UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For the month of November 2009
Commission File Number: 001-33765
AIRMEDIA GROUP INC.
17/F, Sky Plaza,
No. 46 Dongzhimenwai Street
Dongcheng District
100027, Beijing
People’s Republic of China
(Address of principal executive offices)
No. 46 Dongzhimenwai Street
Dongcheng District
100027, Beijing
People’s Republic of China
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F.
| Form 20-F þ | Form 40-F o |
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by
Regulation S-T Rule 101(b)(1): o
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation
S-T Rule 101(b)(7): o
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly
caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| AIRMEDIA GROUP INC. |
||||
| By: | /s/ Conor Chiahung Yang | |||
| Name: | Conor Chiahung Yang | |||
| Title: | Chief Financial Officer | |||
Date: November 4, 2009
Exhibit Index
Exhibit 99.1 — Press Release
Exhibit 99.2 — Notice of Annual General Meeting
Exhibit 99.3 — Proxy Form
Exhibit 99.4 — Voting Instruction Card for American Depositary Shares
Exhibit 99.2 — Notice of Annual General Meeting
Exhibit 99.3 — Proxy Form
Exhibit 99.4 — Voting Instruction Card for American Depositary Shares
Exhibit 99.1
AirMedia to Hold 2009 Annual General Meeting on December 9, 2009
Beijing, November 2, 2009 – AirMedia Group Inc. (NASDAQ: AMCN), a leading operator of out-of-home advertising platforms in China targeting mid-to-high-end consumers, today announced that it will hold its 2009 annual general meeting of shareholders at 42/F, Edinburgh Tower, The Landmark 15 Queen’s Road Central, Hong Kong, on December 9, 2009 at 10:00 a.m., local time. Holders of record of ordinary shares of the company at the close of business on November 5, 2009 are entitled to notice of, and to vote at, the annual general meeting or any adjournment or postponement thereof. Holders of the company’s American depositary shares (“ADSs”) who wish to exercise their voting rights for the underlying ordinary shares must act through the depositary of the Company’s ADS program, JPMorgan Chase Bank N.A..
The notice of the annual general meeting, which sets forth the resolutions to be submitted to shareholder approval at the meeting, is available on the Investor Relations section of the company’s website at http://ir.airmedia.net.cn. AirMedia has filed its annual report on Form 20-F, including its audited financial statements for the fiscal year ended December 31, 2008, with the U.S. Securities and Exchange Commission. AirMedia’s Form 20-F can be accessed on the above-mentioned website, as well as on the SEC’s website at http://www.sec.gov. Shareholders may request a hard copy of the company’s annual report, free of charge, by contacting Raymond Huang, Investor Relations Director, 15/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027, People’s Republic of China, telephone: + 86 (10) 8460-8678, Fax: + 86 (10) 8460-8658, email: ir@airmedia.net.cn.
About AirMedia Group Inc.
AirMedia Group Inc. (Nasdaq: AMCN) is a leading operator of out-of-home advertising platforms in China targeting mid-to-high-end consumers. AirMedia operates the largest digital media network in China dedicated to air travel advertising. AirMedia operates digital TV screens in 40 major airports, including 29 all of the 30 largest airports in China. AirMedia also operates digital frames in 30 major airports. In addition, AirMedia sells advertisements on the routes operated by 9 airlines, including the three largest airlines in China. In select major airports, AirMedia also operates traditional media platforms, such as billboards, light boxes, and other digital media, such as mega LED screens.
In addition, AirMedia has obtained exclusive contractual concession rights to develop and operate outdoor advertising platforms at Sinopec’s service stations located throughout China until the end of 2014. AirMedia plans to install its advertising platforms in at least 3,500 service stations in major cities throughout China by the end of 2011, and in at least 8,000 service stations by the end of 2014.
For more information about AirMedia, please visit http://www.airmedia.net.cn.
Investor Contact:
Raymond Huang
Investor Relations Director
AirMedia Group, Inc.
Tel: 86-10-8460-8678
Email: ir@airmedia.net
Cynthia He
Brunswick Group
Tel: +86-10-6566-2256
Email: che@brunswickgroup.com
Exhibit 99.2
AIRMEDIA GROUP INC.
(Incorporated in the Cayman Islands with limited liability)
(NASDAQ Ticker: AMCN)
(Incorporated in the Cayman Islands with limited liability)
(NASDAQ Ticker: AMCN)
NOTICE OF ANNUAL GENERAL MEETING
to Be Held on December 9, 2009
(or any adjourned or postponed meeting thereof)
to Be Held on December 9, 2009
(or any adjourned or postponed meeting thereof)
NOTICE IS HEREBY GIVEN that an Annual General Meeting (“AGM”) of AirMedia Group Inc. (the
“Company”) will be held at 42/F, Edinburgh Tower, The Landmark, 15 Queen’s Road Central, Hong Kong
on December 9, 2009 at 10:00 a.m., local time, and at any adjourned or postponed meeting thereof,
for the following purposes:
| 1. | To consider and, if thought fit, pass the following resolution as an ordinary resolution in connection with an increase in the maximum aggregate number of shares issuable under the Company’s 2007 Share Incentive Plan: | |
| “RESOLVED, as an ordinary resolution: | ||
| THAT the amendment to the 2007 Share Incentive Plan of the Company, in the form attached as Exhibit A to this Notice of Annual General Meeting to Be Held on December 9, 2009 (the “AGM Notice”) and approved by the resolutions of the Company’s board of directors passed on December 29, 2008, be and hereby is approved and confirmed, and where necessary ratified; and | ||
| THAT each director or officer of the Company be and hereby is authorized to take any and every action that might be necessary, appropriate or desirable to effect the foregoing resolution as such director or officer, in his or her absolute discretion, thinks fit.” | ||
| 2. | To consider and, if thought fit, pass the following resolution as a special resolution in connection with certain amendments to the Memorandum and Articles of Association of the Company: | |
| “RESOLVED, as a special resolution: | ||
| THAT the Memorandum and Articles of Association of the Company currently in effect be amended and restated by their deletion in their entirety and the substitution in their place of the Amended and Restated Memorandum and Articles of Association attached as Exhibit C to this AGM Notice, reflecting the amendments enumerated in Exhibit B and certain minor clerical or formatting changes.” | ||
| 3. | To consider and, if thought fit, pass the following resolution as an ordinary resolution in connection with the Company’s share repurchase program: | |
| “RESOLVED, as an ordinary resolution: |
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THAT the Company be and hereby is approved, authorized, and where necessary ratified, but
not obligated, to purchase its ordinary shares represented by American
depositary shares (“ADSs”) with an aggregate value of up to US$50 million within one year
since January 1, 2009 (such transaction, the “Repurchase”);
THAT each of Mr. Herman Man Guo, Mr. Conor Chiahung Yang and any person specifically
nominated in writing by either of them for such purpose (each an “Authorized Person”) be and
hereby is authorized to effect the Repurchase on the open market at prevailing market prices
pursuant to a Rule 10b5-1 plan, in negotiated transactions off the market, in block trades
or otherwise from time to time as market conditions, in the judgment of such Authorized
Person, warrant, in accordance with applicable law, and on such other terms as set out in
the resolutions of the Company’s board of directors passed on December 29, 2008, an extract
of which is attached as Exhibit D to this AGM Notice (the “Repurchase Board
Resolutions”); and
THAT any actions taken by any of the directors and officers of the Company prior to the date
hereof for purposes of the foregoing resolutions be approved, adopted and where necessary
ratified, including without limitation any repurchases of the Company’s ordinary shares
effected pursuant to the Repurchase Board Resolutions prior to the date hereof.”
The Board of Directors of the Company has fixed the close of business on November 5, 2009 as
the record date (the “Record Date”) for determining the shareholders entitled to receive notice of
and to vote at the AGM or any adjourned or postponed meeting thereof.
Please refer to the proxy form, which is attached as Exhibit E to and made a part of
this notice. Holders of record of the Company’s ordinary shares at the close of business on the
Record Date are entitled to vote at the AGM and any adjourned or postponed meeting thereof.
Holders of the Company’s American depositary shares (“ADSs”) who wish to exercise their voting
rights for the underlying shares must act through JPMorgan Chase Bank N.A., the depositary of the
Company’s ADS program.
Holders of record of the Company’s ordinary shares as of the close of business on the Record
Date are cordially invited to attend the AGM in person. Your vote is important. If you cannot
attend the AGM in person, you are urged to complete, sign, date and return the accompanying proxy
form as promptly as possible. We must receive the proxy form no later than 24 hours before the
time of the AGM to ensure your representation at such meeting.
Shareholders may obtain a copy of the Company’s annual report, free of charge, from the
Company’s website at http://ir.airmedia.net.cn, or by contacting Raymond Huang, Investor Relations
Director, 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District, Beijing 100027,
People’s Republic of China, telephone: + 86 (10) 8460-8678, Fax: + 86 (10) 8460-8658, email:
ir@airmedia.net.cn.
| By Order of the Board of Directors, | ||
| Herman Man Guo | ||
| Chairman and Chief Executive Officer |
Beijing, November 2, 2009
2
Exhibit A
Amendment to the 2007 Share Incentive Plan*
Amendment to the 2007 Share Incentive Plan*
By deleting the following existing Section 3.1(a) in its entirety:
“Subject to the provisions of Article 10 and Section 3.1(b), the maximum aggregate number of Shares
which may be issued pursuant to all Awards (including Incentive Share Options) is 12,000,000
Shares.”
and substituting therefor the following new Section 3.1(a):
“Subject to the provisions of Article 10 and Section 3.1(b), the maximum aggregate number of Shares
which may be issued pursuant to all Awards (including Incentive Share Options) is 17,000,000
Shares.”
| * | A copy of the 2007 Share Incentive Plan of the Company as currently in effect was filed as Exhibit 10.1 to the Company’s Post-Effective Amendment No. 1 to the Registration Statement on Form S-8 (File No. 333-148352), filed with the SEC on December 11, 2008. It is available in the SEC’s EDGAR database at http://www.sec.gov/edgar/searchedgar/companysearch.html. |
A-1
Exhibit B
Amendments to the Memorandum and Articles of Association of the Company†
Amendments to the Memorandum and Articles of Association of the Company†
Amendment No. 1: By deleting the existing Articles 15 through to 18 of the Articles of
Association in their entirety and substituting therefor the following new Articles:
“15.
|
Subject to the provisions of the Statutes and these Articles, the Company may: |
| (a) | issue shares on terms that they are to be redeemed or are liable to be redeemed at the option of the Company or the Member on such terms and in such manner as the Directors may, before the issue of such shares, determine; | ||
| (b) | purchase its own shares (including any redeemable shares) provided that the Members shall have approved the manner of purchase by ordinary resolution or the manner of purchase shall be in accordance with the following Articles (this authorisation is in accordance with section 37(2) of the Companies Law or any modification or re-enactment thereof for the time being in force); and | ||
| (c) | make a payment in respect of the redemption or purchase of its own shares in any manner permitted by the Statutes, including out of capital. |
16A.
|
Purchase of shares listed on an internationally recognized stock exchange where the Company’s securities are traded (a “Designated Stock Exchange”): the Company is authorised to purchase any share listed on a Designated Stock Exchange in accordance with the following manner of purchase: |
| (a) | the maximum number of shares that may be repurchased shall be equal to the number of issued and outstanding shares less one share; and | ||
| (b) | the repurchase shall be at such time; at such price and on such other terms as determined and agreed by the Directors in their sole discretion provided however that: |
| (i) | such repurchase transactions shall be in accordance with the relevant code, rules and regulations applicable to the listing of the shares on the Designated Stock Exchange; and | ||
| (ii) | at the time of the repurchase, the Company is able to pay its debts as they fall due in the ordinary course of its business. |
16B.
|
Purchase of shares not listed on a Designated Stock Exchange: the Company is authorised to purchase any shares not listed on a Designated Stock Exchange in accordance with the following manner of purchase: |
| † | A copy of the currently effective Memorandum and Articles of Association of the Company was filed as Exhibit 3.2 to the Company’s Registration Statement on Form F-1 (File No. 333-146825), filed with the SEC on October 19, 2007. It is available in the SEC’s EDGAR database at http://www.sec.gov/edgar/searchedgar/companysearch.html. |
B-1
| (a) | the Company shall serve a repurchase notice in a form approved by the Directors on the Member from whom the shares are to be repurchased at least two business days prior to the date specified in the notice as being the repurchase date; | ||
| (b) | the price for the shares being repurchased shall be such price as agreed between the Directors and the applicable Member; | ||
| (c) | the date of repurchase shall be the date specified in the repurchase notice; and | ||
| (d) | the repurchase shall be on such other terms as specified in the repurchase notice as determined and agreed by the Directors and the applicable Member in their sole discretion. |
| 17. | The redemption or purchase of any share shall not oblige the Company to redeem or purchase any other share other than as may be required pursuant to applicable law and any other contractual obligations of the Company. | |
| 18. | The holder of the shares being redeemed or purchased shall be bound to deliver up to the Company at its registered office or such other place as the Directors shall specify, the certificate(s) (if any) thereof for cancellation and thereupon the Company shall pay to him the redemption or purchase monies or consideration in respect thereof.” |
Amendment No. 2: By deleting all references in the Memorandum and Articles of Association
to “the Companies Law (2007 Revision)” and substituting therefor the words “the Companies Law (2009
Revision)”.
Amendment No. 3: By deleting Clause 2 of the Memorandum of Association in its entirety and
substituting therefor the following new Clause 2:
“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 as
the Directors may from time to time decide.”
Amendment No. 4: By deleting the definition of “Special Resolution” in Clause 1 of the
Articles of Association in its entirety and substituting therefor the following new definition:
“the meaning given to it under the Companies Law and includes a unanimous written resolution;”
Amendment No. 5: By deleting Clause 4 of the Articles of Association in its entirety and
substituting therefor the following new Clause 4:
“4. The business of the Company may be conducted as the Directors see fit.”
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Amendment No. 6: By deleting the following words from Clause 77(d) of the Articles of
Association:
“Subject to these Articles and the Companies Law,”
Amendment No. 7: By deleting the following sentence from Clause 98 of the Articles of
Association:
“A meeting of the Directors may be held by means of telephone or teleconferencing or any other
telecommunications facility provided that all participants are thereby able to communicate
immediately by voice with all other participants.”
Amendment No. 8: By adding the word “only” to Clause 105 of the Articles of Association and
deleting two commas such that Clause 105 shall read:
“The continuing Directors 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 these Articles as the necessary
quorum of Directors, the continuing Directors may act only for the purpose of increasing the number
or of summoning a general meeting of the Company, but for no other purpose.”
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Exhibit C
the Amended and Restated Memorandum and Articles of Association
the Amended and Restated Memorandum and Articles of Association
THE COMPANIES LAW (2009 REVISION)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION
OF
AIRMEDIA GROUP INC.
Adopted by a Special Resolution passed on 9 December 2009
| 1. | The name of the Company is AirMedia Group Inc. |
|
| 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 as the Directors may from time to time decide. |
|
| 3. | The objects for which the Company is established are unrestricted and the Company shall have
full power and authority to carry out any object not prohibited by the Companies Law (2009
Revision) or as the same may be revised from time to time, or any other law of the Cayman
Islands. |
|
| 4. | The liability of each Member is limited to the amount from time to time unpaid on such
Member’s shares. |
|
| 5. | The authorized share capital of the Company is US$1,000,000 divided into 900,000,000 Ordinary
Shares of a nominal or par value of US$0.001 each and 100,000,000 Preferred Shares of a
nominal or par value of US$0.001 each. The Company has the power to redeem or purchase any of
its shares and to increase or reduce the said capital subject to the provisions of the
Companies Law (2009 Revision) and the Articles of Association and to issue any part of its
capital, whether original, redeemed or increased with or without any preference, priority or
special privilege or subject to any postponement of rights or to any conditions or
restrictions and so that unless the conditions of issue shall otherwise expressly declare
every issue of shares whether declared to be preference or otherwise shall be subject to the
powers hereinbefore contained. |
|
| 6. | The Company has the 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. | Capitalized terms that are not defined in this Amended and Restated Memorandum of Association
bear the same meaning as those given in the Amended and Restated Articles of Association of
the Company. |
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THE COMPANIES LAW (2009 REVISION)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF
AIRMEDIA GROUP INC.
Adopted by a Special Resolution passed on 9 December 2009
INTERPRETATION
| 1. | In these Articles, unless otherwise defined, the defined terms shall have the meanings
assigned to them as follows: |
“Articles”
these Amended and Restated Articles of Association, as amended and restated from time
to time;
“Board”
the board of Directors of the Company; “Business
Day”
a day (excluding Saturdays or Sundays), on which banks in Hong Kong, Beijing and New
York are open for general banking business throughout their normal business hours;
“Commission”
Securities and Exchange Commission of the United States of America or any other
federal agency for the time being administering the Securities Act;
“Companies Law”
the Companies Law (2009 Revision) of the Cayman Islands and any statutory amendment
or re-enactment thereof. Where any provision of the Companies Law is referred to,
the reference is to that provision as amended by any law for the time being in force;
“Company”
AirMedia Group Inc., a Cayman Islands company limited by shares; “Company’s Website"
the website of the Company, the address or domain name of which has been notified to Members;
the website of the Company, the address or domain name of which has been notified to Members;
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“Directors” and “Board of Directors” and “Board”
the directors of the Company for the time being, or as the case may be, the
Directors assembled as a Board or as a committee thereof;
“electronic”
the meaning given to it in the Electronic Transactions Law (2003 Revision) of the
Cayman Islands and any amendment thereto or re-enactments thereof for the time being
in force and includes every other law incorporated therewith or substituted therefore;
“electronic communication”
electronic posting to the Company’s Website, transmission to any number, address or
interne website or other electronic delivery methods as otherwise decided and approved
by not less than two-thirds of the vote of the Board;
“in writing”
includes writing, printing, lithograph, photograph, type-writing and every other mode
of representing words or figures in a legible and non-transitory form and, only where
used in connection with a notice served by the Company on Members or other persons
entitled to receive notices hereunder, shall also include a record maintained in an
electronic medium which is accessible in visible form so as to be useable for
subsequent reference;
“Member”
a person whose name is entered in the Register of Members as the holder of a share or
shares;
“Memorandum of Association”
the Memorandum of Association of the Company, as amended and re-stated from time to
time;
“month”
calendar month;
“Ordinary Resolution”
a resolution:
| (a) | passed by a simple majority of votes cast by such Members as,
being entitled to do so, vote in person or, in the case of any Member being an
organization, by its duly authorized representative or, where proxies are
allowed, by proxy at a general meeting of the Company; or |
| (b) | approved in writing by all of the Members entitled to vote at a
general meeting of the Company in one or more instruments each signed by one or
more of the Members and the effective date of the resolution so
adopted shall be the date on which the instrument, or the last of such
instruments if more than one, is executed; |
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“Ordinary Shares”
ordinary shares of par value of US$0.001 each in the capital of the Company with the
rights set out in these Articles;
“Preferred Shares”
preferred shares of par value of US$0.001 each in the capital of the Company with the
rights set out in these Articles;
“paid up”
paid up as to the par value and any premium payable in respect of the issue of any
shares and includes credited as paid up;
“Register of Members”
the register to be kept by the Company in accordance with Section 40 of the Companies
Law;
“Seal”
the Common Seal of the Company including any facsimile thereof;
“Securities Act”
the Securities Act of 1933 of the United States of America, as amended, or any similar
federal statute and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time;
“share”
any share in the capital of the Company, including the Ordinary Shares, Preferred
Shares and shares of other classes;
“signed”
includes a signature or representation of a signature affixed by mechanical means or
an electronic symbol or process attached to or logically associated with an electronic
communication and executed or adopted by a person with the intent to sign the
electronic communication;
“Special Resolution”
the meaning given to it under the Companies Law and includes a unanimous written
resolution;
“Statutes”
the Companies Law and every other laws and regulations of the Cayman Islands for the
time being in force concerning companies and affecting the
Company;
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“year”
calendar year.
| 2. | In these Articles, save where the context requires otherwise: |
| (a) | words importing the singular number shall include the plural number and vice
versa; |
||
| (b) | words importing the masculine gender only shall include the feminine gender; |
||
| (c) | words importing persons only shall include companies or associations or bodies of
persons, whether corporate or not; |
||
| (d) | “may” shall be construed as permissive and “shall” shall be construed as
imperative; |
||
| (e) | a reference to a dollar or dollars (or $) is a reference to dollars of the United
States; |
||
| (f) | references to a statutory enactment shall include reference to any amendment or
re-enactment thereof for the time being in force; |
||
| (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; and |
||
| (h) | Section 8 of the Electronic Transactions Law (2003 Revision) shall not reply. |
| 3. | Subject to the last two preceding Articles, any words defined in the Companies Law shall, if
not inconsistent with the subject or context, bear the same meaning in these Articles. |
PRELIMINARY
| 4. | The business of the Company may be conducted as the Directors see fit. |
| 5. | The registered office of the Company shall be at such address in the Cayman Islands as the
Directors shall from time to time determine. The Company may in addition establish and
maintain such other offices and places of business and agencies in such places as the
Directors may from time to time determine. |
SHARE CAPITAL
| 6. | The authorized share capital of the Company at the date of adoption of these Articles is
US$1,000,000 divided into 900,000,000 Ordinary Shares of a nominal or par value of US$0.001
each and 100,000,000 Preferred Shares of a nominal or par value of US$0.001 each with power
for the Company insofar as is permitted by law, to redeem or purchase any of its shares and to
increase or reduce the said capital subject to the provisions of the Companies Law and these
Articles and to issue any part of its capital, whether original, redeemed or increased with or
without any preference,
priority or special privilege or subject to any postponement of rights or to any conditions
or restrictions and so that unless the conditions of issue shall otherwise expressly declare
every issue of shares whether declared to be preference or otherwise shall be subject to the
powers hereinbefore contained. |
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The Directors from time to time may, in their absolute discretion and without approval of
Members, cause the Company to issue such amounts of Preferred Shares or other similar
securities in one or more series as they deem necessary and appropriate and determine
designations, powers, preferences, privileges and other rights, including dividend rights,
conversion rights, terms of redemption and liquidation preferences, any or all of which may
be greater than the powers and rights associated with the Ordinary Shares.
Subject to applicable regulatory requirements, the Directors from time to time may, in their
absolute discretion and without approval of Members, cause the Company to issue additional
Ordinary Shares without action by the Members to the extent of available authorized but
unissued shares.
ISSUE OF SHARES
| 7. | Subject to the provisions, if any, in the Articles and to any direction that may be given by
the Company in a general meeting, the Directors may, in their absolute discretion and without
approval of the holders of Ordinary Shares, cause the Company to issue such amounts of
Ordinary Shares and/or Preferred Shares, grant rights over existing shares or issue other
securities in one or more series as they deem necessary and appropriate and determine
designations, powers, preferences, privileges and other rights, including dividend rights,
conversion rights, terms of redemption and liquidation preferences, any or all of which may be
greater than the powers and rights associated with the Ordinary Shares, at such times and on
such other terms as they think proper. The Company shall not issue shares in bearer form. |
REGISTER OF MEMBERS AND SHARE CERTIFICATES
| 8. | The Company shall maintain a Register of its Members and every person whose name is entered
as a Member in the Register of Members shall, without payment, be entitled to a certificate in
the form determined by the Directors upon the Member’s written request. All certificates shall
specify the share or shares held by that person and the amount paid up thereon, provided that
in respect of a share or shares held jointly by several persons the Company shall not be bound
to issue more than one certificate, and delivery of a certificate for a share to one of
several joint holders shall be sufficient delivery to all. All certificates for shares shall
be delivered personally or sent through the post addressed to the member entitled thereto at
the Member’s registered address as appearing in the register. |
| 9. | Every share certificate of the Company shall bear legends required under the applicable laws,
including the Securities Act. |
| 10. | Any two or more certificates representing shares of any one class held by any Member may at
the Member’s request be cancelled and a single new certificate for such shares issued in lieu
on payment (if the Directors shall so require) of US$1.00 or such smaller sum as the Directors
shall determine. |
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| 11. | If a share certificate shall be damaged or defaced or alleged to have been lost, stolen or
destroyed, a new certificate representing the same shares may be issued to the relevant member
upon request subject to delivery up of the old certificate or (if alleged to have been lost,
stolen or destroyed) compliance with such conditions as to evidence and indemnity and the
payment of out-of-pocket expenses of the Company in connection with the request as the
Directors may think fit. |
| 12. | In the event that shares are held jointly by several persons, any request may be made by any
one of the joint holders and if so made shall be binding on all of the joint holders. |
TRANSFER OF SHARES
| 13. | The instrument of transfer of any share shall be in writing and executed by or on behalf of
the transferor and shall be accompanied by the certificate of the shares to which it relates
and such other evidence as the Directors may reasonably require to show the right of the
transferor to make the transfer. The transferor shall be deemed to remain a holder of the
share until the name of the transferee is entered in the Register of Members in respect
thereof. |
|
| 14. | All instruments of transfer that shall be registered shall be retained by the Company. |
REDEMPTION AND PURCHASE OF OWN SHARES
| 15. | Subject to the provisions of the Statutes and these Articles, the Company may: |
| (a) | issue shares on terms that they are to be redeemed or are liable to be redeemed
at the option of the Company or the Member on such terms and in such manner as the
Directors may, before the issue of such shares, determine; |
||
| (b) | purchase its own shares (including any redeemable shares) provided that the
Members shall have approved the manner of purchase by ordinary resolution or the manner
of purchase shall be in accordance with the following Articles (this authorization is in
accordance with section 37(2) of the Companies Law or any modification or re-enactment
thereof for the time being in force); and |
||
| (c) | make a payment in respect of the redemption or repurchase of its own shares in
any manner permitted by the Statutes, including out of capital. |
| 16A. | Purchase of shares listed on an internationally recognized stock exchange where the Company’s
securities are traded (a “Designated Stock Exchange”): the Company is authorised to purchase
any share listed on a Designated Stock Exchange in accordance with the following manner of
purchase: |
| (a) | the maximum number of shares that may be repurchased shall be equal to the number
of issued and outstanding shares less one share; and |
||
| (b) | the repurchase shall be at such time; at such price and on such other terms as
determined and agreed by the Directors in their sole discretion provided however that: |
| (i) | such repurchase transactions shall be in accordance with the
relevant
code, rules and regulations applicable to the listing of the shares on the
Designated Stock Exchange; and |
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| (ii) | at the time of the repurchase, the Company is able to pay is
debts as they fall due in the ordinary course of its business. |
| 16B. | Purchase of shares not listed on a Designated Stock Exchange: the Company is authorized to
purchase any shares not listed on a Designated Stock Exchange in accordance with the following
manner of purchase: |
| (a) | the Company shall serve a repurchase notice in a form approved by the Directors
on the Member from whom the Shares are to be repurchased at least two business days
prior to the date specified in the notice as being the repurchase date; |
||
| (b) | the price for the shares being repurchased shall be such price as agreed between
the Directors and the applicable Member; |
||
| (c) | the date of repurchase shall be the date specified in the repurchase notice; and |
||
| (d) | the repurchase shall be on such other terms as specified in the repurchase notice
as determined and agreed by the Directors and the applicable Member in their sole
discretion. |
| 17. | The redemption or purchase of any share shall not oblige the Company to redeem or purchase
any other share other than as may be required pursuant to applicable law and any other
contractual obligations of the Company. |
| 18. | The holder of the shares being redeemed or purchased shall be bound to deliver up to the
Company as its registered office or such other place as the Directors shall specify, the
certificate(s) (if any) thereof for cancellation and thereupon the Company shall pay to him
the redemption or purchase monies or consideration in respect thereof. |
VARIATION OF RIGHTS ATTACHING TO SHARES
| 19. | If at any time the share capital is divided into different classes of shares, the rights
attaching to any class (unless otherwise provided by the terms of issue of the shares of that
class) may, subject to these Articles, be varied or abrogated with the consent in writing of
the holders of a majority of the issued shares of that class or with the sanction of a Special
Resolution passed at a general meeting of the holders of the shares of that class. |
| 20. | The provisions of these Articles relating to general meetings shall apply to every such
general meeting of the holders of one class of shares 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. |
| 21. | Notwithstanding Articles 19 and 20 above, 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 in priority to or pari passu
therewith. Further, notwithstanding Articles 19 and 20 above, the rights of the holders of
Ordinary Shares shall not be deemed varied by the creation or issue of shares with preferred
or other rights, which may be effected by the Directors as provided in these Articles without
any vote or consent of the holders of Ordinary Shares. |
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COMMISSION ON SALE OF SHARES
| 22. | The Company may in so far as the Statutes from time to time permit pay a commission to any
person in consideration of his subscribing or agreeing to subscribe whether absolutely or
conditionally for any shares of the Company. Such commissions may be satisfied by the payment
of cash or the lodgement of fully or partly paid-up shares or partly in one way and partly in
the other. The Company may also on any issue of shares pay such brokerage as may be lawful. |
NON-RECOGNITION OF TRUSTS
| 23. | No person shall be recognised by the Company as holding any share upon any trust and the
Company shall not be bound by or be compelled in any way to recognise (even when having notice
thereof) any equitable, contingent, future, or partial interest in any share, or any interest
in any fractional part of a share, or (except only as is otherwise provided by these Articles
or the Statutes) any other rights in respect of any share except an absolute right to the
entirety thereof in the registered holder. |
LIEN ON SHARES
| 24. | The Company shall have a first and paramount lien and charge 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 (if any) thereon. The Company’s lien (if any)
on a share shall extend to all dividends or other monies payable in respect thereof. |
| 25. | The Company may sell, in such manner as the Directors think fit, any shares on which the
Company has a lien, but no sale shall be made unless some sum in respect of which the lien
exists is presently payable nor until the expiration of 14 calendar days after a notice in
writing, stating and demanding payment of such part of the amount in respect of which the lien
exists as is presently payable, has been given to the registered holder for the time being of
the share, or the persons entitled thereto by reason of his death or bankruptcy. |
| 26. | For giving effect to any such sale the Directors may authorise some person to transfer the
shares sold to the purchaser thereof. The purchaser shall be registered as the holder of the
shares comprised in any such transfer and he shall not be bound to see to the application of
the purchase money, nor shall his title to the shares be affected by any irregularity or
invalidity in the proceedings in reference to the sale. |
| 27. | The proceeds of the sale shall be received by the Company and applied in payment of such part
of the amount in respect of which the lien exists as is presently payable, and the residue
shall (subject to a like lien for sums not presently payable as existed
upon the shares prior to the sale) be paid to the person entitled to the shares at the date
of the sale. |
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CALLS ON SHARES
| 28. | The Directors may from time to time make calls upon the Members in respect of any money
unpaid on their shares, and each member shall (subject to receiving at least 14 calendar days
notice specifying the time or times of payment) pay to the Company at the time or times so
specified the amount called on his shares. A call shall be deemed to have been made at the
time when the resolution of the Directors authorising such call was passed. |
| 29. | The joint holders of a share shall be jointly and severally liable to pay calls in respect
thereof. |
| 30. | If a sum called in respect of a share is not paid before or on the day appointed for payment
thereof, the person from whom the sum is due shall pay interest upon the sum at the rate of
eight percent per annum from the day appointed for the payment thereof to the time of the
actual payment, but the Directors shall be at liberty to waive payment of that interest wholly
or in part. |
| 31. | The provisions of these Articles as to the liability of joint holders and as to payment of
interest shall apply in the case of non-payment of any sum which, by the terms of issue of a
share, becomes payable at a fixed time, whether on account of the amount of the share, or by
way of premium, as if the same had become payable by virtue of a call duly made and notified. |
| 32. | The Directors may make arrangements on the issue of shares for a difference between the
Members, or the particular shares, in the amount of calls to be paid and in the times of
payment. |
| 33. | The Directors may, if they think fit, receive from any member willing to advance the same all
or any part of the moneys uncalled and unpaid upon any shares held by him, and upon all or any
of the moneys so advanced may (until the same would, but for such advance, become presently
payable) pay interest at such rate (not exceeding without the sanction of an Ordinary
Resolution, eight percent. per annum) as may be agreed upon between the Member paying the sum
in advance and the Directors. No such sum paid in advance of calls shall entitle the member
paying such sum to any portion of a dividend declared in respect of any period prior to the
date upon which such sum would, but for such payment, become presently payable. |
FORFEITURE OF SHARES
| 34. | If a Member fails to pay any call or instalment of a call on the day appointed for payment
thereof, the Directors may, at any time thereafter during such time as any part of such call
or instalment remains unpaid, serve a notice on him requiring payment of such much of the call
or instalment as is unpaid, together with any interest which may have accrued. |
| 35. | The notice shall name a further day (not earlier than the expiration of 14 calendar days from
the date of the notice) on or before which the payment required by the notice is to be made,
and shall state that in the event of non-payment at or before
the time appointed the shares in respect of which the call was made will be liable to be
forfeited. |
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| 36. | If the requirements of any such notice as aforesaid are not complied with, any share in
respect of which the notice has been given may at any time thereafter, before the payment
required by notice has been made, be forfeited by a resolution of the Directors to that
effect. |
| 37. | A forfeited share may be sold or otherwise disposed of on such terms and in such manner as
the Directors think fit, and at any time before a sale or disposition the forfeiture may be
cancelled on such terms as the Directors think fit. |
| 38. | A person whose shares have been forfeited shall cease to be a Member in respect of the
forfeited shares, but shall, notwithstanding, remain liable to pay to the Company all moneys
which at the date of forfeiture were payable by him to the Company in respect of the shares,
but his liability shall cease if and when the Company receives payment in full of the fully
paid up amount of the shares. |
| 39. | A statutory declaration in writing that the declarant is a Director of the Company, and that
a share in the Company has been duly forfeited on a date stated in the declaration, shall be
conclusive evidence of the facts therein stated as against all persons claiming to be entitled
to the share. The Company may receive the consideration, if any, given for the share or any
sale or disposition thereof and may execute a transfer of the share in favour of the person to
whom the share is sold or disposed of and he shall thereupon be registered as the holder of
the share, and shall not be bound to see to the application of the purchase money, if any, nor
shall his title to the share be affected by any irregularity or invalidity in the proceedings
in reference to the forfeiture, sale or disposal of the share. |
| 40. | The provisions of these Articles as to forfeiture shall apply in the case of non-payment of
any sum which by the terms of issue of a share becomes due and payable, whether on account of
the amount of the share, or by way of premium, as if the same had been payable by virtue of a
call duly made and notified. |
REGISTRATION OF EMPOWERING INSTRUMENTS
| 41. | The Company shall be entitled to charge a fee not exceeding one dollar (US$1.00) on the
registration of every probate, letters of administration, certificate of death or marriage,
power of attorney, notice in lieu of distringas, or other instrument. |
TRANSMISSION OF SHARES
| 42. | The legal personal representative of a deceased sole holder of a share shall be the only
person recognised by the Company as having any title to the share. In the case of a share
registered in the name of two or more holders, the survivors or survivor, or the legal
personal representatives of the deceased survivor, shall be the only person recognised by the
Company as having any title to the share. |
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| 43. | Any person becoming entitled to a share in consequence of the death or bankruptcy of a Member
shall upon such evidence being produced as may from time to time be properly required by the
Directors, have the right either to be
registered as a member in respect of the share or, instead of being registered himself, to
make such transfer of the share as the deceased or bankrupt person could have made. If the
person so becoming entitled shall elect to be registered himself as holder he shall deliver
or send to the Company a notice in writing signed by him stating that he so elects. |
| 44. | A person becoming entitled to a share by reason of the death or bankruptcy of the holder
shall be entitled to the same dividends and other advantages to which he would be entitled if
he were the registered holder of the share, except that he shall not, before being registered
as a Member in respect of the share, be entitled in respect of it to exercise any right
conferred by membership in relation to meetings of the Company, provided however, that the
Directors may at any time give notice requiring any such person to elect either to be
registered himself or to transfer the share, and if the notice is not complied with within 90
calendar days, the Directors may thereafter withhold payment of all dividends, bonuses or
other monies payable in respect of the share until the requirements of the notice have been
complied with. |
ALTERATION OF CAPITAL
| 45. | Subject to these Articles, the Company may from time to time by Ordinary Resolution increase
the share capital by such sum, to be divided into shares of such classes and amount, as the
resolution shall prescribe. |
|
| 46. | Subject to these Articles, the Company may by Ordinary Resolution: |
| (a) | consolidate and divide all or any of its share capital into shares of larger
amount than its existing shares; |
||
| (b) | sub-divide its existing shares, or any of them into shares of a smaller amount
provided that in the subdivision the proportion between the amount paid and the amount,
if any unpaid on each reduced share shall be the same as it was in case of the share
from which the reduced share is derived; |
||
| (c) | cancel any shares which, at the date of the passing of the resolution, have not
been taken or agreed to be taken by any person and diminish the amount of its share
capital by the amount of the shares so cancelled. |
| 47. | The Company may by Special Resolution reduce its share capital and any capital redemption
reserve in any manner authorized by law. |
| 48. | All new shares created hereunder shall be subject to the same provisions with reference to
the payment of calls, liens, transfer, transmission, forfeiture and otherwise as the shares in
the original share capital. |
CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
| 49. | For the purpose of determining those Members that are entitled to receive notice of, attend
or vote at any meeting of Members or any adjournment thereof, or those Members that are
entitled to receive payment of any dividend, or in order to make a determination as to who is
a Member for any other purpose, the Directors may provide that the Register of Members shall
be closed for transfers for a stated period but not to exceed in any case 30 calendar days. If
the Register of Members shall be so closed for the purpose of determining those Members that
are entitled to
receive notice of, attend or vote at a meeting of Members such register shall be so closed
for at least 10 calendar days immediately preceding such meeting and the record date for such
determination shall be the date of the closure of the Register of Members. |
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| 50. | In lieu of or apart from closing the Register of Members, the Directors may fix in advance a
date as the record date for any such determination of those Members that are entitled to
receive notice of, attend or vote at a meeting of the Members and for the purpose of
determining those Members that are entitled to receive payment of any dividend, the Directors
may, at or within 30 calendar days prior to the date of declaration of such dividend fix a
subsequent date as the record date of such determination. |
| 51. | If the Register of Members is not so closed and no record date is fixed for the determination
of those Members entitled to receive notice of, attend or vote at a meeting of Members or
those Members that are entitled to receive payment of a dividend, the date on which notice of
the meeting is posted or the date on which the resolution of the Directors declaring such
dividend is adopted, as the case may be, shall be the record date for such determination of
Members. When a determination of those Members that are entitled to receive notice of, attend
or vote at a meeting of Members has been made as provided in this section, such determination
shall apply to any adjournment thereof. |
GENERAL MEETINGS
| 52. | All general meetings of the Company other than annual general meetings shall be called
extraordinary general meetings. |
| 53. | (a) | The Company may hold an annual general meeting but shall not (unless required by the
Companies Law) be obliged to hold an annual general meeting. |
|
| (b) | At these meetings the report of the Directors (if any) shall be presented. |
| 54. | (a) | The Directors may call general meetings, and they shall on a Members requisition
forthwith proceed to convene an extraordinary general meeting of the Company. |
|
| (b) | A Members requisition is a requisition of Members of the Company holding at the
date of deposit of the requisition not less than one-third of the share capital of the
Company as at that date carries the right of voting at general meetings of the Company. |
| (c) | The requisition must state the objects of the meeting and must be signed by the
requisitionists and deposited at the Registered Office, and may consist of several
documents in like form each signed by one or more requisitionists. |
| (d) | If the Directors do not within 21 calendar days from the date of the deposit of
the requisition duly proceed to convene a general meeting to be held within a further 21
calendar days, the requisitionists, or any of them representing more than one half of
the total voting rights of all of them, may themselves convene a general meeting, but
any meeting so convened shall not be held after the expiration of three months after the
expiration of the second said 21 calendar days. |
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| (e) | A general meeting convened as aforesaid by requisitionists shall be convened in
the same manner as nearly as possible as that in which general meetings are to be
convened by Directors. |
NOTICE OF GENERAL MEETINGS
| 55. | At least 14 calendar days’ notice shall be given for any general meeting. Every notice shall
be exclusive of the day on which it is given or deemed to be given and of the day for which it
is given and shall specify the place, the day and the hour of the meeting and the general
nature of the business and shall be given in the manner hereinafter mentioned or in such other
manner if any as may be prescribed by the Company, provided that a general meeting of the
Company shall, whether or not the notice specified in this regulation has been given and
whether or not the provisions of Articles regarding general meetings have been complied with,
be deemed to have been duly convened if it is so agreed: |
| (a) | in the case of an annual general meeting by all the Members (or their proxies)
entitled to attend and vote thereat; and |
||
| (b) | in the case of an extraordinary general meeting by a majority in number of the
Members (or their proxies) having a right to attend and vote at the meeting, being a
majority together holding not less than seventy five (75%) per cent in par value of the
shares giving that right. |
| 56. | The accidental omission to give notice of a meeting to or the non-receipt of a notice of a
meeting by any Member shall not invalidate the proceedings at any meeting. |
PROCEEDINGS AT GENERAL MEETINGS
| 57. | No business shall be transacted at any general meeting unless a quorum of Members is present
at the time when the meeting proceeds to business. Members holding not less than an aggregate
of one-third of all voting share capital of the Company in issue present in person or by proxy
and entitled to vote shall be a quorum for all purposes. 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. |
| 58. | If within half an hour from the time appointed for the meeting a quorum is not present, the
meeting, if convened upon the requisition of Members, shall be dissolved. In any other case it
shall stand adjourned to the same day in the next week, at the same time and place, and if at
the adjourned meeting a quorum is not present within half an hour from the time appointed for
the meeting, the meeting shall be dissolved. |
| 59. | The Chairman of the Board of Directors shall preside as chairman at every general meeting of
the Company. |
| 60. | If at any meeting the Chairman of the Board of Directors is not present within fifteen
minutes after the time appointed for holding the meeting or is unwilling to act as chairman,
the Members present shall choose a chairman of the meeting. |
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| 61. | The Chairman may with the consent of any meeting at which a quorum is present (and shall if
so directed by the meeting) adjourn a meeting from time to time and from place to place, but
no business shall be transacted at any adjourned meeting other than the business left
unfinished at the meeting from which the adjournment took place. When a meeting is adjourned
for 10 calendar days or more, not less than seven Business Days’ notice of the adjourned
meeting shall be given as in the case of an original meeting. Save as aforesaid it shall not
be necessary to give any notice of an adjournment or of the business to be transacted at an
adjourned meeting. |
| 62. | At any general meeting a resolution put to the vote of the meeting shall be decided on a show
of hands, unless a poll is (before or on the declaration of the result of the show of hands)
demanded by one or more Members present in person or by proxy entitled to vote and who
together hold not less than 10 per cent of the paid up voting share capital of the Company,
and unless a poll is so demanded, a declaration by the chairman that a resolution has, on a
show of hands, been carried, or carried unanimously, or by a particular majority, or lost, and
an entry to that effect in the book of the proceedings of the Company, shall be conclusive
evidence of the fact, without proof of the number or proportion of the votes recorded in
favour of, or against, that resolution. |
| 63. | If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the
result of the poll shall be deemed to be the resolution of the meeting at which the poll was
demanded. The demand for a poll may be withdrawn. |
| 64. | In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of
the meeting at which the show of hands takes place or at which the poll is demanded, shall be
entitled to a second or casting vote. |
| 65. | 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 time as the chairman
of the meeting directs. |
VOTES OF MEMBERS
| 66. | Subject to any rights and restrictions for the time being attached to any class or classes of
shares, every Member present in person and every person representing a Member by proxy at a
general meeting of the Company shall have one vote for each share registered in his name in
the Register of Members. |
| 67. | In the case of joint holders the vote of the senior who tenders a vote whether in person or
by proxy shall be accepted to the exclusion of the votes of the joint holders and for this
purpose seniority shall be determined by the order in which the names stand in the Register of
Members. |
| 68. | A Member of unsound mind, or in respect of whom an order has been made by any court having
jurisdiction in lunacy, may vote, whether on a show of hands or on a poll, by his committee,
or other person in the nature of a committee appointed by that court, and any such committee
or other person, may on a poll, vote by proxy. |
|
| 69. | No Member shall be entitled to vote at any general meeting unless all calls or
other sums presently payable by him in respect of shares in the Company have been paid. |
| 70. | On a poll, votes may be given either personally or by proxy. |
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| 71. | The instrument appointing a proxy shall be in writing under the hand of the appointor or of
his attorney duly authorized in writing or, if the appointor is a corporation, either under
seal or under the hand of an officer or attorney duly authorized. A proxy need not be a Member
of the Company. |
| 72. | An instrument appointing a proxy may be in any usual or common form or such other form as the
Directors may approve. |
| 73. | The instrument appointing a proxy shall be deemed to confer authority to demand or join in
demanding a poll. |
| 74. | A resolution in writing signed by all the Members for the time being entitled to receive
notice of and to attend and vote at general meetings (or being corporations by their duly
authorized representatives) shall be as valid and effective as if the same had been passed at
a general meeting of the Company duly convened and held. |
CORPORATIONS ACTING BY REPRESENTATIVES AT MEETING
| 75. | Any corporation which is a Member or a Director may by resolution of its directors or other
governing body authorise such person as it thinks fit to act as its representative at any
meeting of the Company or of any class of Members or of the Board of Directors or of a
committee of Directors, and the person so authorized shall be entitled to exercise the same
powers on behalf of the corporation which he represents as that corporation could exercise if
it were an individual Member or Director. |
CLEARING HOUSES
| 76. | If a clearing house (or its nominee) is a Member of the Company it may, by resolution of its
directors or other governing body or by power of attorney, authorise such person or persons as
it thinks fit to act as its representative or representatives at any general meeting of the
Company or at any general meeting of any class of members of the Company provided that, if
more than one person is so authorized, the authorisation shall specify the number and class of
shares in respect of which each such person is so authorized. A person so authorized pursuant
to this provision shall be entitled to exercise the same powers on behalf of the clearing
house (or its nominee) which he represents as that clearing house (or its nominee) could
exercise if it were an individual member of the Company holding the number and class of shares
specified in such authorisation. |
DIRECTORS
| 77. | (a) | The Board shall consist of not less than three (3) Directors, provided that the Company
may from time to time by Ordinary Resolution increase or decrease the number of Directors on
the Board. Notwithstanding the foregoing, so long as the Company’s American Depositary Shares
representing Ordinary Shares are listed on the NASDAQ Global Market, the Board composition
shall comply with applicable NASDAQ marketplace rules, including those relating to Independent
Directors (as such term is defined under applicable NASDAQ marketplace rules). |
|
| (b) | Each Director shall hold office until the expiration of his term and until his
successor shall have been elected and qualified. |
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| (c) | The Board of Directors shall have a Chairman of the Board of Directors (the
“Chairman”) elected and appointed by a majority of the Directors then in office. The
Directors may also elect a Co-Chairman or a Vice-Chairman of the Board of Directors (the
“Co-Chairman”). The Chairman shall preside as chairman at every meeting of the Board of
Directors. To the extent the Chairman is not present at a meeting of the Board of
Directors, the Co-Chairman, or in his absence, the attending Directors may choose one
Director to be the chairman of the meeting. The Chairman’s voting right as to the
matters to be decided by the Board of Directors shall be the same as other Directors. |
| (d) | The Company may by Ordinary Resolution elect any person to be a Director either
to fill a casual vacancy on the Board or as an addition to the existing Board. |
| (e) | The Directors by the affirmative vote of a simple majority of the remaining
Directors present and voting at a Board meeting, or the sole remaining Director, shall
have the power from time to time and at any time to appoint any person as a Director to
fill a casual vacancy on the Board or as an addition to the existing Board, subject to
the Company’s compliance with director nomination procedures required under applicable
NASDAQ corporate governance rules, as long as the Company’s American Depositary Shares
are trading on the NASDAQ Stock Market. |
| 78. | Subject to Article 77, a Director may be removed from office by Special Resolution at any
time before the expiration of his term notwithstanding anything in these Articles or in any
agreement between the Company and such Director (but without prejudice to any claim for
damages under such agreement). |
| 79. | A vacancy on the Board created by the removal of a Director under the provisions of Article
78 above may be filled by the election or appointment by Ordinary Resolution at the meeting at
which such Director is removed or by the, affirmative vote of a simple majority of the
remaining Directors present and voting at a Board meeting. |
| 80. | The Board may, from time to time, and except as required by applicable law or the listing
rules of the recognized stock exchange or automated quotation system where the Company’s
securities are traded, adopt, institute, amend, modify or revoke the corporate governance
policies or initiatives, which shall be intended to set forth the policies of the Company and
the Board on various corporate governance related matters as the Board shall determine by
resolution from time to time. |
| 81. | A Director shall not be required to hold any shares in the Company by way of qualification. A
Director who is not a member of the Company shall nevertheless be entitled to receive notice
of and to attend and speak at general meetings of the Company and all classes of shares of the
Company. |
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DIRECTORS’ FEES AND EXPENSES
| 82. | The Directors may receive such remuneration as the Board may from time to time determine. The
Directors may be entitled to be repaid all travelling, hotel and incidental expenses
reasonably incurred or expected to be incurred by him in attending meetings of the Board or
committees of the Board or general meetings or separate meetings of any class of shares or of
debentures of the Company or otherwise in connection with the discharge of his duties as a
Director. |
| 83. | Any Director who, by request, goes or resides abroad for any purpose of the Company or who
performs services which in the opinion of the Board go beyond the ordinary duties of a
Director may be paid such extra remuneration (whether by way of salary, commission,
participation in profits or otherwise) as the Board may determine and such extra remuneration
shall be in addition to or in substitution for any ordinary remuneration provided for by or
pursuant to any other Article. |
ALTERNATE DIRECTOR
| 84. | Any Director may in writing appoint another person to be his alternate to act in his place at
any meeting of the Directors at which he is unable to be present. Every such alternate shall
be entitled to notice of meetings of the Directors and to attend and vote thereat as a
Director when the person appointing him is not personally present and where he is a Director
to have a separate vote on behalf of the Director he is representing in addition to his own
vote. A Director may at any time in writing revoke the appointment of an alternate appointed
by him. Such alternate shall not be an officer of the Company and shall be deemed to be the
agent of the Director appointing him. |
| 85. | Any Director may appoint any person, whether or not a Director, to be the proxy of that
Director to attend and vote on his behalf, in accordance with instructions given by that
Director, or in the absence of such instructions at the discretion of the proxy, at a meeting
or meetings of the Directors which that Director is unable to attend personally. The
instrument appointing the proxy shall be in writing under the hand of the appointing Director
and shall be in any usual or common form or such other form as the Directors may approve, and
must be lodged with the chairman of the meeting of the Directors at which such proxy is to be
used, or first used, prior to the commencement of the meeting. |
POWERS AND DUTIES OF DIRECTORS
| 86. | Subject to the provisions of the Companies Law, these Articles and to any resolutions made in
a general meeting, the business of the Company shall be managed by the Directors, who may pay
all expenses incurred in setting up and registering the Company and may exercise all powers of
the Company. No resolution made by the Company in a general meeting shall invalidate any prior
act of the Directors that would have been valid if that resolution had not been made. |
| 87. | Subject to these Articles, the Directors may from time to time appoint any person, whether or
not a director of the Company to hold such office in the Company as the Directors may think
necessary for the administration of the Company, including without prejudice to the foregoing
generality, the office of the Chief Executive Officer, one or more Vice Presidents, Chief
Financial Officer, Manager or Controller, and for such term and at such remuneration (whether
by way of salary or commission or
participation in profits or partly in one way and partly in another), and with such powers
and duties as the Directors may think fit. The Directors may also appoint one or more of
their number to the office of Managing Director upon like terms, but any such appointment
shall ipso facto determine if any Managing Director ceases from any cause to be a Director,
or if the Company by Ordinary Resolution resolves that his tenure of office be terminated. |
C-18
| 88. | The Directors may delegate any of their powers to committees consisting of such member or
members of their body as they think fit; any committee so formed shall in the exercise of the
powers so delegated conform to any regulations that may be imposed on it by the Directors. |
| 89. | The Directors may from time to time and at any time by power of attorney appoint any company,
firm or person or body of persons, whether nominated directly or indirectly by the Directors,
to be the attorney or attorneys of the Company for such purposes and with such powers,
authorities and discretion (not exceeding those vested in or exercisable by the Directors
under these Articles) and for such period and subject to such conditions as they may think
fit, and any such power of attorney may contain such provisions for the protection and
convenience of persons dealing with any such attorney as the Directors may think fit, and may
also authorise any such attorney to delegate all or any of the powers, authorities and
discretion vested in him. |
| 90. | The Directors may from time to time provide for the management of the affairs of the Company
in such manner as they shall think fit and the provisions contained in the following
paragraphs shall be without prejudice to the general powers conferred by this paragraph. |
| 91. | The Directors from time to time and at any time may establish any committees, local boards or
agencies for managing any of the affairs of the Company and may appoint any persons to be
members of such committees or local boards and may appoint any managers or agents of the
Company and may fix the remuneration of any of the aforesaid. |
| 92. | The Directors from time to time and at any time may delegate to any such committee, local
board, manager or agent any of the powers, authorities and discretions for the time being
vested in the Directors and may authorise the members for the time being of any such local
board, or any of them to fill up any vacancies therein and to act notwithstanding vacancies
and any such appointment or delegation may be made on such terms and subject to such
conditions as the Directors may think fit and the Directors may at any time remove any person
so appointed and may annul or vary any such delegation, but no person dealing in good faith
and without notice of any such annulment or variation shall be affected thereby. |
| 93. | Any such delegates as aforesaid may be authorized by the Directors to subdelegate all or any
of the powers, authorities, and discretions for the time being vested to them. |
| 94. | The Directors may exercise all the powers of the Company to borrow money and to mortgage or
charge its undertaking, property and uncalled capital or any part thereof, to issue
debentures, debenture stock and other securities whenever money is borrowed or as security for
any debt, liability or obligation of the Company or of any third party. |
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DISQUALIFICATION OF DIRECTORS
| 95. | Subject to Article 77, the office of Director shall be vacated, if the Director: |
| (a) | becomes bankrupt or makes any arrangement or composition with his creditors; |
||
| (b) | is found to be or becomes of unsound mind; |
||
| (c) | resigns his office by notice in writing to the Company; |
||
| (d) | without special leave of absence from the Board, is absent from meetings of the
Board for six consecutive months and the Board resolves that his office be vacated; or |
||
| (e) | if he or she shall be removed from office pursuant to these Articles or the
Statutes. |
PROCEEDINGS OF DIRECTORS
| 96. | Subject to Article 77, the Directors may meet together (whether within or outside the Cayman
Islands) for the dispatch of business, adjourn, and otherwise regulate their meetings and
proceedings as they think fit. Questions arising at any meeting of the Directors shall be
decided by a majority of votes. In case of an equality of votes the chairman shall not have a
second or casting vote. A Director may at any time summon a meeting of the Directors by at
least three Business Days’ notice to every other Director and alternate Director. |
| 97. | A Director or Directors may participate in any meeting of the Board of Directors, or of any
committee appointed by the Board of Directors of which such Director or Directors are members,
by means of telephone or similar communication equipment by way of which all persons
participating in such meeting can hear each other and such participation shall be deemed to
constitute presence in person at the meeting. |
| 98. | The quorum necessary for the transaction of the business of the Directors may be fixed by the
Directors and unless so fixed shall be a majority of the Directors then in office, provided
that a Director and his appointed alternate Director shall be considered only one person for
this purpose. A meeting of the Directors at which a quorum is present when the meeting
proceeds to business shall be competent to exercise all powers and discretions for the time
being exercisable by the Directors. |
| 99. | Subject to Article 77, a Director who is in any way, whether directly or indirectly,
interested in a contract or proposed contract with the Company shall declare the nature of his
interest at a meeting of the Directors. A general notice given to the Directors by any
Director to the effect that he is a member of any specified company or firm and is to be
regarded as interested in any contract which may thereafter be made with that company or firm
shall be deemed a sufficient declaration of interest in regard to any contract so made. A
Director may vote in respect of any contract or proposed contract or arrangement
notwithstanding that he may be interested therein and if he does so his vote shall be counted
and he may be counted in the quorum at any meeting of the Directors at which any such contract
or proposed contract or arrangement shall come before the meeting for consideration. |
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| 100. | A Director may hold any other office or place of profit under the Company (other than the
office of auditor) in conjunction with his office of Director for such period and on such
terms (as to remuneration and otherwise) as the Directors may determine and no
Director or intending Director shall be disqualified by his office from contracting with the
Company either with regard to his tenure of any such other office or place of profit or as
vendor, purchaser or otherwise, nor shall any such contract or arrangement entered into by or
on behalf of the Company in which any Director is in any way interested, be liable to be
avoided, nor shall any Director so contracting or being so interested be liable to account to
the Company for any profit realised by any such contract or arrangement by reason of such
Director holding that office or of the fiduciary relation thereby established. A Director,
notwithstanding his interest, may be counted in the quorum present at any meeting whereat he
or any other Director is appointed to hold any such office or place of profit under the
Company or whereat the terms of any such appointment are arranged and he may vote on any such
appointment or arrangement. |
| 101. | Any Director may act by himself or his firm in a professional capacity for the Company, and
he or his firm shall be entitled to remuneration for professional services as if he were not a
Director; provided that nothing herein contained shall authorise a Director or his firm to act
as auditor to the Company. |
| 102. | The Directors shall cause minutes to be made in books or loose-leaf folders provided for the
purpose of recording: |
| (a) | all appointments of officers made by the Directors; |
||
| (b) | the names of the Directors present at each meeting of the Directors and of any
committee of the Directors; and |
||
| (c) | all resolutions and proceedings at all meetings of the Company, and of the
Directors and of committees of Directors. |
| 103. | When the Chairman of a meeting of the Directors signs the minutes of such meeting the same
shall be deemed to have been duly held notwithstanding that all the Directors have not
actually come together or that there may have been a technical defect in the proceedings. |
| 104. | A resolution signed by all the Directors shall be as valid and effectual as if it had been
passed at a meeting of the Directors duly called and constituted. When signed a resolution may
consist of several documents each signed by one or more of the Directors. |
| 105. | The continuing Directors 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 these Articles as the
necessary quorum of Directors, the continuing Directors may act only for the purpose of
increasing the number or of summoning a general meeting of the Company but for no other
purpose. |
| 106. | The Directors shall elect a chairman of their meetings and determine the period for which he
is to hold office but if at any meeting the chairman is not present within fifteen minutes
after the time appointed for holding the same, the Directors present may choose one of their
number to be chairman of the meeting. |
| 107. | A committee appointed by the Directors may elect a chairman of its meetings. If no such
chairman is elected, or if at any meeting the chairman is not present within five minutes
after the time appointed for holding the same, the members present may choose one of their
number to be chairman of the meeting. |
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| 108. | A committee appointed by the Directors may meet and adjourn as it thinks proper. Questions
arising at any meeting shall be determined by a majority of votes of the committee members
present and in case of an equality of votes the chairman shall have a second or casting vote. |
| 109. | All acts done by any meeting of the Directors or of a committee of Directors, or by any
person acting as a Director, shall notwithstanding that it be afterwards discovered that there
was some defect in the appointment of any such Director or person acting as aforesaid, or that
they or any of them were disqualified, be as valid as if every such person had been duly
appointed and was qualified to be a Director. |
PRESUMPTION OF ASSENT
| 110. | A Director of the Company 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. |
DIVIDENDS, DISTRIBUTIONS AND RESERVE
| 111. | Subject to any rights and restrictions for the time being attached to any class or classes of
shares and these Articles, the Directors may from time to time declare dividends (including
interim dividends) and other distributions on shares in issue and authorise payment of the
same out of the funds of the Company lawfully available therefor. |
| 112. | Subject to any rights and restrictions for the time being attached to any class or classes of
shares and these Articles, the Company by Ordinary Resolution may declare dividends, but no
dividend shall exceed the amount recommended by the Directors. |
| 113. | The Directors may, before recommending or declaring any dividend, set aside out of the funds
legally available for distribution such sums as they think proper as a reserve or reserves
which shall, at the discretion of the Directors be applicable for meeting contingencies, or
for equalising dividends or for any other purpose to which those funds be properly applied and
pending such application may, at the like discretion, either be employed in the business of
the Company or be invested in such investments (other than shares of the Company) as the
Directors may from time to time think fit. |
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| 114. | Any dividend may be paid by cheque or wire transfer to the registered address of the Member
or person entitled thereto, or in the case of joint holders, to any one of such joint holders
at his registered address or to such person and such address as the Member or person entitled,
or such joint holders as the case may be, may direct. Every such cheque shall be made payable
to the order of the person to whom it is sent or to the order of such other person as the
Member or person entitled, or such joint holders as the case may be, may direct. |
| 115. | The Directors when paying dividends to the Members in accordance with the foregoing
provisions may make such payment either in cash or in specie. |
| 116. | No dividend shall be paid otherwise than out of profits or, subject to the restrictions of
the Companies Law, the share premium account. |
| 117. | Subject to the rights of persons, if any, entitled to shares with special rights as to
dividends, all dividends shall be declared and paid according to the amounts paid or credited
as fully paid on the shares, but if and so long as nothing is paid up on any of the shares in
the Company dividends may be declared and paid according to the amounts of the shares. No
amount paid on a share in advance of calls shall, while carrying interest, be treated for the
purposes of this Article as paid on the share. |
| 118. | If several persons are registered as joint holders of any share, any of them may give
effectual receipts for any dividend or other moneys payable on or in respect of the share. |
|
| 119. | No dividend shall bear interest against the Company. |
BOOK OF ACCOUNTS
| 120. | The books of account relating to the Company’s affairs shall be kept in such manner as may be
determined from time to time by the Directors. |
| 121. | The books of account shall be kept at such place or places as the Directors think fit, and
shall always be open to the inspection of the Directors. |
| 122. | The Directors shall from time to time determine whether and to what extent and at what times
and places and under what conditions or regulations the accounts and books of the Company or
any of them shall be open to the inspection of 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 law or authorized by the Directors or by the Company by
Ordinary Resolution. |
| 123. | The accounts relating to the Company’s affairs shall be audited in such manner and with such
financial year end as may be determined from time to time by the Company by Ordinary
Resolution or failing any such determination by the Directors or failing any determination as
aforesaid shall not be audited. |
ANNUAL RETURNS AND FILINGS
| 124. | The Board shall make the requisite annual returns and any other requisite filings in
accordance with the Companies Law. |
C-23
AUDIT
| 125. | The Directors may appoint an Auditor of the Company who shall hold office until removed from
office by a resolution of the Directors and may fix his or their remuneration. |
| 126. | Every Auditor of the Company shall have a right of access at all times to the books and
accounts and vouchers of the Company and shall be entitled to require from the Directors and
Officers of the Company such information and explanation as may be necessary for the
performance of the duties of the auditors. |
| 127. | 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 special 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 time
during their term of office, upon request of the Directors or any general meeting of the
Members. |
THE SEAL
| 128. | The Seal of the Company shall not be affixed to any instrument except by the authority of a
resolution of the Board of Directors provided always that such authority may be given prior to
or after the affixing of the Seal and if given after may be in general form confirming a
number of affixings of the Seal. The Seal shall be affixed in the presence of any one or more
persons as the Directors may appoint for the purpose and every person as aforesaid shall sign
every instrument to which the Seal of the Company is so affixed in their presence. |
| 129. | The Company may maintain a facsimile of its Seal in such countries or places as the Directors
may appoint and such facsimile Seal shall not be affixed to any instrument except by the
authority of a resolution of the Board of Directors provided always that such authority may be
given prior to or after the affixing of such facsimile Seal and if given after may be in
general form confirming a number of affixings of such facsimile Seal. The facsimile Seal shall
be affixed in the presence of such person or persons as the Directors shall for this purpose
appoint and such person or persons as aforesaid shall sign every instrument to which the
facsimile Seal of the Company is so affixed in their presence of and the instrument signed by
a Director or the Secretary (or an Assistant Secretary) of the Company or in the presence of
any one or more persons as the Directors may appoint for the purpose. |
| 130. | Notwithstanding the foregoing, a Director shall have the authority to affix the Seal, or the
facsimile Seal, to any instrument for the purposes of attesting authenticity of the matter
contained therein but which does not create any obligation binding on the Company. |
OFFICERS
| 131. | Subject to Article 87, the Company may have a Chief Executive Officer, Chief Operating
Officer and Chief Financial Officer, Chief Strategy Officer, President, one or more Vice
Presidents, Manager or Controller, appointed by the Directors. The Directors may also from
time to time appoint such other officers as they consider
necessary, all for such terms, at such remuneration and to perform such duties, and subject
to such provisions as to disqualification and removal as the Directors from time to time
subscribe. |
C-24
CAPITALISATION OF PROFITS
| 132. | Subject to the Statutes and these Articles, the Board may, with the authority of an Ordinary
Resolution: |
| (a) | resolve to capitalise an amount standing to the credit of reserves (including a
share premium account, capital redemption reserve and profit and loss account), whether
or not available for distribution; |
| (b) | appropriate the sum resolved to be capitalised to the Members in proportion to
the nominal amount of shares (whether or not fully paid) held by them respectively and
apply that sum on their behalf in or towards: |
| (i) | paying up the amounts (if any) for the time being unpaid on shares
held by them respectively; or |
| (ii) | paying up in full unissued shares or debentures of a nominal amount
equal to that sum, |
and allot the shares or debentures, credited as fully paid, to the Members (or as
they may direct) in those proportions, or partly in one way and partly in the other,
but the share premium account, the capital redemption reserved and profits which are
not available for distribution may, for the purposes of this Article, only be applied
in paying up unissued shares to be allotted to Members credited as fully paid;
| (c) | make any arrangements it thinks fit to resolve a difficulty arising in the
distribution of a capitalised reserve and in particular, without limitation, where
shares or debentures become distributable in fractions the Board may deal with the
fractions as it thinks fit; |
| (d) | authorise a person to enter (on behalf of all the Members concerned) an agreement
with the Company providing for either: |
| (i) | the allotment to the Members respectively, credited as fully
paid, of shares or debentures to which they may be entitled on the
capitalisation, or |
| (ii) | the payment by the Company on behalf of the Members (by the
application of their respective operations of the reserves resolved to be
capitalised) of the amounts or part of the amounts remaining unpaid on their
existing shares, |
an agreement made under the authority being effective and binding on all those
Members; and
| (e) | generally do all acts and things required to give effect to the resolution. |
C-25
NOTICES
| 133. | Except as otherwise provided in these Articles, any notice or document may be served by the
Company or by the person entitled to give notice to any Member either personally, by facsimile
or by sending it through the post in a prepaid letter or via a recognised courier service,
fees prepaid, addressed to the Member at his address as appearing in the Register of Members
or, to the extent permitted by all applicable laws and regulations, by electronic means by
transmitting it to any electronic number or address or website supplied by the member to the
Company or by placing it on the Company’s Website. In the case of joint holders of a share,
all notices shall be given to that one of the joint holders whose name stands first in the
Register of Members in respect of the joint holding, and notice so given shall be sufficient
notice to all the joint holders. |
|
| 134. | Notices posted to addresses outside the Cayman Islands shall be forwarded by prepaid airmail. |
| 135. | Any Member present, either personally or by proxy, at any meeting of the Company shall for
all purposes be deemed to have received due notice of such meeting and, where requisite, of
the purposes for which such meeting was convened. |
| 136. | Any notice or other document, if served by (a) post, shall be deemed to have been served five
calendar days after the time when the letter containing the same is posted and if served by
courier, shall be deemed to have been served five calendar days after the time when the letter
containing the same is delivered to the courier (in proving such service it shall be
sufficient to prove that the letter containing the notice or document was properly addressed
and duly posted or delivered to the courier), or (b) facsimile, shall be deemed to have been
served upon confirmation of receipt, or (c) recognised delivery service, shall be deemed to
have been served 48 hours after the time when the letter containing the same is delivered to
the courier service and in proving such service it shall be sufficient to provide that the
letter containing the notice or documents was properly addressed and duly posted or delivered
to the courier, or (d) electronic means as provided herein shall be deemed to have been served
and delivered on the day following that on which it is successfully transmitted or at such
later time as may be prescribed by any applicable laws or regulations. |
| 137. | Any notice or document delivered or sent to any Member in accordance with the terms of these
Articles shall notwithstanding that such Member be then dead or bankrupt, and whether or not
the Company has notice of his death or bankruptcy, be deemed to have been duly served in
respect of any share registered in the name of such Member as sole or joint holder, unless his
name shall at the time of the service of the notice or document, have been removed from the
Register of Members as the holder of the share, and such service shall for all purposes be
deemed a sufficient service of such notice or document on all persons interested (whether
jointly with or as claiming through or under him) in the share. |
|
| 138. | Notice of every general meeting shall be given to: |
| (a) | all Members who have supplied to the Company an address for the giving of notices
to them; |
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| (b) | every person entitled to a share in consequence of the death or bankruptcy of a
Member, who but for his death or bankruptcy would be entitled to receive
notice of the meeting; and |
C-26
| (c) | each Director and Alternate Director. |
No other person shall be entitled to receive notices of general meetings.
INFORMATION
| 139. | No Member shall be entitled to require discovery of any information in respect of any detail
of the Company’s trading or any information which is or may be in the nature of a trade secret
or secret process which may relate to the conduct of the business of the Company and which in
the opinion of the Board would not be in the interests of the Members of the Company to
communicate to the public. |
| 140. | The Board shall be entitled to release or disclose any information in its possession, custody
or control regarding the Company or its affairs to any of its members including, without
limitation, information contained in the Register of Members and transfer books of the
Company. |
INDEMNITY
| 141. | Every Director (including for the purposes of this Article any Alternate Director appointed
pursuant to the provisions of these Articles) and officer of the Company for the time being
and from time to time shall be indemnified and secured harmless out of the assets and funds of
the Company against all actions, proceedings, costs, charges, expenses, losses, damages or
liabilities incurred or sustained by him in connection with the execution or discharge of his
duties, powers, authorities or discretions as a Director or officer of the Company, including
without prejudice to the generality of the foregoing, any costs, expenses, losses or
liabilities incurred by him in defending (whether successfully or otherwise) any civil
proceedings concerning the Company or its affairs in any court whether in the Cayman Islands
or elsewhere. |
| 142. | No such Director or officer of the Company shall be liable to the Company for any loss or
damage unless such liability arises through the willful neglect or default of such Director or
officer. |
FINANCIAL YEAR
| 143. | Unless the Directors otherwise prescribe, the financial year of the Company shall end on
December 31st in each year and shall begin on January 1st in each year. |
WINDING UP
| 144. | Subject to these Articles, if the Company shall be wound up the liquidator may, with the
sanction of an Ordinary Resolution of the Company divide amongst the Members in specie or kind
the whole or any part of the assets of the Company (whether they shall consist of property of
the same kind or not) and may, for such purpose set such value as he deems fair upon any
property to be divided as aforesaid and may determine how such division shall be carried out
as between the Members or different classes of Members. The liquidator may, with the like
sanction, vest the whole or any part of such assets in trustees upon such trusts for the
benefit of the contributories as the liquidator, with the like sanction shall think fit, but so that
no Member shall be compelled to accept any shares or other securities whereon there is any
liability. |
C-27
AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION AND
NAME OF COMPANY
NAME OF COMPANY
| 145. | Subject to the Companies Law and these Articles, the Company may at any time and from time to
time by Special Resolution alter or amend these Articles or the Memorandum of Association of
the Company, in whole or in part, or change the name of the Company. |
REGISTRATION BY WAY OF CONTINUATION
| 146. | Subject to these Articles, the Company may by Special Resolution resolve to be registered by
way of continuation in a jurisdiction outside the Cayman Islands or such other jurisdiction in
which it is for the time being incorporated, registered or existing. In furtherance of a
resolution adopted pursuant to this Article, the Directors may cause an application to be made
to the Registrar of Companies to deregister the Company in the Cayman Islands or such other
jurisdiction in which it is for the time being incorporated, registered or existing and may
cause all such further steps as they consider appropriate to be taken to effect the transfer
by way of continuation of the Company. |
C-28
Exhibit D
Repurchase Board Resolutions
Repurchase Board Resolutions
(A) Share Repurchase Program
The Directors have noted the price at which the Company’s American Depositary Shares (“ADSs”) are
currently trading and have considered the financial position of the Company and, in particular, the
cash currently available to the Company.
The Directors are of the view that a repurchase by the Company of its ordinary shares represented
by ADSs with an aggregate value of up to US$50 million (such transaction, the “Repurchase”) would
represent a good investment opportunity for the Company and would be in the best interests of the
Company and its shareholders.
The Directors noted that the Company would be able to pay its debts as they fall due in the
ordinary course of business immediately following the date on which payment is proposed to be made
in respect of each Repurchase.
Accordingly, the Directors wish to provide authority to each of Mr. GUO Man and Mr. YANG Chiahung
to effect a Repurchase on the open market at prevailing market prices pursuant to a Rule 10b5-1
plan, in negotiated transactions off the market, in block trades or otherwise, and to arrange for
the taking of all steps necessary to consummate a Repurchase.
Therefore, IT IS HEREBY RESOLVED as follows:
1. THAT pursuant to Section 15(b) of the Articles of Association of the Company, the Repurchase be
and hereby is approved under the terms set forth below;
2. THAT the Company is authorized but not obligated to effect the Repurchase within one year from
the date of this resolution;
3. THAT each of Mr. GUO Man and Mr. YANG Chiahung and any person specifically nominated in writing
by either of them for such purpose (each an “Authorized Person”) be hereby Authorized to effect a
Repurchase on the open market at prevailing market prices pursuant to a Rule 10b5-1 plan, in
negotiated transactions off the market, in block trades or otherwise from time to time as market
conditions, in the judgment of such Authorized Person, warrant, in accordance with applicable law,
and on the terms set out in these written resolutions;
4. THAT each Repurchase be funded out of the capital of the Company pursuant to section 37(5) of
the Companies Law (“2007 Revision”) of the Cayman Islands;
5. THAT the Company do enter into all such agreements, letters, notices, certificates,
acknowledgements, instructions and other documents (whether of a like nature or not) (the
“Ancillary Documents”) as may in the sole opinion and absolute discretion of any Authorized Person
be considered necessary or desirable for the purpose of giving effect to each Repurchase, including
agreements and arrangements structured to comply with all applicable requirements of Rule 10b-18
and the affirmative defense provisions under Rule 10b5-1;
D-1
6. THAT the Ancillary Documents be in such form as any Authorized Person may in his absolute
discretion and sole opinion approve;
7. THAT any Authorized Person be and is hereby Authorized to sign any Ancillary Document for and on
behalf of the Company (as a deed or under the seal of the Company if required) together with such
changes as such Authorized Person shall in his absolute discretion consider necessary or
appropriate (the signature of any Authorized Person on any Ancillary Document being conclusive
evidence of his approval of the same for and on behalf of the Company);
8. THAT the Ancillary Documents be valid, conclusive, binding on and enforceable against the
Company when executed and delivered;
9. THAT any Authorized Person be authorized to instruct the registered office provider of the
Company to make the appropriate entries in the Company’s register of members and arrange for the
cancellation of share certificates (and, where necessary, prepare replacement share certificates
for the balance of ordinary shares held);
10. THAT any one director of the Company be authorized to execute and issue these replacement
certificates; and
11. THAT any Authorized Person has authority, for and on behalf of the Company to take all steps
which is his discretion he considers necessary or desirable in connection with a Repurchase.
D-2
Exhibit E
Form of Proxy for Annual General Meeting
Form of Proxy for Annual General Meeting
AIRMEDIA GROUP INC.
(Incorporated in the Cayman Islands with limited liability)
(NASDAQ Ticker: AMCN)
(Incorporated in the Cayman Islands with limited liability)
(NASDAQ Ticker: AMCN)
Form of Proxy for Annual General Meeting
to Be Held on December 9, 2009
(or any adjourned or postponed meeting thereof)
to Be Held on December 9, 2009
(or any adjourned or postponed meeting thereof)
Introduction
This Form of Proxy is furnished in connection with the solicitation by the Board of Directors
of AirMedia Group Inc., a Cayman Islands company (the “Company”), of proxies from the holders of
the issued and outstanding ordinary shares, par value US$0.001 per share, of the Company (the
“Ordinary Shares”) to be exercised at the Annual General Meeting of the Company (the “AGM”) to be
held at 42/F, Edinburgh Tower, The Landmark, 15 Queen’s Road Central, Hong Kong on December 9, 2009
at 10:00 a.m. (local time), and at any adjourned or postponed meeting thereof, for the purposes set
forth in the accompanying Notice of Annual General Meeting (the “AGM Notice”).
Only the holders of record of the Ordinary Shares at the close of business on November 5, 2009
(the “Record Date”) are entitled to notice of and to vote at the AGM. In respect of the matters
requiring shareholders’ vote at the AGM, each Ordinary Share is entitled to one vote. The quorum
of the AGM is shareholders holding no less than an aggregate of one-third of all voting share
capital of the Company in issue present in person or by proxy and entitled to vote at the AGM.
This Form of Proxy and the accompanying AGM Notice will be first mailed to the shareholders of the
Company on or about November 2, 2009.
The Ordinary Shares represented by all properly executed proxies returned to the Company will
be voted at the AGM as indicated or, if no instruction is given, the holder of the proxy will vote
the shares in his discretion, unless the reference to the holder of the proxy having such
discretion (i.e., the phrase “or if no such indication is given, as my/our proxy thinks fit”) has
been deleted and initialed on this Form of Proxy. Where the chairman of the AGM acts as proxy and
is entitled to exercise his discretion, he is likely to vote the shares FOR the resolutions. As to
any other business that may properly come before the AGM, all properly executed proxies will be
voted by the persons named therein in accordance with their discretion. The Company does not
presently know of any other business which may come before the AGM. However, if any other matter
properly comes before the AGM, or any adjourned or postponed meeting thereof, which may properly be
acted upon, unless otherwise indicated the proxies solicited hereby will be voted on such matter in
accordance with the discretion of the proxy holders named therein. Any person giving a proxy has
the right to revoke it at any time before it is exercised (i) by filing with the Company a duly
signed revocation at its offices at 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng
District, Beijing 100027, People’s Republic of China or (ii) by voting in person at the AGM.
To be valid, this Form of Proxy must be completed, signed and returned to the Company’s offices (to
the attention of: Chen Liang) at 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District,
Beijing 100027, People’s Republic of China as soon as possible so that it is received by the
Company no later than 24 hours before the time of the AGM.
E-1
AIRMEDIA GROUP INC.
(Incorporated in the Cayman Islands with limited liability)
(Nasdaq Ticker: AMCN)
(Incorporated in the Cayman Islands with limited liability)
(Nasdaq Ticker: AMCN)
Form of Proxy for Annual General Meeting
to Be Held on December 9, 2009
(or any adjourned or postponed meeting thereof)
to Be Held on December 9, 2009
(or any adjourned or postponed meeting thereof)
I/We of &n
bsp; ,
being the registered holder of ordinary shares 1, par value
US$0.001 per share, of AirMedia Group Inc. (the “Company”), hereby appoint the Chairman of the
Annual General Meeting 2 or of
as my/our proxy to attend and act for me/us at the Annual General Meeting (or at any adjourned or
postponed meeting thereof) of the Company to be held at 42/F, Edinburgh Tower, The Landmark, 15
Queen’s Road Central, Hong Kong, and in the event of a poll, to vote for me/us as indicated
below3, or if no such indication is given, as my/our proxy thinks fit.
| No. | RESOLUTION | FOR3 | AGAINST 3 | ABSTAIN 3 | ||||
1.
|
The resolution as set out in Item 1 of the Notice of Annual General Meeting regarding the amendment of the Company’s 2007 Share Incentive Plan. | |||||||
2.
|
The resolution as set out in Item 2 of the Notice of Annual General Meeting regarding the adoption of an Amended and Restated Memorandum and Articles of Association. | |||||||
3.
|
The resolution as set out in Item 3 of the Notice of Annual General Meeting regarding the Company’s share repurchase program. |
| Dated , 2009 | Signature(s) 4 |
| 1 | Please insert the number of shares registered in your name(s) to which this proxy relates. If no number is inserted, this form of proxy will be deemed to relate to all the shares in the Company registered in your name(s). | |
| 2 | If any proxy other than the Chairman of the Annual General Meeting is preferred, strike out the words “the Chairman of the Annual General Meeting or” and insert the name and address of the proxy desired in the space provided. A shareholder may appoint one or more proxies to attend and vote in his stead. Any alteration made to this form of proxy must be initialed by the person(s) who sign(s) it. | |
| 3 | IMPORTANT: If you wish to vote for a particular resolution, tick the appropriate box marked “FOR”. If you wish to vote against a particular resolution, tick the appropriate box marked “AGAINST”. If you wish to abstain from voting on a particular resolution, tick the appropriate box marked “ABSTAIN”. | |
| 4 | This form of proxy must be signed by you or your attorney duly authorized in writing or, in the case of a corporation, must be either under seal or executed under the hand of an officer or attorney duly authorized to sign the same. |
E-2
Exhibit 99.3
AIRMEDIA GROUP INC.
(Incorporated in the Cayman Islands with limited liability)
(NASDAQ Ticker: AMCN)
(Incorporated in the Cayman Islands with limited liability)
(NASDAQ Ticker: AMCN)
Form of Proxy for Annual General Meeting
to Be Held on December 9, 2009
(or any adjourned or postponed meeting thereof)
to Be Held on December 9, 2009
(or any adjourned or postponed meeting thereof)
Introduction
This Form of Proxy is furnished in connection with the solicitation by the Board of Directors
of AirMedia Group Inc., a Cayman Islands company (the “Company”), of proxies from the holders of
the issued and outstanding ordinary shares, par value US$0.001 per share, of the Company (the
“Ordinary Shares”) to be exercised at the Annual General Meeting of the Company (the “AGM”) to be
held at 42/F, Edinburgh Tower, The Landmark, 15 Queen’s Road Central, Hong Kong on December 9, 2009
at 10:00 a.m. (local time), and at any adjourned or postponed meeting thereof, for the purposes set
forth in the accompanying Notice of Annual General Meeting (the “AGM Notice”).
Only the holders of record of the Ordinary Shares at the close of business on November 5, 2009
(the “Record Date”) are entitled to notice of and to vote at the AGM. In respect of the matters
requiring shareholders’ vote at the AGM, each Ordinary Share is entitled to one vote. The quorum
of the AGM is shareholders holding no less than an aggregate of one-third of all voting share
capital of the Company in issue present in person or by proxy and entitled to vote at the AGM.
This Form of Proxy and the accompanying AGM Notice will be first mailed to the shareholders of the
Company on or about November 2, 2009.
The Ordinary Shares represented by all properly executed proxies returned to the Company will
be voted at the AGM as indicated or, if no instruction is given, the holder of the proxy will vote
the shares in his discretion, unless the reference to the holder of the proxy having such
discretion (i.e., the phrase “or if no such indication is given, as my/our proxy thinks fit”) has
been deleted and initialed on this Form of Proxy. Where the chairman of the AGM acts as proxy and
is entitled to exercise his discretion, he is likely to vote the shares FOR the resolutions. As to
any other business that may properly come before the AGM, all properly executed proxies will be
voted by the persons named therein in accordance with their discretion. The Company does not
presently know of any other business which may come before the AGM. However, if any other matter
properly comes before the AGM, or any adjourned or postponed meeting thereof, which may properly be
acted upon, unless otherwise indicated the proxies solicited hereby will be voted on such matter in
accordance with the discretion of the proxy holders named therein. Any person giving a proxy has
the right to revoke it at any time before it is exercised (i) by filing with the Company a duly
signed revocation at its offices at 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng
District, Beijing 100027, People’s Republic of China or (ii) by voting in person at the AGM.
To be valid, this Form of Proxy must be completed, signed and returned to the Company’s offices (to
the attention of: Chen Liang) at 17/F, Sky Plaza, No. 46 Dongzhimenwai Street, Dongcheng District,
Beijing 100027, People’s Republic of China as soon as possible so that it is received by the
Company no later than 24 hours before the time of the AGM.
1
AIRMEDIA GROUP INC.
(Incorporated in the Cayman Islands with limited liability)
(Nasdaq Ticker: AMCN)
(Incorporated in the Cayman Islands with limited liability)
(Nasdaq Ticker: AMCN)
Form of Proxy for Annual General Meeting
to Be Held on December 9, 2009
(or any adjourned or postponed meeting thereof)
to Be Held on December 9, 2009
(or any adjourned or postponed meeting thereof)
I/We of &n
bsp; ,
being the registered holder of ordinary shares 1, par value
US$0.001 per share, of AirMedia Group Inc. (the “Company”), hereby appoint the Chairman of the
Annual General Meeting 2 or of
as my/our proxy to attend and act for me/us at the Annual General Meeting (or at any adjourned or
postponed meeting thereof) of the Company to be held at 42/F, Edinburgh Tower, The Landmark, 15
Queen’s Road Central, Hong Kong, and in the event of a poll, to vote for me/us as indicated
below3, or if no such indication is given, as my/our proxy thinks fit.
| No. | RESOLUTION | FOR3 | AGAINST 3 | ABSTAIN 3 | ||||
1.
|
The resolution as set out in Item 1 of the Notice of Annual General Meeting regarding the amendment of the Company’s 2007 Share Incentive Plan. | |||||||
2.
|
The resolution as set out in Item 2 of the Notice of Annual General Meeting regarding the adoption of an Amended and Restated Memorandum and Articles of Association. | |||||||
3.
|
The resolution as set out in Item 3 of the Notice of Annual General Meeting regarding the Company’s share repurchase program. |
| Dated , 2009 | Signature(s) 4 |
| 1 | Please insert the number of shares registered in your name(s) to which this proxy relates. If no number is inserted, this form of proxy will be deemed to relate to all the shares in the Company registered in your name(s). | |
| 2 | If any proxy other than the Chairman of the Annual General Meeting is preferred, strike out the words “the Chairman of the Annual General Meeting or” and insert the name and address of the proxy desired in the space provided. A shareholder may appoint one or more proxies to attend and vote in his stead. Any alteration made to this form of proxy must be initialed by the person(s) who sign(s) it. | |
| 3 | IMPORTANT: If you wish to vote for a particular resolution, tick the appropriate box marked “FOR”. If you wish to vote against a particular resolution, tick the appropriate box marked “AGAINST”. If you wish to abstain from voting on a particular resolution, tick the appropriate box marked “ABSTAIN”. | |
| 4 | This form of proxy must be signed by you or your attorney duly authorized in writing or, in the case of a corporation, must be either under seal or executed under the hand of an officer or attorney duly authorized to sign the same. |
2
Exhibit 99.4
| FOR AGAINST ABSTAIN FOR AGAINST ABSTAIN Resolution 1 Resolution 3 Resolution 2 Mark box at right if you wish to give a discretionary proxy to a person designated by the Company. PLEASE NOTE: Marking this box voids any other instructions indicated above. Please refer to the reverse side of this card for the Resolutions to be voted at the Meeting. AirMedia Group Inc. — Proof 4 11/3/09 TO THE REGISTERED HOLDERS OF AMERICAN DEPOSITARY SHARES (“ADRs”) REPRESENTING ORDINARY SHARES OF AIRMEDIA GROUP INC. Please sign this Voting Instruction Card exactly as your name(s) appear(s) on the face of this card and on the books of the Depositary. Joint owners should each sign personally. Trustees and other fiduciaries should indicate the capacity in which they sign, and where more than one name appears, a majority must sign. If a corporation, this signature should be that of an authorized officer who should state his or her title. FOLD AND DETACH HERE Address Change Mark box and indicate changes/comments below: Sign Below Date: AIRMEDIA GROUP INC. |
| 1. | To consider and, if thought fit, pass the following resolution as an
ordinary resolution in connection with an increase in the maximum aggregate
number of shares issuable under the Company’s 2007 Share Incentive Plan: |
|
"RESOLVED, as an ordinary resolution: |
||
THAT the amendment to the 2007 Share Incentive Plan of the Company, in the form attached as Exhibit
A to this Notice of Annual
General Meeting to Be Held on December 9, 2009 (the “AGM Notice”) and approved by the resolutions
of the Company’s board of
directors passed on December 29, 2008, be and hereby is approved and confirmed, and where necessary ratified; and |
||
THAT each director or officer of the Company be and hereby is authorized to take any and every
action that might be necessary,
appropriate or desirable to effect the foregoing resolution as such director or officer, in
his or her absolute discretion, thinks fit.” |
||
| 2. | To consider and, if thought fit, pass the following resolution as a special resolution in
connection with certain amendments to the
Memorandum and Articles of Association of the Company: |
|
"RESOLVED, as a special resolution: |
||
THAT the Memorandum and Articles of Association of the Company currently in effect be amended and restated by their deletion
in their entirety and the substitution in their place of the Amended and Restated Memorandum and Articles of Association attached
as Exhibit C to this AGM Notice, reflecting the amendments enumerated in Exhibit B and certain minor clerical or formatting
changes.” |
||
| 3. | To consider and, if thought fit, pass the following resolution as an ordinary resolution in
connection with the Company’s share
repurchase program: |
|
"RESOLVED, as an ordinary resolution: |
||
THAT the Company be and hereby is approved, authorized, and where necessary ratified, but not
obligated, to purchase its
ordinary shares represented by American depositary shares (“ADSs”) with an aggregate value of up to
US$50 million within one
year since January 1, 2009 (such transaction, the “Repurchase”); |
||
THAT each of Mr. Herman Man Guo, Mr. Conor Chiahung Yang and any person specifically nominated in writing by either of them
for such purpose (each an “Authorized Person”) be and hereby is authorized to effect the Repurchase on the open market at
prevailing market prices pursuant to a Rule 10b5-1 plan, in negotiated transactions off the market, in block trades or otherwise from
time to time as market conditions, in the judgment of such Authorized Person, warrant, in accordance with applicable law, and on
such other terms as set out in the resolutions of the Company’s board of directors passed on December 29, 2008, an extract of
which is attached as Exhibit D to this AGM Notice (the “Repurchase Board Resolutions”); and |
||
THAT any actions taken by any of the directors and officers of the Company prior to the date hereof for purposes of the foregoing
resolutions be approved, adopted and where necessary ratified, including without limitation any repurchases of the Company’s
ordinary shares effected pursuant to the Repurchase Board Resolutions prior to the date hereof.” |
| AirMedia Group Inc. JPMorgan Chase Bank, N.A., Depositary P.O. Box 64506, St. Paul, MN 55164-0506 |
Voting Instruction Card | |
JPMorgan Chase Bank, N.A. (the “Depositary”) has received notice that the Annual General Meeting
(the “Meeting”) of
AirMedia Group Inc. (the “Company”) will be held at 10:00 a.m. (Beijing time), on Wednesday,
December 9, 2009 at 42/F,
Landmark 15 Queen’s Road Central, Hong Kong, for the purposes set forth on this card.
If you are desirous of having the Depositary, through its Nominee or Nominees, vote or execute a
proxy to vote the
Ordinary Shares represented by your ADRs FOR or AGAINST or to ABSTAIN from voting on the
Resolutions to be
proposed at the Meeting, kindly execute and forward to the Depositary, the attached Voting
Instruction Card. The
enclosed postage-paid envelope is provided for this purpose. This Voting Instruction Card should be
executed in such a
manner as to show clearly whether you desire the Nominee or the Nominees of the Depositary to vote
FOR or AGAINST
or to ABSTAIN from the Company’s Resolutions, or any of them, as the case may be. Alternatively,
you may include
instructions to give a discretionary proxy to a person designated by the Company. The Voting
Instruction Card MUST be
forwarded in sufficient time to reach the Depositary before 12:00 p.m. (Eastern Standard Time),
December 7, 2009. Only
the registered holders of record as of the close of business on November 5, 2009, will be entitled
to execute the attached
Voting Instruction Card.
The signatory, a registered holder of ADRs representing Ordinary Shares of the Company, of record
on November 5,
2009, hereby requests and authorizes the Depositary, through its Nominee or Nominees, to vote or
execute a proxy to
vote the underlying Ordinary Shares of the Company represented by ADRs, in accordance with the
instructions given at
the Meeting.
NOTE: In order to have the aforesaid shares voted, this Voting Instruction Card MUST be returned
before 12:00 p.m.
(Eastern Standard Time), on December 7, 2009.
For more information regarding the Meeting, including the Notice of Meeting and Proxy Statement,
please visit the
Company’s website at http://ir.airmedia.net.cn/phoenix.zhtml?c=214947&p=irol-AGM.
JPMorgan Chase Bank, N.A., Depositary
PLEASE MARK, DATE AND SIGN ON REVERSE SIDE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE.
Please see reverse side for Voting Instructions.