As filed with the U.S. Securities and Exchange Commission on July 9, 2019.
Registration No. 333-232240
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SC Health Corporation
(Exact name of registrant as specified in its charter)
Cayman Islands
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6770
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N/A
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(State or Other Jurisdiction of
Incorporation or Organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
108 Robinson Road #10-00
Singapore 068900
Tel: +65 6438 1080
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Puglisi & Associates
850 Liberty Avenue, Suite 204
Newark, Delaware 19711
(302) 738-6680
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Paul D. Tropp, Esq.
Christopher J. Capuzzi, Esq. Ropes & Gray LLP 1211 Avenue of the Americas New York, New York 10036 (212) 596-9000 |
Rolf Lindsay
Andrew Barker Walkers 190 Elgin Avenue George Town, Grand Cayman KY1-9001 Cayman Islands (345) 949-0100 |
Harald Halbhuber, Esq.
Shearman & Sterling LLP 599 Lexington Avenue New York, New York 10022 (212) 848-4000 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. o
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of large accelerated filer, accelerated filer, smaller reporting company and emerging growth company in Rule 12b-2 of the Exchange Act.
Large accelerated filer o
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Accelerated filer o
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Non-accelerated filer ☒
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Smaller reporting company ☒
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Emerging growth company ☒
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. o
CALCULATION OF REGISTRATION FEE
Title of Each Class of Security Being Registered |
Amount Being Registered |
Proposed Maximum Offering Price Per Security(1) |
Proposed Maximum Aggregate Offering Price(1) |
Amount of Registration Fee(5) |
||||||
Units, each consisting of one Class A ordinary share, $0.0001 par value, and one half of one warrant(2) |
17,250,000 Units |
$ | 10.00 | $ | 172,500,000 | $ | 20,907 | |||
Class A ordinary shares included as part of the units(3) |
17,250,000 Shares |
— | — | — | (4) |
|||||
Warrants included as part of the units(3) |
8,625,000 Warrants |
— | — | — | (4) |
|||||
Total |
$ | 172,500,000 | $ | 20,907 |
(1) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(a) under the Securities Act of 1933, as amended, or the Securities Act. |
(2) | Includes 2,250,000 units, consisting of 2,250,000 Class A ordinary shares and 1,125,000 warrants, which may be issued upon exercise of a 45-day option granted to the underwriters to cover over-allotments, if any. |
(3) | Pursuant to Rule 416 under the Securities Act, there are also being registered an indeterminable number of additional securities as may be issued to prevent dilution resulting from share splits, share capitalizations or similar transactions. |
(4) | No fee pursuant to Rule 457(g) under the Securities Act. |
(5) | Previously paid. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
SC Health Corporation is filing this Amendment No. 2 to its registration statement on Form S-1 (File No. 333-232240) to file exhibits to the Registration Statement as indicated in Item 16 in the index to exhibits and to update Item 15. Accordingly, this Amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature page to the Registration Statement and the filed exhibits. The remainder of the Registration Statement is unchanged and has therefore been omitted.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. | Other Expenses of Issuance and Distribution. |
The estimated expenses payable by us in connection with the offering described in this registration statement (other than the underwriting discount and commissions) will be as follows:
SEC expenses |
$ | 20,907 | |
FINRA expenses |
26,375 | ||
Accounting fees and expenses |
50,000 | ||
Printing and engraving expenses |
45,000 | ||
Travel and road show expenses |
25,000 | ||
Legal fees and expenses |
550,000 | ||
Listing and filing fees |
85,000 | ||
Director & Officers liability insurance premiums(1) |
100,000 | ||
Miscellaneous |
97,718 | ||
Total |
$ | 1,000,000 |
(1) | This amount represents the approximate amount of annual director and officer liability insurance premiums the registrant anticipates paying following the completion of its initial public offering and until it completes a business combination. |
Item 14. | Indemnification of Directors and Officers. |
Cayman Islands law does not limit the extent to which a companys memorandum and articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against willful default, willful neglect, civil fraud or the consequences of committing a crime. Our amended and restated memorandum and articles of association will provide for indemnification of our officers and directors to the maximum extent permitted by law, including for any liability incurred in their capacities as such, except through their own actual fraud, willful default or willful neglect. We may purchase a policy of directors and officers liability insurance that insures our officers and directors against the cost of defense, settlement or payment of a judgment in some circumstances and insures us against our obligations to indemnify our officers and directors.
Our officers and directors have agreed to waive any right, title, interest or claim of any kind in or to any monies in the trust account, and have agreed to waive any right, title, interest or claim of any kind they may have in the future as a result of, or arising out of, any services provided to us and will not seek recourse against the trust account for any reason whatsoever. Accordingly, any indemnification provided will only be able to be satisfied by us if (i) we have sufficient funds outside of the trust account or (ii) we consummate an initial business combination.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 15. | Recent Sales of Unregistered Securities. |
On December 28, 2018, SC Health Holdings Limited, our sponsor, purchased an aggregate of 3,450,000 of our Class B ordinary shares and on February 8, 2019 we effected a share capital sub-division (in respect of the Class B ordinary shares) so that there were 4,312,500 Class B ordinary shares outstanding (up to 562,500 of which are subject to forfeiture by our sponsor depending on the extent to which the underwriters over-allotment option is exercised) in exchange for a capital contribution of $25,000, or approximately $0.006 per share. Such securities were issued in connection with our organization pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act.
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Our sponsor has committed, pursuant to separate written agreements, to purchase an aggregate of 5,000,000 private placement warrants (or 5,450,000 if the underwriters over-allotment option is exercised in full), each exercisable to purchase one Class A ordinary share at $11.50 per share, at a price of $1.00 per warrant ($5,000,000 in the aggregate or $5,450,000 if the underwriters over-allotment option is exercised in full), in a private placement that will close simultaneously with the closing of this offering. These issuances will be made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act.
In connection with this offering, we will enter into a forward purchase agreement pursuant to which the forward purchase investor will agree to purchase an aggregate of 5,000,000 Class A ordinary shares, plus an aggregate of 1,250,000 redeemable warrants, for an aggregate purchase price of $50,000,000 in a private placement to close concurrently with our initial business combination.
No underwriting discounts or commissions were paid with respect to such sales.
Item 16. | Exhibits and Financial Statement Schedules. |
(a) | Exhibits |
Exhibit No.
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Description
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Form of Underwriting Agreement.
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Memorandum and Articles of Association.*
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Amended and Restated Memorandum and Articles of Association.
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Form of Specimen Unit Certificate.*
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Form of Specimen Ordinary Share Certificate.*
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Form of Specimen Warrant Certificate.*
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Form of Warrant Agreement among American Stock Transfer & Trust Company, LLC, SC Health Holdings Limited and the Registrant.*
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Opinion of Ropes & Gray LLP, Counsel to the Registrant.
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Opinion of Walkers, Cayman Islands Counsel to the Registrant.
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Form of Letter Agreement among the Registrant, SC Health Holdings Limited and each of the directors and executive officers of the Registrant.*
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Form of Investment Management Trust Agreement between American Stock Transfer & Trust Company, LLC and the Registrant.*
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Form of Registration Rights Agreement among the Registrant, SC Health Holdings Limited and the Holders signatory thereto.*
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Form of Private Placement Warrants Purchase Agreement between the Registrant and the Holders signatory thereto.*
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Form of Indemnity Agreement for directors and officers of the Registrant.*
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Promissory Note, dated January 7, 2019, issued to SC Health Holdings Limited.*
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Securities Subscription Agreement, dated December 28, 2018, between SC Health Holdings Limited and the Registrant.*
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Form of Administrative Services Agreement between the Registrant and SIN Capital Group Pte. Ltd.*
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Form of Forward Purchase Agreement.*
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Form of Escrow Agreement among the Registrant, American Stock Transfer & Trust Company, LLC and SC Health Holdings Limited.*
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Form of Code of Business Conduct and Ethics.*
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Consent of WithumSmith+Brown, PC.*
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Consent of Ropes & Gray LLP (included on Exhibit 5.1).
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Consent of Walkers (included on Exhibit 5.2).
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Power of Attorney.*
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Consent of Lim Cheok Peng.*
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Consent of Frank Lavin.*
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Consent of Suresh Marimuthu.*
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Consent of Angelo John Coloma.*
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* | Previously filed. |
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Item 17. | Undertakings. |
(a) | The undersigned registrant hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser. |
(b) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
(c) | The undersigned registrant hereby undertakes that: |
(1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
(2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Singapore on the 9th day of July, 2019.
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SC Health Corporation
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By:
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/s/ Angelo John Coloma
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Name: Angelo John Coloma
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Title: Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Name
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Position
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Date
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*
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Chairman
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July 9, 2019
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David Sin
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/s/ Angelo John Coloma
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Chief Executive Officer
(principal executive officer) |
July 9, 2019
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Angelo John Coloma
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*
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Chief Financial Officer
(principal financial and accounting officer) |
July 9, 2019
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Hwei Lynn Lau
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*By:
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/s/ Angelo John Coloma
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Angelo John Coloma
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Attorney-in-fact
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, the undersigned has signed this registration statement, solely in its capacity as the duly authorized representative of SC Health Corporation, in Newark, Delaware, on the 9th day of July, 2019.
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/s/ Donald J. Puglisi
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Name: Donald J. Puglisi
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Title: Authorized Representative
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Very truly yours,
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SC HEALTH CORPORATION
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By:
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Name:
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Title:
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CREDIT SUISSE SECURITIES (USA) LLC
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By:
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Name:
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Title:
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Underwriter
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Number of
Firm Securities
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Credit Suisse Securities (USA) LLC
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[●]
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I-Bankers Securities, Inc.
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[●]
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Total
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15,000,000
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1. |
The name of the company is SC Health Corporation (the “Company”).
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2. |
The registered office of the Company will be situated at the offices of Walkers Corporate Limited, Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008,
Cayman Islands or at such other location as the Directors may from time to time determine.
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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 any law as provided
by Section 7(4) of the Companies Law (as amended) of the Cayman Islands (the “Companies Law”).
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4. |
The Company shall have and be capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit as provided by Section
27(2) of the Companies Law.
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5. |
The Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of the business of the Company carried on outside the Cayman Islands;
provided that nothing in this section shall be construed as to prevent the Company effecting and concluding contracts in the Cayman Islands, and exercising in the Cayman Islands all of its powers necessary for the carrying on of its
business outside the Cayman Islands.
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6. |
The liability of the shareholders of the Company is limited to the amount, if any, unpaid on the shares respectively held by them.
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7. |
The authorised share capital of the Company is US$20,100 divided into 180,000,000 Class A
ordinary shares with a nominal or par value of US$0.0001, 25,000,000 Class B ordinary shares with a nominal or par value of US$0.00008, and 1,000,000 preference shares with a nominal or par value of US$0.0001, provided always that subject to the Companies Law
and the Articles of Association the Company shall have power to redeem or purchase any of its shares and to subdivide or consolidate the said shares or any of them and to issue all or any part of its capital whether original, redeemed,
increased or reduced with or without any preference, priority, special privilege or other rights or subject to any postponement of rights or to any conditions or restrictions whatsoever and so that unless the conditions of issue shall
otherwise expressly provide every issue of shares whether stated to be ordinary, preference or otherwise shall be subject to the powers on the part of the Company hereinbefore provided.
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8. |
The Company may exercise the power contained in Section 206 of the Companies Law to deregister in the Cayman Islands and be registered by way of continuation in some other
jurisdiction.
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CLAUSE
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PAGE
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TABLE A
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1
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INTERPRETATION
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1
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PRELIMINARY
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5
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SHARES
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6
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FOUNDER SHARES CONVERSION AND ANTI-DILUTION RIGHTS
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7
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MODIFICATION OF RIGHTS
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8
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CERTIFICATES
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8
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FRACTIONAL SHARES
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9
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LIEN
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9
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CALLS ON SHARES
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9
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FORFEITURE OF SHARES
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10
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TRANSFER OF SHARES
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11
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TRANSMISSION OF SHARES
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12
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ALTERATION OF SHARE CAPITAL
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12
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REDEMPTION, PURCHASE AND SURRENDER OF SHARES
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13
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TREASURY SHARES
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14
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GENERAL MEETINGS
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14
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NOTICE OF GENERAL MEETINGS
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15
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PROCEEDINGS AT GENERAL MEETINGS
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15
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VOTES OF SHAREHOLDERS
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17
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CORPORATIONS ACTING BY REPRESENTATIVES AT MEETINGS
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17
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CLEARING HOUSES
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18
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DIRECTORS
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18
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ALTERNATE DIRECTOR
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19
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POWERS AND DUTIES OF DIRECTORS
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19
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BORROWING POWERS OF DIRECTORS
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21
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THE SEAL
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21
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DISQUALIFICATION OF DIRECTORS
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21
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PROCEEDINGS OF DIRECTORS
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22
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DIVIDENDS
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24
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ACCOUNTS, AUDIT AND ANNUAL RETURN AND DECLARATION
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25
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CAPITALISATION OF RESERVES
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25
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SHARE PREMIUM ACCOUNT
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26
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NOTICES
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27
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INDEMNITY
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28
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NON-RECOGNITION OF TRUSTS
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29
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BUSINESS COMBINATION REQUIREMENTS
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29
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BUSINESS OPPORTUNITIES
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33 |
WINDING UP
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34
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AMENDMENT OF ARTICLES OF ASSOCIATION
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34
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CLOSING OF REGISTER OR FIXING RECORD DATE
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34
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REGISTRATION BY WAY OF CONTINUATION
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34
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MERGERS AND CONSOLIDATION
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35
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DISCLOSURE
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35
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1. |
In these Articles the following defined terms will have the meanings ascribed to them, if not inconsistent with the subject or context:
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(a) |
passed by a simple majority of such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of the Company and where
a poll is taken regard shall be had in computing a majority to the number of votes to which each Shareholder is entitled; or
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(b) |
approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and
the effective date of the 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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(a) |
passed by a majority of not less than two-thirds (or, with respect to amending Article 163(b), prior to the consummation of a Business Combination, 100% of the votes cast at a
meeting of the Shareholders and with respect to amending Article 98 prior to a Business Combination, 90% of the votes cast at a meeting of the Shareholders) of such Shareholders as, being entitled to do so, vote in person or, where
proxies are allowed, by proxy at a general meeting of the Company of which notice specifying the intention to propose the resolution as a special resolution has been duly given and where a poll is taken regard shall be had in
computing a majority to the number of votes to which each Shareholder is entitled; or
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(b) |
approved in writing by all of the Shareholders entitled to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and
the effective date of the special resolution so adopted shall be the date on which the instrument or the last of such instruments, if more than one, is executed.
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2. |
In these Articles, save where the context requires otherwise:
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(a) |
words importing the singular number shall include the plural number and vice versa;
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(b) |
words importing the masculine gender only shall include the feminine gender and any Person as the context may require;
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(c) |
the word “may” shall be construed as permissive and the word “shall” shall be construed as imperative;
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(d) |
reference to a dollar or dollars or USD (or $) and to a cent or cents is reference to dollars and cents of the United States of America;
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(e) |
reference to a statutory enactment shall include reference to any amendment or re-enactment thereof for the time being in force;
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(f) |
reference to any determination by the Directors shall be construed as a determination by the Directors in their sole and absolute discretion and shall be applicable either
generally or in any particular case; and
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(g) |
reference to “in writing” shall be construed as written or represented by any means reproducible in writing, including any form of print, lithograph, email, facsimile, photograph
or telex or represented by any other substitute or format for storage or transmission for writing or partly one and partly another.
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3. |
Subject to the 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.
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4. |
The business of the Company may be commenced at any time after incorporation.
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5. |
The Office shall be at such address in the Cayman Islands as the Directors may from time to time determine. The Company may in addition establish and maintain such other offices
and places of business and agencies in such places as the Directors may from time to time determine.
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6. |
The expenses incurred in the formation of the Company and in connection with the offer for subscription and issue of Shares shall be paid by the Company. Such expenses may be
amortised over such period as the Directors may determine and the amount so paid shall be charged against income and/or capital in the accounts of the Company as the Directors shall determine.
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7. |
The Directors shall keep, or cause to be kept, the Register at such place or (subject to compliance with the Companies Law and these Articles) places as the Directors may from
time to time determine. In the absence of any such determination, the Register shall be kept at the Office. The Directors may keep, or cause to be kept, one or more Branch Registers as well as the Principal Register in accordance with
the Companies Law, provided always that a duplicate of such Branch Register(s) shall be maintained with the Principal Register in accordance with the Companies Law and the rules or requirements of any Designated Stock Exchange.
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8. |
Subject to these Articles, and, where applicable, the rules of the Designated Stock Exchange and/or any competent regulatory authority, all Shares for the time being unissued
shall be under the control of the Directors who may:
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(a) |
issue, allot and dispose of the same to such Persons, in such manner, on such terms and having such rights and being subject to such restrictions as they may from time to time
determine; and
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(b) |
grant options with respect to such Shares and issue warrants or similar instruments with respect thereto;
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9. |
The Company may issue units of securities in the Company, which may be comprised of whole or fractional Shares, rights, options, warrants or convertible securities or securities
of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company, upon such terms as the Directors may from time to time determine. The
securities comprising any such units which are issued pursuant to the IPO can only be traded separately from one another on the 52nd day following the date of the prospectus relating to the IPO unless Credit Suisse Securities (USA) LLC
determines that an earlier date is acceptable, subject to the Company having filed a current report on Form 8-K with the SEC (which shall include an audited balance sheet reflecting the Company’s receipt of the gross proceeds at the
closing of the IPO) and a press release announcing when such separate trading will begin. Prior to such date, the units can be traded, but the securities comprising such units cannot be traded separately from one another.
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10. |
The Directors, or the Shareholders by Ordinary Resolution, may authorise the division of Shares into any number of Classes and sub-classes and Series and sub-series and the
different Classes and sub-classes and Series and sub-series shall be authorised, established and designated (or re-designated as the case may be) and the variations in the relative rights (including, without limitation, voting, dividend
and redemption rights), restrictions, preferences, privileges and payment obligations as between the different Classes and Series (if any) may be fixed and determined by the Directors or the Shareholders by Ordinary Resolution.
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11. |
The Company may insofar as may be permitted by law, pay a commission to any Person in consideration of his subscribing or agreeing to subscribe whether absolutely or conditionally
for any Shares. Such commissions may be satisfied by the payment of cash or the lodgement of fully or partly paid-up Shares or partly in one way and partly in the other. The Company may also pay such brokerage as may be lawful on any
issue of Shares.
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12. |
The Directors may refuse to accept any application for Shares, and may accept any application in whole or in part, for any reason or for no reason.
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13. |
On the first business day following the consummation of the Company’s initial Business Combination, the issued and outstanding Class B Ordinary Shares shall automatically be
converted into such number of Class A Shares as is equal to 20% of the sum of:
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(a) |
the total number of Class A Ordinary Shares issued in the IPO (including pursuant to the Over-Allotment Option), plus
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(b) |
the total number of Class A Ordinary Shares issued or deemed issued, or issuable upon the conversion or exercise of any equity-linked securities issued or deemed issued, by the
Company in connection with or in relation to the consummation of the initial Business Combination (including the Forward Purchase Shares, but not the Forward Purchase Warrants), excluding (x) any Class A Ordinary Shares or equity-linked
securities exercisable for or convertible into Class A Ordinary Shares issued, or to be issued, to any seller in the initial Business Combination and (y) any private placement warrants issued to the Sponsor or an affiliate of the
Sponsor upon conversion of working capital loans.
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14. |
Notwithstanding anything to the contrary contained herein in no event shall the Class B Ordinary Shares convert into Class A Shares at a ratio that is less than one-for-one.
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15. |
References in Articles 13 to Article 17 to “converted”, “conversion” or “exchange” shall mean the compulsory redemption without notice of Class B Shares of any Member and, on behalf of such Members, automatic application of such redemption proceeds in paying for such new Class A Shares into
which the Class B Shares have been converted or exchanged at a price per Class B Share necessary to give effect to a conversion or exchange calculated on the basis that the Class A Shares to be issued as part of the conversion or
exchange will be issued at par. The Class A Shares to be issued on an exchange or conversion shall be registered in the name of such Member or in such name as the Member may direct.
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16. |
Each Class B Share shall convert into its pro rata number of Class A Shares as set forth in this Article 16. The pro rata share for each holder of Class B Shares will be
determined as follows: Each Class B Ordinary Share shall convert into such number of Class A Shares as is equal to the product of 1 multiplied by a fraction, the numerator of which shall be the total number of Class A Shares into which
all of the issued and outstanding Class B Shares shall be converted pursuant to this Article 16 and the denominator of which shall be the total number of issued and outstanding Class B Shares at the time of conversion.
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17. |
The Directors may effect such conversion in any manner available under applicable law, including redeeming or repurchasing the relevant Class B Shares and applying the proceeds
thereof towards payment for the new Class A Shares. For purposes of the repurchase or redemption, the Directors may, subject to the Company being able to pay its debts in the ordinary course of business, make payments out of amounts
standing to the credit of the Company’s share premium account or out of its capital.
|
18. |
Whenever the capital of the Company is divided into different Classes (and as otherwise determined by the Directors) the rights attached to any such Class may, subject to any
rights or restrictions for the time being attached to any Class only be materially adversely varied or abrogated with the consent in writing of the holders of not less than two-thirds of the issued Shares of the relevant Class, or with
the sanction of a resolution passed at a separate meeting of the holders of the Shares of such Class by a majority of two-thirds of the votes cast at such a meeting. To every such separate meeting all the provisions of these Articles
relating to general meetings of the Company or to the proceedings thereat shall, mutatis mutandis, apply, except that the necessary quorum shall be one or more Persons at least holding or
representing by proxy one-third in nominal or par value amount of the issued Shares of the relevant Class (but so that if at any adjourned meeting of such holders a quorum as above defined is not present, those Shareholders who are
present shall form a quorum) and that, subject to any rights or restrictions for the time being attached to the Shares of that Class, every Shareholder of the Class shall on a poll have one vote for each Share of the Class held by him.
For the purposes of this Article the Directors may treat all the Classes or any two or more Classes as forming one Class if they consider that all such Classes would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate Classes. The Directors may vary the rights attaching to any Class without the consent or approval of Shareholders provided that the rights will
not, in the determination of the Directors, be materially adversely varied or abrogated by such action.
|
19. |
The rights conferred upon the holders of the Shares of any Class issued with preferred or other rights shall not, subject to any rights or restrictions for the time being attached
to the Shares of that Class, be deemed to be materially adversely varied or abrogated by, inter alia, the creation, allotment or issue of further Shares ranking pari passu with or subsequent to them or the redemption or purchase of any Shares of any Class by the Company.
|
20. |
If so determined by the Directors, any Person whose name is entered as a member in the Register may receive a certificate in the form determined by the Directors. 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.
|
21. |
Every share certificate of the Company shall bear legends required under the applicable laws, including the Exchange Act.
|
22. |
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 $1.00 or such smaller sum as the Directors shall determine.
|
23. |
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.
|
24. |
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.
|
25. |
The Directors may issue fractions of a Share and, if so issued, a fraction of a Share shall be subject to and carry the corresponding fraction of liabilities (whether with respect
to nominal or par value, premium, contributions, calls or otherwise), limitations, preferences, privileges, qualifications, restrictions, rights (including, without prejudice to the generality of the foregoing, voting and participation
rights) and other attributes of a whole Share. If more than one fraction of a Share of the same Class is issued to or acquired by the same Shareholder such fractions shall be accumulated.
|
26. |
The Company has a first and paramount lien on every Share (whether or not fully paid) for all amounts (whether presently payable or not) payable at a fixed time or called in
respect of that Share. The Company also has a first and paramount lien on every Share (whether or not fully paid) registered in the name of a Person indebted or under liability to the Company (whether he is the sole registered holder of
a Share or one of two or more joint holders) for all amounts owing by him or his estate to the Company (whether or not presently payable). The Directors may at any time declare a Share to be wholly or in part exempt from the provisions
of this Article. The Company’s lien on a Share extends to any amount payable in respect of it.
|
27. |
The Company may sell, in such manner as the Directors may determine, any Share on which the Company has a lien, but no sale shall be made unless an amount in respect of which the
lien exists is presently payable nor until the expiration of fourteen days after a notice in writing, demanding payment of such part of the amount in respect of which the lien exists as is presently payable, has been given to the
registered holder for the time being of the Share, or the Persons entitled thereto by reason of his death or bankruptcy.
|
28. |
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.
|
29. |
The proceeds of the sale after deduction of expenses, fees and commission incurred by the Company shall be received by the Company and applied in payment of such part of the
amount in respect of which the lien exists as is presently payable, and the residue shall (subject to a like lien for sums not presently payable as existed upon the Shares prior to the sale) be paid to the Person entitled to the Shares
immediately prior to the sale.
|
30. |
The Directors may from time to time make calls upon the Shareholders in respect of any moneys unpaid on their Shares, and each Shareholder shall (subject to receiving at least
fourteen days’ notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on such Shares.
|
31. |
The joint holders of a Share shall be jointly and severally liable to pay calls in respect thereof.
|
32. |
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.
|
33. |
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.
|
34. |
The Directors may make arrangements on the issue of partly paid Shares for a difference between the Shareholders, or the particular Shares, in the amount of calls to be paid and
in the times of payment.
|
35. |
The Directors may, if they think fit, receive from any Shareholder willing to advance the same all or any part of the moneys uncalled and unpaid upon any partly paid Shares held
by him, and upon all or any of the moneys so advanced may (until the same would, but for such advance, become presently payable) pay interest at such rate (not exceeding without the sanction of an Ordinary Resolution, eight percent per
annum) as may be agreed upon between the Shareholder paying the sum in advance and the Directors.
|
36. |
If a Shareholder fails to pay any call or instalment of a call in respect of any Shares on the day appointed for payment, the Directors may, at any time thereafter during such
time as any part of such call or instalment remains unpaid, serve a notice on him requiring payment of so much of the call or instalment as is unpaid, together with any interest which may have accrued.
|
37. |
The notice shall name a further day (not earlier than the expiration of fourteen 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.
|
38. |
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.
|
39. |
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.
|
40. |
A Person whose Shares have been forfeited shall cease to be a Shareholder in respect of the forfeited Shares, but shall, notwithstanding, remain liable to pay to the Company all
moneys which at the date of forfeiture were payable by him to the Company in respect of the Shares forfeited, but his liability shall cease if and when the Company receives payment in full of the amount unpaid on the Shares forfeited.
|
41. |
A statutory declaration in writing that the declarant is a Director, and that a Share has been duly forfeited on a date stated in the declaration, shall be conclusive evidence of
the facts in the declaration as against all Persons claiming to be entitled to the Share.
|
42. |
The Company may receive the consideration, if any, given for a Share on any sale or disposition thereof pursuant to the provisions of these Articles as to forfeiture and may
execute a transfer of the Share in favour of the Person to whom the Share is sold or disposed of and that Person shall be registered as the holder of the Share, and shall not be bound to see to the application of the purchase money, if
any, nor shall his title to the Shares be affected by any irregularity or invalidity in the proceedings in reference to the disposition or sale.
|
43. |
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.
|
44. |
Subject to these Articles and the rules or regulations of the Designated Stock Exchange or any relevant securities laws (including, but not limited to the Exchange Act), a
Shareholder may transfer all or any of his or her Shares.
|
45. |
The instrument of transfer of any Share shall be in (i) any usual or common form; (ii) such form as is prescribed by the Designated Stock Exchange; or (iii) in any other form as
the Directors may determine and shall be executed by or on behalf of the transferor and if in respect of a nil or partly paid up Share, or if so required by the Directors, shall also be executed on behalf of the transferee and shall be
accompanied by the certificate (if any) of the Shares to which it relates and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer. The transferor shall be deemed to remain
a Shareholder until the name of the transferee is entered in the Register in respect of the relevant Shares.
|
46. |
Subject to the terms of issue thereof and the rules or regulations of the Designated Stock Exchange or any relevant securities laws (including, but not limited to the Exchange
Act), the Directors may determine to decline to register any transfer of Shares without assigning any reason therefor.
|
47. |
The registration of transfers may be suspended at such times and for such periods as the Directors may from time to time determine.
|
48. |
All instruments of transfer that are registered shall be retained by the Company, but any instrument of transfer that the Directors decline to register shall (except in any case
of fraud) be returned to the Person depositing the same.
|
49. |
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 holder of the Share, shall be the only Person recognised by the Company as having any title to the Share.
|
50. |
Any Person becoming entitled to a Share in consequence of the death or bankruptcy of a Shareholder shall upon such evidence being produced as may from time to time be required by
the Directors, have the right either to be registered as a Shareholder in respect of the Share or, instead of being registered himself, to make such transfer of the Share as the deceased or bankrupt Person could have made; but the
Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the deceased or bankrupt Person before the death or bankruptcy.
|
51. |
A Person becoming entitled to a Share by reason of the death or bankruptcy of a Shareholder shall be entitled to the same dividends and other advantages to which he would be
entitled if he were the registered Shareholder, except that he shall not, before being registered as a Shareholder in respect of the Share, be entitled in respect of it to exercise any right conferred by membership in relation to
meetings of the Company.
|
52. |
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.
|
53. |
The Company may by Ordinary Resolution:
|
(a) |
consolidate and divide all or any of its share capital into Shares of a larger amount than its existing Shares;
|
(b) |
convert all or any of its paid up Shares into stock and reconvert that stock into paid up Shares of any denomination;
|
(c) |
subdivide 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; and
|
(d) |
cancel any Shares that, at the date of the passing of the resolution, have not been taken or agreed to be taken by any Person and diminish the amount of its share capital by the
amount of the Shares so cancelled.
|
54. |
The Company may by Special Resolution reduce its share capital and any capital redemption reserve in any manner authorised by law.
|
55. |
Subject to the Companies Law and the rules of the Designated Stock Exchange, 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 Shareholder on such terms and in such manner as the Directors
may determine;
|
(b) |
purchase its own Shares (including any redeemable Shares) on such terms and in such manner as the Directors may determine and agree with the Shareholder;
|
(c) |
make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Companies Law, including out of its capital; and
|
(d) |
accept the surrender for no consideration of any paid up Share (including any redeemable Share) on such terms and in such manner as the Directors may determine.
|
56. |
With respect to redeeming or repurchasing the Shares:
|
(a) |
Members who hold Public Shares are entitled to request the redemption of such Shares in the circumstances described in Article 161;
|
(b) |
Class B Shares held by the Founders shall be surrendered by the Founders on a pro rata basis for no consideration to the extent that the Over-Allotment Option is not exercised in
full so that the Founders will own, on an as-converted basis, 20% of the sum of: (i) the total number of Public Shares (including any Public Shares issued in connection with the Underwriters’ exercise of the Over-Allotment Option),
(ii) the number of Class B Shares held by the Founders and their permitted transferees following such forfeiture and (iii) the number of Forward Purchase Shares; and
|
(c) |
Public Shares shall be repurchased by way of tender offer in the circumstances set out in Article 156(b).
|
57. |
Any Share in respect of which notice of redemption has been given shall not be entitled to participate in the profits of the Company in respect of the period after the date
specified as the date of redemption in the notice of redemption.
|
58. |
The redemption, purchase or surrender of any Share shall not be deemed to give rise to the redemption, purchase or surrender of any other Share.
|
59. |
The Directors may when making payments in respect of redemption or purchase of Shares, if authorised by the terms of issue of the Shares being redeemed or purchased or with the
agreement of the holder of such Shares, make such payment either in cash or in specie including, without limitation, interests in a special purpose vehicle holding assets of the Company or holding entitlement to the proceeds of assets
held by the Company or in a liquidating structure.
|
60. |
Shares that the Company purchases, redeems or acquires (by way of surrender or otherwise) may, at the option of the Company, be cancelled immediately or held as Treasury Shares in
accordance with the Companies Law. In the event that the Directors do not specify that the relevant Shares are to be held as Treasury Shares, such Shares shall be cancelled.
|
61. |
No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company’s assets (including any distribution of assets to members on a winding
up) may be declared or paid in respect of a Treasury Share.
|
62. |
The Company shall be entered in the Register as the holder of the Treasury Shares provided that:
|
(a) |
the Company shall not be treated as a member for any purpose and shall not exercise any right in respect of the Treasury Shares, and any purported exercise of such a right shall
be void;
|
(b) |
a Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company and shall not be counted in determining the total number of issued shares at any given
time, whether for the purposes of these Articles or the Companies Law, save that an allotment of Shares as fully paid bonus shares in respect of a Treasury Share is permitted and Shares allotted as fully paid bonus shares in respect of
a treasury share shall be treated as Treasury Shares.
|
63. |
Treasury Shares may be disposed of by the Company on such terms and conditions as determined by the Directors.
|
64. |
The Directors may, whenever they think fit, convene a general meeting of the Company.
|
65. |
Subject to Article 98, for so long as the Company’s Shares are traded on a Designated Stock Exchange, the Company shall in each year hold a general meeting as its annual general
meeting at such time and place as may be determined by the Directors in accordance with the rules of the Designated Stock Exchange, unless such Designated Stock Exchange does not require the holding of an annual general meeting.
|
66. |
The Directors may cancel or postpone any duly convened general meeting at any time prior to such meeting, except for general meetings requisitioned by the Shareholders in
accordance with these Articles, for any reason or for no reason at any time prior to the time for holding such meeting or, if the meeting is adjourned, the time for holding such adjourned meeting. The Directors shall give Shareholders
notice in writing of any cancellation or postponement. A postponement may be for a stated period of any length or indefinitely as the Directors may determine.
|
67. |
General meetings shall also be convened on the requisition in writing of any Shareholder or Shareholders entitled to attend and vote at general meetings of the Company holding at
least thirty percent of the paid up voting share capital of the Company deposited at the Office specifying the objects of the meeting by notice given no later than 21 days from the date of deposit of the requisition signed by the
requisitionists, and if the Directors do not convene such meeting for a date not later than 45 days after the date of such deposit, the requisitionists themselves may convene the general meeting in the same manner, as nearly as
possible, as that in which general meetings may be convened by the Directors, and all reasonable expenses incurred by the requisitionists as a result of the failure of the Directors to convene the general meeting shall be reimbursed to
them by the Company.
|
68. |
If at any time there are no Directors, any two Shareholders (or if there is only one Shareholder then that Shareholder) entitled to vote at general meetings of the Company may
convene a general meeting in the same manner as nearly as possible as that in which general meetings may be convened by the Directors.
|
69. |
At least 5 days’ notice in writing counting from the date service is deemed to take place as provided in these Articles specifying the place, the day and the hour of the meeting
and the general nature of the business, shall be given in the manner hereinafter provided or in such other manner (if any) as may be prescribed by the Company by Ordinary Resolution to such Persons as are, under these Articles, entitled
to receive such notices from the Company, but with the consent of all the Shareholders entitled to receive notice of some particular meeting and attend and vote thereat, that meeting may be convened by such shorter notice or without
notice and in such manner as those Shareholders may think fit.
|
70. |
The accidental omission to give notice of a meeting to or the non-receipt of a notice of a meeting by any Shareholder shall not invalidate the proceedings at any meeting.
|
71. |
All business carried out at a general meeting shall be deemed special with the exception of sanctioning a dividend, the consideration of the accounts, balance sheets, any report
of the Directors or of the Company’s auditors, and the fixing of the remuneration of the Company’s auditors. No special business shall be transacted at any general meeting without the consent of all Shareholders entitled to receive
notice of that meeting unless notice of such special business has been given in the notice convening that meeting.
|
72. |
No business shall be transacted at any general meeting unless a quorum of Shareholders is present at the time when the meeting proceeds to business. Save as otherwise provided by
these Articles, one or more Shareholders holding at least a majority of the paid up voting share capital of the Company present in person or by proxy and entitled to vote at that meeting shall form a quorum.
|
73. |
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 Shareholders, 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 Shareholder or
Shareholders present and entitled to vote shall form a quorum.
|
74. |
If the Directors wish to make this facility available for a specific general meeting or all general meetings of the Company, participation in any general meeting of the Company
may be by means of a telephone or similar communication equipment by way of which all Persons participating in such meeting can communicate with each other and such participation shall be deemed to constitute presence in person at the
meeting.
|
75. |
The chairman, if any, of the Directors shall preside as chairman at every general meeting of the Company.
|
76. |
If there is no such chairman, or if at any general meeting he is not present within fifteen minutes after the time appointed for holding the meeting or is unwilling to act as
chairman, any Director or Person nominated by the Directors shall preside as chairman, failing which the Shareholders present in person or by proxy shall choose any Person present to be chairman of that meeting.
|
77. |
The chairman may adjourn a meeting from time to time and from place to place either:
|
(a) |
with the consent of any general meeting at which a quorum is present (and shall if so directed by the meeting); or
|
(b) |
without the consent of such meeting if, in his sole opinion, he considers it necessary to do so to:
|
(i) |
secure the orderly conduct or proceedings of the meeting; or
|
(ii) |
give all persons present in person or by proxy and having the right to speak and / or vote at such meeting, the ability to do so, but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. When a meeting, or adjourned meeting, is adjourned for fourteen days or more, notice of the adjourned meeting shall be given
in the manner provided for the 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.
|
78. |
A resolution put to the vote of the meeting shall be decided on a poll.
|
79. |
A poll 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.
|
80. |
In the case of an equality of votes the chairman of the meeting shall be entitled to a second or casting vote.
|
81. |
A poll demanded on the election of a chairman of the meeting or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such
time as the chairman of the meeting directs.
|
82. |
Subject to any rights and restrictions for the time being attached to any Share, every Shareholder present in person and every Person representing a Shareholder by proxy shall, at
a general meeting of the Company, shall have one vote for each Share of which he or the Person represented by proxy is the holder.
|
83. |
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 other joint holders and
for this purpose seniority shall be determined by the order in which the names stand in the Register.
|
84. |
A Shareholder of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy, may vote in respect of Shares carrying the right to vote
held by him, by his committee, or other Person in the nature of a committee appointed by that court, and any such committee or other Person, may vote in respect of such Shares by proxy.
|
85. |
No Shareholder shall be entitled to vote at any general meeting of the Company unless all calls, if any, or other sums presently payable by him in respect of Shares carrying the
right to vote held by him have been paid.
|
86. |
On a poll votes may be given either personally or by proxy.
|
87. |
The instrument appointing a proxy shall be in writing under the hand of the appointor or of his attorney duly authorised in writing or, if the appointor is a corporation, either
under Seal or under the hand of an Officer or attorney duly authorised. A proxy need not be a Shareholder.
|
88. |
An instrument appointing a proxy may be in any usual or common form or such other form as the Directors may approve.
|
89. |
The instrument appointing a proxy shall be deposited at the Office or at such other place as is specified for that purpose in the notice convening the meeting no later than the
time for holding the meeting or, if the meeting is adjourned, the time for holding such adjourned meeting.
|
90. |
The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll.
|
91. |
A resolution in writing signed by all the Shareholders for the time being entitled to receive notice of and to attend and vote at general meetings of the Company (or being
corporations by their duly authorised representatives) shall be as valid and effective as if the same had been passed at a general meeting of the Company duly convened and held.
|
92. |
Any corporation which is a Shareholder 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 meeting of holders of a Class or of the Directors or of a committee of Directors, and the Person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he
represents as that corporation could exercise if it were an individual Shareholder or Director.
|
93. |
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 authorised, the
authorisation shall specify the number and class of Shares in respect of which each such person is so authorised. A person so authorised pursuant to this Article shall be entitled to exercise the same powers on behalf of the clearing
house (or its nominee) which he represents as that clearing house (or its nominee) could exercise if it were an individual Member holding the number and Class of Shares specified in such authorisation.
|
94. |
Subject to Article 97, the Company may by Ordinary Resolution appoint any Person to be a Director.
|
95. |
Subject to Article 97, the Company may by Ordinary Resolution from time to time fix the maximum and minimum number of Directors to be appointed but unless such numbers are fixed
as aforesaid the minimum number of Directors shall be one and the maximum number of Directors shall be unlimited.
|
96. |
There shall be no shareholding qualification for Directors.
|
97. |
For so long as the Company’s Shares are traded on a Designated Stock Exchange, the Directors shall be divided into three (3) classes designated as Class I, Class II and Class III,
respectively. Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by the board of Directors. At the first annual general meeting of Members after the IPO, the term of office of the Class I
Directors shall expire and Class I Directors shall be elected for a full term of three (3) years. At the second annual general meeting of Members after the IPO, the term of office of the Class II Directors shall expire and Class II
Directors shall be elected for a full term of three (3) years. At the third annual general meeting of Members after the IPO, the term of office of the Class III Directors shall expire and Class III Directors shall be elected for a full
term of three (3) years. At each succeeding annual general meeting of Members, Directors shall be elected for a full term of three (3) years to succeed the Directors of the class whose terms expire at such annual general meeting.
Notwithstanding the foregoing provisions of this Article, each Director shall hold office until the expiration of his term, until his successor shall have been duly elected and qualified or until his earlier death, resignation or
removal. No decrease in the number of Directors constituting the board of Directors shall shorten the term of any incumbent Director.
|
98. |
Prior to an initial Business Combination, only holders of Class B Shares will have the right to vote on the election of Directors pursuant to Article 97 or the removal of
Directors pursuant to Article 115.
|
99. |
For so long as the Company’s Shares are traded on a Designated Stock Exchange, any and all vacancies in the board of Directors, however occurring, including, without limitation,
by reason of an increase in the size of the board of Directors, or the death, resignation, disqualification or removal of a Director, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining
Directors then in office, even if less than a quorum of the board of Directors, and not by the Members. Any Director appointed in accordance with the preceding sentence shall hold office for the remainder of the full term of the class
of Directors in which the new directorship was created or the vacancy occurred and until such Director’s successor shall have been duly elected and qualified or until his or her earlier resignation, death or removal. When the number of
Directors is increased or decreased, the board of Directors shall, subject to Article 97 above, determine the class or classes to which the increased or decreased number of Directors shall be apportioned; provided, however, that no
decrease in the number of Directors shall shorten the term of any incumbent Director. In the event of a vacancy in the board of Directors, the remaining Directors, except as otherwise provided by law, shall exercise the powers of the
full board of Directors until the vacancy is filled.
|
100. |
Any Director may in writing appoint another Person to be his alternate and, save to the extent provided otherwise in the form of appointment, such alternate shall have authority
to sign written resolutions on behalf of the appointing Director, but shall not be authorised to sign such written resolutions where they have been signed by the appointing Director, and to act in such Director’s place at any meeting of
the Directors. Every such alternate shall be entitled to attend and vote at meetings of the Directors as the alternate of the Director appointing him and where he is a Director to have a separate vote 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 solely as a result of his appointment as an alternate other than in respect of such times as the
alternate acts as a Director. The remuneration of such alternate shall be payable out of the remuneration of the Director appointing him and the proportion thereof shall be agreed between them.
|
101. |
Subject to the Companies Law, these Articles and to any resolutions passed in a general meeting, the business of the Company shall be managed by the Directors, who may pay all
expenses incurred in setting up and registering the Company and may exercise all powers of the Company. No resolution passed by the Company in general meeting shall invalidate any prior act of the Directors that would have been valid if
that resolution had not been passed.
|
102. |
The Directors may from time to time appoint any Person, whether or not a Director to hold such office in the Company as the Directors may think necessary for the administration of
the Company (including, for the avoidance of doubt and without limitation, any chairman (or co-chairman) of the board of Directors, vice chairman of the board of Directors, one or more chief executive officers, presidents, a chief
financial officer, a secretary, a treasurer, vice-presidents, one or more assistant vice presidents, one or more assistant treasurers, one or more assistant secretaries or any other officers as may be determined by the Directors), for
such term and at such remuneration (whether by way of salary or commission or participation in profits or partly in one way and partly in another), and with such powers and duties as the Directors may think fit. Any Person so appointed
by the Directors may be removed by the Directors or by the Company by Ordinary Resolution. The Directors may also appoint one or more of their number to the office of managing director upon like terms, but any such appointment shall
ipso facto terminate if any managing director ceases from any cause to be a Director, or if the Company by Ordinary Resolution resolves that his tenure of office be terminated.
|
103. |
The Directors may appoint any Person to be a Secretary (and if need be an assistant Secretary or assistant Secretaries) who shall hold office for such term, at such remuneration
and upon such conditions and with such powers as they think fit. Any Secretary or assistant Secretary so appointed by the Directors may be removed by the Directors or by the Company by Ordinary Resolution.
|
104. |
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.
|
105. |
The Directors may from time to time and at any time by power of attorney (whether under Seal or under hand) or otherwise appoint any company, firm or Person or body of Persons,
whether nominated directly or indirectly by the Directors, to be the attorney or attorneys or authorised signatory (any such person being an “Attorney” or “Authorised
Signatory”, respectively) of the Company for such purposes and with such powers, authorities and discretion (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to
such conditions as they may think fit, and any such power of attorney or other appointment may contain such provisions for the protection and convenience of Persons dealing with any such Attorney or Authorised Signatory as the Directors
may think fit, and may also authorise any such Attorney or Authorised Signatory to delegate all or any of the powers, authorities and discretion vested in him.
|
106. |
The Directors may from time to time provide for the management of the affairs of the Company in such manner as they shall think fit and the provisions contained in the three next
following Articles shall not limit the general powers conferred by this Article.
|
107. |
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 Person to
be a member of such committees or local boards and may appoint any managers or agents of the Company and may fix the remuneration of any such Person.
|
108. |
The Directors from time to time and at any time may delegate to any such committee, local board, manager or agent any of the powers, authorities and discretions for the time being
vested in the Directors and may authorise the members for the time being of any such local board, or any of them to fill any vacancies therein and to act notwithstanding vacancies and any such appointment or delegation may be made on
such terms and subject to such conditions as the Directors may think fit and the Directors may at any time remove any 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.
|
109. |
Any such delegates as aforesaid may be authorised by the Directors to sub-delegate all or any of the powers, authorities, and discretion for the time being vested in them.
|
110. |
The Directors may agree with a Shareholder to waive or modify the terms applicable to such Shareholder’s subscription for Shares without obtaining the consent of any other
Shareholder; provided that such waiver or modification does not amount to a variation or abrogation of the rights attaching to the Shares of such other Shareholders.
|
111. |
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, or to
otherwise provide for a security interest to be taken in such undertaking, property or uncalled capital, and 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.
|
112. |
The Seal shall not be affixed to any instrument except by the authority of a resolution of the Directors provided always that such authority may be given prior to or after the
affixing of the Seal and if given after may be in general form confirming a number of affixings of the Seal. The Seal shall be affixed in the presence of a Director or a Secretary (or an assistant Secretary) or in the presence of any
one or more Persons as the Directors may appoint for the purpose and every Person as aforesaid shall sign every instrument to which the Seal is so affixed in their presence.
|
113. |
The Company may maintain a facsimile of the Seal in such countries or places as the Directors may appoint and such facsimile Seal shall not be affixed to any instrument except by
the authority of a resolution of the Directors provided always that such authority may be given prior to or after the affixing of such facsimile Seal and if given after may be in general form confirming a number of affixings of such
facsimile Seal. The facsimile Seal shall be affixed in the presence of such Person or Persons as the Directors shall for this purpose appoint and such Person or Persons as aforesaid shall sign every instrument to which the facsimile
Seal is so affixed in their presence and such affixing of the facsimile Seal and signing as aforesaid shall have the same meaning and effect as if the Seal had been affixed in the presence of and the instrument signed by a Director or a
Secretary (or an assistant Secretary) or in the presence of any one or more Persons as the Directors may appoint for the purpose.
|
114. |
Notwithstanding the foregoing, a Secretary or any assistant Secretary shall have the authority to affix the Seal, or the facsimile Seal, to any instrument for the purposes of
attesting authenticity of the matter contained therein but which does not create any obligation binding on the Company.
|
115. |
The office of Director shall be vacated, if the Director:
|
(a) |
becomes bankrupt or makes any arrangement or composition with his creditors;
|
(b) |
dies or is found to be or becomes of unsound mind;
|
(c) |
resigns his office by notice in writing to the Company;
|
(d) |
is removed from office by Ordinary Resolution; or
|
(e) |
is removed from office pursuant to any other provision of these Articles.
|
116. |
The Directors may meet together (either 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 shall be decided by a majority of votes. In case of an equality of votes the chairman shall have a second or casting vote. A Director may, and a Secretary or assistant Secretary on the
requisition of a Director shall, at any time summon a meeting of the Directors.
|
117. |
A Director may participate in any meeting of the Directors, or of any committee appointed by the Directors of which such Director is a member, by means of telephone or similar
communication equipment by way of which all Persons participating in such meeting can communicate with each other and such participation shall be deemed to constitute presence in person at the meeting.
|
118. |
The quorum necessary for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed, if there be two or more Directors the quorum shall be
two, and if there be one Director the quorum shall be one. A Director represented by an alternate Director at any meeting shall be deemed to be present for the purposes of determining whether or not a quorum is present.
|
119. |
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 to be regarded as interested in any contract or other arrangement 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.
|
120. |
A Director may hold any other office or place of profit under the Company (other than the office of auditor) in conjunction with his office of Director for such period and on such
terms (as to remuneration and otherwise) as the Directors may determine and no Director or intending Director shall be disqualified by his office from contracting with the Company either with regard to his tenure of any such other
office or place of profit or as vendor, purchaser or otherwise, nor shall any such contract or arrangement entered into by or on behalf of the Company in which any Director is in any way interested, be liable to be avoided, nor shall
any Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relation thereby
established. A Director, notwithstanding his interest, may be counted in the quorum present at any meeting of the Directors whereat he or any other Director is appointed to hold any such office or place of profit under the Company or
whereat the terms of any such appointment are arranged and he may vote on any such appointment or arrangement.
|
121. |
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.
|
122. |
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.
|
123. |
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.
|
124. |
A resolution in writing signed by all the Directors or all the members of a committee of Directors entitled to receive notice of a meeting of Directors or committee of Directors,
as the case may be (an alternate Director, subject as provided otherwise in the terms of appointment of the alternate Director, being entitled to sign such a resolution on behalf of his appointer), shall be as valid and effectual as if
it had been passed at a duly called and constituted meeting of Directors or committee of Directors, as the case may be. When signed a resolution may consist of several documents each signed by one or more of the Directors or his duly
appointed alternate.
|
125. |
The continuing Directors may act notwithstanding any vacancy in their body but if and for so long as their number is reduced below the number fixed by or pursuant to these
Articles as the necessary quorum of Directors, the continuing Directors may act for the purpose of increasing the number, or of summoning a general meeting of the Company, but for no other purpose.
|
126. |
The Directors may elect a chairman of their meetings and determine the period for which he is to hold office but if no such chairman is elected, or if at any meeting the chairman
is not present within fifteen minutes after the time appointed for holding the meeting, the Directors present may choose one of their number to be chairman of the meeting.
|
127. |
Subject to any regulations imposed on it by the Directors, a committee appointed by the Directors may elect a chairman of its meetings. If no such chairman is elected, or if at
any meeting the chairman is not present within fifteen minutes after the time appointed for holding the meeting, the committee members present may choose one of their number to be chairman of the meeting.
|
128. |
A committee appointed by the Directors may meet and adjourn as it thinks proper. Subject to any regulations imposed on it by the Directors, questions arising at any meeting shall
be determined by a majority of votes of the committee members present and in case of an equality of votes the chairman shall have a second or casting vote.
|
129. |
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.
|
130. |
Subject to any rights and restrictions for the time being attached to any Shares, or as otherwise provided for in the Companies Law 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.
|
131. |
Subject to any rights and restrictions for the time being attached to any Shares, the Company by Ordinary Resolution may declare dividends, but no dividend shall exceed the amount
recommended by the Directors.
|
132. |
The Directors may determine, before recommending or declaring any dividend, to set aside out of the funds legally available for distribution such sums as they think proper as a
reserve or reserves which shall be applicable for meeting contingencies, or for equalising dividends or for any other purpose to which those funds may be properly applied and pending such application may, at the determination of the
Directors, either be employed in the business of the Company or be invested in such investments as the Directors may from time to time think fit.
|
133. |
Any dividend may be paid in any manner as the Directors may determine. If paid by cheque it will be sent through the post to the registered address of the Shareholder 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 Shareholder 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 Shareholder or Person entitled, or such joint holders as the case may be, may direct.
|
134. |
The Directors when paying dividends to the Shareholders in accordance with the foregoing provisions of these Articles may make such payment either in cash or in specie and may
determine the extent to which amounts may be withheld therefrom (including, without limitation, any taxes, fees, expenses or other liabilities for which a Shareholder (or the Company, as a result of any action or inaction of the
Shareholder) is liable).
|
135. |
Subject to any rights and restrictions for the time being attached to any Shares, all dividends shall be declared and paid according to the amounts paid up on the Shares, but if
and for so long as nothing is paid up on any of the Shares dividends may be declared and paid according to the par value of the Shares.
|
136. |
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.
|
137. |
No dividend shall bear interest against the Company.
|
138. |
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.
|
139. |
The books of account shall be kept at the Office, or at such other place or places as the Directors think fit, and shall always be open to the inspection of the Directors.
|
140. |
The Directors may from time to time determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the
Company or any of them shall be open to the inspection of Shareholders not being Directors, and no Shareholder (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred
by law or authorised by the Directors or by Ordinary Resolution.
|
141. |
The accounts relating to the Company’s affairs shall only be audited if the Directors so determine, in which case the financial year end and the accounting principles will be
determined by the Directors.
|
142. |
Without prejudice to the freedom of the Directors to establish any other committee, if the Shares are listed or quoted on the Designated Stock Exchange, and if required by the
Designated Stock Exchange, the Directors shall establish and maintain an audit committee (the “Audit Committee”) as a committee of the board of Directors and shall adopt a formal written audit
committee charter and review and assess the adequacy of the formal written charter on an annual basis. The composition and responsibilities of the Audit Committee shall comply with the rules and regulations of the SEC and the Designated
Stock Exchange. The Audit Committee shall meet at least once every financial quarter, or more frequently as circumstances dictate.
|
143. |
The Directors in each year shall prepare, or cause to be prepared, an annual return and declaration setting forth the particulars required by the Companies Law and deliver a copy
thereof to the Registrar of Companies in the Cayman Islands.
|
144. |
Subject to the Companies Law and these Articles, the Directors may:
|
(a) |
resolve to capitalise an amount standing to the credit of reserves (including a Share Premium Account, capital redemption reserve and profit and loss account), whether or not
available for distribution;
|
(b) |
appropriate the sum resolved to be capitalised to the Shareholders in proportion to the nominal amount of Shares (whether or not fully paid) held by them respectively and apply
that sum on their behalf in or towards:
|
(i) |
paying up the amounts (if any) for the time being unpaid on Shares held by them respectively, or
|
(ii) |
paying up in full unissued Shares or debentures of a nominal amount equal to that sum, and allot the Shares or debentures, credited as fully paid, to the Shareholders (or as they
may direct) in those proportions, or partly in one way and partly in the other, but the Share Premium Account, the capital redemption reserve and profits which are not available for distribution may, for the purposes of this Article,
only be applied in paying up unissued Shares to be allotted to Shareholders credited as fully paid;
|
(c) |
make any arrangements they think fit to resolve a difficulty arising in the distribution of a capitalised reserve and in particular, without limitation, where Shares or debentures
become distributable in fractions the Directors may deal with the fractions as they think fit;
|
(d) |
authorise a Person to enter (on behalf of all the Shareholders concerned) into an agreement with the Company providing for either:
|
(i) |
the allotment to the Shareholders respectively, credited as fully paid, of Shares or debentures to which they may be entitled on the capitalisation, or
|
(ii) |
the payment by the Company on behalf of the Shareholders (by the application of their respective proportions of the reserves resolved to be capitalised) of the amounts or part of
the amounts remaining unpaid on their existing Shares, and any such agreement made under this authority being effective and binding on all those Shareholders; and
|
(e) |
generally do all acts and things required to give effect to any of the actions contemplated by this Article.
|
145. |
The Directors shall in accordance with the Companies Law establish a Share Premium Account and shall carry to the credit of such account from time to time a sum equal to the
amount or value of the premium paid on the issue of any Share.
|
146. |
There shall be debited to any Share Premium Account on the redemption or purchase of a Share the difference between the nominal value of such Share and the redemption or purchase
price provided always that at the determination of the Directors such sum may be paid out of the profits of the Company or, if permitted by the Companies Law, out of capital.
|
147. |
Any notice or document may be served by the Company or by the Person entitled to give notice to any Shareholder either personally, or by posting it airmail or air courier service
in a prepaid letter addressed to such Shareholder at his address as appearing in the Register, or by electronic mail to any electronic mail address such Shareholder may have specified in writing for the purpose of such service of
notices, or by facsimile should the Directors deem it appropriate. In the case of joint holders of a Share, all notices shall be given to that one of the joint holders whose name stands first in the Register in respect of the joint
holding, and notice so given shall be sufficient notice to all the joint holders.
|
148. |
Any Shareholder present, either personally or by proxy, at any meeting of the Company shall for all purposes be deemed to have received due notice of such meeting and, where
requisite, of the purposes for which such meeting was convened.
|
149. |
Any notice or other document, if served by:
|
(a) |
post, shall be deemed to have been served five clear days after the time when the letter containing the same is posted;
|
(b) |
facsimile, shall be deemed to have been served upon production by the transmitting facsimile machine of a report confirming transmission of the facsimile in full to the facsimile
number of the recipient;
|
(c) |
recognised courier service, shall be deemed to have been served 48 hours after the time when the letter containing the same is delivered to the courier service; or
|
(d) |
electronic mail, shall be deemed to have been served immediately upon the time of the transmission by electronic mail.
|
150. |
Any notice or document delivered or sent in accordance with the terms of these Articles shall notwithstanding that such Shareholder be then dead or bankrupt, and whether or not
the Company has notice of his death or bankruptcy, be deemed to have been duly served in respect of any Share registered in the name of such Shareholder as sole or joint holder, unless his name shall at the time of the service of the
notice or document, have been removed from the Register as the holder of the Share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all Persons interested (whether jointly with or as
claiming through or under him) in the Share.
|
151. |
Notice of every general meeting of the Company shall be given to:
|
(a) |
all Shareholders holding Shares with the right to receive notice and who have supplied to the Company an address for the giving of notices to them; and
|
(b) |
every Person entitled to a Share in consequence of the death or bankruptcy of a Shareholder, who but for his death or bankruptcy would be entitled to receive notice of the
meeting.
|
152. |
Every Director (including for the purposes of this Article any alternate Director appointed pursuant to the provisions of these Articles), Secretary, assistant Secretary, or other
Officer (but not including the Company’s auditors) and the personal representatives of the same (each an “Indemnified Person”) 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 such Indemnified Person, other than by reason of such Indemnified Person’s own actual fraud, wilful
default or wilful neglect as determined by a court of competent jurisdiction, in or about the conduct of the Company’s business or affairs (including as a result of any mistake of judgment) or in the execution or discharge of his
duties, powers, authorities or discretions, including without prejudice to the generality of the foregoing, any costs, expenses, losses or liabilities incurred by such Indemnified Person in defending (whether successfully or otherwise)
any civil proceedings concerning the Company or its affairs in any court whether in the Cayman Islands or elsewhere.
|
153. |
No Indemnified Person shall be liable:
|
(a) |
for the acts, receipts, neglects, defaults or omissions of any other Director or Officer or agent of the Company; or
|
(b) |
for any loss on account of defect of title to any property of the Company; or
|
(c) |
on account of the insufficiency of any security in or upon which any money of the Company shall be invested; or
|
(d) |
for any loss incurred through any bank, broker or other similar Person; or
|
(e) |
for any loss occasioned by any negligence, default, breach of duty, breach of trust, error of judgement or oversight on such Indemnified Person’s part; or
|
(f) |
for any loss, damage or misfortune whatsoever which may happen in or arise from the execution or discharge of the duties, powers, authorities, or discretions of such Indemnified
Person’s office or in relation thereto; unless the same shall happen through such Indemnified Person’s own actual fraud, wilful default or wilful neglect as determined by a court of competent jurisdiction.
|
154. |
Subject to the proviso hereto, no Person shall be recognised by the Company as holding any Share upon any trust and the Company shall not, unless required by law, be bound by or
be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or partial interest in any Share or (except only as otherwise provided by these Articles or as the Companies Law requires) any
other right in respect of any Share except an absolute right to the entirety thereof in each Shareholder registered in the Register, provided that, notwithstanding the foregoing, the Company shall be entitled to recognise any such
interests as shall be determined by the Directors.
|
155. |
Notwithstanding any other provision of the Articles, the Articles under this heading “Business Combination Requirements” shall apply during the period commencing upon the adoption
of the Articles and terminating upon the first to occur of the consummation of any Business Combination and the distribution of the Trust Fund pursuant to Article 163. In the event of a conflict between the Articles under this heading
“Business Combination Requirements” and any other Articles, the provisions of the Articles under this heading “Business Combination Requirements” shall prevail.
|
156. |
Prior to the consummation of any Business Combination, the Company shall either:
|
(a) |
submit such Business Combination to its Members for approval provided that the Members will be granted an opportunity to redeem their Shares pursuant to Article 161 below; or
|
(b) |
provide Members with the opportunity to have their Shares repurchased by means of a tender offer for a per-Share repurchase price payable in cash, equal to the aggregate amount
then on deposit in the Trust Fund, calculated as of two business days prior to the consummation of a Business Combination, representing (x) the proceeds held in the Trust Fund from the IPO and the sale of the private placement warrants
and (y) any interest income earned on the funds held in the Trust Fund (which interest shall be net of taxes payable) divided by the number of Public Shares then in issue,
|
157. |
Article 163(b) may not be amended prior to the consummation of a Business Combination without a Special Resolution, the approval threshold for which is unanimity (100%) of all
votes cast at a meeting of the Shareholders.
|
158. |
If the Company initiates any tender offer in accordance with Rule 13e-4 and Regulation 14E of the Exchange Act in connection with a Business Combination, it shall file tender
offer documents with the SEC prior to completing a Business Combination which contain substantially the same financial and other information about such Business Combination and the redemption rights as is required under Regulation 14A
of the Exchange Act.
|
159. |
If, alternatively, the Company holds a Member vote to approve a proposed Business Combination, the Company will conduct any compulsory redemption in conjunction with a proxy
solicitation pursuant to Regulation 14A of the Exchange Act and not pursuant to the tender offer rules and file proxy materials with the SEC.
|
160. |
At a general meeting called for the purposes of approving a Business Combination pursuant to these Articles, in the event that a majority of the Shares voted are voted for the
approval of a Business Combination, the Company shall be authorised to consummate a Business Combination.
|
161. |
Any Member holding Public Shares who is not a Founder, officer or Director may, contemporaneously with any vote on a Business Combination, elect to have their Public Shares
redeemed for cash (the “IPO Redemption”), provided that no such Member acting together with any affiliate of his or any other person with whom he is acting in concert or as a partnership,
syndicate, or other group for the purposes of acquiring, holding, or disposing of Shares may exercise this redemption right with respect to more than 20% of the Public Shares, and provided further that any holder that holds Public
Shares beneficially through a nominee must identify itself to the Company in connection with any redemption election in order to validly redeem such Public Shares. In connection with any vote held to approve a proposed Business
Combination, holders of Public Shares seeking to exercise their redemption rights will be required to either tender their certificates (if any) to the Company’s transfer agent or to deliver their shares to the transfer agent
electronically using The Depository Trust Company’s DWAC (Deposit/Withdrawal At Custodian) System, at the holder’s option, in each case up to two business days prior to the initially scheduled vote on the proposal to approve a Business
Combination. If so demanded, the Company shall pay any such redeeming Member, regardless of whether he is voting for or against such proposed Business Combination, a per-Share redemption price payable in cash, equal to the aggregate
amount then on deposit in the Trust Fund calculated as of two business days prior to the consummation of a Business Combination, representing (x) the proceeds held in the Trust Fund from the IPO and the sale of the private placement
warrants and (y) any interest income earned on the funds held in the Trust Fund (which interest shall be net of taxes payable), divided by the number of Public Shares then in issue (such redemption price being referred to herein as the
“Redemption Price”).
|
162. |
The Redemption Price shall be paid promptly following the consummation of the relevant Business Combination. If the proposed Business Combination is not approved or completed for
any reason then such redemptions shall be cancelled and share certificates (if any) returned to the relevant Members as appropriate.
|
163. |
In the event that:
|
(a) |
either the Company does not consummate a Business Combination by eighteen months after the closing of the IPO, or such later time as the Members of the Company may approve in
accordance with the Articles or a resolution of the Company’s Members is passed pursuant to the Companies Law (2018 Revision) to commence the voluntary liquidation of the Company prior to the
consummation of a Business Combination for any reason, the Company shall: (i) cease all operations except for the purpose of winding up; (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem the
Public Shares, at a per-Share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Fund, including interest earned on the Trust Fund (less up to $100,000 of interest to pay dissolution expenses and net of
taxes payable), divided by the number of Public Shares then in issue, which redemption will completely extinguish public Members’ rights as Members (including the right to receive further liquidation distributions, if any); and (iii) as
promptly as reasonably possible following such redemption, subject to the approval of the Company’s remaining Members and the Directors, liquidate and dissolve, subject in the case of sub-articles (ii) and (iii), to its obligations
under Cayman Islands law to provide for claims of creditors and in all cases subject to the other requirements of applicable law; and
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(b) |
any amendment is made to Article 163(a) that would affect the substance or timing of the Company’s obligation to redeem 100% of the Public Shares if the Company has not
consummated an initial Business Combination within eighteen months after the date of the closing of the IPO, or any amendment is made with respect to any other provisions of these Articles relating to the rights of holders of Class A
Shares, each holder of Public Shares who is not a Founder, officer or Director shall be provided with the opportunity to redeem their Public Shares upon the approval of any such amendment at a per-Share price, payable in cash, equal to
the aggregate amount then on deposit in the Trust Fund, including interest earned on the Trust Fund (less up to $100,000 of interest to pay dissolution expenses and net of taxes payable), divided by the number of Public Shares then in
issue.
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164. |
Except for the withdrawal of interest to pay income taxes, if any, none of the funds held in the Trust Fund shall be released from the Trust Fund until the earlier of an IPO
Redemption pursuant to Article 161, a repurchase of Shares by means of a tender offer pursuant to Article 156(b), a distribution of the Trust Fund pursuant to Article 163(a) or an amendment under Article 163(b). In no other circumstance
shall a holder of Public Shares have any right or interest of any kind in the Trust Fund.
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165. |
After the issue of Public Shares, and prior to the consummation of a Business Combination, the Directors shall not issue additional Shares or any other securities that would
entitle the holders thereof to: (a) receive funds from Trust Fund; or (b) vote on any Business Combination.
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166. |
The Company must complete one or more Business Combinations having an aggregate fair market value of at least 80% of the net assets held in the Trust Fund (net of amounts
previously disbursed to the Company’s management for working capital purposes and excluding the amount of deferred underwriting discounts held in the Trust Fund) at the time of the Company’s signing a definitive agreement in connection
with a Business Combination. An initial Business Combination must not be effectuated with another blank check company or a similar company with nominal operations.
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167. |
Any payment made to members of the Audit Committee (if one exists) shall require the review and approval of the Directors, with any Director interested in such payment abstaining
from such review and approval.
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168. |
A Director may vote in respect of any Business Combination in which such Director has a conflict of interest with respect to the evaluation of such Business Combination. Such
Director must disclose such interest or conflict to the other Directors.
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169. |
The Audit Committee shall monitor compliance with the terms of the IPO and, if any non‑compliance is identified, the Audit Committee shall be charged with the responsibility to
take all action necessary to rectify such non-compliance or otherwise cause compliance with the terms of the IPO.
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170. |
The Company may enter into a Business Combination with a target business that is affiliated with the Sponsor, the Directors or officers of the Company if such transaction were
approved by a majority of the independent directors (as defined pursuant to the rules and regulations of the Designated Stock Exchange) and the Company has obtained an opinion from an independent investment banking firm which is a
member of FINRA or an independent accounting firm that such a Business Combination is fair to the Company from a financial point of view.
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171. |
In recognition and anticipation of the facts that: (a) directors, managers, officers, members, partners, managing members, employees and/or agents of one or more members of the
Investor Group (each of the foregoing, an “Investor Group Related Person”) may serve as Directors and/or officers of the Company; and (b) the Investor Group engages, and may continue to engage
in the same or similar activities or related lines of business as those in which the Company, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Company, directly
or indirectly, may engage, the provisions of Articles 172 to 176 are set forth to regulate and define the conduct of certain affairs of the Company as they may involve the Members and the Investor Group Related Persons, and the
powers, rights, duties and liabilities of the Company and its officers, Directors and Members in connection therewith.
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172. |
To the fullest extent permitted by applicable law, the Investor Group and the Investor Group Related Persons shall have no duty, except and to the extent expressly assumed by
contract, to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Company.
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173. |
To the fullest extent permitted by applicable law, the Company shall have no interest or expectancy of the Company in, or in being offered an opportunity to participate in, any
potential transaction or matter which may be a corporate opportunity for either the Investor Group or the Investor Group Related Persons, on the one hand, and the Company, on the other.
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174. |
Except to the extent expressly assumed by contract, to the fullest extent permitted by applicable law, the Investor Group and the Investor Group Related Persons shall have no
duty to communicate or offer any such corporate opportunity to the Company and shall not be liable to the Company or its Members for breach of any fiduciary duty as a Member, Director and/or officer of the Company solely by reason of
the fact that such party pursues or acquires such corporate opportunity for itself, himself or herself, directs such corporate opportunity to another person, or does not communicate information regarding such corporate opportunity to
the Company, unless such opportunity is expressly offered to such Investor Group Related Person in their capacity as an Officer or Director of the Company and the opportunity is one the Company is permitted to complete on a reasonable
basis.
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175. |
Except as provided elsewhere in the Articles, the Company shall have no interest or expectancy of the Company in, or in being offered an opportunity to participate in, any
potential transaction or matter which may be a corporate opportunity for both the Company and the Investor Group, about which a Director and/or officer of the Company who is also an Investor Group Related Person acquires knowledge.
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176. |
The Company shall, to the fullest extent permitted by applicable law, waive any and all claims and causes of action that the Company may have for such activities described in
Articles 172 to 175 above. To the fullest extent permitted by Applicable Law, the provisions of Articles 172 to 175 apply equally to activities conducted in the future and that have been conducted in the past.
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177. |
If the Company shall be wound up the liquidator shall apply the assets of the Company in such manner and order as he thinks fit in satisfaction of creditors’ claims.
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178. |
If the Company shall be wound up, the liquidator may, with the sanction of an Ordinary Resolution divide amongst the Shareholders 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 Shareholders or different Classes. 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 Shareholders as the liquidator, with
the like sanction shall think fit, but so that no Shareholder shall be compelled to accept any assets whereon there is any liability.
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179. |
Subject to the Companies Law and the rights attaching to the various Classes, the Company may at any time and from time to time by Special Resolution alter or amend these Articles
in whole or in part.
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180. |
For the purpose of determining those Shareholders that are entitled to receive notice of, attend or vote at any meeting of Shareholders or any adjournment thereof, or those
Shareholders that are entitled to receive payment of any dividend, or in order to make a determination as to who is a Shareholder for any other purpose, the Directors may, by any means in accordance with the requirements of any
Designated Stock Exchange, provide that the Register shall be closed for transfers for a stated period which shall not exceed in any case 40 days. If the Register shall be so closed for the purpose of determining those Shareholders that
are entitled to receive notice of, attend or vote at a meeting of Shareholders the Register shall be so closed for at least ten days immediately preceding such meeting and the record date for such determination shall be the date of the
closure of the Register.
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181. |
In lieu of or apart from closing the Register, the Directors may fix in advance a date as the record date for any such determination of those Shareholders that are entitled to
receive notice of, attend or vote at a meeting of the Shareholders and for the purpose of determining those Shareholders that are entitled to receive payment of any dividend the Directors may, at or within 90 days prior to the date of
declaration of such dividend, fix a subsequent date as the record date for such determination.
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182. |
If the Register is not so closed and no record date is fixed for the determination of those Shareholders entitled to receive notice of, attend or vote at a meeting of Shareholders
or those Shareholders that are entitled to receive payment of a dividend, the date on which 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 Shareholders. When a determination of those Shareholders that are entitled to receive notice of, attend or vote at a meeting of Shareholders has been made as provided in this Article,
such determination shall apply to any adjournment thereof.
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183. |
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.
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184. |
The Company may merge or consolidate in accordance with the Companies Law.
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185. |
To the extent required by the Companies Law, the Company may by Special Resolution resolve to merge or consolidate the Company.
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186. |
The Directors, or any authorised service providers (including the Officers, the Secretary and the registered office agent of the Company), shall be entitled to disclose to any
regulatory or judicial authority, or to any stock exchange on which the Shares may from time to time be listed, any information regarding the affairs of the Company including, without limitation, information contained in the Register
and books of the Company.
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ROPES & GRAY LLP
PRUDENTIAL TOWER
800 BOYLSTON STREET
BOSTON, MA 02199-3600
WWW.ROPESGRAY.COM
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July 9, 2019
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SC Health Corporation
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-2-
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SC Health Corporation
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-3-
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Very truly yours, |
/s/ Ropes & Gray LLP | |
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Ropes & Gray LLP |
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9 July 2019
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Our Ref: JT/S5663-S08561 |
1.
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The Company is an exempted company duly incorporated with limited liability, validly existing under the laws of the Cayman Islands and is in good standing with the Registrar of Companies in the Cayman
Islands.
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WALKERS
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Page 2
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2.
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The authorised share capital of the Company is currently USD20,100 divided into 180,000,000 Class A Ordinary Shares of a nominal or par value of USD0.0001 each,
25,000,000 Class B Ordinary Shares of a nominal or par value of USD0.00008 each and 1,000,000 Preference Shares of a nominal or par value of USD0.0001 each
and there will be no change to the authorised share capital upon the commencement of the trading of the Company’s Units on the New York Stock Exchange.
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3.
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The issue and allotment of the Class A Shares comprising the Units pursuant to the Registration Statement has been duly authorised. When allotted, issued and fully paid for as contemplated in the
Registration Statement and when appropriate entries have been made in the Register of Members of the Company, the Class A Shares to be issued by the Company will be validly issued, allotted, fully paid and non-assessable, and there will
be no further obligation on the holder of any of the Ordinary Shares to make any further payment to the Company in respect of such Ordinary Shares.
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4.
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The execution, delivery and performance of the Warrant Documents (as defined in Schedule 1) have been authorised by and on behalf of the Company and, once the
Warrant Documents have been executed and unconditionally delivered by the Company will constitute the legal, valid and binding obligations of the Company enforceable in accordance with their terms.
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5.
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The statements under the caption “Cayman Islands Taxation” in the prospectus forming part of the Registration Statement, to the extent that they constitute statements of Cayman Islands law, are accurate in
all material respects. Such statements constitute our opinion.
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WALKERS
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Page 3
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1.
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The Certificate of Incorporation dated 10 December 2018, the Amended and Restated Memorandum and Articles of Association, filed as Exhibit 3.2 to the Registration Statement, to be in effect upon the
consummation of the sale of the Class A Shares (the “Memorandum and Articles”), the Register of Members and Register of Directors of the Company, copies of which have been provided to us by its
registered office in the Cayman Islands (together the “Company Records”).
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2.
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A Certificate of Good Standing dated 8 July 2019 in respect of the Company issued by the Registrar of Companies in the Cayman Islands (the “Certificate of Good Standing”).
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3.
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A copy of executed written resolutions of the Board of Directors of the Company dated 8 July 2019 (the “Resolutions”).
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4.
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The Registration Statement.
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5.
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A draft of the form of the warrant agreement and the warrant certificate constituting the Warrants (the “Warrant Documents”).
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WALKERS
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Page 4
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1.
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The originals of all documents examined in connection with this opinion are authentic. The signatures, initials and seals on the Warrant Documents are genuine and
are those of a person or persons given power to execute the Documents under the Resolutions. All documents purporting to be sealed have been so sealed. All copies are complete and conform to their originals.
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2.
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The Memorandum and Articles of Association reviewed by us are the Memorandum and Articles of Association that will be in effect on the issue and sale of the Units.
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3.
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The Company Records are complete and accurate and all matters required by law and the Memorandum and Articles to be recorded therein are completely and accurately so recorded.
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4.
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Each of the Registration Statement and the Warrant Documents will be duly authorised, executed and delivered by or on behalf of all relevant parties prior to the
issue and sale of the Units and will be legal, valid, binding and enforceable against all relevant parties in accordance with their terms under the laws of the State of New York and all other relevant laws (other than the laws of the
Cayman Islands).
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5.
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The conversion of any shares in the capital of the Company will be effected via legally available means under Cayman law.
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WALKERS
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Page 5
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1.
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The term “enforceable” and its cognates as used in this opinion means that the obligations assumed by any party under the Document are of a type which the Courts
enforce. This does not mean that those obligations will necessarily be enforced in all circumstances in accordance with its terms. In particular:
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(a)
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enforcement of obligations and the priority of obligations may be limited by bankruptcy, insolvency, liquidation, reorganisation, readjustment of debts or moratorium and other laws of general application
relating to or affecting the rights of creditors or by prescription or lapse of time;
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(b)
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enforcement may be limited by general principles of equity and, in particular, the availability of certain equitable remedies such as injunction or specific performance of an obligation may be limited where
a Court considers damages to be an adequate remedy;
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(c)
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claims may become barred under statutes of limitation or may be or become subject to defences of set-off, counterclaim, estoppel and similar defences;
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(d)
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where obligations are to be performed in a jurisdiction outside the Cayman Islands, they may not be enforceable in the Cayman Islands to the extent that performance would be illegal under the laws of, or
contrary to the public policy of, that jurisdiction;
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(e)
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a judgment of a Court may be required to be made in Cayman Islands dollars;
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(f)
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to the extent that any provision of the Document is adjudicated to be penal in nature, it will not be enforceable in the Courts; in particular, the enforceability of any provision of the Document that is
adjudicated to constitute a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation may be limited;
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(g)
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to the extent that the performance of any obligation arising under the Document would be fraudulent or contrary to public policy, it will not be enforceable in the Courts;
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(h)
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in the case of an insolvent liquidation of the Company, its liabilities are required to be translated into the functional currency of the Company (being the currency of the primary economic environment in
which it operated as at the commencement of the liquidation) at the exchange rates prevailing on the date of commencement of the voluntary liquidation or the day on which the winding up order is made (as the case may be);
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(i)
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a Court will not necessarily award costs in litigation in accordance with contractual provisions in this regard;
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WALKERS
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Page 6
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(j)
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the effectiveness of terms in the Document excusing any party from a liability or duty otherwise owed or indemnifying that party from the consequences of incurring such liability or breaching such duty
shall be construed in accordance with, and shall be limited by, applicable law, including generally applicable rules and principles of common law and equity.
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2.
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Our opinion as to good standing is based solely upon receipt of the Certificate of Good Standing issued by the Registrar. The Company shall be deemed to be in good standing under section 200A of the
Companies Law on the date of issue of the certificate if all fees and penalties under the Companies Law have been paid and the Registrar has no knowledge that the Company is in default under the Companies Law.
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