such Member in accordance with these Articles),
being: (a) physically present at the meeting; or (b) in the case of any meeting at which
Electronic Communication Facilities are permitted in accordance with these Articles, including
any Virtual Meeting, connected by means of the use of such Electronic Communication Facilities.
1.3 The
headings in these Articles are intended for convenience only and shall not affect the interpretation
of these Articles.
Exclusion
of Table A Articles
1.4 The
regulations contained in Table A in the First Schedule of the Act and any other regulations
contained in any statute or subordinate legislation are expressly excluded and do not apply
to the Company.
2 Shares
Power
to issue Shares and options, with or without special rights
2.1 Subject
to the provisions of the Act and these Articles about the redemption and purchase of the
Shares, the Directors have general and unconditional authority to allot (with or without
confirming rights of renunciation), grant options over or otherwise deal with any unissued
Shares (including, without limitation, preferred shares) (whether in certificated form or
non-certificated form) to such persons, at such times and on such terms and conditions as
they may decide. No Share may be issued at a discount except in accordance with the provisions
of the Act.
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2.2 Without
limitation to the preceding Article, the Directors may so deal with the unissued Shares (including,
without limitation, preferred shares) (whether in certificated form or non-certificated form):
(a) either
at a premium or at par; or
(b) with
or without preferred, deferred or other special rights or restrictions, whether in regard
to dividend, voting, return of capital or otherwise.
2.3 Without
limitation to the two preceding Articles,
(a) the
Company may issue rights, options, warrants or convertible securities or securities of similar
nature conferring the right upon the holders thereof to subscribe for, purchase or receive
any class of Shares or other securities in the Company at such times and on such terms and
conditions as the Directors may decide;
(b) 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.
2.4 The
Directors may authorize the division of Shares into any number of Classes and the different
Classes shall be authorized, 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
a Special 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. The Directors may issue from time to time, out
of the authorized share capital of the Company (other than the authorized 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;
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(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.
Power
to issue fractions of a Share
2.5 Subject
to the Act, the Company may issue fractions of a Share of any class. A fraction of a Share
shall be subject to and carry the corresponding fraction of liabilities (whether with respect
to calls or otherwise), limitations, preferences, privileges, qualifications, restrictions,
rights and other attributes of a Share of that class of Shares.
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Power
to pay commissions and brokerage fees
2.6 The
Company may pay a commission to any person in consideration of that person:
(a) subscribing
or agreeing to subscribe, whether absolutely or conditionally; or
(b) procuring
or agreeing to procure subscriptions, whether absolute or conditional,
for
any Shares. That commission may be satisfied by the payment of cash or the allotment of Fully Paid Up or Partly Paid Up Shares or partly
in one way and partly in another.
2.7 The
Company may employ a broker in the issue of its capital and pay him any proper commission
or brokerage.
Trusts
not recognised
2.8 Except
as required by Act:
(a) no
person shall be recognised by the Company as holding any Share on any trust; and
(b) no
person other than the Member shall be recognised by the Company as having any right in a
Share.
Security
interests
2.9 Notwithstanding
the preceding Article, the Company may (but shall not be obliged to) recognise a security
interest of which it has actual notice over shares. The Company shall not be treated as having
recognised any such security interest unless it has so agreed in writing with the secured
party.
Rights
of Shares
2.10 Subject
to Article 2.1, the Memorandum and any Special Resolution to the contrary and without prejudice
to any special rights conferred thereby on the holders of any other Shares or class of Shares,
Class A Ordinary Shares and Class B Ordinary Shares shall carry equal rights and rank pari
passu with one another in all respects other than as set out below:
(a) Voting
Rights:
(i) Holders
of Class A Ordinary Shares and Class B Ordinary Shares have the right to receive notice of,
attend, speak and vote at general meetings of the Company. Holders of shares of Class A Ordinary
Shares and Class B Ordinary Shares shall, at all times, vote together as a single class on
all matters submitted to a vote for Members’ consent.
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(ii) Each
Class A Ordinary Share shall be entitled to one (1) vote on all matters subject to the vote
at general meetings of the Company; whereas, each Class B Ordinary Share shall be entitled
to twenty five (25) votes on all matters subject to the vote at general meetings of the Company.
(b) Transfer:
(i) Subject
to the following Articles about the transfer of Shares, and provided that such transfer complies
with applicable rules of the Designated Stock Exchange (if applicable), Class A Ordinary
Shares may be transferred in accordance with the Articles and any applicable laws.
(ii) Class
B Ordinary Shares shall under no circumstances be transferrable.
(c) Dividends
and Distribution:
(i) Dividends
may be declared or paid, and other distribution (whether in cash or otherwise) of the Company’s
assets (including any distribution of assets to Members on a winding up) may be made to a
holder of a Class A Ordinary Share in accordance with the Article 23.
(ii) No
dividend may be declared or paid, and no other distribution (whether in cash or otherwise)
of the Company’s assets (including any distribution of assets to Members on a winding
up) may be made to a holder of a Class B Ordinary Share.
Power
to vary class rights
2.11 If
the share capital is divided into different classes of Shares then, unless the terms on which
a class of Shares was issued state otherwise, the rights attaching to a class of Shares may
only be varied if one of the following applies:
(a) the
Members holding not less than 50% of the issued Shares of that class consent in writing to
the variation; or
(b) the
variation is made with the sanction of a Special Resolution passed at a separate general
meeting of the Members holding the issued Shares of that class.
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.
2.12 For
the purpose of Article 2.10(b), all the provisions of these Articles relating to general
meetings apply, mutatis mutandis, to every such separate meeting except that the necessary
quorum shall be one or more persons holding, or representing by proxy, not less than one
third of the issued Shares of the class.
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2.13 For
the purposes of a separate class meeting, the Directors may treat two or more or all the
classes of Shares as forming one class of Shares if the Directors consider that such classes
of Shares would be affected in the same way by the proposals under consideration, but in
any other case shall treat them as separate classes of Shares.
Effect
of new Share issue on existing class rights
2.14 Unless
the terms on which a class of Shares was issued state otherwise, the rights conferred on
the Member holding Shares of any class shall not be deemed to be varied by the creation or
issue of further Shares , 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 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.
No
bearer Shares or warrants
2.15 The
Company shall not issue Shares or warrants to bearers.
Treasury
Shares
2.16 Shares
that the Company purchases, redeems or acquires by way of surrender in accordance with the
Act shall be held as Treasury Shares and not treated as cancelled if:
(a) the
Directors so determine prior to the purchase, redemption or surrender of those shares; and
(b) the
relevant provisions of the Memorandum and Articles and the Act are otherwise complied with.
Rights
attaching to Treasury Shares and related matters
2.17 No
dividend may be declared or paid, and no other distribution (whether in cash or otherwise)
of the Company’s assets (including any distribution of assets to Members on a winding
up) may be made to the Company in respect of a Treasury Share.
2.18 The
Company shall be entered in the register of Members as the holder of the Treasury Shares.
However:
(a) the
Company shall not be treated as a Member for any purpose and shall not exercise any right
in respect of the Treasury Shares, and any purported exercise of such a right shall be void;
and
(b) a
Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company
and shall not be counted in determining the total number of issued shares at any given time,
whether for the purposes of these Articles or the Act.
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2.19 Nothing
in Article 2.17 prevents an allotment of Shares as Fully Paid Up bonus shares in respect
of a Treasury Share and Shares allotted as Fully Paid Up bonus shares in respect of a Treasury
Share shall be treated as Treasury Shares.
2.20 Treasury
Shares may be disposed of by the Company in accordance with the Act and otherwise on such
terms and conditions as the Directors determine.
Register
of Members
2.21 The
Directors shall keep or cause to be kept a register of Members as required by the Act and
may cause the Company to maintain one or more branch registers as contemplated by the Act,
provided that where the Company is maintaining one or more branch registers, the Directors
shall ensure that a duplicate of each branch register is kept with the Company’s principal
register of Members and updated within such number of days of any amendment having been made
to such branch register as may be required by the Act.
2.22 The
title to Shares listed on a Designated Stock Exchange may be evidenced and transferred in
accordance with the laws applicable to the rules and regulations of the Designated Stock
Exchange and, for these purposes, the register of Members may be maintained in accordance
with section 40B of the Act.
Annual
Return
2.23 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 Act and shall deliver a copy thereof
to the registrar of companies for the Cayman Islands.
3 Share
certificates
Issue
of share certificates
3.1 A
Member shall only be entitled to a share certificate if the Directors resolve that share
certificates shall be issued. Share certificates representing Shares, if any, shall be in
such form as the Directors may determine. If the Directors resolve that share certificates
shall be issued, upon being entered in the register of Members as the holder of a Share,
the Directors may issue to any Member:
(a) without
payment, one certificate for all the Shares of each class held by that Member (and, upon
transferring a part of the Member’s holding of Shares of any class, to a certificate
for the balance of that holding); and
(b) upon
payment of such reasonable sum as the Directors may determine for every certificate after
the first, several certificates each for one or more of that Member’s Shares.
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3.2 Every
certificate shall specify the number, class and distinguishing numbers (if any) of the Shares
to which it relates and whether they are Fully Paid Up or Partly Paid Up. A certificate may
be executed under seal or executed in such other manner as the Directors determine.
3.3 Every
certificate shall bear legends required under the applicable laws, including the U.S. Securities
Act.
3.4 The
Company shall not be bound to issue more than one certificate for Shares held jointly by
several persons and delivery of a certificate for a Share to one joint holder shall be a
sufficient delivery to all of them.
Renewal
of lost or damaged share certificates
3.5 If
a share certificate is defaced, worn-out, lost or destroyed, it may be renewed on such terms
(if any) as to:
(a) evidence;
(b) indemnity;
(c) payment
of the expenses reasonably incurred by the Company in investigating the evidence; and
(d) payment
of a reasonable fee, if any for issuing a replacement share certificate,
as
the Directors may determine, and (in the case of defacement or wearing-out) on delivery to the Company of the old certificate.
4 Lien
on Shares
Nature
and scope of lien
4.1 The
Company has a first and paramount lien on all Shares (whether Fully Paid Up or not) registered
in the name of a Member (whether solely or jointly with others). The lien is for all monies
payable to the Company by the Member or the Member’s estate:
(a) either
alone or jointly with any other person, whether or not that other person is a Member; and
(b) whether
or not those monies are presently payable.
4.2 At
any time the Board may by Board Resolution declare any Share to be wholly or partly exempt
from the provisions of this Article.
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Company
may sell Shares to satisfy lien
4.3 The
Company may sell any Shares over which it has a lien if all of the following conditions are
met:
(a) the
sum in respect of which the lien exists is presently payable;
(b) the
Company gives notice to the Member holding the Share (or to the person entitled to it in
consequence of the death or bankruptcy of that Member) demanding payment and stating that
if the notice is not complied with the Shares may be sold; and
(c) that
sum is not paid within fourteen Clear Days after that notice is deemed to be given under
these Articles,
and
Shares to which this Article 4.3 applies shall be referred to as Lien Default Shares.
4.4 The
Lien Default Shares may be sold in such manner as the Board determines by Board Resolution.
4.5 To
the maximum extent permitted by law, the Directors shall incur no personal liability to the
Member concerned in respect of the sale.
Authority
to execute instrument of transfer
4.6 To
give effect to a sale, the Directors may authorise any person to execute an instrument of
transfer of the Lien Default Shares sold to, or in accordance with the directions of, the
purchaser.
4.7 The
title of the transferee of the Lien Default Shares shall not be affected by any irregularity
or invalidity in the proceedings in respect of the sale.
Consequences
of sale of Shares to satisfy lien
4.8 On
a sale pursuant to the preceding Articles:
(a) the
name of the Member concerned shall be removed from the register of Members as the holder
of those Lien Default Shares; and
(b) that
person shall deliver to the Company for cancellation the certificate (if any) for those Lien
Default Shares.
4.9 Notwithstanding
the provisions of Article 4.8, such person shall remain liable to the Company for all monies
which, at the date of sale, were presently payable by him to the Company in respect of those
Lien Default Shares. That person shall also be liable to pay interest on those monies from
the date of sale until payment at the rate at which interest was payable before that sale
or, failing that, at the Default Rate. The Board may by Board Resolution waive payment wholly
or in part or enforce payment without any allowance for the value of the Lien Default Shares
at the time of sale or for any consideration received on their disposal.
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Application
of proceeds of sale
4.10 The
net proceeds of the sale, after payment of the costs, shall be applied in payment of so much
of the sum for which the lien exists as is presently payable. Any residue shall be paid to
the person whose Lien Default Shares have been sold:
(a) if
no certificate for the Lien Default Shares was issued, at the date of the sale; or
(b) if
a certificate for the Lien Default Shares was issued, upon surrender to the Company of that
certificate for cancellation
but,
in either case, subject to the Company retaining a like lien for all sums not presently payable as existed on the Lien Default Shares
before the sale.
5 Calls
on Shares and forfeiture
Power
to make calls and effect of calls
5.1 Subject
to the terms of allotment, the Board may by Board Resolution make calls on the Members in
respect of any monies unpaid on their Shares including any premium. The call may provide
for payment to be by instalments. Subject to receiving at least 14 Clear Days’ notice
specifying when and where payment is to be made, each Member shall pay to the Company the
amount called on his Shares as required by the notice.
5.2 Before
receipt by the Company of any sum due under a call, that call may be revoked in whole or
in part and payment of a call may be postponed in whole or in part. Where a call is to be
paid in instalments, the Company may revoke the call in respect of all or any remaining instalments
in whole or in part and may postpone payment of all or any of the remaining instalments in
whole or in part.
5.3 A
Member on whom a call is made shall remain liable for that call notwithstanding the subsequent
transfer of the Shares in respect of which the call was made. He shall not be liable for
calls made after he is no longer registered as Member in respect of those Shares.
Time
when call made
5.4 A
call shall be deemed to have been made at the time when the resolution of the Directors authorising
the call was passed.
Liability
of joint holders
5.5 Members
registered as the joint holders of a Share shall be jointly and severally liable to pay all
calls in respect of the Share.
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Interest
on unpaid calls
5.6 If
a call remains unpaid after it has become due and payable the person from whom it is due
and payable shall pay interest on the amount unpaid from the day it became due and payable
until it is paid:
(a) at
the rate fixed by the terms of allotment of the Share or in the notice of the call; or
(b) if
no rate is fixed, at the Default Rate.
The
Directors may waive payment of the interest wholly or in part.
Deemed
calls
5.7 Any
amount payable in respect of a Share, whether on allotment or on a fixed date or otherwise,
shall be deemed to be payable as a call. If the amount is not paid when due the provisions
of these Articles shall apply as if the amount had become due and payable by virtue of a
call.
Power
to accept early payment
5.8 The
Company may accept from a Member the whole or a part of the amount remaining unpaid on Shares
held by him although no part of that amount has been called up.
Power
to make different arrangements at time of issue of Shares
5.9 Subject
to the terms of allotment, the Directors may make arrangements on the issue of Shares to
distinguish between Members in the amounts and times of payment of calls on their Shares.
Notice
of default
5.10 If
a call remains unpaid after it has become due and payable the Directors may give to the person
from whom it is due not less than 14 Clear Days’ notice requiring payment of:
(a) the
amount unpaid;
(b) any
interest which may have accrued;
(c) any
expenses which have been incurred by the Company due to that person’s default.
5.11 The
notice shall state the following:
(a) the
place where payment is to be made; and
(b) a
warning that if the notice is not complied with the Shares in respect of which the call is
made will be liable to be forfeited.
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Forfeiture
or surrender of Shares
5.12 If
the notice given pursuant to Article 5.10 is not complied with, the Directors may, before
the payment required by the notice has been received, resolve that any Share the subject
of that notice be forfeited. The forfeiture shall include all dividends or other monies payable
in respect of the forfeited Share and not paid before the forfeiture. Despite the foregoing,
the Board may by Board Resolution determine that any Share the subject of that notice be
accepted by the Company as surrendered by the Member holding that Share in lieu of forfeiture.
Disposal
of forfeited or surrendered Share and power to cancel forfeiture or surrender
5.13 A
forfeited or surrendered Share may be sold, re-allotted or otherwise disposed of on such
terms and in such manner as the Board by Board Resolution determine either to the former
Member who held that Share or to any other person. The forfeiture or surrender may be cancelled
on such terms as the Directors think fit at any time before a sale, re-allotment or other
disposition. Where, for the purposes of its disposal, a forfeited or surrendered Share is
to be transferred to any person, the Directors may by Board Resolution authorise some person
to execute an instrument of transfer of the Share to the transferee.
Effect
of forfeiture or surrender on former Member
5.14 On
forfeiture or surrender:
(a) the
name of the Member concerned shall be removed from the register of Members as the holder
of those Shares and that person shall cease to be a Member in respect of those Shares; and
(b) that
person shall surrender to the Company for cancellation the certificate (if any) for the forfeited
or surrendered Shares.
5.15 Despite
the forfeiture or surrender of his Shares, that person shall remain liable to the Company
for all monies which at the date of forfeiture or surrender were presently payable by him
to the Company in respect of those Shares together with:
(a) all
expenses; and
(b) interest
from the date of forfeiture or surrender until payment:
(i) at
the rate of which interest was payable on those monies before forfeiture; or
(ii) if
no interest was so payable, at the Default Rate.
The
Directors, however, may waive payment wholly or in part.
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Evidence
of forfeiture or surrender
5.16 A
declaration, whether statutory or under oath, made by a Director or the Secretary shall be
conclusive evidence of the following matters stated in it as against all persons claiming
to be entitled to forfeited Shares:
(a) that
the person making the declaration is a Director or Secretary of the Company, and
(b) that
the particular Shares have been forfeited or surrendered on a particular date.
Subject
to the execution of an instrument of transfer, if necessary, the declaration shall constitute good title to the Shares.
Sale
of forfeited or surrendered Shares
5.17 Any
person to whom the forfeited or surrendered Shares are disposed of shall not be bound to
see to the application of the consideration, if any, of those Shares nor shall his title
to the Shares be affected by any irregularity in, or invalidity of the proceedings in respect
of, the forfeiture, surrender or disposal of those Shares.
6 Transfer
of Shares
Form
of Transfer
6.1 Subject
to the following Articles about the transfer of Shares, and provided that such transfer complies
with applicable rules of the Designated Stock Exchange, a Member may freely transfer Shares
(except Class B Ordinary Shares which shall not be transferrable) to another person by completing
an instrument of transfer in a common form or in a form prescribed by the Designated Stock
Exchange (if such Shares are listed on the Designated Stock Exchange) or in any other form
approved by the Directors, executed:
(a) where
the Shares (except Class B Ordinary Shares which shall not be transferrable) are Fully Paid,
by or on behalf of that Member; and
(b) where
the Shares (except Class B Ordinary Shares which shall not be transferrable) are partly paid,
by or on behalf of that Member and the transferee.
6.2 The
transferor shall be deemed to remain the holder of a Share (except Class B Ordinary Shares
which shall not be transferrable) until the name of the transferee is entered into the Register
of Members.
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Power
to refuse registration for Shares not listed on a Designated Stock Exchange
6.3 Where
any class of the Shares in question are not listed on or subject to the rules of any Designated
Stock Exchange, registration of any transfer of shares must be approved by the Directors
by Board Resolution, and the Directors may in their absolute discretion decline to register
any transfer of such Shares which are not Fully Paid Up or on which the Company has a lien.
The Directors may also, but are not required to, decline to register any transfer of any
such Share unless:
(a) the
instrument of transfer is lodged with the Company, accompanied by the certificate (if any)
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;
(b) the
instrument of transfer is in respect of only one class of Shares;
(c) the
instrument of transfer is properly stamped, if required;
(d) 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;
(e) the
Shares transferred are Fully Paid Up and free of any lien in favour of the Company; and
(f) any
applicable fee of such maximum sum as the Designated Stock Exchanges may determine to be
payable, or such lesser sum as the Board may from time to time require, related to the transfer
is paid to the Company.
Suspension
of transfers
6.4 The
registration of transfers may, on 14 days’ notice being given by advertisement in such
one or more newspapers or by electronic means, be suspended and the register of Members 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 of Members closed for more than 30 days in any year.
Company
may retain instrument of transfer
6.5 All
instruments of transfer that are registered shall be retained by the Company.
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Notice
of refusal to register
6.6 If
the Directors refuse to register a transfer of any Shares of any class not listed on a Designated
Stock Exchange, they shall within one month after the date on which the instrument of transfer
was lodged with the Company send to each of the transferor and the transferee notice of the
refusal.
7 Transmission
of Shares
Persons
entitled on death of a Member
7.1 If
a Member dies, the only persons recognised by the Company as having any title to the deceased
Members’ interest are the following:
(a) where
the deceased Member was a joint holder, the survivor or survivors; and
(b) where
the deceased Member was a sole holder, that Member’s personal representative or representatives.
7.2 Nothing
in these Articles shall release the deceased Member’s estate from any liability in
respect of any Share, whether the deceased was a sole holder or a joint holder.
Registration
of transfer of a Share following death or bankruptcy
7.3 A
person becoming entitled to a Share in consequence of the death or bankruptcy of a Member
may elect to do either of the following:
(a) to
become the holder of the Share; or
(b) to
transfer the Share to another person.
7.4 That
person must produce such evidence of his entitlement as the Directors may properly require.
7.5 If
the person elects to become the holder of the Share, he must give notice to the Company to
that effect. For the purposes of these Articles, that notice shall be treated as though it
were an executed instrument of transfer.
7.6 If
the person elects to transfer the Share to another person then:
(a) if
the Share is Fully Paid Up, the transferor must execute an instrument of transfer; and
(b) if
the Share is nil or Partly Paid Up, the transferor and the transferee must execute an instrument
of transfer.
7.7 All
the Articles relating to the transfer of Shares shall apply to the notice or, as appropriate,
the instrument of transfer.
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Indemnity
7.8 A
person registered as a Member by reason of the death or bankruptcy of another Member shall
indemnify the Company and the Directors against any loss or damage suffered by the Company
or the Directors as a result of that registration.
Rights
of person entitled to a Share following death or bankruptcy
7.9 A
person becoming entitled to a Share by reason of the death or bankruptcy of a Member shall
have the rights to which he would be entitled if he were registered as the holder of the
Share. But, until he is registered as Member in respect of the Share, he shall not be entitled
to attend or vote at any meeting of the Company or at any separate meeting of the holders
of that class of Shares.
8 Alteration
of capital
Increasing,
consolidating, converting, dividing and cancelling share capital
8.1 To
the fullest extent permitted by the Act, the Company may by Ordinary Resolution do any of
the following and amend its Memorandum for that purpose:
(a) increase
its share capital by new Shares of the amount fixed by that Ordinary Resolution and with
the attached rights, priorities and privileges set out in that Ordinary Resolution;
(b) consolidate
and divide all or any of its share capital into Shares of larger amount than its existing
Shares;
(c) convert
all or any of its Paid Up Shares into stock, and reconvert that stock into Paid Up Shares
of any denomination;
(d) sub-divide
its Shares or any of them into Shares of an amount smaller than that fixed by the Memorandum,
so, however, that in the sub-division, the proportion between the amount paid and the amount,
if any, unpaid on each reduced Share shall be the same as it was in case of the Share from
which the reduced Share is derived; and
(e) cancel
Shares which, at the date of the passing of that Ordinary Resolution, have not been taken
or agreed to be taken by any person, and diminish the amount of its share capital by the
amount of the Shares so cancelled or, in the case of Shares without nominal par value, diminish
the number of Shares into which its capital is divided.
20
Dealing
with fractions resulting from consolidation of Shares
8.2 Whenever,
as a result of a consolidation of Shares, any Members would become entitled to fractions
of a Share the Directors may on behalf of those Members deal with the fractions as it thinks
fit, including (without limitation):
(a) either
round up or down the fraction to the nearest whole number, such rounding to be determined
by the Directors acting in their sole discretion; or
(b) sell
the Shares representing the fractions for the best price reasonably obtainable to any person
(including, subject to the provisions of the Act, the Company); and
(c) distribute
the net proceeds in due proportion among those Members.
8.3 For
the purposes of Article 8.2, the Directors may authorise some person to execute an instrument
of transfer of the Shares to, in accordance with the directions of, the purchaser. The transferee
shall not be bound to see to the application of the purchase money nor shall the transferee’s
title to the Shares be affected by any irregularity in, or invalidity of, the proceedings
in respect of the sale.
Reducing
share capital
8.4 Subject
to the Act and to any rights for the time being conferred on the Members holding a particular
class of Shares, the Company may, by Special Resolution, reduce its share capital in any
way.
9 Conversion,
redemption and purchase of own Shares
Power
to issue redeemable Shares and to purchase own Shares
9.1 Subject
to the Act and to any rights for the time being conferred on the Members holding a particular
class of Shares, the Company may by its Directors:
(a) issue
Shares that are to be redeemed or liable to be redeemed, at the option of the Company or
the Member holding those redeemable Shares, on the terms and in the manner its Directors
determine before the issue of those Shares;
(b) with
the consent by Special Resolution of the Members holding Shares of a particular class, vary
the rights attaching to that class of Shares so as to provide that those Shares are to be
redeemed or are liable to be redeemed at the option of the Company on the terms and in the
manner which the Directors determine at the time of such variation; and
(c) purchase
all or any of its own Shares of any class including any redeemable Shares on the terms and
in the manner which the Directors determine at the time of such purchase.
The
Company may make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Act, including
out of any combination of the following: capital, its profits and the proceeds of a fresh issue of Shares.
21
Power
to pay for redemption or purchase in cash or in specie
9.2 When
making a payment in respect of the redemption or purchase of Shares, the Directors may make
the payment in cash or in specie (or partly in one and partly in the other) if so
authorised by the terms of the allotment of those Shares or by the terms applying to those
Shares in accordance with Article 9.1, or otherwise by agreement with the Member holding
those Shares.
Effect
of redemption or purchase of a Share
9.3 Upon
the date of redemption or purchase of a Share:
(a) the
Member holding that Share shall cease to be entitled to any rights in respect of the Share
other than the right to receive:
(i) the
price for the Share; and
(ii) any
dividend declared in respect of the Share prior to the date of redemption or purchase;
(b) the
Member’s name shall be removed from the register of Members with respect to the Share;
and
(c) the
Share shall be cancelled or held as a Treasury Share, as the Directors may determine.
9.4 For
the purpose of Article 9.3, the date of redemption or purchase is the date when the Member’s
name is removed from the register of Members with respect to the Shares the subject of the
redemption or purchase.
No
conversion rights
9.5 Class
A Ordinary Shares shall not be convertible into Class B Ordinary Shares.
9.6 Class
B Ordinary Shares shall not be convertible into Class A Ordinary Shares.
10 Meetings
of Members
Annual
and extraordinary general meetings
10.1 The
Company may, but shall not (unless required by the applicable Designated Stock Exchange Rules)
be obligated to, in each year hold a general meeting as an annual general meeting, which,
if held, shall be convened by the chairman of the Board, or the Directors by Board Resolution,
in accordance with these Articles.
10.2 All
general meetings other than annual general meetings shall be called extraordinary general
meetings.
22
Power
to call meetings
10.3 The
chairman of the Board, or the Directors may by Board Resolution, call a general meeting at
any time.
10.4 If
there are insufficient Directors to constitute a quorum and the remaining Directors are unable
to agree on the appointment of additional Directors, the Directors must call a general meeting
for the purpose of appointing additional Directors.
10.5 The
Directors must also call a general meeting if requisitioned in the manner set out in the
next two Articles.
10.6 Any
one or more Members holding not less than one-third of all votes attaching to the total issued
and paid up share capital of the Company at the date of deposit of the requisition shall
at all times have the right, by written requisition to the Board or the Secretary, to require
an extraordinary general meeting to be called by the Board for the transaction of any business
specified in such requisition; and such meeting shall be held within two (2) months after
the deposit of such requisition. If within twenty one (21) days of such deposit the Board
fails to proceed to convene such meeting the requisitionist(s) himself (themselves) may do
so in the same manner, and all reasonable expenses incurred by the requisitionist(s) as a
result of the failure of the Board shall be reimbursed to the requisitionist(s) by the Company.
10.7 The
requisition must also:
(a) specify
the purpose of the meeting.
(b) be
signed by or on behalf of each requisitioner (and for this purpose each joint holder shall
be obliged to sign). The requisition may consist of several documents in like form signed
by one or more of the requisitioners; and
(c) be
delivered in accordance with the notice provisions.
10.8 Without
limitation to the foregoing, if there are insufficient Directors to constitute a quorum and
the remaining Directors are unable to agree on the appointment of additional Directors, any
one or more Members who together hold at least five per cent of the rights to vote at a general
meeting may call a general meeting for the purpose of considering the business specified
in the notice of meeting which shall include as an item of business the appointment of additional
Directors.
10.9 If
the Members call a meeting under the above provisions, the Company shall reimburse their
reasonable expenses.
Content
of notice
10.10 Notice
of a general meeting shall specify each of the following:
(a) the
place, the date and the hour of the meeting;
23
(b) whether
the meeting will be held virtually, at a physical place or both;
(c) if
the meeting is to be held in any part at a physical place, the address of such place;
(d) if
the meeting is to be held in two or more places, or in any part virtually, the Electronic
Communication Facilities that will be used to facilitate the meeting, including the procedures
to be followed by any Member or other participant of the meeting who wishes to utilise such
Electronic Communication Facilities for the purposes of attending and participating in such
meeting;
(e) subject
to paragraph (f) and the requirements of (to the extent applicable) the Designated Stock
Exchange Rules, the general nature of the business to be transacted; and
(f) if
a resolution is proposed as a Special Resolution, the text of that resolution.
10.11 In
each notice there shall appear with reasonable prominence the following statements:
(a) that
a Member who is entitled to attend and vote is entitled to appoint one or more proxies to
attend and vote instead of that Member; and
(b) that
a proxyholder need not be a Member.
Period
of notice
10.12 At
least seven Clear Days’ notice of an annual general meeting must be given to Members.
For any other general meeting, at least five Clear Days’ notice must be given to Members.
10.13 Subject
to the Act, a meeting may be convened on shorter notice, subject to the Act with the consent
of the Member or Members who, individually or collectively, hold at least ninety per cent
of the voting rights of all those who have a right to vote at that meeting.
Persons
entitled to receive notice
10.14 Subject
to the provisions of these Articles and to any restrictions imposed on any Shares, the notice
shall be given to the following people:
(a) the
Members
(b) persons
entitled to a Share in consequence of the death or bankruptcy of a Member;
(c) the
Directors; and
(d) the
Auditors (if appointed).
24
10.15 The
Board may by Board Resolution determine that the Members entitled to receive notice of, attend
and vote at a meeting are those persons entered on the register of Members at the close of
business on a day determined by the Board.
Accidental
omission to give notice or non-receipt of notice
10.16 Proceedings
at a meeting shall not be invalidated by the following:
(a) an
accidental failure to give notice of the meeting to any person entitled to notice; or
(b) non-receipt
of notice of the meeting by any person entitled to notice.
10.17 In
addition, where a notice of meeting is published on a website proceedings at the meeting
shall not be invalidated merely because it is accidentally published:
(a) in
a different place on the website; or
(b) for
part only of the period from the date of the notification until the conclusion of the meeting
to which the notice relates.
11 Proceedings
at meetings of Members
Quorum
11.1 Save
as provided in the following Article, no business shall be transacted at any meeting unless
a quorum is present in person or by proxy at the meeting. A quorum is as follows:
(a) if
the Company has only one Member: that Member;
(b) if
the Company has more than one Member: one or more Members holding Shares that represent not
less than one-third of the outstanding Shares carrying the right to vote at such general
meeting.
Lack
of quorum
11.2 If
a quorum is not present at the meeting within fifteen minutes of the time appointed for the
meeting, or if at any time during the meeting it becomes inquorate, then the following provisions
apply:
(a) If
the meeting was requisitioned by Members, it shall be cancelled.
(b) In
any other case, the meeting shall stand adjourned to the same time and place seven days hence,
or to such other time or place as is determined by the Directors. If a quorum is not present
at the meeting within fifteen minutes of the time appointed for the adjourned meeting, then
the Members present in person or by proxy at the meeting shall constitute a quorum.
25
Chairman
11.3 The
chairman of a general meeting (including a Virtual Meeting) shall be the chairman of the
Board appointed by Board Resolution, or such other Director as the Directors have nominated
to chair Board meetings in the absence of the chairman of the Board. Absent any such person
being present at the meeting within fifteen minutes of the time appointed for the meeting,
the Directors present shall elect one of their number to chair the meeting. The chairman
of the meeting shall be entitled to attend and participate at any such general meeting by
means of Electronic Communication Facilities, and to act as the chairman of such general
meeting, in which event the chairman of the meeting shall be deemed to be present at the
meeting.
11.4 If
no Director is present within fifteen minutes of the time appointed for the meeting, or if
no Director is willing to act as chairman, the Members present in person or by proxy and
entitled to vote shall choose one of their number to chair the meeting.
Right
of a Director to attend and speak
11.5 Even
if a Director is not a Member, he shall be entitled to attend and speak at any general meeting
and at any separate meeting of Members holding a particular class of Shares.
Accommodation
of Members at Virtual Meeting
11.6 A
Member entitled to receive notice and attend a meeting will be deemed to be in attendance
at such meeting despite their attendance being virtual if adequate facilities are available
to ensure that the Member is able to:
(a) to
participate in the business for which the meeting has been convened; and
(b) to
hear all that happens at the meeting.
Without
limiting the generality of the foregoing, the Directors may determine that any general meeting may be held as a Virtual Meeting.
Security
11.7 In
addition to any measures which the Board may be required to take due to the location or venue
of the meeting, the Board may make any arrangement and impose any restriction it considers
appropriate and reasonable in the circumstances to ensure the security of a meeting including,
without limitation, the searching of any person attending the meeting and the imposing of
restrictions on the items of personal property that may be taken into the meeting place.
The Board may refuse entry to, or eject from, a meeting a person who refuses to comply with
any such arrangements or restrictions.
26
Adjournment,
postponement and cancellation
11.8 A
meeting may be:
(a) postponed
or cancelled prior to the meeting at the discretion of the Directors by written notice provided
to all persons entitled to attend the meeting, unless the meeting was requisitioned by Members
or otherwise called by Members pursuant to Article 10; or
(b) adjourned,
with or without an appointed date for resumption, at any time during the meeting at the discretion
of the chairman with the consent of the Members constituting a quorum.
The
chairman must adjourn the meeting if so directed by the meeting. No business, however, can be transacted at an adjourned meeting other
than business which might properly have been transacted at the original meeting.
11.9 Should
a meeting be adjourned for more than 7 Clear Days, whether because of a lack of quorum or
otherwise, Members shall be given at least 7 Clear Days’ notice of the date, time and
place of the adjourned meeting and the general nature of the business to be transacted. Otherwise
it shall not be necessary to give any notice of the adjournment.
Method
of voting
11.10 A
resolution put to the vote of the meeting shall be decided on a poll.
Taking
of a poll
11.11 A
poll shall be taken in such manner as the chairman directs. He may appoint scrutineers (who
need not be Members) and fix a place and time for declaring the result of the poll. If, through
the aid of technology, the meeting is held as a Virtual Meeting or in more than one place,
the chairman may appoint scrutineers virtually and in more than one place; but if he considers
that the poll cannot be effectively monitored at that meeting, the chairman shall adjourn
the holding of the poll to a date, place and time when that can occur.
No
casting vote
11.12 In
the case of an equality of votes, the chairman of the meeting shall not be entitled to a
second or casting vote.
Written
resolutions
11.13 Without
limitation to section 60(1) of the Act, Members may pass a Special Resolution in writing
without holding a meeting if the following conditions are met:
(a) all
Members entitled to vote on the resolution are given notice of the resolution as if the same
were being proposed at a meeting of Members;
27
(b) all
Members entitled so to vote:
(i) sign
a document; or
(ii) sign
several documents in the like form each signed by one or more of those Members; and
(c) the
signed document or documents is or are delivered to the Company, including, if the Company
so nominates, by delivery of an Electronic Record by Electronic means to the address specified
for that purpose.
Such
written resolution, which shall be as effective as if it had been passed at a meeting of the Members entitled to vote duly convened and
held, is passed when all such Members have so signified their agreement to the resolution.
11.14 Members
may pass an Ordinary Resolution in writing without holding a meeting if the following conditions
are met:
(a) all
Members entitled to vote on the resolution are:
(i) given
notice of the resolution as if the same were being proposed at a meeting of Members; and
(ii) notified
in the same or an accompanying notice of the date by which the resolution must be passed
if it is not to lapse, being a period of 7 days beginning with the date that the notice is
first given;
(b) the
required majority of the Members entitled so to vote:
(i) sign
a document; or
(ii) sign
several documents in the like form each signed by one or more of those Members; and
(c) the
signed document or documents is or are delivered to the Company, including, if the Company
so nominates, by delivery of an Electronic Record by Electronic means to the address specified
for that purpose.
Such
written resolution, which shall be as effective as if it had been passed at a meeting of the Members entitled to vote duly convened and
held, is passed upon the later of these dates: (i) subject to the following Article, the date next immediately following the end of the
period of 5 days beginning with the date that notice of the resolution is first given and (ii) the date when the required majority have
so signified their agreement to the resolution. However, the proposed written resolution lapses if it is not passed before the end of
the period of 7 days beginning with the date that notice of it is first given.
28
11.15 If
all Members entitled to be given notice of the Ordinary Resolution consent, a written resolution
may be passed as soon as the required majority have signified their agreement to the resolution,
without any minimum period of time having first elapsed. Save that the consent of the majority
may be incorporated in the written resolution, each consent shall be in writing or given
by Electronic Record and shall otherwise be given to the Company in accordance with Article
28 (Notices) prior to the written resolution taking effect.
11.16 The
Directors may determine the manner in which written resolutions shall be put to Members.
In particular, they may provide, in the form of any written resolution, for each Member to
indicate, out of the number of votes the Member would have been entitled to cast at a meeting
to consider the resolution, how many votes he wishes to cast in favour of the resolution
and how many against the resolution or to be treated as abstentions. The result of any such
written resolution shall be determined on the same basis as on a poll.
11.17 If
a written resolution is described as a Special Resolution or as an Ordinary Resolution, it
has effect accordingly.
Sole-Member
Company
11.18 If
the Company has only one Member, and the Member records in writing his decision on a question,
that record shall constitute both the passing of a resolution and the minute of it.
12 Voting
rights of Members
Right
to vote
12.1 Subject
to the following, unless their Shares carry no right to vote, or unless a call or other amount
presently payable has not been paid, all Members are entitled to vote at a general meeting,
and all Members holding Shares of a particular class of Shares are entitled to vote at a
meeting of the holders of that class of Shares.
12.2 Members
may vote in person or by proxy.
12.3 On
a poll, each Class A Ordinary Share shall be entitled to one (1) vote on all matters subject
to vote at general meetings of the Company, and each Class B Ordinary Share shall be entitled
to twenty five (25) votes on all matters subject to vote at general meetings of the Company.
A fraction of a Class A Ordinary Share shall entitle its holder to an equivalent fraction
of one (1) vote, and a fraction of a Class B Ordinary Share shall entitle its holder to an
equivalent fraction of twenty five (25) votes.
12.4 No
Member is bound to vote on his Shares or any of them; nor is he bound to vote each of his
Shares in the same way.
Rights
of joint holders
12.5 If
Shares are held jointly, only one of the joint holders may vote. If more than one of the
joint holders tenders a vote, the vote of the holder whose name in respect of those Shares
appears first in the register of Members shall be accepted to the exclusion of the votes
of the other joint holder.
29
Representation
of corporate Members
12.6 Save
where otherwise provided, a corporate Member must act by a duly authorised representative.
12.7 A
corporate Member wishing to act by a duly authorised representative must identify that person
to the Company by notice in writing.
12.8 The
authorisation may be for any period of time, and must be delivered to the Company before
the commencement of the meeting at which it is first used.
12.9 The
Directors of the Company may require the production of any evidence which they consider necessary
to determine the validity of the notice.
12.10 Where
a duly authorised representative is present at a meeting that Member is deemed to be present
in person; and the acts of the duly authorised representative are personal acts of that Member.
12.11 A
corporate Member may revoke the appointment of a duly authorised representative at any time
by notice to the Company; but such revocation will not affect the validity of any acts carried
out by the duly authorised representative before the Directors of the Company had actual
notice of the revocation.
Member
with mental disorder
12.12 A
Member in respect of whom an order has been made by any court having jurisdiction (whether
in the Cayman Islands or elsewhere) in matters concerning mental disorder may vote on a poll,
by that Member’s receiver, curator bonis or other person authorised in that
behalf appointed by that court.
12.13 For
the purpose of the preceding Article, evidence to the satisfaction of the Directors of the
authority of the person claiming to exercise the right to vote must be received not less
than 24 hours before holding the relevant meeting or the adjourned meeting in any manner
specified for the delivery of forms of appointment of a proxy, whether in writing or by Electronic
means. In default, the right to vote shall not be exercisable.
Objections
to admissibility of votes
12.14 An
objection to the validity of a person’s vote may only be raised at the meeting or at
the adjourned meeting at which the vote is sought to be tendered. Any objection duly made
shall be referred to the chairman whose decision shall be final and conclusive.
30
Form
of proxy
12.15 An
instrument appointing a proxy shall be in any common form or in any other form approved by
the Directors.
12.16 The
instrument must be in writing and signed in one of the following ways:
(a) by
the Member; or
(b) by
the Member’s authorised attorney; or
(c) if
the Member is a corporation or other body corporate, under seal or signed by an authorised
officer, secretary or attorney.
If
the Directors so resolve, the Company may accept an Electronic Record of that instrument delivered in the manner specified below and
otherwise satisfying the Articles about authentication of Electronic Records.
12.17 The
Directors may require the production of any evidence which they consider necessary to determine
the validity of any appointment of a proxy.
12.18 A
Member may revoke the appointment of a proxy at any time by notice to the Company duly signed
in accordance with Article 12.16.
12.19 No
revocation by a Member of the appointment of a proxy made in accordance with Article 12.18
will affect the validity of any acts carried out by the relevant proxy before the Directors
of the Company had actual notice of the revocation.
How
and when proxy is to be delivered
12.20 Subject
to the following Articles, the Directors may, in the notice convening any meeting or adjourned
meeting, or in an instrument of proxy sent out by the Company, specify the manner by which
the instrument appointing a proxy shall be deposited and the place and the time (being not
later than the time appointed for the commencement of the meeting or adjourned meeting to
which the proxy relates) at which the instrument appointing a proxy shall be deposited. In
the absence of any such direction from the Directors in the notice convening any meeting
or adjourned meeting or in an instrument of proxy sent out by the Company, the form of appointment
of a proxy and any authority under which it is signed (or a copy of the authority certified
notarially or in any other way approved by the Directors) must be delivered so that it is
received by the Company before the time for holding the meeting or adjourned meeting at which
the person named in the form of appointment of proxy proposes to vote. They must be delivered
in either of the following ways:
(a) In
the case of an instrument in writing, it must be left at or sent by post:
(i) to
the registered office of the Company; or
(ii) to
such other place within the Cayman Islands specified in the notice convening the meeting
or in any form of appointment of proxy sent out by the Company in relation to the meeting.
31
(b) If,
pursuant to the notice provisions, a notice may be given to the Company in an Electronic
Record, an Electronic Record of an appointment of a proxy must be sent to the address specified
pursuant to those provisions unless another address for that purpose is specified:
(i) in
the notice convening the meeting; or
(ii) in
any form of appointment of a proxy sent out by the Company in relation to the meeting; or
(iii) in
any invitation to appoint a proxy issued by the Company in relation to the meeting.
(c) Notwithstanding
Article 12.20(a) and Article 12.20(b), the chairman of the Company may, in any event at his
discretion, direct that an instrument of proxy shall be deemed to have been duly deposited.
12.21 If
the form of appointment of proxy is not delivered on time, it is invalid.
12.22 When
two or more valid but differing appointments of proxy are delivered or received in respect
of the same Share for use at the same meeting and in respect of the same matter, the one
which is last validly delivered or received (regardless of its date or of the date of its
execution) shall be treated as replacing and revoking the other or others as regards that
Share. lf the Company is unable to determine which appointment was last validly delivered
or received, none of them shall be treated as valid in respect of that Share.
12.23 The
Board may at the expense of the Company send forms of appointment of proxy to the Members
by post (that is to say, pre-paying and posting a letter), or by Electronic communication
or otherwise (with or without provision for their return by pre-paid post) for use at any
general meeting or at any separate meeting of the holders of any class of Shares, either
blank or nominating as proxy in the alternative any one or more of the Directors or any other
person. lf for the purpose of any meeting invitations to appoint as proxy a person or one
of a number of persons specified in the invitations are issued at the Company’s expense,
they shall be issued to all (and not to some only) of the Members entitled to be sent notice
of the meeting and to vote at it. The accidental omission to send such a form of appointment
or to give such an invitation to, or the non-receipt of such form of appointment by, any
Member entitled to attend and vote at a meeting shall not invalidate the proceedings at that
meeting
Voting
by proxy
12.24 A
proxy shall have the same voting rights at a meeting or adjourned meeting as the Member would
have had except to the extent that the instrument appointing him limits those rights. Notwithstanding
the appointment of a proxy, a Member may attend and vote at a meeting or adjourned meeting.
If a Member votes on any resolution a vote by his proxy on the same resolution, unless in
respect of different Shares, shall be invalid.
32
12.25 The
instrument appointing a proxy to vote at a meeting shall not confer any further right to
speak at the meeting, except with the permission of the chairman of the meeting.
13 Number
of Directors
13.1 There
shall be a Board consisting of not less than one person provided however that the Company
may by Ordinary Resolution increase or reduce the limits in the number of Directors. Unless
fixed by Ordinary Resolution, the maximum number of Directors shall be unlimited.
14 Appointment,
disqualification and removal of Directors
First
Directors
14.1 The
first Directors shall be appointed in writing by the subscriber or subscribers to the Memorandum,
or a majority of them.
No
age limit
14.2 There
is no age limit for Directors save that they must be at least eighteen years of age.
Corporate
Directors
14.3 Unless
prohibited by law, a body corporate may be a Director. If a body corporate is a Director,
the Articles about representation of corporate Members at general meetings apply, mutatis
mutandis, to the Articles about Directors’ meetings.
No
shareholding qualification
14.4 Unless
a shareholding qualification for Directors is fixed by Ordinary Resolution, no Director shall
be required to own Shares as a condition of his appointment.
Appointment
of Directors
14.5 A
Director may be appointed by Ordinary Resolution or by the Directors. Any appointment may
be to fill a vacancy or as an additional Director.
14.6 A
remaining Director may appoint a Director even though there is not a quorum of Directors.
14.7 No
appointment can cause the number of Directors to exceed the maximum (if one is set); and
any such appointment shall be invalid.
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14.8 For
so long as Shares are listed on a Designated Stock Exchange, the Directors shall include
at least such number of Independent Directors as applicable law, rules or regulations or
the Designated Stock Exchange Rules require as determined by the Board by Board Resolution.
Board’s
power to appoint Directors
14.9 Without
prejudice to the Company’s power to appoint a person to be a Director pursuant to these
Articles, the Board shall have power at any time to appoint any person who is willing to
act as a Director, either to fill a vacancy or as an addition to the existing Board, subject
to the total number of Directors not exceeding any maximum number fixed by or in accordance
with these Articles.
14.10 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 Members or re-appointment by the Board.
Removal
of Directors
14.11 A
Director may be removed by Board Resolution.
Resignation
of Directors
14.12 A
Director may at any time resign office by giving to the Company notice in writing or, if
permitted pursuant to the notice provisions, in an Electronic Record delivered in either
case in accordance with those provisions.
14.13 Unless
the notice specifies a different date, the Director shall be deemed to have resigned on the
date that the notice is delivered to the Company.
Termination
of the office of Director
14.14 A
Director may retire from office as a Director by giving notice in writing to that effect
to the Company at the registered office, which notice shall be effective upon such date as
may be specified in the notice, failing which upon delivery to the registered office.
14.15 Without
prejudice to the provisions in these Articles for retirement (by rotation or otherwise),
a Director’s office shall be terminated forthwith if:
(a) he
is prohibited by the law of the Cayman Islands from acting as a Director; or
(b) he
is made bankrupt or makes an arrangement or composition with his creditors generally; or
(c) he
resigns his office by notice to the Company; or
34
(d) he
only held office as a Director for a fixed term and such term expires; or
(e) in
the opinion of a registered medical practitioner by whom he is being treated he becomes physically
or mentally incapable of acting as a Director; or
(f) he
is given notice by the majority of the other Directors (not being less than two in number)
to vacate office (without prejudice to any claim for damages for breach of any agreement
relating to the provision of the services of such Director); or
(g) he
is made subject to any law relating to mental health or incompetence, whether by court order
or otherwise; or
(h) without
the consent of the other Directors, he is absent from meetings of Directors for a continuous
period of six months.
15 Alternate
Directors
Appointment
and removal
15.1 Any
Director may appoint any other person, including another Director, to act in his place as
an alternate Director. No appointment shall take effect until the Director has given notice
of the appointment to the Board.
15.2 A
Director may revoke his appointment of an alternate at any time. No revocation shall take
effect until the Director has given notice of the revocation to the Board.
15.3 A
notice of appointment or removal of an alternate Director shall be effective only if given
to the Company by one or more of the following methods:
(a) by
notice in writing in accordance with the notice provisions contained in these Articles;
(b) if
the Company has a facsimile address for the time being, by sending by facsimile transmission
to that facsimile address a facsimile copy or, otherwise, by sending by facsimile transmission
to the facsimile address of the Company’s registered office a facsimile copy (in either
case, the facsimile copy being deemed to be the notice unless Article 29.7 applies), in which
event notice shall be taken to be given on the date of an error-free transmission report
from the sender’s fax machine;
(c) if
the Company has an email address for the time being, by emailing to that email address a
scanned copy of the notice as a PDF attachment or, otherwise, by emailing to the email address
provided by the Company’s registered office a scanned copy of the notice as a PDF attachment
(in either case, the PDF version being deemed to be the notice unless Article 29.7 applies),
in which event notice shall be taken to be given on the date of receipt by the Company or
the Company’s registered office (as appropriate) in readable form; or
(d) if
permitted pursuant to the notice provisions, in some other form of approved Electronic Record
delivered in accordance with those provisions in writing.
35
Notices
15.4 All
notices of meetings of Directors shall continue to be given to the appointing Director and
not to the alternate.
Rights
of alternate Director
15.5 An
alternate Director shall be entitled to attend and vote at any Board meeting or meeting of
a committee of the Directors at which the appointing Director is not personally present,
and generally to perform all the functions of the appointing Director in his absence. An
alternate Director, however, is not entitled to receive any remuneration from the Company
for services rendered as an alternate Director.
Appointment
ceases when the appointor ceases to be a Director
15.6 An
alternate Director shall cease to be an alternate Director if:
(a) the
Director who appointed him ceases to be a Director; or
(b) the
Director who appointed him revokes his appointment by notice delivered to the Board or to
the registered office of the Company or in any other manner approved by the Board; or
(c) in
any event happens in relation to him which, if he were a Director of the Company, would cause
his office as Director to be vacated.
Status
of alternate Director
15.7 An
alternate Director shall carry out all functions of the Director who made the appointment.
15.8 Save
where otherwise expressed, an alternate Director shall be treated as a Director under these
Articles.
15.9 An
alternate Director is not the agent of the Director appointing him.
15.10 An
alternate Director is not entitled to any remuneration for acting as alternate Director.
Status
of the Director making the appointment
15.11 A
Director who has appointed an alternate is not thereby relieved from the duties which he
owes the Company.
36
16 Powers
of Directors
Powers
of Directors
16.1 Subject
to the provisions of the Act, the Memorandum and these Articles the business of the Company
shall be managed by the Directors who may for that purpose exercise all the powers of the
Company.
16.2 No
prior act of the Directors shall be invalidated by any subsequent alteration of the Memorandum
or these Articles. However, to the extent allowed by the Act, Members may, by Special Resolution,
validate any prior or future act of the Directors which would otherwise be in breach of their
duties.
Directors
below the minimum number
16.3 lf
the number of Directors is less than the minimum prescribed in accordance with these Articles,
the remaining Director or Directors shall act only for the purposes of appointing an additional
Director or Directors to make up such minimum or of convening a general meeting of the Company
for the purpose of making such appointment. lf there are no Director or Directors able or
willing to act, any two Members may summon a general meeting for the purpose of appointing
Directors. Any additional Director so appointed shall hold office (subject to these Articles)
only until the dissolution of the annual general meeting next following such appointment
unless he is re-elected during such meeting.
Appointments
to office
16.4 The
Directors may by Board Resolution appoint a Director:
(a) as
chairman of the Board;
(b) as
managing Director;
(c) to
any other executive office,
for
such period, and on such terms, including as to remuneration as they think fit.
16.5 The
appointee must consent in writing to holding that office.
16.6 Where
a chairman is appointed he shall, unless unable to do so, preside at every meeting of Directors.
16.7 If
there is no chairman, or if the chairman is unable to preside at a meeting, that meeting
may select its own chairman; or the Directors may nominate one of their number to act in
place of the chairman should he ever not be available.
37
16.8 Subject
to the provisions of the Act, the Directors may also appoint and remove any person, who need
not be a Director:
(a) as
Secretary; and
(b) to
any office that may be required
for
such period and on such terms, including as to remuneration, as they think fit. In the case of an Officer, that Officer may be given
any title the Directors decide.
16.9 The
Secretary or Officer must consent in writing to holding that office.
16.10 A
Director, Secretary or other Officer of the Company may not the hold the office, or perform
the services, of auditor.
Provisions
for employees
16.11 The
Board may make provision for the benefit of any persons employed or formerly employed by
the Company or any of its subsidiary undertakings (or any member of his family or any person
who is dependent on him) in connection with the cessation or the transfer to any person of
the whole or part of the undertaking of the Company or any of its subsidiary undertakings.
Exercise
of voting rights
16.12 The
Board may exercise the voting power conferred by the Shares in any body corporate held or
owned by the Company in such manner in all respects as it thinks fit (including, without
limitation, the exercise of that power in favour of any resolution appointing any Director
as a Director of such body corporate, or voting or providing for the payment of remuneration
to the Directors of such body corporate).
Remuneration
16.13 Every
Director may be remunerated by the Company for the services he provides for the benefit of
the Company, whether as Director, employee or otherwise, and shall be entitled to be paid
for the expenses incurred in the Company’s business including attendance at Directors’
meetings.
16.14 Until
otherwise determined by the Company by Ordinary Resolution, the Directors (other than alternate
Directors) shall be entitled to such remuneration by way of fees for their services in the
office of Director as the Directors may determine.
16.15 Remuneration
may take any form and may include arrangements to pay pensions, health insurance, death or
sickness benefits, whether to the Director or to any other person connected to or related
to him.
16.16 Unless
his fellow Directors determine otherwise, a Director is not accountable to the Company for
remuneration or other benefits received from any other company which is in the same group
as the Company or which has common shareholdings.
38
Disclosure
of information
16.17 Subject
to compliance with applicable laws, including the applicable federal securities laws of the
United States, the Directors may release or disclose to a third party any information regarding
the affairs of the Company, including any information contained in the register of Members
relating to a Member, (and they may authorise any Director, Officer or other authorised agent
of the Company to release or disclose to a third party any such information in his possession)
if:
(a) the
Company or that person, as the case may be, is lawfully required to do so under the laws
of any jurisdiction to which the Company is subject; or
(b) such
disclosure is in compliance with the Designated Stock Exchange Rules; or
(c) such
disclosure is in accordance with any contract entered into by the Company; or
(d) the
Directors are of the opinion such disclosure would assist or facilitate the Company’s
operations.
17 Delegation
of powers
Power
to delegate any of the Directors’ powers to a committee
17.1 The
Directors may delegate any of their powers to any committee consisting of one or more persons
who need not be Members. Persons on the committee may include non-Directors so long as the
majority of those persons are Directors. For so long as Shares are listed on a Designated
Stock Exchange, any such committee shall be made up of such number of Independent Directors
as required from time to time by the Designated Stock Exchange Rules or otherwise required
by applicable law.
17.2 The
delegation may be collateral with, or to the exclusion of, the Directors’ own powers.
17.3 The
delegation may be on such terms as the Directors think fit, including provision for the committee
itself to delegate to a sub-committee; save that any delegation must be capable of being
revoked or altered by the Directors at will.
17.4 Unless
otherwise permitted by the Directors, a committee must follow the procedures prescribed for
the taking of decisions by Directors.
17.5 For
so long as Shares are listed on a Designated Stock Exchange, the Board shall by Board Resolution
establish an audit committee, a compensation committee and a nominating and corporate governance
committee. Each of these committees shall be empowered to do all things necessary to exercise
the rights of such committee set forth in these Articles. Each of the audit committee, compensation
committee and nominating and corporate governance committee shall consist of at least three
Directors (or such larger minimum number as may be required from time to time by the Designated
Stock Exchange Rules). The majority of the committee members on each of the compensation
committee and nominating and corporate governance committee shall be Independent Directors.
The audit committee shall be made up of such number of Independent Directors as required
from time to time by the Designated Stock Exchange Rules or otherwise required by applicable
law.
39
Local
boards
17.6 The
Board may by Board Resolution establish any local or divisional board or agency for managing
any of the affairs of the Company whether in the Cayman Islands or elsewhere and may appoint
any persons to be members of a local or divisional Board, or to be managers or agents, and
may fix their remuneration.
17.7 The
Board may by Board Resolution delegate to any local or divisional board, manager or agent
any of its powers and authorities (with power to sub-delegate) and may authorise the members
of any local or divisional board or any of them to fill any vacancies and to act notwithstanding
vacancies.
17.8 Any
appointment or delegation under Article 17.6 and Article 17.7 may be made on such terms and
subject to such conditions as the Board thinks fit and the Board may by Board Resolution
remove any person so appointed, and may revoke or vary any delegation.
Power
to appoint an agent of the Company
17.9 The
Directors may appoint any person, either generally or in respect of any specific matter,
to be the agent of the Company with or without authority for that person to delegate all
or any of that person’s powers. The Directors may make that appointment:
(a) by
causing the Company to enter into a power of attorney or agreement; or
(b) in
any other manner they determine.
Power
to appoint an attorney or authorised signatory of the Company
17.10 The
Directors may appoint any person, whether nominated directly or indirectly by the Directors,
to be the attorney or the authorised signatory of the Company. The appointment may be:
(a) for
any purpose;
(b) with
the powers, authorities and discretions;
(c) for
the period; and
(d) subject
to such conditions
as
they think fit. The powers, authorities and discretions, however, must not exceed those vested in, or exercisable, by the Directors under
these Articles. The Directors may do so by power of attorney or any other manner they think fit.
40
17.11 Any
power of attorney or other appointment may contain such provision for the protection and
convenience for persons dealing with the attorney or authorised signatory as the Directors
think fit. Any power of attorney or other appointment may also authorise the attorney or
authorised signatory to delegate all or any of the powers, authorities and discretions vested
in that person.
17.12 The
Board may by Board Resolution remove any person appointed under Article 17.10 and may revoke
or vary the delegation.
Borrowing
Powers
17.13 The
Directors may exercise all the powers of the Company to borrow money and to mortgage or charge
its undertaking, property and assets both present and future and uncalled capital, or any
part thereof, and to issue debentures and other securities, whether outright or as collateral
security for any debt, liability or obligation of the Company or its parent undertaking (if
any) or any subsidiary undertaking of the Company or of any third party.
Corporate
Governance
17.14 The
Board may by Board Resolution, from time to time, and except as required by applicable law
or the Designated Stock Exchange Rules, adopt, institute, amend, modify or revoke the corporate
governance policies or initiatives of the Company, which shall be intended to set forth the
guiding principles and policies of the Company and the Board on various corporate governance
related matters as the Board shall determine by Board Resolution from time to time.
18 Meetings
of Directors
Regulation
of Directors’ meetings
18.1 Subject
to the provisions of these Articles, the Directors may regulate their proceedings as they
think fit.
Calling
meetings
18.2 Any
Director may call a meeting of Directors at any time. The Secretary must call a meeting of
the Directors if requested to do so by a Director.
Notice
of meetings
18.3 Notice
of a Board meeting may be given to a Director personally or by word of mouth or given in
writing or by Electronic communications at such address as he may from time to time specify
for this purpose (or, if he does not specify an address, at his last known address). A Director
may waive his right to receive notice of any meeting either prospectively or retrospectively.
41
Use
of technology
18.4 A
Director may participate in a meeting of Directors through the medium of conference telephone,
video or any other form of communications equipment providing all persons participating in
the meeting are able to hear and speak to each other throughout the meeting.
18.5 A
Director participating in this way is deemed to be present in person at the meeting.
Quorum
18.6 The
quorum for the transaction of business at a meeting of Directors shall be one unless the
Directors fix some other number.
Chairman
or deputy to preside
18.7 The
Board may by Board Resolution appoint a chairman and one or more deputy chairman or chairmen
and may at any time revoke any such appointment.
18.8 The
chairman, or failing him any deputy chairman (the longest in office taking precedence if
more than one is present), shall preside at all Board meetings. If no chairman or deputy
chairman has been appointed, or if he is not present within five minutes after the time fixed
for holding the meeting, or is unwilling to act as chairman of the meeting, the Directors
present shall choose one of their number to act as chairman of the meeting.
Voting
18.9 A
question which arises at a Board meeting shall be decided by a majority of votes. If votes
are equal the chairman may, if he wishes, exercise a casting vote.
Recording
of dissent
18.10 A
Director present at a meeting of Directors shall be presumed to have assented to any action
taken at that meeting unless:
(a) his
dissent is entered in the minutes of the meeting; or
(b) he
has filed with the meeting before it is concluded signed dissent from that action; or
(c) he
has forwarded to the Company as soon as practical following the conclusion of that meeting
signed dissent.
A
Director who votes in favour of an action is not entitled to record his dissent to it.
42
Written
resolutions
18.11 The
Directors may pass a resolution in writing without holding a meeting if all Directors sign
a document or sign several documents in the like form each signed by one or more of those
Directors.
18.12 A
written resolution signed by a validly appointed alternate Director need not also be signed
by the appointing Director.
18.13 A
written resolution signed personally by the appointing Director need not also be signed by
his alternate.
18.14 A
resolution in writing passed pursuant to Article 18.11, Article 18.12 and/or Article 18.13
shall be as effective as if it had been passed at a meeting of the Directors duly convened
and held; and it shall be treated as having been passed on the day and at the time that the
last Director signs (and for the avoidance of doubt, such day may or may not be a Business
Day).
Validity
of acts of Directors in spite of formal defect
18.15 All
acts done by a meeting of the Board, or of a committee of the Board, or by any person acting
as a Director or an alternate Director, shall, notwithstanding that it is afterwards discovered
that there was some defect in the appointment of any Director or alternate Director or member
of the committee, or that any of them were disqualified or had vacated office or were not
entitled to vote, be as valid as if every such person had been duly appointed and qualified
and had continued to be a Director or alternate Director and had been entitled to vote.
19 Permissible
Directors’ interests and disclosure
19.1 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. 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. 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 provided the Director discloses to his fellow directors the nature and extent of
any material interests in respect of any contract or transaction or proposed contract or
transaction 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.
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20 Minutes
20.1 The
Company shall cause minutes to be made in books of:
(a) all
appointments of Officers and committees made by the Board and of any such Officer’s
remuneration; and
(b) the
names of Directors present at every meeting of the Directors, a committee of the Board, the
Company or the holders of any class of shares or debentures, and all orders, resolutions
and proceedings of such meetings.
20.2 Any
such minutes, if purporting to be signed by the chairman of the meeting at which the proceedings
were held or by the chairman of the next succeeding meeting or the Secretary, shall be prima
facie evidence of the matters stated in them.
21 Accounts
and audit
21.1 The
Directors must ensure that proper accounting and other records are kept, and that accounts
and associated reports are distributed in accordance with the requirements of the Act.
21.2 The
books of account shall be kept at the registered office of the Company and shall always be
open to inspection by the Directors. No Member (other than a Director) shall have any right
of inspecting any account or book or document of the Company except as conferred by the Act
or as authorised by the Directors or by Ordinary Resolution.
Financial
year
21.3 Unless
the Directors otherwise prescribe, the financial year of the Company shall end on 31 March
in each year and begin on 1 April in each year.
Auditors
21.4 The
Directors may appoint an Auditor of the Company who shall hold office on such terms as the
Directors determine.
21.5 At
any general meeting convened and held at any time in accordance with these Articles, the
Members may, by Ordinary Resolution, remove the Auditor before the expiration of his term
of office. If they do so, the Members shall, by Ordinary Resolution, at that meeting appoint
another Auditor in his stead for the remainder of his term.
21.6 The
Auditors shall examine such books, accounts and vouchers; as may be necessary for the performance
of their duties.
21.7 The
Auditors shall, if so requested 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 Company.
44
22 Record
dates
22.1 Except
to the extent of any conflicting rights attached to Shares, the resolution declaring a dividend
on Shares of any class, whether it be an Ordinary Resolution of the Members or a Board Resolution,
may specify that the dividend is payable or distributable to the persons registered as the
holders of those Shares at the close of business on a particular date, notwithstanding that
the date may be a date prior to that on which the resolution is passed.
22.2 If
the resolution does so specify, the dividend shall be payable or distributable to the persons
registered as the holders of those Shares at the close of business on the specified date
in accordance with their respective holdings so registered, but without prejudice to the
rights inter se in respect of the dividend of transferors and transferees of any of
those Shares.
22.3 The
provisions of this Article apply, mutatis mutandis, to bonuses, capitalisation issues,
distributions of realised capital profits or offers or grants made by the Company to the
Members.
23 Dividends
Source
of dividends
23.1 Dividends
may be declared and paid out of any funds of the Company lawfully available for distribution.
23.2 Subject
to the requirements of the Act regarding the application of a company’s Share premium
account and with the sanction of an Ordinary Resolution, dividends may also be declared and
paid out of any share premium account.
Declaration
of dividends by Members
23.3 Subject
to the provisions of the Act, the Company may by Ordinary Resolution declare dividends in
accordance with the respective rights of the Members but no dividend shall exceed the amount
recommended by the Directors.
23.4 No
dividend may be declared or paid, and no other distribution (whether in cash or otherwise)
of the Company’s assets (including any distribution of assets to Members on a winding
up) may be made to a holder of a Class B Ordinary Share.
Payment
of interim dividends and declaration of final dividends by Directors
23.5 Subject
to Article 23.4, the Directors may by Board Resolution declare and pay interim dividends
or recommend final dividends in accordance with the respective rights of the Members if it
appears to them that they are justified by the financial position of the Company and that
such dividends may lawfully be paid.
45
23.6 Subject
to the provisions of the Act, in relation to the distinction between interim dividends and
final dividends, the following applies:
(a) Upon
determination to pay a dividend or dividends described as interim by the Directors in the
dividend Board Resolution, no debt shall be created by the declaration until such time as
payment is made.
(b) Upon
declaration of a dividend or dividends described as final by the Directors in the dividend
Board Resolution, a debt shall be created immediately following the declaration, the due
date to be the date the dividend is stated to be payable in the Board Resolution.
If
the Board Resolution fails to specify whether a dividend is final or interim, it shall be assumed to be interim.
23.7 In
relation to Shares carrying differing rights to dividends or rights to dividends at a fixed
rate, the following applies:
(a) If
the share capital is divided into different classes, the Directors may pay dividends on Shares
which confer deferred or non-preferred rights with regard to dividends as well as on Shares
which confer preferential rights with regard to dividends but no dividend shall be paid on
Shares carrying deferred or non-preferred rights if, at the time of payment, any preferential
dividend is in arrears.
(b) The
Directors may also pay, at intervals settled by them, any dividend payable at a fixed rate
if it appears to them that there are sufficient funds of the Company lawfully available for
distribution to justify the payment.
(c) If
the Directors act in good faith, they shall not incur any liability to the Members holding
Shares conferring preferred rights for any loss those Members may suffer by the lawful payment
of the dividend on any Shares having deferred or non-preferred rights.
Apportionment
of dividends
23.8 Except
as otherwise provided by the rights attached to Shares all dividends shall be declared and
paid according to the amounts Paid Up on the Shares on which the dividend is paid. All dividends
shall be apportioned and paid proportionately to the amount Paid Up on the Shares during
the time or part of the time in respect of which the dividend is paid. But if a Share is
issued on terms providing that it shall rank for dividend as from a particular date, that
Share shall rank for dividend accordingly.
Right
of set off
23.9 The
Directors may deduct from a dividend or any other amount payable to a person in respect of
a Share any amount due by that person to the Company on a call or otherwise in relation to
a Share.
46
Power
to pay other than in cash
23.10 If
the Directors so determine, any Board Resolution declaring a dividend may direct that it
shall be satisfied wholly or partly by the distribution of assets. If a difficulty arises
in relation to the distribution, the Directors may settle that difficulty in any way they
consider appropriate. For example, they may do any one or more of the following:
(a) issue
fractional Shares;
(b) fix
the value of assets for distribution and make cash payments to some Members on the footing
of the value so fixed in order to adjust the rights of Members; and
(c) vest
some assets in trustees.
How
payments may be made
23.11 Subject
to Article 23.4, a dividend or other monies payable on or in respect of a Share may be paid
in any of the following ways:
(a) if
the Member holding that Share or other person entitled to that Share nominates a bank account
for that purpose - by wire transfer to that bank account; or
(b) by
cheque or warrant sent by post to the registered address of the Member holding that Share
or other person entitled to that Share.
23.12 For
the purposes of Article 23.11(a), the nomination may be in writing or in an Electronic Record
and the bank account nominated may be the bank account of another person. For the purposes
of Article 23.11(b), subject to any applicable law or regulation, the cheque or warrant shall
be made to the order of the Member holding that Share or other person entitled to the Share
or to his nominee, whether nominated in writing or in an Electronic Record, and payment of
the cheque or warrant shall be a good discharge to the Company.
23.13 Subject
to Article 23.4, if two or more persons are registered as the holders of the Share or are
jointly entitled to it by reason of the death or bankruptcy of the registered holder (Joint
Holders), a dividend (or other amount) payable on or in respect of that Share may be
paid as follows:
(a) to
the registered address of the Joint Holder of the Share who is named first on the register
of Members or to the registered address of the deceased or bankrupt holder, as the case may
be; or
(b) to
the address or bank account of another person nominated by the Joint Holders, whether that
nomination is in writing or in an Electronic Record.
23.14 Subject
to Article 23.4, any Joint Holder of a Share may give a valid receipt for a dividend (or
other amount) payable in respect of that Share.
47
Dividends
or other monies not to bear interest in absence of special rights
23.15 Unless
provided for by the rights attached to a Share, no dividend or other monies payable by the
Company in respect of a Share shall bear interest.
Dividends
unable to be paid or unclaimed
23.16 Subject
to Article 23.4, if a dividend cannot be paid to a Member or remains unclaimed within six
weeks after it was declared or both, the Directors may pay it into a separate account in
the Company’s name. If a dividend is paid into a separate account, the Company shall
not be constituted trustee in respect of that account and the dividend shall remain a debt
due to the Member.
23.17 A
dividend that remains unclaimed for a period of six years after it became due for payment
shall be forfeited to, and shall cease to remain owing by, the Company.
24 Capitalisation
of profits
Capitalisation
of profits or of any share premium account or capital redemption reserve;
24.1 The
Directors may resolve to capitalise:
(a) any
part of the Company’s profits not required for paying any preferential dividend (whether
or not those profits are available for distribution); or
(b) any
sum standing to the credit of the Company’s share premium account or capital redemption
reserve, if any.
24.2 Subject
to Article 23.4, the amount resolved to be capitalised must be appropriated to the Members
who would have been entitled to it had it been distributed by way of dividend and in the
same proportions. The benefit to each Member so entitled must be given in either or both
of the following ways:
(a) by
paying up the amounts unpaid on that Member’s Shares;
(b) by
issuing Fully Paid Up Shares, debentures or other securities of the Company to that Member
or as that Member directs. The Directors may resolve that any Shares issued to the Member
in respect of Partly Paid Up Shares (Original Shares) rank for dividend only to the
extent that the Original Shares rank for dividend while those Original Shares remain Partly
Paid Up.
Applying
an amount for the benefit of Members
24.3 Subject
to Article 23.4, the amount capitalised must be applied to the benefit of Members in the
proportions to which the Members would have been entitled to dividends if the amount capitalised
had been distributed as a dividend.
24.4 Subject
to the Act, if a fraction of a Share, a debenture or other security is allocated to a Member,
the Directors may issue a fractional certificate to that Member or pay him the cash equivalent
of the fraction.
48
25 Share
Premium Account
Directors
to maintain share premium account
25.1 The
Directors shall establish a share premium account in accordance with the Act. They shall
carry to the credit of that account from time to time an amount equal to the amount or value
of the premium paid on the issue of any Share or capital contributed or such other amounts
required by the Act.
Debits
to share premium account
25.2 The
following amounts shall be debited to any share premium account:
(a) on
the redemption or purchase of a Share, the difference between the nominal value of that Share
and the redemption or purchase price; and
(b) any
other amount paid out of a share premium account as permitted by the Act.
25.3 Notwithstanding
the preceding Article, on the redemption or purchase of a Share, the Directors may pay the
difference between the nominal value of that Share and the redemption purchase price out
of the profits of the Company or, as permitted by the Act, out of capital.
26 Seal
Company
seal
26.1 The
Company may have a seal if the Directors so determine by Board Resolution.
Duplicate
seal
26.2 Subject
to the provisions of the Act, the Company may also have a duplicate seal or seals for use
in any place or places outside the Cayman Islands. Each duplicate seal shall be a facsimile
of the original seal of the Company. However, if the Directors so determine by Board Resolution,
a duplicate seal shall have added on its face the name of the place where it is to be used.
When
and how seal is to be used
26.3 A
seal may only be used by the authority of the Directors. Unless the Directors otherwise determine
by Board Resolution, a document to which a seal is affixed must be signed in one of the following
ways:
(a) by
a Director (or his alternate) and the Secretary; or
(b) by
a single Director (or his alternate).
49
If
no seal is adopted or used
26.4 If
the Directors do not adopt a seal, or a seal is not used, a document may be executed in the
following manner:
(a) by
a Director (or his alternate) and the Secretary; or
(b) by
a single Director (or his alternate); or
(c) in
any other manner permitted by the Act.
Power
to allow non-manual signatures and facsimile printing of seal
26.5 The
Directors may determine by Board Resolution that either or both of the following applies:
(a) that
the seal or a duplicate seal need not be affixed manually but may be affixed by some other
method or system of reproduction;
(b) that
a signature required by these Articles need not be manual but may be a mechanical or Electronic
Signature.
Validity
of execution
26.6 If
a document is duly executed and delivered by or on behalf of the Company, it shall not be
regarded as invalid merely because, at the date of the delivery, the Secretary, or the Director,
or other Officer or person who signed the document or affixed the seal for and on behalf
of the Company ceased to be the Secretary or hold that office and authority on behalf of
the Company.
27 Indemnity
27.1 To
the extent permitted by law, the Company shall indemnify each existing or former Director
(including alternate Director), Secretary and other Officer of the Company (including an
investment adviser or an administrator or liquidator) and their personal representatives
against:
(a) all
actions, proceedings, costs, charges, expenses, losses, damages or liabilities incurred or
sustained by the existing or former Director (including alternate Director), Secretary or
Officer in or about the conduct of the Company’s business or affairs or in the execution
or discharge of the existing or former Director’s (including alternate Director’s),
Secretary’s or Officer’s duties, powers, authorities or discretions; and
(b) without
limitation to paragraph (a), all costs, expenses, losses or liabilities incurred by the existing
or former Director (including alternate Director), Secretary or Officer in defending (whether
successfully or otherwise) any civil, criminal, administrative or investigative proceedings
(whether threatened, pending or completed) concerning the Company or its affairs in any court
or tribunal, whether in the Cayman Islands or elsewhere.
50
No
such existing or former Director (including alternate Director), Secretary or Officer, however, shall be indemnified in respect of any
matter arising out of his own dishonesty.
27.2 To
the extent permitted by Act, the Company may make a payment, or agree to make a payment,
whether by way of advance, loan or otherwise, for any legal costs incurred by an existing
or former Director (including alternate Director), Secretary or Officer of the Company in
respect of any matter identified in Article 27.1 on condition that the Director (including
alternate Director), Secretary or Officer must repay the amount paid by the Company to the
extent that it is ultimately found not liable to indemnify the Director (including alternate
Director), Secretary or that Officer for those legal costs.
Release
27.3 To
the extent permitted by Act, the Company may by Special Resolution release any existing or
former Director (including alternate Director), Secretary or other Officer of the Company
from liability for any loss or damage or right to compensation which may arise out of or
in connection with the execution or discharge of the duties, powers, authorities or discretions
of his office; but there may be no release from liability arising out of or in connection
with that person’s own dishonesty.
Insurance
27.4 To
the extent permitted by Act, the Company may pay, or agree to pay, a premium in respect of
a contract insuring each of the following persons against risks determined by the Directors,
other than liability arising out of that person’s own dishonesty:
(a) an
existing or former Director (including alternate Director), Secretary or Officer or auditor
of:
(i) the
Company;
(ii) a
company which is or was a subsidiary of the Company;
(iii) a
company in which the Company has or had an interest (whether direct or indirect); and
(b) a
trustee of an employee or retirement benefits scheme or other trust in which any of the persons
referred to in paragraph (a) is or was interested.
51
28 Notices
Form
of notices
28.1 Save
where these Articles provide otherwise, and subject to the Designated Stock Exchange Rules,
any notice to be given to or by any person pursuant to these Articles shall be:
(a) in
writing signed by or on behalf of the giver in the manner set out below for written notices;
or
(b) subject
to the next Article, in an Electronic Record signed by or on behalf of the giver by Electronic
Signature and authenticated in accordance with Articles about authentication of Electronic
Records; or
(c) where
these Articles expressly permit, by the Company by means of a website.
Electronic
communications
28.2 A
notice may only be given to the Company in an Electronic Record if:
(a) the
Directors so resolve or otherwise accept the notice; or
(b) any
Director or Officer provides the giver of the notice an electronic address to which the notice
may be sent and a notice is sent to that address within a reasonable period of time.
28.3 A
notice may not be given by Electronic Record to a person other than the Company unless the
recipient has provided the giver of an Electronic address to which notice may be sent.
28.4 Subject
to the Act, the Designated Stock Exchange Rules and to any other rules which the Company
is bound to follow, the Company may also send any notice or other document pursuant to these
Articles to a Member by publishing that notice or other document on a website where:
(a) the
Company and the Member have agreed to his having access to the notice or document on a website
(instead of it being sent to him);
(b) the
notice or document is one to which that agreement applies;
(c) the
Member is notified (in accordance with any requirements laid down by the Act and, in a manner
for the time being agreed between him and the Company for the purpose) of:
(i) the
publication of the notice or document on a website;
(ii) the
address of that website; and
(iii) the
place on that website where the notice or document may be accessed, and how it may be accessed;
and
52
(d) the
notice or document is published on that website throughout the publication period, provided
that, if the notice or document is published on that website for a part, but not all of,
the publication period, the notice or document shall be treated as being published throughout
that period if the failure to publish that notice of document throughout that period is wholly
attributable to circumstances which it would not be reasonable to have expected the Company
to prevent or avoid. For the purposes of this Article 28.4 “publication period”
means a period of not less than seven days, beginning on the day on which the notification
referred to in Article 28.4(c) is deemed sent.
Persons
entitled to notices
28.5 Any
notice or other document to be given to a Member may be given by reference to the register
of Members as it stands at any time within the period of seven days before the day that the
notice is given or (where and as applicable) within any other period permitted by, or in
accordance with the requirements of, (to the extent applicable) the Designated Stock Exchange
Rules and/or the Designated Stock Exchanges. No change in the register of Members after that
time shall invalidate the giving of such notice or document or require the Company to give
such item to any other person.
Persons
authorised to give notices
28.6 A
notice by either the Company or a Member pursuant to these Articles may be given on behalf
of the Company or a Member by a Director or company secretary of the Company or a Member.
Delivery
of written notices
28.7 Save
where these Articles provide otherwise, a notice in writing may be given personally to the
recipient, or left at (as appropriate) the Member’s or Director’s registered
address or the Company’s registered office, or posted to that registered address or
registered office.
Joint
holders
28.8 Where
Members are joint holders of a Share, all notices shall be given to the Member whose name
first appears in the register of Members.
Signatures
28.9 A
written notice shall be signed when it is autographed by or on behalf of the giver, or is
marked in such a way as to indicate its execution or adoption by the giver.
28.10 An
Electronic Record may be signed by an Electronic Signature.
53
Evidence
of transmission
28.11 A
notice given by Electronic Record shall be deemed sent if an Electronic Record is kept demonstrating
the time, date and content of the transmission, and if no notification of failure to transmit
is received by the giver.
28.12 A
notice given in writing shall be deemed sent if the giver can provide proof that the envelope
containing the notice was properly addressed, pre-paid and posted, or that the written notice
was otherwise properly transmitted to the recipient.
28.13 A
Member present, either in person or by proxy, at any meeting of the Company or of the holders
of any class of Shares shall be deemed to have received due notice of the meeting and, where
requisite, of the purposes for which it was called.
Giving
notice to a deceased or bankrupt Member
28.14 A
notice may be given by the Company to the persons entitled to a Share in consequence of the
death or bankruptcy of a Member by sending or delivering it, in any manner authorised by
these Articles for the giving of notice to a Member, addressed to them by name, or by the
title of representatives of the deceased, or trustee of the bankrupt or by any like description,
at the address, if any, supplied for that purpose by the persons claiming to be so entitled.
28.15 Until
such an address has been supplied, a notice may be given in any manner in which it might
have been given if the death or bankruptcy had not occurred.
Date
of giving notices
28.16 A
notice is given on the date identified in the following table
Method
for giving notices
When
taken to be given
(A)
Personally
At
the time and date of delivery
(B)
By leaving it at the Member’s registered address
At
the time and date it was left
(C)
By posting it by prepaid post to the street or postal address of that recipient
48
hours after the date it was posted
(D)
By Electronic Record (other than publication on a website), to recipient’s Electronic address
48
hours after the date it was sent
(E)
By publication on a website
24
hours after the date on which the Member is deemed to have been notified of the publication of the notice or document on the website
Saving
provision
28.17 None
of the preceding notice provisions shall derogate from the Articles about the delivery of
written resolutions of Directors and written resolutions of Members.
54
29 Authentication
of Electronic Records
Application
of Articles
29.1 Without
limitation to any other provision of these Articles, any notice, written resolution or other
document under these Articles that is sent by Electronic means by a Member, or by the Secretary,
or by a Director or other Officer of the Company, shall be deemed to be authentic if either
Article 29.2 or Article 29.4 applies.
Authentication
of documents sent by Members by Electronic means
29.2 An
Electronic Record of a notice, written resolution or other document sent by Electronic means
by or on behalf of one or more Members shall be deemed to be authentic if the following conditions
are satisfied:
(a) the
Member or each Member, as the case may be, signed the original document, and for this purpose
Original Document includes several documents in like form signed by one or more of
those Members; and
(b) the
Electronic Record of the Original Document was sent by Electronic means by, or at the direction
of, that Member to an address specified in accordance with these Articles for the purpose
for which it was sent; and
(c) Article
29.7 does not apply.
29.3 For
example, where a sole Member signs a resolution and sends the Electronic Record of the original
resolution, or causes it to be sent, by facsimile transmission to the address in these Articles
specified for that purpose, the facsimile copy shall be deemed to be the written resolution
of that Member unless Article 28.7 applies.
Authentication
of document sent by the Secretary or Officers of the Company by Electronic means
29.4 An
Electronic Record of a notice, written resolution or other document sent by or on behalf
of the Secretary or an Officer or Officers of the Company shall be deemed to be authentic
if the following conditions are satisfied:
(a) the
Secretary or the Officer or each Officer, as the case may be, signed the original document,
and for this purpose Original Document includes several documents in like form signed
by the Secretary or one or more of those Officers; and
(b) the
Electronic Record of the Original Document was sent by Electronic means by, or at the direction
of, the Secretary or that Officer to an address specified in accordance with these Articles
for the purpose for which it was sent; and
(c) Article
29.7 does not apply.
55
This
Article 29.4 applies whether the document is sent by or on behalf of the Secretary or Officer in his own right or as a representative
of the Company.
29.5 For
example, where a sole Director signs a resolution and scans the resolution, or causes it
to be scanned, as a PDF version which is attached to an email sent to the address in these
Articles specified for that purpose, the PDF version shall be deemed to be the written resolution
of that Director unless Article 29.7 applies.
Manner
of signing
29.6 For
the purposes of these Articles about the authentication of Electronic Records, a document
will be taken to be signed if it is signed manually or in any other manner permitted by these
Articles.
Saving
provision
29.7 A
notice, written resolution or other document under these Articles will not be deemed to be
authentic if the recipient, acting reasonably:
(a) believes
that the signature of the signatory has been altered after the signatory had signed the original
document; or
(b) believes
that the original document, or the Electronic Record of it, was altered, without the approval
of the signatory, after the signatory signed the original document; or
(c) otherwise
doubts the authenticity of the Electronic Record of the document
and
the recipient promptly gives notice to the sender setting the grounds of its objection. If the recipient invokes this Article, the sender
may seek to establish the authenticity of the Electronic Record in any way the sender thinks fit.
30 Transfer
by way of continuation
30.1 The
Company may, by Special Resolution, resolve to be registered by way of continuation in a
jurisdiction outside:
(a) the
Cayman Islands; or
(b) such
other jurisdiction in which it is, for the time being, incorporated, registered or existing.
30.2 To
give effect to any resolution made pursuant to the preceding Article, the Directors may cause
the following:
(a) an
application be made to the Registrar of Companies of the Cayman Islands to deregister the
Company in the Cayman Islands or in the other jurisdiction in which it is for the time being
incorporated, registered or existing; and
(b) all
such further steps as they consider appropriate to be taken to effect the transfer by way
of continuation of the Company.
56
31 Winding
up
Distribution
of assets in specie
31.1 If
the Company is wound up the Members may, subject to these Articles and any other sanction
required by the Act, pass a Special Resolution allowing the liquidator to do either or both
of the following:
(a) to
divide in specie among the holders of the Class A Ordinary Shares the whole or any part of
the assets of the Company and, for that purpose, to value any assets and to determine how
the division shall be carried out as among the holders of the Class A Ordinary Shares; and/or
(b) to
vest the whole or any part of the assets in trustees for the benefit of the holders of the
Class A Ordinary Shares and those liable to contribute to the winding up.
31.2 No
distribution (whether in cash or otherwise) of the Company’s assets on a winding up
may be made to a holder of a Class B Ordinary Share.
No
obligation to accept liability
31.3 No
Member shall be compelled to accept any assets if an obligation attaches to them.
31.4 The
Directors are authorised to present a winding up petition
31.5 The
Directors have the authority to present a petition for the winding up of the Company to the
Grand Court of the Cayman Islands on behalf of the Company without the sanction of a resolution
passed at a general meeting.
32 Amendment
of Memorandum and Articles
Power
to change name or amend Memorandum
32.1 Subject
to the Act, the Company may, by Special Resolution:
(a) change
its name; or
(b) change
the provisions of its Memorandum with respect to its objects, powers or any other matter
specified in the Memorandum.
Power
to amend these Articles
32.2 Subject
to the Act and as provided in these Articles, the Company may, by Special Resolution, amend
these Articles in whole or in part.
57
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Title of a 12(b) registered security.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection b
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X
- Definition
Name of the Exchange on which a security is registered.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 12
-Subsection d1-1
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X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as soliciting material pursuant to Rule 14a-12 under the Exchange Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Exchange Act
-Number 240
-Section 14a
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X
- Definition
Trading symbol of an instrument as listed on an exchange.
+ References
No definition available.
+ Details
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X
- Definition
Boolean flag that is true when the Form 8-K filing is intended to satisfy the filing obligation of the registrant as written communications pursuant to Rule 425 under the Securities Act.
+ References
Reference 1: http://www.xbrl.org/2003/role/presentationRef
-Publisher SEC
-Name Securities Act
-Number 230
-Section 425
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