The 2024 annual general meeting of HITEK GLOBAL INC. will be held on February 5, 2024, at 9:00 a.m., Eastern Time, at Unit 304, No. 30 Guanri Road, Siming District, Xiamen City, Fujian Province, People’s Republic of China.
HITEK GLOBAL INC.
(incorporated in the Cayman Islands with limited liability)
(NASDAQ: HKIT)
NOTICE OF 2024 ANNUAL GENERAL MEETING
NOTICE IS HEREBY GIVEN THAT the 2024 annual general
meeting (the “Meeting”) of HITEK GLOBAL INC. (the “Company”) will be held on February 5, 2024, at 9:00 a.m., Eastern Time, at Unit
304, No. 30 Guanri Road, Siming District, Xiamen
City, Fujian Province, People’s Republic of China, for the following
purposes:
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1. |
To approve, as an ordinary
resolution, the re-appointment of Mr. Shenping Yin as a director
of the Company to hold office until the next annual general meeting; |
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2. |
To approve, as an ordinary resolution, the re-appointment
of Ms. Xiaoyang Huang as a director of the Company to hold office until the
next annual general meeting; |
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3. |
To approve, as an ordinary resolution, the re-appointment
of Mr. Lawrence Venick as a director of the Company
to hold office until the next annual general meeting; |
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4. |
To approve, as an ordinary resolution, the appointment of
Mr. Weijun Wang as a director of the Company to
hold office until the next annual general meeting; |
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5. |
To approve, as an ordinary resolution, the appointment of
Mr. Shuiqing Huang as a director of the Company to hold office until
the next annual general meeting; |
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6. |
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7. |
To approve, as an
ordinary resolution, the re-designation and re-classification of shares of
the Company that the currently
issued 14,392,364 ordinary shares of par value of US$0.0001 each in the
Company be and are re-designated and re-classified into 6,200,364 Class A
ordinary shares of par value US$0.0001 each with 1 vote per share (the “Class
A Ordinary Shares”) and 8,192,000 Class B ordinary shares of par value
US$0.0001 each with 15 votes per share (the “Class B Ordinary Shares”) on a
one for one basis as follows:
; and |
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8. |
To
approve, as a special resolution, the adoption of the Second Amended
and Restated Memorandum and Articles of Association of the Company as
set forth in Appendix A to this notice (the “Second Amended and Restated
Memorandum and Articles of Association”) in substitution for the Amended and
Restated Memorandum and Articles of Association of the Company currently in
effect, to reflect the dual-class share structure and set out the rights and
privileges of Class A Ordinary Shares and Class B Ordinary Shares. |
The foregoing
items of business are described in the proxy statement accompanying this
notice. The board of directors of the Company (the “Board of Directors”)
unanimously recommends that the shareholders vote “FOR” for all the items.
The Board of Directors
has fixed the close of business on January 5, 2024 as the record date (the
“Record Date”) for determining the shareholders entitled to receive notice of
and to vote at the Meeting or any adjournment thereof. Only holders of ordinary
shares of the Company on the Record Date are entitled to receive notice of and
to vote at the Meeting or any adjournment thereof.
The notice of the
Meeting, this proxy statement, and the proxy card will be sent to shareholders
on or about January 11, 2024.
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By Order of the Board of Directors, |
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/s/ Shenping
Yin |
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Shenping Yin |
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Chairman of the Board of Directors |
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Xiamen, China
January 11, 2024
HITEK GLOBAL INC.
2024 ANNUAL GENERAL MEETING
February 5, 2024
9:00 a.m., Eastern Time
PROXY STATEMENT
The board of directors (the
“Board of Directors”) of HITEK GLOBAL INC. (the “Company”) is soliciting
proxies for the 2024 annual general meeting (the “Meeting”) of the Company to
be held on February 5, 2024, at 9:00 a.m., Eastern Time, at Unit 304, No. 30 Guanri Road, Siming District, Xiamen City, Fujian Province,
People’s Republic of China or any adjournment thereof.
Only holders of the ordinary
shares of the Company of record at the close of business on January 5, 2024
(the “Record Date”) are entitled to attend and vote at the Meeting or at any
adjournment thereof. The shareholders entitled to vote and present, in person
or by proxy or (in the case of a shareholder being a corporate entity) by its
duly authorized representative, representing not less than one-third in nominal
value of the total issued voting shares in the Company throughout the meeting
shall form a quorum.
Any shareholder entitled to
attend and vote at the Meeting is entitled to appoint a proxy to attend and
vote on such shareholder’s behalf. A proxy need not be a shareholder of the
Company. Each holder of the Company’s ordinary shares shall be entitled to
one vote in respect of each ordinary share held by such holder on the Record
Date.
PROPOSALS TO BE VOTED ON
At the Meeting, ordinary resolutions
will be proposed as follows:
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|
1. |
To approve, as an ordinary resolution, the re-appointment
of Mr. Shenping Yin as a director of the Company to
hold office until the next annual general meeting; |
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|
2. |
To approve, as an ordinary resolution, the re-appointment
of Ms. Xiaoyang Huang as a director of the Company to hold office until the
next annual general meeting; |
|
|
3. |
To approve, as an ordinary resolution, the re-appointment
of Mr. Lawrence Venick as a director of the Company
to hold office until the next annual general meeting; |
|
|
4. |
To approve, as an ordinary resolution, the appointment of
Mr. Weijun Wang as a director of the Company to
hold office until the next annual general meeting; |
|
|
5. |
To approve, as an ordinary resolution, the appointment of
Mr. Shuiqing Huang as
a director of the Company to hold office until the next annual general
meeting; |
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|
6. |
To confirm, ratify and approve, as an ordinary resolution,
the re-appointment of Wei, Wei & Co., LLP as the Company’s independent
registered public accounting firm for the year ending December 31, 2023; |
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|
7. |
To approve, as an ordinary
resolution, the re-designation and re-classification of shares of the Company
that the currently
issued 14,392,364 ordinary shares of par value of US$0.0001 each in the
Company be and are re-designated and re-classified into 6,200,364 Class A
ordinary shares of par value US$0.0001 each with 1 vote per share (the “Class
A Ordinary Shares”) and 8,192,000 Class B ordinary shares of par value
US$0.0001 each with 15 votes per share (the “Class B Ordinary Shares”) on a
one for one basis as set out in the Notice of 2024 Annual General Meeting;
and |
At the Meeting, a special resolution
will be proposed as follows:
|
|
8. |
To approve, as a special resolution, the adoption of the
Second Amended and Restated Memorandum and Articles of Association of the
Company as set forth in Appendix A to this notice (the “Second Amended and
Restated Memorandum and Articles of Association”) in substitution for the
Amended and Restated Memorandum and Articles of Association of the Company
currently in effect, to reflect the dual-class share structure and set out
the rights and privileges of Class A Ordinary Shares and Class B Ordinary
Shares. |
The Board of Directors recommends a
vote “FOR” each of the Proposals No. 1–8.
QUORUM AND VOTING PROCEDURE FOR
HOLDERS OF ORDINARY SHARES
The quorum
for the Meeting is the holders of a majority of the issued and outstanding
ordinary shares of the Company being individuals present in person or by proxy
or if a corporation or other non-natural person by its duly authorized
representative or proxy.
Shareholders entitled to vote at the
Meeting may do so either in person or by proxy. Those shareholders who are
unable to attend the Meeting are requested to read, complete, sign, date, and
return the attached proxy card in accordance with the instructions set out
therein.
Each proposal/resolution shall be put
to the vote of the Meeting and decided on a poll.
The holder of an ordinary
share shall
have one vote for every ordinary share of which they are the holder.
ANNUAL REPORT TO SHAREHOLDERS
The annual report for the year ended
December 31, 2022 (the “2022 Annual Report”) has been filed with the U.S.
Securities and Exchange Commission. If you want to receive a paper or email
copy of the Company’s 2022 Annual Report to shareholders, you must request one.
There is no charge to you for requesting a copy. Please make your request for a
copy to the Investor Relations department of the Company, at info@ascent-ir.com.
PROPOSAL NO. 1 THROUGH PROPOSAL NO. 3
RE-APPOINtment
OF CURRENT DIRECTORS
The Board of Directors
currently consists of five members. Three of the five current directors named
below will seek re-appointment at the Meeting.
Each director to be re-appointed will
hold office until the next annual general meeting or until his or her
appointment is otherwise terminated in accordance with the articles of
association of the Company.
DIRECTORS FOR RE-APPOINTMENT
Mr. Shenping Yin has been our Chairman of the Board since our inception. Mr. Yin has been the Chief
Executive Officer and a director of Recon Technology, Ltd. (NASDAQ: RCON) since
2007. In 2003, Mr. Yin founded Nanjing Recon, a Chinese company that provides
services to automate and enhance the extraction of petroleum in China, and has
been the Chief Executive Officer since that time. Mr. Yin has founded and
operated a number of companies engaged in the IT industry including: Xiamen Hengda Haitian Computer Network Co., Ltd. (1994), Baotou Hengda Haitian Computer Network Co., Ltd. (1997), Beijing Jingke Haitian Electronic Technology Development Co., Ltd.
(1999), and Jingsu Huasheng
Information Technology Co., Ltd. (2000). Mr. Yin received his bachelor’s degree
in 1991 from Nanjing Agricultural University in Information Systems.
Ms. Xiaoyang Huang has been our CEO since our inception. Ms. Huang
was appointed as our director upon closing of our initial public offering on
April 4, 2023. She has been the Chief Executive Officer of Xiamen Hengda HiTek Computer Network
Co., Ltd. since 2000. Ms. Huang graduated from Nanjing Agricultural University
and majored in Agricultural Information. She also went through a one-year
accounting program in Renmin University of China from 2010 to 2011.
Mr. Lawrence Venick has been our independent director since April
4, 2023. Mr. Venick has been a Partner at Loeb &
Loeb LLP since 2007. He is a corporate and securities lawyer focusing his
practice on United States capital market transactions and corporate governance
matters involving U.S. listed companies. Over the course of his career, Mr. Venick has represented a number of publicly traded
companies listed on NASDAQ and The NYSE. Mr. Venick currently splits his time between Loeb & Loeb
LLP’s Hong Kong and Beijing offices. He serves as the Managing Partner of the
Hong Kong office and is the Chief Legal Representative of the Beijing office.
From 2004 to 2012, Mr. Venick worked as a corporate
lawyer in Loeb & Loeb LLP’s Los Angeles office. Prior to that time, Mr. Venick worked as a corporate lawyer in Wilson Sonsini
Goodrich & Rosati PC’s Palo Alto office. Mr. Venick
holds a B.A. from the University of California at Santa Barbra and a J.D. from
Loyola Law School.
The
full text of the resolutions to be proposed are as follows:
RESOLVED, as an ordinary resolution, that Mr. Shenping Yin be
re-appointed as a director of the Company, to hold office in accordance with
the articles of association of the Company until the next annual general
meeting of the Company.
RESOLVED, as an ordinary resolution, that Ms. Xiaoyang Huang be re-appointed as a
director of the Company, to hold office in accordance with the articles of
association of the Company until the next annual general
meeting of the Company.
RESOLVED, as an ordinary resolution, that Mr. Lawrence Venick be
re-appointed as a director of the Company, to hold office in accordance with
the articles of association of the Company until the next annual general
meeting of the Company.
Vote Required for
Approval
The
approval of each of Proposals No. 1 to 3 requires an ordinary resolution under
Cayman Islands law, being the affirmative vote of the holders of a majority of
the ordinary shares who, being present and entitled to vote at the Meeting,
vote at the Meeting.
Abstentions
and broker non-votes, while considered present for the purposes of establishing
a quorum, will not count as a vote cast at the Meeting.
The Re-Appointment of Current Directors will become effective upon approval of our shareholders.
THE BOARD OF
DIRECTORS RECOMMENDS
A VOTE FOR
THE
RE-APPOINTMENT OF EACH OF THE CURRENT DIRECTORS NAMED ABOVE.
PROPOSAL NO. 4 THROUGH
PROPOSAL NO. 5
APPOINtment OF DIRECTORS
The Board of Directors currently
consists of five members. The Board of Directors recommends that Mr. Weijun Wang and Mr. Shuiqing
Huang be appointed as directors of the Company to hold each of their offices
until the next annual general meeting or until his or her appointment is
otherwise terminated in accordance with the articles of association of the
Company.
THE CANDIDATES FOR APPOINTMENT
Mr. Weijun Wang has served as the vice general manager of Shanghai UDH Technologies
Co., Ltd since May 2022. He worked for GOLDTECH Group Company for more than
eight years, including working as a technical engineer, the director of the
Nanchang and Wuhan office, and the vice general manager of the Fuzhou branch
from May 1994 to July 2002. From August 2002 to August 2003, he served as the
manager of the marketing and sales department of Shanghai ShiWei
Network System Engineering Co., Ltd. From September 2003 to October 2007, he
served as the account manager of Cisco Systems (China) Research &
Development Co Ltd., Shanghai branch. From November 2007 to April 2009, he
served as the development business manager of Shanghai Kingsway Co., Ltd. From
May 2009 to July 2016, he served as the account manager of Cisco Systems
(China) Research & Development Co Ltd., Shanghai and Fuzhou branch. From
August 2016 to April 2022, he served as the manager of different departments of
Cisco China Company, Limited. Mr. Wang holds a bachelor’s degree in Agriculture
Information at Nanjing Agricultural University.
Mr. Shuiqing Huang has been working at Nanjing Agricultural University for more than 35
years, including working as an associate professor and professor of the
Department of Information Management, the director of the Department of
Humanities and Social Sciences, the dean of the School of Information
Technology, and a doctoral supervisor, since February 1988. Mr. Huang holds a bachelor’s
degree in Literature and a master’s Degree in Science at Peking University.
Resolutions to be Voted Upon
The full text of the resolution to be proposed is
as follows:
RESOLVED, as an
ordinary resolution, that Mr. Weijun
Wang be appointed as a
director of the Company, to hold office in accordance with the articles of
association of the Company until the next annual general meeting of the
Company.
RESOLVED, as an
ordinary resolution, that Mr. Shuiqing
Huang be appointed as a
director of the Company, to hold office in accordance with the articles of
association of the Company until the next annual general meeting of the Company.
Vote Required for Approval
The approval of Proposals No. 4 to 5 requires an
ordinary resolution under Cayman Islands law, being the affirmative vote of the
holders of a majority of the ordinary shares who, being present and entitled to
vote at the Meeting, vote at the Meeting.
Abstentions and broker non-votes, while
considered present for the purposes of establishing a quorum, will not count as
a vote cast at the Meeting.
The Appointment of Directors will become effective upon approval of our shareholders.
THE BOARD OF
DIRECTORS RECOMMENDS
A VOTE FOR
THE APPOINTMENT
OF EACH OF THE CANDIDATES NAMED ABOVE.
PROPOSAL NO. 6
RATIFICATION
OF
THE RE-APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC
ACCOUNTING FIRM
The Company’s
audit committee recommends, and the Board of Directors concurs, that Wei, Wei & Co., LLP be re-appointed as the Company’s independent
registered public accounting firm for the fiscal year ending
December 31, 2023.
In the event that our shareholders
fail to ratify the re-appointment, our audit committee will reconsider its
selection. Even if the re-appointment is ratified, our audit committee in its
discretion may recommend the appointment of a different independent auditing
firm at any time during the year, if the audit committee believes that such a
change would be in the best interests of the Company and its shareholders.
Resolution to be Voted Upon
The full text of the resolution to be proposed
is as follows:
RESOLVED, as an
ordinary resolution, that
the re-appointment of Wei, Wei & Co., LLP as the Company’s independent registered public accounting firm for the fiscal year ending
December 31, 2023 be confirmed, ratified and approved.
Vote Required for Approval
The approval of Proposal No. 6 requires an
ordinary resolution under Cayman Islands law, being the affirmative vote of the
holders of a majority of the ordinary shares who, being present and entitled to
vote at the Meeting, vote at the Meeting.
Abstentions and broker non-votes, while
considered present for the purposes of establishing a quorum, will not count as
a vote cast at the Meeting.
The Re-Appointment of
Independent Registered Public Accounting Firm will become
effective upon approval of our shareholders.
THE BOARD OF DIRECTORS AND THE AUDIT COMMITTEE RECOMMEND
A VOTE FOR
THE RATIFICATION OF THE RE-APPOINTMENT
OF
WEI, WEI & CO., LLP AS THE COMPANY’S INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
FOR THE FISCAL YEAR ENDING DECEMBER 31, 2023.
PROPOSAL NO. 7
RE-DESIGNATION OF AUTHORIZED SHARE CAPITAL
The
Board of Directors approved, and directed that there be submitted to the
shareholders of the Company for approval, as an ordinary resolution the
Re-Designation of Authorized Share Capital that the currently issued 14,392,364
ordinary shares of par value of US$0.0001 each in the Company be and are
re-designated and re-classified into 6,200,364 Class A ordinary shares of par
value US$0.0001 each with 1 vote per share (the “Class A Ordinary Shares”) and
8,192,000 Class B ordinary shares of par value US$0.0001 each with 15 votes per
share (the “Class B Ordinary Shares”) on a one for one basis as follows:
|
Following the Re-Designation of Authorized Share Capital,
each Class A Ordinary Share would be entitled to one vote and each Class B
Ordinary Share would be entitled to 15 votes on all matters subject to vote at
general meetings of the Company and with such other
rights, preferences, and privileges as set forth in the Second Amended and
Restated Memorandum and Articles of Association.
In
addition, all Class B Ordinary Shares will be convertible, at the option of the
holder thereof, into the number of fully paid and non-assessable Class A
Ordinary Shares on a one-for-one basis.
Resolution to be Voted Upon
The full text of the resolution to be proposed
is as follows:
RESOLVED,
AS AN ORDINARY RESOLUTION, THAT the authorized share capital of the Company be
re-designated as follows:
From:
US$50,000 divided into 490,000,000 ordinary
shares of a par value of US$0.0001 each and 10,000,000 preference shares of
a par value of US$0.0001 each;
To: US$50,000 divided into 431,808,000
Class A ordinary shares of a par value of US$0.0001 each,
58,192,000 Class B ordinary shares of a par value of US$0.0001 each and
10,000,000 preference shares of a par value of US$0.0001 each;
By: the re-designation of 425,607,636
unissued ordinary shares of a par value of US$0.0001 each into 425,607,636
Class A ordinary shares of a par value of US$0.0001 each with the rights
attaching to such shares as set out in the Second Amended and Restated
Memorandum and Articles of Association annexed to the Notice of 2024 Annual
General Meeting;
By: the re-designation of 50,000,000
unissued ordinary shares of a par value of US$0.0001 each into 50,000,000 Class
B ordinary shares of a par value of US$0.0001 each with the rights attaching to
such shares as set out in the Second Amended and Restated Memorandum and
Articles of Association annexed to the Notice of 2024 Annual General Meeting;
and
By: the re-designation
of 14,392,364 issued ordinary shares of a par value of US$0.0001 each into
6,200,364 Class A ordinary shares of a par value of US$0.0001 each or 8,192,000
Class B ordinary shares of a par value of US$0.0001 each as set out in the
table below with the rights attaching to such shares as set out in the Second
Amended and Restated Memorandum and Articles of Association annexed to the
Notice of 2024 Annual General Meeting:
|
Name of Shareholder |
|
Number
of Existing Shares held |
|
Number
of Shares to be Held Giving Effect to Share Re-Designation |
|
CEDE & CO |
|
3,404,685 ordinary shares |
|
3,404,685 Class A Ordinary Shares |
|
CENTURION TECH HOLDINGS LIMITED |
|
415,000 ordinary shares |
|
415,000 Class A Ordinary Shares |
|
CIRCATRADE UNIVERSAK HOLDINGS LIMITED |
|
216,000 ordinary shares |
|
216,000 Class A Ordinary Shares |
|
ETERNAL BLESSING HOLDINGS LIMITED |
|
414,000 ordinary shares |
|
414,000 Class A Ordinary Shares |
|
LINTEC INFORMATION LTD |
|
219,721 ordinary shares |
|
219,721 Class A Ordinary Shares |
|
LUOTEC INFORMATION LTD |
|
548,237 ordinary shares |
|
548,237 Class A Ordinary Shares |
|
ORIENTAL XINHE HOLDINGS LIMITED |
|
332,000 ordinary shares |
|
332,000 Class A Ordinary Shares |
|
STAR DISCOVER GLOBAL LIMITED |
|
431,000 ordinary shares |
|
431,000 Class A Ordinary Shares |
|
TIANS TECHNOLOGY LTD |
|
219,721 ordinary shares |
|
219,721 Class A Ordinary Shares |
|
FORTUNE ENTERPRISE HOLDINGS LIMITED |
|
8,192,000 ordinary shares |
|
8,192,000 Class B Ordinary Shares |
Vote Required for Approval
The approval of Proposal No. 7 requires an
ordinary resolution under Cayman Islands law, being the affirmative vote of the
holders of a majority of the ordinary shares who, being present and entitled to
vote at the Meeting, vote at the Meeting.
Abstentions and broker non-votes, while
considered present for the purposes of establishing a quorum, will not count as
a vote cast at the Meeting.
The
Re-Designation of Authorized Share Capital will become
effective upon approval of our shareholders.
The
proposed re-designation and re-classification will not affect in any way the
validity or transferability of share certificates outstanding, the capital
structure of the Company or the trading of the Company’s shares on the NASDAQ
Capital Market. If the amendment is passed by our shareholders, it will not be
necessary for shareholders to surrender their existing share certificates.
Instead, when certificates are presented for transfer, new certificates
representing Class A Ordinary Shares or Class B Ordinary Shares, as the case
may be, will be issued.
Future
issuances of Class B Ordinary Shares or securities convertible into Class B
Ordinary Shares could have a dilutive effect on our earnings per share, book
value per share, and the voting power and interest of current holders of
ordinary shares. In addition, the availability of additional shares of Class A
Ordinary Shares for issuance could, under certain circumstances, discourage or
make more difficult any efforts to obtain control of the Company. The Board of
Directors is not aware of any attempt, or contemplated attempt, to acquire
control of the Company, nor is this proposal being presented with the intent
that it be used to prevent or discourage any acquisition attempt. However,
nothing would prevent the Board of Directors from taking any such actions that
it deems to be consistent with its fiduciary duties.
THE
BOARD OF DIRECTORS RECOMMENDS
A
VOTE FOR
THE
RE-DESIGNATION OF AUTHORIZED SHARE CAPITAL
PROPOSAL
NO. 8
ADOPTION OF THE Second Amended and Restated
Memorandum and Articles of Association
The
Board of Directors deems it advisable and is recommending that our shareholders
approve and adopt the Second Amended and Restated Memorandum and Articles of
Association attached hereto as Appendix A.
The
Second Amended and Restated Memorandum and Articles of Association, in
paragraph 5 of the second amended and restated memorandum of association,
articles 1.1, 3.5 and 22.1 of the second amended and restated articles of
association, reflects the proposed dual-class share structure and set out the
rights and privileges of Class A Ordinary Shares and Class B Ordinary Shares
(which are the subject of Proposal No. 7).
Resolution to be Voted Upon
The full text of the resolution to be proposed
is as follows:
RESOLVED,
AS A SPECIAL RESOLUTION, that the Amended and Restated Memorandum
and Articles of Association of the Company currently in effect be amended and
restated by the deletion in their entirety and the substitution in their place
of the Second Amended and Restated Memorandum and Articles
of Association annexed to the Notice of 2024 Annual General Meeting.
Vote Required for Approval
The approval of Proposal No. 8 requires a
special resolution under Cayman Islands law, being the affirmative vote of the
holders of a majority of at least two-thirds of the ordinary shares who, being
present and entitled to vote at the Meeting, vote at the Meeting.
Abstentions and broker non-votes, while
considered present for the purposes of establishing a quorum, will not count as
a vote cast at the Meeting.
The
Adoption of the Second Amended and Restated Memorandum and Articles of
Association will become effective upon approval of our shareholders.
THE
BOARD OF DIRECTORS RECOMMENDS
A
VOTE FOR
THE ADOPTION OF THE Second Amended and Restated
Memorandum and Articles of Association
OTHER MATTERS
The Board of Directors is not aware
of any other matters to be submitted to the Meeting. If any other matters
properly come before the Meeting, it is the intention of the persons named in
the enclosed form of proxy to vote the shares they represent as the Board of
Directors may recommend.
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By order of the Board of
Directors |
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January 11,
2024 |
/s/ Shenping Yin |
|
|
Shenping Yin |
|
|
Chairman of the Board of
Directors |
Appendix
A
Second Amended and
Restated Memorandum and Articles of Association
THE
COMPANIES ACT (AS REVISED)
OF THE
CAYMAN ISLANDS
COMPANY
LIMITED BY SHARES
SECOND
AMENDED AND RESTATED
MEMORANDUM
AND ARTICLES OF ASSOCIATION
OF
Hitek Global Inc.
海天网络国际有限公司
(adopted by
special resolution effective on [ ])
THE
COMPANIES ACT (AS REVISED)
OF THE
CAYMAN ISLANDS
COMPANY
LIMITED BY SHARES
SECOND
AMENDED AND RESTATED
MEMORANDUM
OF ASSOCIATION
OF
Hitek Global Inc.
海天网络国际有限公司
(adopted by
special resolution effective on [ ])
1
The name of the Company is Hitek Global Inc. 海天网络国际有限公司
2
The Registered Office of the Company shall
be at the offices of Maples Corporate Services Limited, PO Box 309, Ugland
House, Grand Cayman, KY1-1104, Cayman Islands, or at such other place within
the Cayman Islands as the Directors may decide.
4
The liability of each Member is limited to
the amount unpaid on such Member's shares.
5
The share capital of the Company is
US$50,000 divided into 431,808,000 Class A ordinary shares of a par value of
US$0.0001 each, 58,192,000 Class B ordinary shares of a par value of US$0.0001
each and 10,000,000 preference shares of a par value of US$0.0001 each;
6
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.
7
Capitalised terms that are not defined in
this Memorandum of Association bear the respective meanings given to them in
the Articles of Association of the Company.
THE
COMPANIES ACT (AS REVISED)
OF THE
CAYMAN ISLANDS
COMPANY
LIMITED BY SHARES
SECOND
AMENDED AND RESTATED
ARTICLES
OF ASSOCIATION
OF
Hitek Global Inc.
海天网络国际有限公司
(adopted by
special resolution effective on [ ])
1
Interpretation
1.1
In the Articles Table A in the First Schedule
to the Statute does not apply and, unless there is something in the subject or
context inconsistent therewith:
|
"Applicable
Law" |
means, with respect to any person,
all provisions of laws, statutes, ordinances, rules, regulations, permits,
certificates, judgments, decisions, decrees or orders of any governmental
authority applicable to such person. |
|
"Articles" |
means these second amended and
restated articles of association of the Company. |
|
"Audit
Committee" |
means the audit committee of the board
of directors of the Company established pursuant to the Articles, or any
successor committee. |
|
"Auditor" |
means the person for the time being
performing the duties of auditor of the Company (if any). |
|
"Class
A Ordinary Share" |
means a Class A ordinary share of a
par value of US$0.0001 in the share capital of the Company. |
|
"Class
B Ordinary Share" |
means a Class B ordinary share of a
par value of US$0.0001 in the share capital of the Company. |
|
"Clearing
House" |
means a clearing house recognised by the laws of the jurisdiction in which the
Shares (or depositary receipts therefor) are listed or quoted on a stock
exchange or interdealer quotation system in such jurisdiction. |
|
"Company" |
means the above
named company. |
|
"Company’s
Website" |
means the website of the Company
and/or its web-address or domain name. |
|
"Compensation
Committee" |
means the compensation committee of
the board of directors of the Company established pursuant to the Articles,
or any successor committee. |
|
"Designated
Stock Exchange" |
means any U.S. national securities
exchange including The NASDAQ Capital Market or NASDAQ or the New York Stock
Exchange or NYSE. |
|
"Directors" |
means the directors for the time
being of the Company. |
|
"Dividend" |
means any dividend (whether interim
or final) resolved to be paid on Shares pursuant to the Articles. |
|
“Electronic
Communication” |
means a communication sent by
electronic means, including electronic posting to the Company’s Website,
transmission to any number, address or internet website (including the
website of the Securities and Exchange Commission) or other electronic
delivery methods as otherwise decided and approved by the Directors. |
|
"Electronic Record" |
has the same meaning as in the
Electronic Transactions Act. |
|
"Electronic Transactions Act" |
means the Electronic Transactions
Act (As Revised) of the Cayman Islands. |
|
"Exchange
Act" |
means the United States Securities Exchange Act of
1934, as amended or any similar U.S. federal statute and the rules and
regulations of the Securities and Exchange Commission thereunder, all as the
same shall be in effect at the time. |
|
"Independent
Director" |
has the same meaning as in the rules and regulations
of the Designated Stock Exchange or in Rule 10A-3 under the Exchange Act, as
the case may be. |
|
"IPO" |
means the Company's initial public
offering of securities. |
|
"Member" |
has the same meaning as in the
Statute. |
|
"Memorandum" |
means the second amended and
restated memorandum of association of the Company. |
|
"Officer" |
means a person appointed to hold an
office in the Company. |
|
"Ordinary Resolution" |
means a resolution passed by a
simple majority of the Members as, being entitled to do so, vote in person
or, where proxies are allowed, by proxy at a general meeting, and includes a unanimous
written resolution. In computing the majority when a poll is demanded regard
shall be had to the number of votes to which each Member is entitled by the
Articles. |
|
"Nominating
and Corporate Governance Committee" |
means the nominating and corporate
governance committee of the board of directors of the Company established
pursuant to the Articles, or any successor committee. |
|
"Preference
Share" |
means a preference share of a par
value of US$0.0001 in the share capital of the Company. |
|
"Register of Members" |
means the register of Members
maintained in accordance with the Statute and includes (except where
otherwise stated) any branch or duplicate register of Members. |
|
"Registered Office" |
means the registered office for the
time being of the Company. |
|
"Seal" |
means the common seal of the
Company and includes every duplicate seal. |
|
"Securities
and Exchange Commission" |
means the United States Securities
and Exchange Commission. |
|
"Share" |
means a Class A Ordinary Share, a
Class B Ordinary Share or a Preference Share and includes a fraction of a
share in the Company. |
|
"Special Resolution" |
has the same meaning as in the
Statute, and includes a unanimous written resolution. |
|
"Statute" |
means the Companies Act (As
Revised) of the Cayman Islands. |
|
"Treasury
Share" |
means a Share held in the name of
the Company as a treasury share in accordance with the Statute. |
1.2
In the Articles:
(a)
words importing the singular number
include the plural number and vice versa;
(b)
words importing the masculine gender
include the feminine gender;
(c)
words importing persons include
corporations as well as any other legal or natural person;
(d)
"written" and "in
writing" include all modes of representing or reproducing words in visible
form, including in the form of an Electronic Record;
(e)
"shall" shall be construed as
imperative and "may" shall be construed as permissive;
(f)
references to provisions of any law or
regulation shall be construed as references to those provisions as amended,
modified, re-enacted or replaced;
(g)
any phrase introduced by the terms
"including", "include", "in particular" or any
similar expression shall be construed as illustrative and shall not limit the
sense of the words preceding those terms;
(h)
the term "and/or" is used herein
to mean both "and" as well as "or." The use of
"and/or" in certain contexts in no respects qualifies or modifies the
use of the terms "and" or "or" in others. The term
"or" shall not be interpreted to be exclusive and the term
"and" shall not be interpreted to require the conjunctive (in each
case, unless the context otherwise requires);
(i)
headings are inserted for reference only
and shall be ignored in construing the Articles;
(j)
any requirements as to delivery under the
Articles include delivery in the form of an Electronic Record;
(k)
any requirements as to execution or
signature under the Articles including the execution of the Articles themselves
can be satisfied in the form of an electronic signature as defined in the
Electronic Transactions Act;
(l)
sections 8 and 19(3) of the Electronic
Transactions Act shall not apply;
(m)
the term "clear days" in
relation to the period of a notice means that period excluding the day when the
notice is received or deemed to be received and the day for which it is given
or on which it is to take effect; and
(n)
the term "holder" in relation to
a Share means a person whose name is entered in the Register of Members as the
holder of such Share.
2
Commencement of Business
2.1
The business of the Company may be
commenced as soon after incorporation of the Company as the Directors shall see
fit.
2.2
The Directors may pay, out of the capital
or any other monies of the Company, all expenses incurred in or about the
formation and establishment of the Company, including the expenses of
registration.
3
Issue of Shares
3.1
Subject to the provisions, if any, in the
Memorandum (and to any direction that may be given by the Company in general
meeting) and, where applicable, the rules and regulations of the Designated
Stock Exchange, the Securities and Exchange Commission and/or any other
competent regulatory authority or otherwise under Applicable Law, and without
prejudice to any rights attached to any existing Shares, the Directors may
allot, issue, grant options over or otherwise dispose of Shares (including
fractions of a Share) with or without preferred, deferred or other rights or
restrictions, whether in regard to Dividends or other distributions, voting,
return of capital or otherwise and to such persons, at such times and on such
other terms as they think proper, and may also (subject to the Statute and the
Articles) vary such rights.
3.2
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 on such terms as the
Directors may from time to time determine.
3.4
The Company shall not issue Shares to
bearer.
3.5
Conversion
of Class B Ordinary Shares.
(a)
Class B Ordinary Shares shall
automatically convert into Class A Ordinary Shares on a one-for-one basis at
any time and from time to time at the option of the holders thereof.
(b)
References in this Article to "converted", "conversion" or "exchange" shall mean the
repurchase without notice of Class B Ordinary Shares of any Member and, on
behalf of such Members, automatic application of such repurchase proceeds in
paying for such new Class A Ordinary Shares into which the Class B Shares have
been converted or exchanged at a price per Class B Ordinary Share necessary to
give effect to a conversion or exchange calculated on the basis that the Class
A Ordinary Shares to be issued as part of the conversion or exchange will be
issued at par. The Class A Ordinary Shares to be issued on an exchange or
conversion shall be registered in the name of such Member or in such name as
the Member may direct.
4
Register of Members
4.1
The Company shall maintain or cause to be
maintained the Register of Members in accordance with the Statute.
4.2
The Directors may determine that the
Company shall maintain one or more branch registers of Members in accordance
with the Statute. The Directors may also determine which register of Members
shall constitute the principal register and which shall constitute the branch
register or registers, and to vary such determination from time to time.
5
Closing Register of Members or Fixing
Record Date
5.1
For the purpose of determining Members
entitled to notice of, or to vote at any meeting of Members or any adjournment
thereof, or Members entitled to receive payment of any Dividend or other
distribution, or in order to make a determination of Members for any other
purpose, the Directors may, after notice has been given by advertisement in an
appointed newspaper or any other newspaper or by any other means in accordance
with the rules and regulations of the Designated Stock Exchange, the Securities
and Exchange Commission and/or any other competent regulatory authority or
otherwise under Applicable Law, provide that the Register of Members shall be
closed for transfers for a stated period which shall not in any case exceed
forty days.
5.2
In lieu of, or apart from, closing the
Register of Members, the Directors may fix in advance or arrears a date as the
record date for any such determination of Members entitled to notice of, or to
vote at any meeting of the Members or any adjournment thereof, or for the
purpose of determining the Members entitled to receive payment of any Dividend
or other distribution, or in order to make a determination of Members for any
other purpose.
5.3
If the Register of Members is not so
closed and no record date is fixed for the determination of Members entitled to
notice of, or to vote at, a meeting of Members or Members entitled to receive
payment of a Dividend or other distribution, the date on which notice of the
meeting is sent or the date on which the resolution of the Directors resolving
to pay such Dividend or other distribution is passed, as the case may be, shall
be the record date for such determination of Members. When a determination of
Members entitled to vote at any meeting of Members has been made as provided in
this Article, such determination shall apply to any adjournment thereof.
6
Certificates for Shares
6.1
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. Share certificates shall be signed by one or more
Directors or other person authorised by the Directors. The Directors may
authorise certificates to be issued with the authorised signature(s) affixed by
mechanical process. All certificates for Shares shall be consecutively numbered
or otherwise identified and shall specify the Shares to which they relate. All
certificates surrendered to the Company for transfer shall be cancelled and,
subject to the Articles, no new certificate shall be issued until the former
certificate representing a like number of relevant Shares shall have been
surrendered and cancelled.
6.2
The Company shall not be bound to issue
more than one certificate for Shares held jointly by more than one person and
delivery of a certificate to one joint holder shall be a sufficient delivery to
all of them.
6.3
If a share certificate is defaced, worn
out, lost or destroyed, it may be renewed on such terms (if any) as to evidence
and indemnity and on the payment of such expenses reasonably incurred by the
Company in investigating evidence, as the Directors may prescribe, and (in the
case of defacement or wearing out) upon delivery of the old certificate.
6.4
Every share certificate sent in accordance
with the Articles will be sent at the risk of the Member or other person
entitled to the certificate. The Company will not be responsible for any share
certificate lost or delayed in the course of delivery.
6.5
Share certificates shall be issued within
the relevant time limit as prescribed by the Statute, if applicable, or as the
rules and regulations of the Designated Stock Exchange, the Securities and
Exchange Commission and/or any other competent regulatory authority or
otherwise under Applicable Law may from time to time determine, whichever is
shorter, after the allotment or, except in the case of a Share transfer which
the Company is for the time being entitled to refuse to register and does not
register, after lodgement of a Share transfer with the Company.
7
Transfer of Shares
7.1
Subject to the terms of the Articles, any
Member may transfer all or any of his Shares by an instrument of transfer
provided that such transfer complies with the rules and regulations of the
Designated Stock Exchange, the Securities and Exchange Commission and/or any
other competent regulatory authority or otherwise under Applicable Law. If the
Shares in question were issued in conjunction with rights, options or warrants
issued pursuant to the Articles on terms that one cannot be transferred without
the other, the Directors shall refuse to register the transfer of any such
Share without evidence satisfactory to them of the like transfer of such option
or warrant.
7.2
The instrument of transfer of any Share
shall be in writing in the usual or common form or in a form prescribed by the
rules and regulations of the Designated Stock Exchange, the Securities and
Exchange Commission and/or any other competent regulatory authority or
otherwise under Applicable Law or in any other form approved by the Directors
and shall be executed by or on behalf of the transferor (and if the Directors
so require, signed by or on behalf of the transferee) and may be under hand or,
if the transferor or transferee is a Clearing House or its nominee(s), by hand
or by machine imprinted signature or by such other manner of execution as the
Directors may approve from time to time. The transferor shall be deemed to
remain the holder of a Share until the name of the transferee is entered in the
Register of Members.
8
Redemption, Repurchase and Surrender of
Shares
8.1
Subject to the provisions of the Statute,
and, where applicable, the rules and regulations of the Designated Stock
Exchange, the Securities and Exchange Commission and/or any other competent
regulatory authority or otherwise under Applicable Law, the Company may issue
Shares that are to be redeemed or are liable to be redeemed at the option of
the Member or the Company. The redemption of such Shares shall be effected in such manner and upon such other terms as the
Company may, by Special Resolution, determine before the issue of the Shares.
8.2
Subject to the provisions of the Statute,
and, where applicable, the rules and regulations of the Designated Stock
Exchange, the Securities and Exchange Commission and/or any other competent
regulatory authority or otherwise under Applicable Law, the Company may
purchase its own Shares (including any redeemable Shares) in such manner and on
such other terms as the Directors may agree with the relevant Member.
8.3
The Company may make a payment in respect
of the redemption or purchase of its own Shares in any manner permitted by the
Statute, including out of capital.
8.4
The Directors may accept the surrender for
no consideration of any fully paid Share.
9
Treasury Shares
9.1
The Directors may, prior to the purchase,
redemption or surrender of any Share, determine that such Share shall be held
as a Treasury Share.
9.2
The Directors may determine to cancel a
Treasury Share or transfer a Treasury Share on such terms as they think proper
(including, without limitation, for nil consideration).
10
Variation of Rights of Shares
10.1
Subject to Article 3.1, if at any time the
share capital of the Company is divided into different classes of Shares, all
or any of the rights attached to any class (unless otherwise provided by the
terms of issue of the Shares of that class) may, whether or not the Company is
being wound up, be varied without the consent of the holders of the issued
Shares of that class where such variation is considered by the Directors not to
have a material adverse effect upon such rights; otherwise, any such variation
shall be made only with the consent in writing of the holders of not less than
two thirds of the issued Shares of that class, or with the approval of a
resolution passed by a majority of not less than two thirds of the votes cast
at a separate meeting of the holders of the Shares of that class. For the
avoidance of doubt, the Directors reserve the right, notwithstanding that any
such variation may not have a material adverse effect, to obtain consent from
the holders of Shares of the relevant class. To any such meeting all the
provisions of the Articles relating to general meetings shall apply mutatis
mutandis, except that the necessary quorum shall be one person holding or
representing by proxy at least one third of the issued Shares of the class and
that any holder of Shares of the class present in person or by proxy may demand
a poll.
10.2
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 class 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.
10.3
The rights conferred upon the holders of
the Shares of any class issued with preferred or other rights shall not, unless
otherwise expressly provided by the terms of issue of the Shares of that class,
be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith or Shares issued with preferred or
other rights.
11
Commission on Sale of Shares
The Company may, in so far as the Statute permits, pay
a commission to any person in consideration of his subscribing or agreeing to
subscribe (whether absolutely or conditionally) or procuring or agreeing to
procure subscriptions (whether absolutely or conditionally) for any Shares.
Such commissions may be satisfied by the payment of cash and/or the issue of
fully or partly paid-up Shares. The Company may also on any issue of Shares pay
such brokerage as may be lawful.
12
Non Recognition of
Trusts
The Company shall not be bound by or compelled to
recognise in any way (even when notified) any equitable, contingent, future or
partial interest in any Share, or (except only as is otherwise provided by the
Articles or the Statute) any other rights in respect of any Share other than an
absolute right to the entirety thereof in the holder.
13
Lien on Shares
13.1
The Company shall have 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) for all debts,
liabilities or engagements to or with the Company (whether presently payable or
not) by such Member or his estate, either alone or jointly with any other
person, whether a Member or not, but the Directors may at any time declare any
Share to be wholly or in part exempt from the provisions of this Article. The
registration of a transfer of any such Share shall operate as a waiver of the
Company's lien thereon. The Company's lien on a Share shall also extend to any
amount payable in respect of that Share.
13.2
The Company may sell, in such manner as
the Directors think fit, any Shares on which the Company has a lien, if a sum
in respect of which the lien exists is presently payable, and is not paid
within fourteen clear days after notice has been received or deemed to have
been received by the holder of the Shares, or to the person entitled to it in
consequence of the death or bankruptcy of the holder, demanding payment and
stating that if the notice is not complied with the Shares may be sold.
13.3
To give effect to any such sale the
Directors may authorise any person to execute an instrument of transfer of the
Shares sold to, or in accordance with the directions of, the purchaser. The
purchaser or his nominee shall be registered as the holder of the Shares
comprised in any such transfer, and he shall not be bound to see to the
application of the purchase money, nor shall his title to the Shares be
affected by any irregularity or invalidity in the sale or the exercise of the
Company's power of sale under the Articles.
13.4
The net proceeds of such sale after
payment of costs, shall be applied in payment of such part of the amount in
respect of which the lien exists as is presently payable and any balance shall (subject
to a like lien for sums not presently payable as existed upon the Shares before
the sale) be paid to the person entitled to the Shares at the date of the sale.
14
Call on Shares
14.1
Subject to the terms of the allotment and
issue of any Shares, the Directors may make calls upon the Members in respect
of any monies unpaid on their Shares (whether in respect of par value or
premium), and each Member shall (subject to receiving at least fourteen clear
days' notice specifying the time or times of payment) pay to the Company at the
time or times so specified the amount called on the Shares. A call may be
revoked or postponed, in whole or in part, as the Directors may determine. A
call may be required to be paid by instalments. A person upon whom a call is
made shall remain liable for calls made upon him notwithstanding the subsequent
transfer of the Shares in respect of which the call was made.
14.2
A call shall be deemed to have been made
at the time when the resolution of the Directors authorising such call was
passed.
14.3
The joint holders of a Share shall be
jointly and severally liable to pay all calls in respect thereof.
14.4
If a call remains unpaid after it has
become due and payable, the person from whom it is due shall pay interest on
the amount unpaid from the day it became due and payable until it is paid at
such rate as the Directors may determine (and in addition all expenses that
have been incurred by the Company by reason of such non-payment), but the
Directors may waive payment of the interest or expenses wholly or in part.
14.5
An amount payable in respect of a Share on
issue or allotment or at any fixed date, whether on account of the par value of
the Share or premium or otherwise, shall be deemed to be a call and if it is
not paid all the provisions of the Articles shall apply as if that amount had
become due and payable by virtue of a call.
14.6
The Directors may issue Shares with
different terms as to the amount and times of payment of calls, or the interest
to be paid.
14.7
The Directors may, if they think fit,
receive an amount from any Member willing to advance all or any part of the
monies uncalled and unpaid upon any Shares held by him, and may (until the
amount would otherwise become payable) pay interest at such rate as may be
agreed upon between the Directors and the Member paying such amount in advance.
14.8
No such amount paid in advance of calls
shall entitle the Member paying such amount to any portion of a Dividend or
other distribution payable in respect of any period prior to the date upon
which such amount would, but for such payment, become payable.
15
Forfeiture of Shares
15.1
If a call or instalment of 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 fourteen clear days' notice requiring payment
of the amount unpaid together with any interest which may have accrued and any
expenses incurred by the Company by reason of such non-payment. The notice
shall specify where payment is to be made and shall state that if the notice is
not complied with the Shares in respect of which the call was made will be liable
to be forfeited.
15.2
If the notice is not complied with, any
Share in respect of which it was given may, before the payment required by the
notice has been made, be forfeited by a resolution of the Directors. Such
forfeiture shall include all Dividends, other distributions or other monies
payable in respect of the forfeited Share and not paid before the forfeiture.
15.3
A forfeited Share may be sold, re-allotted
or otherwise disposed of on such terms and in such manner as the Directors
think fit and at any time before a sale, re-allotment or disposition the
forfeiture may be cancelled on such terms as the Directors think fit. Where for
the purposes of its disposal a forfeited Share is to be transferred to any
person the Directors may authorise some person to execute an instrument of
transfer of the Share in favour of that person.
15.4
A person any of whose Shares have been
forfeited shall cease to be a Member in respect of them and shall surrender to
the Company for cancellation the certificate for the Shares forfeited and shall
remain liable to pay to the Company all monies which at the date of forfeiture
were payable by him to the Company in respect of those Shares together with
interest at such rate as the Directors may determine, but his liability shall
cease if and when the Company shall have received payment in full of all monies
due and payable by him in respect of those Shares.
15.5
A certificate in writing under the hand of
one Director or Officer that a Share has been forfeited on a specified date
shall be conclusive evidence of the facts stated in it as against all persons
claiming to be entitled to the Share. The certificate shall (subject to the
execution of an instrument of transfer) constitute a good title to the Share
and the person to whom the Share is sold or otherwise disposed of shall not be
bound to see to the application of the purchase money, if any, nor shall his title
to the Share be affected by any irregularity or invalidity in the proceedings
in reference to the forfeiture, sale or disposal of the Share.
15.6
The provisions of the Articles as to
forfeiture shall apply in the case of non payment of
any sum which, by the terms of issue of a Share, becomes payable at a fixed
time, whether on account of the par value of the Share or by way of premium as
if it had been payable by virtue of a call duly made and notified.
16
Transmission of Shares
16.1
If a Member dies, the survivor or
survivors (where he was a joint holder), or his legal personal representatives
(where he was a sole holder), shall be the only persons recognised by the
Company as having any title to his Shares. The estate of a deceased Member is
not thereby released from any liability in respect of any Share, for which he
was a joint or sole holder.
16.2
Any person becoming entitled to a Share in
consequence of the death or bankruptcy or liquidation or dissolution of a
Member (or in any other way than by transfer) may, upon such evidence being
produced as may be required by the Directors, elect, by a notice in writing
sent by him to the Company, either to become the holder of such Share or to
have some person nominated by him registered as the holder of such Share. If he
elects to have another person registered as the holder of such Share he shall sign an instrument of transfer of that Share
to that person. The Directors shall, in either case, have the same right to
decline or suspend registration as they would have had in the case of a
transfer of the Share by the relevant Member before his death or bankruptcy or
liquidation or dissolution, as the case may be.
16.3
A person becoming entitled to a Share by
reason of the death or bankruptcy or liquidation or dissolution of a Member (or
in any other case than by transfer) shall be entitled to the same Dividends,
other distributions and other advantages to which he would be entitled if he
were the holder of such Share. However, he shall not, before becoming a Member
in respect of a Share, be entitled in respect of it to exercise any right
conferred by membership in relation to general meetings of the Company and the
Directors may at any time give notice requiring any such person to elect either
to be registered himself or to have some person nominated by him be registered
as the holder of the Share (but the Directors shall, in either case, have the
same right to decline or suspend registration as they would have had in the
case of a transfer of the Share by the relevant Member before his death or
bankruptcy or liquidation or dissolution or any other case than by transfer, as
the case may be). If the notice is not complied with within ninety days of
being received or deemed to be received (as determined pursuant to the
Articles), the Directors may thereafter withhold payment of all Dividends,
other distributions, bonuses or other monies payable in respect of the Share
until the requirements of the notice have been complied with.
17
Amendments of Memorandum and Articles of
Association and Alteration of Capital
17.1
The Company may by Ordinary Resolution:
(a)
increase its share capital by such sum as
the Ordinary Resolution shall prescribe and with such rights, priorities and
privileges annexed thereto, as the Company in general meeting may determine;
(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)
by subdivision of its existing Shares or
any of them divide the whole or any part of its share capital into Shares of
smaller amount than is fixed by the Memorandum or into Shares without par
value; and
(e)
cancel any Shares that at the date of the
passing of the 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.
17.2
All new Shares created in accordance with
the provisions of the preceding Article shall be subject to the same provisions
of the Articles with reference to the payment of calls, liens, transfer,
transmission, forfeiture and otherwise as the Shares in the original share
capital.
17.3
Subject to the provisions of the Statute
and the provisions of the Articles as regards the matters to be dealt with by
Ordinary Resolution, the Company may by Special Resolution:
(a)
change its name;
(b)
alter or add to the Articles;
(c)
alter or add to the Memorandum with
respect to any objects, powers or other matters specified therein; and
(d)
reduce its share capital or any capital
redemption reserve fund.
18
Offices and Places of Business
Subject to the provisions of the Statute, the Company
may by resolution of the Directors change the location of its Registered
Office. The Company may, in addition to its Registered Office, maintain such
other offices or places of business as the Directors determine.
19
General Meetings
19.1
All general meetings other than annual
general meetings shall be called extraordinary general meetings.
19.2
The Company may, but shall not (unless
required by the Statute) be obliged to, in each year hold a general meeting as
its annual general meeting, and shall specify the meeting as such in the
notices calling it. Any annual general meeting shall be held at such time and
place as the Directors shall appoint and if no other time and place is
prescribed by them, it shall be held at the Registered Office on the second
Wednesday in December of each year at ten o'clock in the morning. At these
meetings the report of the Directors (if any) shall be presented.
19.3
The Directors, the chief executive officer
or the chairman of the board of Directors may call general meetings, and they
shall on a Members' requisition forthwith proceed to convene an extraordinary
general meeting of the Company.
19.4
A Members' requisition is a requisition of
Members holding at the date of deposit of the requisition not less than twenty
per cent in par value of the issued Shares which as at that date carry the
right to vote at general meetings of the Company.
19.5
The Members' requisition must state the
objects of the meeting and must be signed by the requisitionists
and deposited at the Registered Office, and may consist of several documents in
like form each signed by one or more requisitionists.
19.6
If there are no Directors as at the date
of the deposit of the Members' requisition or if the Directors do not within
twenty-one days from the date of the deposit of the Members' requisition duly
proceed to convene a general meeting to be held within a further twenty-one
days, the requisitionists, or any of them
representing more than one-half of the total voting rights of all of the requisitionists, may themselves convene a general meeting,
but any meeting so convened shall be held no later than the day which falls
three months after the expiration of the said twenty-one day period.
19.7
A general meeting convened as aforesaid by
requisitionists shall be convened in the same manner
as nearly as possible as that in which general meetings are to be convened by
Directors.
19.8
Members seeking to bring business before
the annual general meeting or to nominate candidates for appointment as
Directors at the annual general meeting must deliver notice to the principal
executive offices of the Company not later than the close of business on the
90th day nor earlier than the close of business on the 120th day prior to the
scheduled date of the annual general meeting.
20
Notice of General Meetings
20.1
At least fifteen clear days' notice shall
be given of any general meeting. Every notice shall specify the place, the day
and the hour of the meeting and the general nature of the business to be
conducted at the general meeting and shall be given in the manner hereinafter
mentioned or in such other manner if any as may be prescribed by the Company,
provided that a general meeting of the Company shall, whether or not the notice
specified in this Article has been given and whether or not the provisions of the
Articles regarding general meetings have been complied with, be deemed to have
been duly convened if it is so agreed:
(a)
in the case of an annual general meeting,
by all of the Members entitled to attend and vote thereat; and
(b)
in the case of an extraordinary general
meeting, by a majority in number of the Members having a right to attend and
vote at the meeting, together holding not less than fifty per cent in par value
of the Shares giving that right.
20.2
The accidental omission to give notice of
a general meeting to, or the non receipt of notice of
a general meeting by, any person entitled to receive such notice shall not
invalidate the proceedings of that general meeting.
21
Proceedings at General Meetings
21.1
No business shall be transacted at any
general meeting unless a quorum is present. The holders
of a majority of the Shares being individuals present in person or by proxy or
if a corporation or other non-natural person by its duly authorised
representative or proxy shall be a quorum.
21.2
A person may participate at a general
meeting by conference telephone or other communications equipment by means of
which all the persons participating in the meeting can communicate with each
other. Participation by a person in a general meeting in this manner is treated
as presence in person at that meeting.
21.3
A resolution (including a Special
Resolution) in writing (in one or more counterparts) signed by or on behalf of
all of the Members for the time being entitled to receive notice of and to
attend and vote at general meetings (or, being corporations or other
non-natural persons, signed by their duly authorised representatives) shall be
as valid and effective as if the resolution had been passed at a general
meeting of the Company duly convened and held.
21.4
If a quorum is not present within half an
hour from the time appointed for the meeting to commence or if during such a
meeting a quorum ceases to be present, the meeting, if convened upon a Members'
requisition, shall be dissolved and in any other case it shall stand adjourned
to the same day in the next week at the same time and/or place or to such other
day, time and/or place as the Directors may determine, and if at the adjourned
meeting a quorum is not present within half an hour from the time appointed for
the meeting to commence, the Members present shall be a quorum.
21.5
The Directors may, at any time prior to
the time appointed for the meeting to commence, appoint any person to act as
chairman of a general meeting of the Company or, if the Directors do not make
any such appointment, the chairman, if any, of the board of Directors shall
preside as chairman at such general meeting. If there is no such chairman, or
if he shall not be present within fifteen minutes after the time appointed for
the meeting to commence, or is unwilling to act, the Directors present shall
elect one of their number to be chairman of the meeting.
21.6
If no Director is willing to act as
chairman or if no Director is present within fifteen minutes after the time
appointed for the meeting to commence, the Members present shall choose one of
their number to be chairman of the meeting.
21.7
The chairman may, with the consent of a
meeting at which a quorum is present (and shall if so
directed by the meeting) adjourn the meeting from time to time and from place
to place, but no business shall be transacted at any adjourned meeting other
than the business left unfinished at the meeting from which the adjournment
took place.
21.8
When a general meeting is adjourned for
thirty days or more, notice of the adjourned meeting shall be given as in the
case of an original meeting. Otherwise it shall not be
necessary to give any such notice of an adjourned meeting.
21.9
A resolution put to the vote of the
meeting shall be decided on a poll.
21.10
A poll shall be taken as the chairman
directs, and the result of the poll shall be deemed to be the resolution of the
general meeting at which the poll was demanded.
21.11
A poll demanded on the election of a
chairman or on a question of adjournment shall be taken forthwith. A poll
demanded on any other question shall be taken at such date, time and place as
the chairman of the general meeting directs, and any business other than that
upon which a poll has been demanded or is contingent thereon may proceed
pending the taking of the poll.
21.12
In the case of an equality of votes the
chairman shall be entitled to a second or casting vote.
22
Votes of Members
22.1
Subject to any rights or restrictions
attached to any Shares, the holder of:
(b)
a Class B Ordinary Share shall (in respect
of such Class B Ordinary Share) have 15 votes for every Class B Ordinary Share
of which he is the holder.
22.2
In the case of joint holders the vote of
the senior holder who tenders a vote, whether in person or by proxy (or, in the
case of a corporation or other non-natural person, by its duly authorised
representative or proxy), shall be accepted to the exclusion of the votes of
the other joint holders, and seniority shall be determined by the order in
which the names of the holders stand in the Register of Members.
22.3
A Member of unsound mind, or in respect of
whom an order has been made by any court, having jurisdiction in lunacy, may
vote by his committee, receiver, curator bonis, or
other person on such Member's behalf appointed by that court, and any such
committee, receiver, curator bonis or other person
may vote by proxy.
22.4
No person shall be entitled to vote at any
general meeting unless he is registered as a Member on the record date for such
meeting nor unless all calls or other monies then payable by him in respect of
Shares have been paid.
22.5
No objection shall be raised as to the
qualification of any voter except at the general meeting or adjourned general
meeting at which the vote objected to is given or tendered and every vote not
disallowed at the meeting shall be valid. Any objection made in due time in
accordance with this Article shall be referred to the chairman whose decision
shall be final and conclusive.
22.6
Votes may be cast either personally or by
proxy (or in the case of a corporation or other non-natural person by its duly
authorised representative or proxy). A Member may appoint more than one proxy
or the same proxy under one or more instruments to attend and vote at a
meeting. Where a Member appoints more than one proxy the instrument of proxy
shall specify the number of Shares in respect of which each proxy is entitled
to exercise the related votes.
22.7
A Member holding more than one Share need
not cast the votes in respect of his Shares in the same way on any resolution
and therefore may vote a Share or some or all such Shares either for or against
a resolution and/or abstain from voting a Share or some or all of the Shares
and, subject to the terms of the instrument appointing him, a proxy appointed
under one or more instruments may vote a Share or some or all of the Shares in
respect of which he is appointed either for or against a resolution and/or abstain
from voting a Share or some or all of the Shares in respect of which he is
appointed.
23
Proxies
23.1
The instrument appointing a proxy shall be
in writing and shall be executed under the hand of the appointor or of his
attorney duly authorised in writing, or, if the appointor is a corporation or
other non natural person,
under the hand of its duly authorised representative. A proxy need not be a Member.
23.2
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
instrument appointing a proxy shall be deposited physically at the Registered
Office not less than 48 hours before the time appointed for the meeting or
adjourned meeting to commence at which the person named in the instrument
proposes to vote.
23.3
The chairman may in any event at his
discretion declare that an instrument of proxy shall be deemed to have been
duly deposited. An instrument of proxy that is not deposited in the manner
permitted, or which has not been declared to have been duly deposited by the
chairman, shall be invalid.
23.4
The instrument appointing a proxy may be
in any usual or common form (or such other form as the Directors may approve)
and may be expressed to be for a particular meeting or any adjournment thereof
or generally until revoked. An instrument appointing a proxy shall be deemed to
include the power to demand or join or concur in demanding a poll.
23.5
Votes given in accordance with the terms
of an instrument of proxy shall be valid notwithstanding the previous death or
insanity of the principal or revocation of the proxy or of the authority under
which the proxy was executed, or the transfer of the Share in respect of which
the proxy is given unless notice in writing of such death, insanity, revocation
or transfer was received by the Company at the Registered Office before the
commencement of the general meeting, or adjourned meeting at which it is sought
to use the proxy.
24
Corporate Members
24.1
Any corporation or other non-natural
person which is a Member may in accordance with its constitutional documents,
or in the absence of such provision by resolution of its directors or other
governing body, authorise such person as it thinks fit to act as its
representative at any meeting of the Company or of any class of Members, and
the person so authorised shall be entitled to exercise the same powers on
behalf of the corporation which he represents as the corporation could exercise
if it were an individual Member.
24.2
If a Clearing House (or its nominee(s)),
being a corporation, is a Member, it may authorise such persons as it sees fit
to act as its representative at any meeting of the Company or at any meeting of
any class of Members provided that the authorisation shall specify the number
and class of Shares in respect of which each such representative is so
authorised. Each person so authorised under the provisions of this Article
shall be deemed to have been duly authorised without further evidence of the
facts and be entitled to exercise the same rights and powers on behalf of the
Clearing House (or its nominee(s)) as if such person was the registered holder
of such Shares held by the Clearing House (or its nominee(s)).
25
Shares that May Not be Voted
Shares in the Company that are beneficially owned by
the Company shall not be voted, directly or indirectly, at any meeting and
shall not be counted in determining the total number of outstanding Shares at
any given time.
26
Directors
There shall be a board of Directors consisting of not
less than one person (exclusive of alternate Directors) provided however that
the Company may by Ordinary Resolution increase or reduce the limits in the
number of Directors. For so long as Shares are listed on a Designated Stock
Exchange, the Directors shall include such number of Independent Directors as
applicable law, the rules of the Designated Stock Exchange and/or the rules of
any competent regulatory authority require, unless the Directors resolve to
follow any available exceptions or exemptions.
27
Powers of Directors
27.1
Subject to the provisions of the Statute,
the Memorandum and the Articles and to any directions given by Special
Resolution, the business of the Company shall be managed by the Directors who
may exercise all the powers of the Company. No alteration of the Memorandum or
Articles and no such direction shall invalidate any prior act of the Directors
which would have been valid if that alteration had not been made or that
direction had not been given. A duly convened meeting of Directors at which a
quorum is present may exercise all powers exercisable by the Directors.
27.2
All cheques, promissory notes, drafts,
bills of exchange and other negotiable or transferable instruments and all
receipts for monies paid to the Company shall be signed, drawn, accepted,
endorsed or otherwise executed as the case may be in such manner as the
Directors shall determine by resolution.
27.3
The Directors on behalf of the Company may
pay a gratuity or pension or allowance on retirement to any Director who has
held any other salaried office or place of profit with the Company or to his
widow or dependants and may make contributions to any fund and pay premiums for
the purchase or provision of any such gratuity, pension or allowance.
27.4
The Directors may exercise all the powers
of the Company to borrow money and to mortgage or charge its undertaking,
property and assets (present and future) and uncalled capital or any part
thereof and to issue debentures, debenture stock, mortgages, bonds and other
such securities whether outright or as security for any debt, liability or
obligation of the Company or of any third party.
28
Appointment and Removal of Directors
28.1
The Company may by Ordinary Resolution
appoint any person to be a Director or may by Ordinary
Resolution remove any Director.
28.2
The Directors may appoint any person to be
a Director, either to fill a vacancy or as an
additional Director provided that the appointment does not cause the number of
Directors to exceed any number fixed by or in accordance with the Articles as
the maximum number of Directors.
28.3
Each Director (including, for the
avoidance of doubt, any Director appointed prior to the date of adoption of the
Articles) shall be appointed for a term expiring at the next-following annual
general meeting of the Company. At any such annual general meeting, Directors
will be appointed by Ordinary Resolution. At each annual general meeting of the
Company, each Director appointed at such general meeting shall be appointed to
hold office for a one-year term expiring at: (a) the next-following annual general
meeting of the Company; or (b) their earlier resignation, removal or vacation
of office. Each Director whose term expires at an annual general meeting of the
Company shall be entitled to be re-nominated as a Director.
29
Vacation of Office of Director
The office of a Director shall be vacated if:
(a)
the Director gives notice in writing to
the Company that he resigns the office of Director; or
(b)
the Director absents himself (for the
avoidance of doubt, without being represented by proxy) from three consecutive
meetings of the board of Directors without special leave of absence from the
Directors, and the Directors pass a resolution that he has by reason of such
absence vacated office; or
(c)
the Director dies, becomes bankrupt or
makes any arrangement or composition with his creditors generally; or
(d)
the Director is found to be or becomes of
unsound mind; or
(e)
all of the other Directors (being not less
than two in number) determine that he should be removed as a Director,
either by a resolution passed by all of the other Directors at a meeting of the
Directors duly convened and held in accordance with the Articles or by a
resolution in writing signed by all of the other Directors; or
(f)
the Director becomes prohibited from being
a Director under applicable law, the rules of the
Designated Stock Exchange and/or the rules of any competent regulatory
authority.
30
Proceedings of Directors
30.1
The quorum for the transaction of the
business of the Directors may be fixed by the Directors, and unless so fixed
shall be two if there are two or more Directors, and shall be one if there is
only one Director.
30.2
Subject to the provisions of the Articles,
the Directors may regulate their proceedings as they think fit. Questions
arising at any meeting shall be decided by a majority of votes. In the case of
an equality of votes, the chairman shall have a second or casting vote.
30.3
A person may participate in a meeting of
the Directors or any committee of Directors by conference telephone or other
communications equipment by means of which all the persons participating in the
meeting can communicate with each other at the same time. Participation by a
person in a meeting in this manner is treated as presence in person at that
meeting. Unless otherwise determined by the Directors, the meeting shall be
deemed to be held at the place where the chairman is located at the start of
the meeting.
30.4
A resolution in writing (in one or more
counterparts) signed by all the Directors or all the members of a committee of
the Directors or, in the case of a resolution in writing relating to the
removal of any Director or the vacation of office by any Director, all of the
Directors other than the Director who is the subject of such resolution shall
be as valid and effectual as if it had been passed at a meeting of the
Directors, or committee of Directors as the case may be, duly convened and
held.
30.5
A Director may, or other Officer on the
direction of a Director shall, call a meeting of the Directors by at least two
days' notice in writing to every Director which notice shall set forth the
general nature of the business to be considered unless notice is waived by all
the Directors either at, before or after the meeting is held. To any such
notice of a meeting of the Directors all the provisions of the Articles
relating to the giving of notices by the Company to the Members shall apply mutatis mutandis.
30.6
The continuing Directors (or a sole
continuing Director, as the case may be) may act notwithstanding any vacancy in
their body, but if and so long as their number is reduced below the number
fixed by or pursuant to the Articles as the necessary quorum of Directors the
continuing Directors or Director may act for the purpose of increasing the
number of Directors to be equal to such fixed number, or of summoning a general
meeting of the Company, but for no other purpose.
30.7
The Directors may elect a chairman of
their board and determine the period for which he is to hold office; but if no
such chairman is elected, or if at any meeting the chairman is not present
within five minutes after the time appointed for the meeting to commence, the
Directors present may choose one of their number to be chairman of the meeting.
30.8
All acts done by any meeting of the
Directors or of a committee of the Directors shall, notwithstanding that it is
afterwards discovered that there was some defect in the appointment of any
Director, and/or that they or any of them were disqualified, and/or had vacated
their office and/or were not entitled to vote, be as valid as if every such
person had been duly appointed and/or not disqualified to be a Director and/or
had not vacated their office and/or had been entitled to vote, as the case may
be.
30.9
A Director may be represented at any
meetings of the board of Directors by a proxy appointed in writing by him. The
proxy shall count towards the quorum and the vote of the proxy shall for all
purposes be deemed to be that of the appointing Director.
31
Presumption of Assent
A Director who is present at a meeting of the board of
Directors at which action on any Company matter is taken shall be presumed to
have assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent from such
action with the person acting as the chairman or secretary of the meeting
before the adjournment thereof or shall forward such dissent by registered post
to such person immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a Director who voted in favour of such action.
32
Directors' Interests
32.1
A Director may hold any other office or
place of profit under the Company (other than the office of Auditor) in
conjunction with his office of Director for such period and on such terms as to
remuneration and otherwise as the Directors may determine.
32.2
A Director may act by himself or by,
through or on behalf of his firm in a professional capacity for the Company and
he or his firm shall be entitled to remuneration for professional services as
if he were not a Director.
32.3
A Director may be or become a director or
other officer of or otherwise interested in any company promoted by the Company
or in which the Company may be interested as a shareholder, a contracting party
or otherwise, and no such Director shall be accountable to the Company for any
remuneration or other benefits received by him as a director or officer of, or
from his interest in, such other company.
32.4
No person shall be disqualified from the
office of Director or prevented by such office from contracting with the
Company, either as vendor, purchaser or otherwise, nor shall any such contract
or any contract or transaction entered into by or on behalf of the Company in
which any Director shall be in any way interested be or be liable to be
avoided, nor shall any Director so contracting or being so interested be liable
to account to the Company for any profit realised by or arising in connection
with any such contract or transaction by reason of such Director holding office
or of the fiduciary relationship thereby established. A Director shall be at
liberty to vote in respect of any contract or transaction in which he is
interested provided that the nature of the interest of any Director in any such
contract or transaction shall be disclosed by him at or prior to its
consideration and any vote thereon.
32.5
A general notice that a Director is a
shareholder, director, officer or employee of any specified firm or company and
is to be regarded as interested in any transaction with such firm or company
shall be sufficient disclosure for the purposes of voting on a resolution in
respect of a contract or transaction in which he has an interest, and after
such general notice it shall not be necessary to give special notice relating
to any particular transaction.
32.6
Notwithstanding the foregoing, no
Independent Director shall, without the consent of the Audit Committee, take
any of the foregoing actions or any other action that would reasonably be
likely to affect such Director’s status as an "Independent Director"
of the Company.
33
Minutes
The Directors shall cause minutes to be made in books
kept for the purpose of recording all appointments of Officers made by the
Directors, all proceedings at meetings of the Company or the holders of any
class of Shares and of the Directors, and of committees of the Directors,
including the names of the Directors present at each meeting.
34
Delegation of Directors' Powers
34.1
The Directors may delegate any of their
powers, authorities and discretions, including the power to sub-delegate, to
any committee consisting of one or more Directors (including, without
limitation, the Audit Committee, the Compensation Committee and the Nominating
and Corporate Governance Committee). Any such delegation may be made subject to
any conditions the Directors may impose and either collaterally with or to the
exclusion of their own powers and any such delegation may be revoked or altered
by the Directors. Subject to any such conditions, the proceedings of a
committee of Directors shall be governed by the Articles regulating the
proceedings of Directors, so far as they are capable of applying.
34.2
The Directors may establish any
committees, local boards or agencies or appoint any person to be a manager or
agent for managing the affairs of the Company and may appoint any person to be
a member of such committees, local boards or agencies. Any such appointment may
be made subject to any conditions the Directors may impose, and either
collaterally with or to the exclusion of their own powers and any such
appointment may be revoked or altered by the Directors. Subject to any such
conditions, the proceedings of any such committee, local board or agency shall
be governed by the Articles regulating the proceedings of Directors, so far as
they are capable of applying.
34.3
The Directors may adopt formal written
charters for committees and, if so adopted, shall review and assess the
adequacy of such formal written charters on an annual basis. Each of these
committees shall be empowered to do all things necessary to exercise the rights
of such committee set forth in the Articles and shall have such powers as the
Directors may delegate pursuant to the Articles and as required by the rules
and regulations of the Designated Stock Exchange, the Securities and Exchange
Commission and/or any other competent regulatory authority or otherwise under
Applicable Law. Each of the Audit Committee, the Compensation Committee and the
Nominating and Corporate Governance Committee, if established, shall consist of
such number of Directors as the Directors shall from time to time determine (or
such minimum number as may be required from time to time by the rules and
regulations of the Designated Stock Exchange, the Securities and Exchange
Commission and/or any other competent regulatory authority or otherwise under
Applicable Law).
34.4
The Directors may by power of attorney or
otherwise appoint any person to be the agent of the Company on such conditions
as the Directors may determine, provided that the delegation is not to the
exclusion of their own powers and may be revoked by the Directors at any time.
34.5
The Directors may by power of attorney or
otherwise appoint any company, firm, person or body of persons, whether
nominated directly or indirectly by the Directors, to be the attorney or
authorised signatory of the Company for such purpose and with such powers,
authorities and discretions (not exceeding those vested in or exercisable by
the Directors under the Articles) and for such period and subject to such
conditions as they may think fit, and any such powers of attorney or other
appointment may contain such provisions for the protection and convenience of
persons dealing with any such attorneys or authorised signatories as the
Directors may think fit and may also authorise any such attorney or authorised
signatory to delegate all or any of the powers, authorities and discretions
vested in him.
34.6
The Directors may appoint such Officers as
they consider necessary on such terms, at such remuneration and to perform such
duties, and subject to such provisions as to disqualification and removal as
the Directors may think fit. Unless otherwise specified in the terms of his
appointment an Officer may be removed by resolution of the Directors or
Members. An Officer may vacate his office at any time if he gives notice in
writing to the Company that he resigns his office.
35
No Minimum Shareholding
The Company in general meeting may fix a minimum
shareholding required to be held by a Director, but
unless and until such a shareholding qualification is fixed a Director is not
required to hold Shares.
36
Remuneration of Directors
36.1
The remuneration to be paid to the
Directors, if any, shall be such remuneration as the Directors shall determine.
The Directors shall also be entitled to be paid all travelling, hotel and other
expenses properly incurred by them in connection with their attendance at
meetings of Directors or committees of Directors, or general meetings of the
Company, or separate meetings of the holders of any class of Shares or
debentures of the Company, or otherwise in connection with the business of the
Company or the discharge of their duties as a Director, or to receive a fixed
allowance in respect thereof as may be determined by the Directors, or a
combination partly of one such method and partly the other.
36.2
The Directors may by resolution approve
additional remuneration to any Director for any services which in the opinion
of the Directors go beyond his ordinary routine work as a Director.
Any fees paid to a Director who is also counsel, attorney or solicitor to the
Company, or otherwise serves it in a professional capacity shall be in addition
to his remuneration as a Director.
37
Seal
37.1
The Company may, if the Directors so
determine, have a Seal. The Seal shall only be used by the authority of the
Directors or of a committee of the Directors authorised by the Directors. Every
instrument to which the Seal has been affixed shall be signed by at least one
person who shall be either a Director or some Officer or other person appointed
by the Directors for the purpose.
37.2
The Company may have for use in any place
or places outside the Cayman Islands a duplicate Seal or Seals each of which
shall be a facsimile of the common Seal of the Company and, if the Directors so
determine, with the addition on its face of the name of every place where it is
to be used.
37.3
A Director or Officer, representative or
attorney of the Company may without further authority of the Directors affix
the Seal over his signature alone to any document of the Company required to be
authenticated by him under seal or to be filed with the Registrar of Companies
in the Cayman Islands or elsewhere wheresoever.
38
Dividends, Distributions and Reserve
38.1
Subject to the Statute and this Article
and except as otherwise provided by the rights attached to any Shares, the
Directors may resolve to pay Dividends and other distributions on Shares in
issue and authorise payment of the Dividends or other distributions out of the
funds of the Company lawfully available therefor. A Dividend shall be deemed to
be an interim Dividend unless the terms of the resolution pursuant to which the
Directors resolve to pay such Dividend specifically state that such Dividend shall
be a final Dividend. No Dividend or other distribution shall be paid except out
of the realised or unrealised profits of the Company, out of the share premium
account or as otherwise permitted by law.
38.2
Except as otherwise provided by the rights
attached to any Shares, all Dividends and other distributions shall be paid
according to the par value of the Shares that a Member holds. If any Share is
issued on terms providing that it shall rank for Dividend as from a particular
date, that Share shall rank for Dividend accordingly.
38.3
The Directors may deduct from any Dividend
or other distribution payable to any Member all sums of money (if any) then
payable by him to the Company on account of calls or otherwise.
38.4
The Directors may resolve that any
Dividend or other distribution be paid wholly or partly by the distribution of
specific assets and in particular (but without limitation) by the distribution
of shares, debentures, or securities of any other company or in any one or more
of such ways and where any difficulty arises in regard to such distribution,
the Directors may settle the same as they think expedient and in particular may
issue fractional Shares and may fix the value for distribution of such specific
assets or any part thereof and may determine that cash payments shall be made
to any Members upon the basis of the value so fixed in order to adjust the
rights of all Members and may vest any such specific assets in trustees in such
manner as may seem expedient to the Directors.
38.5
Except as otherwise provided by the rights
attached to any Shares, Dividends and other distributions may be paid in any
currency. The Directors may determine the basis of conversion for any currency
conversions that may be required and how any costs involved are to be met.
38.6
The Directors may, before resolving to pay
any Dividend or other distribution, set aside such sums as they think proper as
a reserve or reserves which shall, at the discretion of the Directors, be
applicable for any purpose of the Company and pending such application may, at
the discretion of the Directors, be employed in the business of the Company.
38.7
Any Dividend, other distribution, interest
or other monies payable in cash in respect of Shares may be paid by wire
transfer to the holder or by cheque or warrant sent through the post directed
to the registered address of the holder or, in the case of joint holders, to
the registered address of the holder who is first named on the Register of
Members or to such person and to such address as such holder or joint holders
may in writing direct. Every such cheque or warrant shall be made payable to
the order of the person to whom it is sent. Any one of two or more joint
holders may give effectual receipts for any Dividends, other distributions,
bonuses, or other monies payable in respect of the Share held by them as joint
holders.
38.8
No Dividend or other distribution shall
bear interest against the Company.
38.9
Any Dividend or other distribution which
cannot be paid to a Member and/or which remains unclaimed after six months from
the date on which such Dividend or other distribution becomes payable may, in
the discretion of the Directors, be paid into a separate account in the
Company's name, provided that the Company shall not be constituted as a trustee
in respect of that account and the Dividend or other distribution shall remain
as a debt due to the Member. Any Dividend or other distribution which remains unclaimed
after a period of six years from the date on which such Dividend or other
distribution becomes payable shall be forfeited and shall revert to the
Company.
39
Capitalisation
The Directors may at any time capitalise any sum
standing to the credit of any of the Company's reserve accounts or funds
(including the share premium account and capital redemption reserve fund) or
any sum standing to the credit of the profit and loss account or otherwise
available for distribution; appropriate such sum to Members in the proportions
in which such sum would have been divisible amongst such Members had the same
been a distribution of profits by way of Dividend or other distribution; and apply
such sum on their behalf in paying up in full unissued Shares for allotment and
distribution credited as fully paid-up to and amongst them in the proportion
aforesaid. In such event the Directors shall do all acts and things required to
give effect to such capitalisation, with full power given to the Directors to
make such provisions as they think fit in the case of Shares becoming
distributable in fractions (including provisions whereby the benefit of
fractional entitlements accrue to the Company rather than to the Members
concerned). The Directors may authorise any person to enter on behalf of all of
the Members interested into an agreement with the Company providing for such
capitalisation and matters incidental or relating thereto and any agreement made
under such authority shall be effective and binding on all such Members and the
Company.
40
Books of Account
40.1
The Directors shall cause proper books of
account (including, where applicable, material underlying documentation
including contracts and invoices) to be kept with respect to all sums of money
received and expended by the Company and the matters in respect of which the
receipt or expenditure takes place, all sales and purchases of goods by the
Company and the assets and liabilities of the Company. Such books of account
must be retained for a minimum period of five years from the date on which they
are prepared. Proper books shall not be deemed to be kept if there are not kept
such books of account as are necessary to give a true and fair view of the
state of the Company's affairs and to explain its transactions.
40.2
The Directors shall determine whether and
to what extent and at what times and places and under what conditions or
regulations the accounts and books of the Company or any of them shall be open
to the inspection of Members not being Directors and no Member (not being a
Director) shall have any right of inspecting any account or book or document of
the Company except as conferred by Statute or authorised by the Directors or by
the Company in general meeting.
40.3
The Directors may cause to be prepared and
to be laid before the Company in general meeting profit and loss accounts,
balance sheets, group accounts (if any) and such other reports and accounts as
may be required by law.
41
Audit
41.1
The Directors may appoint an Auditor of
the Company who shall hold office on such terms as the Directors determine.
41.3
If the Shares (or depositary receipts
therefor) are listed or quoted on the Designated Stock Exchange, the Company
shall conduct an appropriate review of all related party transactions on an
ongoing basis and shall utilise the Audit Committee for the review and approval
of potential conflicts of interest.
41.4
The remuneration of the Auditor shall be
fixed by the Audit Committee (if one exists).
41.5
If the office of Auditor becomes vacant by
resignation or death of the Auditor, or by his becoming incapable of acting by
reason of illness or other disability at a time when his services are required,
the Directors shall fill the vacancy and determine the remuneration of such
Auditor.
41.6
Every Auditor of the Company shall have a
right of access at all times to the books and accounts and vouchers of the
Company and shall be entitled to require from the Directors and Officers such
information and explanation as may be necessary for the performance of the
duties of the Auditor.
41.7
Auditors shall, if so required by the
Directors, make a report on the accounts of the Company during their tenure of
office at the next annual general meeting following their appointment in the
case of a company which is registered with the Registrar of Companies as an
ordinary company, and at the next extraordinary general meeting following their
appointment in the case of a company which is registered with the Registrar of
Companies as an exempted company, and at any other time during their term of office,
upon request of the Directors or any general meeting of the Members.
42
Notices
42.1
Notices shall be in writing and may be
given by the Company to any Member either personally or by sending it by
courier, post, cable, telex, fax or e-mail to him or to his address as shown in
the Register of Members (or where the notice is given by e-mail by sending it
to the e-mail address provided by such Member). Notice may also be served by
Electronic Communication in accordance with the rules and regulations of the
Designated Stock Exchange, the Securities and Exchange Commission and/or any
other competent regulatory authority or by placing it on the Company’s Website.
42.2
Where a notice is sent by:
(a)
courier; service of the notice shall be
deemed to be effected by delivery of the notice to a
courier company, and shall be deemed to have been received on the third day
(not including Saturdays or Sundays or public holidays) following the day on
which the notice was delivered to the courier;
(b)
post; service of the notice shall be
deemed to be effected by properly addressing, pre
paying and posting a letter containing the notice, and shall be deemed to have
been received on the fifth day (not including Saturdays or Sundays or public
holidays in the Cayman Islands) following the day on which the notice was
posted;
(c)
cable, telex or fax; service of the notice
shall be deemed to be effected by properly addressing
and sending such notice and shall be deemed to have been received on the same
day that it was transmitted;
(d)
e-mail or other Electronic Communication;
service of the notice shall be deemed to be effected
by transmitting the e-mail to the e-mail address provided by the intended
recipient and shall be deemed to have been received on the same day that it was
sent, and it shall not be necessary for the receipt of the e-mail to be
acknowledged by the recipient; and
(e)
placing it on the Company’s Website;
service of the notice shall be deemed to have been effected
one hour after the notice or document was placed on the Company’s Website.
42.3
A notice may be given by the Company to
the person or persons which the Company has been advised are entitled to a
Share or Shares in consequence of the death or bankruptcy of a Member in the
same manner as other notices which are required to be given under the Articles
and shall be 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 supplied for that purpose by the persons claiming to be so entitled, or
at the option of the Company by giving the notice in any manner in which the
same might have been given if the death or bankruptcy had not occurred.
42.4
Notice of every general meeting shall be
given in any manner authorised by the Articles to every holder of Shares
carrying an entitlement to receive such notice on the record date for such
meeting except that in the case of joint holders the notice shall be sufficient
if given to the joint holder first named in the Register of Members and every
person upon whom the ownership of a Share devolves by reason of his being a
legal personal representative or a trustee in bankruptcy of a Member where the
Member but for his death or bankruptcy would be entitled to receive notice of
the meeting, and no other person shall be entitled to receive notices of
general meetings.
43
Winding Up
43.1
If the Company shall be wound up, the
liquidator shall apply the assets of the Company in satisfaction of creditors'
claims in such manner and order as such liquidator thinks fit. Subject to the
rights attaching to any Shares, in a winding up:
(a)
if the assets available for distribution
amongst the Members shall be insufficient to repay the whole of the Company's
issued share capital, such assets shall be distributed so that, as nearly as
may be, the losses shall be borne by the Members in proportion to the par value
of the Shares held by them; or
(b)
if the assets available for distribution
amongst the Members shall be more than sufficient to repay the whole of the
Company's issued share capital at the commencement of the winding up, the
surplus shall be distributed amongst the Members in proportion to the par value
of the Shares held by them at the commencement of the winding up subject to a
deduction from those Shares in respect of which there are monies due, of all
monies payable to the Company for unpaid calls or otherwise.
43.2
If the Company shall be wound up the
liquidator may, subject to the rights attaching to any Shares and with the
approval of a Special Resolution of the Company and any other approval required
by the Statute, divide amongst the Members in kind the whole or any part of the
assets of the Company (whether such assets shall consist of property of the
same kind or not) and may for that purpose value any assets and determine how
the division shall be carried out as between the Members or different classes
of Members. The liquidator may, with the like approval, vest the whole or any
part of such assets in trustees upon such trusts for the benefit of the Members
as the liquidator, with the like approval, shall think fit, but so that no
Member shall be compelled to accept any asset upon which there is a liability.
44
Indemnity and Insurance
44.1
Every Director and Officer (which for the
avoidance of doubt, shall not include auditors of the Company), together with
every former Director and former Officer (each an "Indemnified Person") shall be indemnified out of the assets of
the Company against any liability, action, proceeding, claim, demand, costs,
damages or expenses, including legal expenses, whatsoever which they or any of
them may incur as a result of any act or failure to act in carrying out their
functions other than such liability (if any) that they may incur by reason of
their own actual fraud or wilful default. No Indemnified Person shall be liable
to the Company for any loss or damage incurred by the Company as a result
(whether direct or indirect) of the carrying out of their functions unless that
liability arises through the actual fraud or wilful default of such Indemnified
Person. No person shall be found to have committed actual fraud or wilful default
under this Article unless or until a court of competent jurisdiction shall have
made a finding to that effect.
44.2
The Company shall advance to each
Indemnified Person reasonable attorneys' fees and other costs and expenses
incurred in connection with the defence of any action, suit, proceeding or
investigation involving such Indemnified Person for which indemnity will or
could be sought. In connection with any advance of any expenses hereunder, the
Indemnified Person shall execute an undertaking to repay the advanced amount to
the Company if it shall be determined by final judgment or other final
adjudication that such Indemnified Person was not entitled to indemnification
pursuant to this Article. If it shall be determined by a final judgment or
other final adjudication that such Indemnified Person was not entitled to
indemnification with respect to such judgment, costs or expenses, then such
party shall not be indemnified with respect to such judgment, costs or expenses
and any advancement shall be returned to the Company (without interest) by the
Indemnified Person.
44.3
The Directors, on behalf of the Company,
may purchase and maintain insurance for the benefit of any Director or other
Officer against any liability which, by virtue of any rule of law, would
otherwise attach to such person in respect of any negligence, default, breach
of duty or breach of trust of which such person may be guilty in relation to
the Company.
45
Financial Year
Unless the Directors otherwise prescribe, the
financial year of the Company shall end on 31st December in each year and,
following the year of incorporation, shall begin on 1st January in each year.
46
Transfer by Way of Continuation
If the Company is exempted as defined in the Statute,
it shall, subject to the provisions of the Statute and with the approval of a
Special Resolution, have the power to register by way of continuation as a body
corporate under the laws of any jurisdiction outside the Cayman Islands and to
be deregistered in the Cayman Islands.
47
Mergers and Consolidations
The Company shall have the power to merge or
consolidate with one or more other constituent companies (as defined in the
Statute) upon such terms as the Directors may determine and (to the extent
required by the Statute) with the approval of a Special Resolution.