UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 20-F
(Mark One)
☐ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR 12(g) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☐ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
OR
☒ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of event requiring this shell company report: April 2, 2024
Commission File Number: 001-40613
DigiAsia Corp.
(Exact name of Registrant as specified in its charter)
| Not applicable | Cayman Islands | |
| (Translation of Registrant’s name into English) | (Jurisdiction of incorporation or organization) |
One Raffles Place #28-02
Singapore 048616
(Address of principal executive offices)
Prashant Gokarn
One Raffles Place #28-02
Singapore 048616
(Name, Telephone, Email and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) |
Name of each exchange on which registered | ||
| Ordinary Shares, par value $0.0001 per share | FAAS | The Nasdaq Stock Market LLC | ||
| Warrants, each exercisable for one Ordinary Share at an exercise price of $11.50 per share | FAASW | The Nasdaq Stock Market LLC |
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the shell company report:
As of April 8, 2024, the registrant has 10,691,837 ordinary shares and 17,999,990 warrants to purchase ordinary shares outstanding.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ☐ No ☐
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See definition of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | Non-accelerated filer | ☒ |
| Emerging growth company | ☒ |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 13(a) of the Exchange Act. ☐
| † | The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012. |
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting over Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
If securities are registered pursuant to Section 12(b) of the Act, indicate by check mark whether the financial statements of the registrant included in the filing reflect the correction of an error to previously issued financial statements. ☐
Indicate by check mark whether any of those error corrections are restatements that required a recovery analysis of incentive- based compensation received by any of the registrant’s executive officers during the relevant recovery period pursuant to §240.10D-1(b). ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
| U.S. GAAP ☒ | International Financial Reporting Standards as issued by the International Accounting Standards Board ☐ | Other ☐ |
If “Other” has been checked in response to the previous question indicate by check mark which financial statement item the registrant has elected to follow. Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☐
(APPLICABLE ONLY TO ISSUERS INVOLVED IN BANKRUPTCY PROCEEDINGS DURING THE PAST FIVE YEARS)
Indicate by check mark whether the registrant has filed all documents and reports required to be filed by Sections 12, 13 or 15(d) of the Securities Exchange Act of 1934 subsequent to the distribution of securities under a plan confirmed by a court. Yes ☐ No ☐
TABLE OF CONTENTS
i
On April 2, 2024 (the “Closing Date”), DigiAsia Corp. (formerly known as StoneBridge Acquisition Corporation), an exempted company incorporated with limited liability under the laws of the Cayman Islands (“New DigiAsia” or the “Company”), consummated the previously announced business combination pursuant to the Business Combination Agreement, dated as of January 5, 2023 (as amended on June 22, 2023 by the First Amendment to Business Combination Agreement, on December 28, 2023 by the Second Amendment to Business Combination Agreement, on April 2, 2024 by Third Amendment to Business Combination Agreement, and as may be further amended, supplemented, or otherwise modified from time to time, the “Business Combination Agreement”), by and among StoneBridge Acquisition Corporation (“StoneBridge”), StoneBridge Acquisition Pte. Ltd., a Singapore private company limited by shares and a direct, wholly owned subsidiary of StoneBridge (“Amalgamation Sub”), DigiAsia Bios Pte. Ltd. (“DigiAsia”), a Singapore private company limited by shares, and Prashant Gokarn (as Management Representative.
Capitalized terms used herein but not otherwise defined have the meaning set forth in the Proxy Statement and Prospectus (the “Proxy Statement/Prospectus”), forming part of New DigiAsia’s Registration Statement on Form F-4, as amended (File No. 333-272915) (the “Form F-4”).
The Business Combination Agreement provided that the parties thereto would enter into a business combination transaction (the “Business Combination”) pursuant to which, among other things, Amalgamation Sub will merge with and into DigiAsia with DigiAsia surviving the Amalgamation as a wholly owned subsidiary of New DigiAsia.
In connection with the consummation of the Business Combination and by virtue of the Amalgamation: (i) immediately prior to the Sponsor Share Conversion, each then issued and outstanding preferred share of DigiAsia will convert into such number of ordinary shares of DigiAsia as shall be in accordance with the governing documents of DigiAsia; (ii) immediately prior to the Effective Time, in accordance with StoneBridge’s amended and restated memorandum and articles of association which are in effect immediately prior to the Effective Time, each Class B ordinary share, par value $0.0001 per share, of StoneBridge, will automatically convert, on a one-for-one basis, into one Class A ordinary share, par value $0.0001 per share, of StoneBridge; (iii) at the Effective Time, (a) DigiAsia and Amalgamation Sub will amalgamate in accordance with the Companies Act 1967 of Singapore, with DigiAsia surviving the Amalgamation as a wholly owned subsidiary of New DigiAsia, (b) each then issued and outstanding DigiAsia Ordinary Share will be cancelled and converted into the right to receive, such number of ordinary shares, par value $0.0001 per share of New DigiAsia equal to the applicable Per Share Amalgamation Consideration, and (c) each then outstanding and unexercised option to purchase DigiAsia Ordinary Shares (other than options to purchase DigiAsia Ordinary Shares held by Alexander Rusli or his controlled affiliates), whether or not then vested or exercisable, will be assumed by New DigiAsia and converted into an option to purchase such number of ordinary shares of New DigiAsia as determined in accordance with the Business Combination Agreement, and will otherwise be subject to substantially the same terms and conditions as applied to such option prior to the Effective Time; and (iv) certain members of the management of DigiAsia will be entitled to up to an aggregate of 5,000,001 Earnout Shares.
The Business Combination was consummated on April 2, 2024. The transaction was unanimously approved by the StoneBridge’s board of directors and was approved at the extraordinary general meeting of the StoneBridge shareholders held on December 19, 2023. As a result of the Business Combination, DigiAsia became a wholly owned subsidiary of New DigiAsia. On April 3, 2024, the Ordinary Shares and Warrants commenced trading on the Nasdaq Capital Markets, under the symbols “FAAS” and “FAASW,” respectively.
Except as otherwise indicated or required by context, references in this Shell Company Report on Form 20-F (including information incorporated by reference herein, the “Report”) to “we”, “us”, “our”, “the Company” or “New DigiAsia” refer to DigiAsia Corp. (formerly known as StoneBridge Acquisition Corporation), an exempted company incorporated with limited liability under the laws of the Cayman Islands, and its subsidiaries.
ii
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Report and the information incorporated by reference herein include certain “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended (or the “Exchange Act”). These forward-looking statements can generally be identified by the use of forward-looking terminology, including the terms “believes,” “estimates,” “anticipates,” “expects,” “seeks,” “projects,” “intends,” “plans,” “may,” “will” or “should” or, in each case, their negative or other variations or comparable terminology. These forward-looking statements include all matters that are not historical facts. They appear in a number of places throughout this Report and include statements regarding New DigiAsia’s and DigiAsia’s intentions, beliefs or current expectations concerning, among other things, the Business Combination, the benefits and synergies of the Business Combination, including anticipated cost savings, results of operations, financial condition, liquidity, prospects, growth, strategies, future market conditions or economic performance and developments in the capital and credit markets and expected future financial performance, the markets in which DigiAsia operates, as well as any information concerning possible or assumed future results of operations of New DigiAsia.
The forward-looking statements contained in this Report are based on New DigiAsia’s and DigiAsia’s current expectations and beliefs concerning future developments. There can be no assurance that future developments affecting New DigiAsia and/or DigiAsia will be those that New DigiAsia or DigiAsia has anticipated. Such forward-looking statements involve a number of risks, uncertainties (some of which are beyond either New DigiAsia’s or DigiAsia’s control) or other assumptions that may cause actual results or performance to be materially different from those expressed or implied by the forward-looking statements. Should one or more of these risks or uncertainties materialize, or should any of the assumptions prove incorrect, actual results may vary in material respects from those projected in forward-looking statements herein.
Many factors could cause actual results or performance to be materially different from those expressed or implied by the forward-looking statements in this Report, including without limitation: (i) the effect of the public listing of New DigiAsia’s securities on DigiAsia’s business relationships, performance, financial condition and business generally, (ii) risks that the Business Combination may disrupt current plans of DigiAsia or divert management’s attention from DigiAsia’s ongoing business operations, (iii) the outcome of any legal proceedings that may be instituted against DigiAsia, New DigiAsia or their respective directors or officers related to the Business Combination or otherwise, (iv) the ability of New DigiAsia to maintain the listing of its securities on the Nasdaq Capital Markets, (v) volatility in the price of New DigiAsia securities due to a variety of factors, including without limitation changes in the competitive and highly regulated industries in which DigiAsia plans to operate, variations in competitors’ performance and success and changes in laws and regulations affecting DigiAsia’s business, (vi) DigiAsia’s ability to implement business plans, forecasts, and other expectations, and identify opportunities, (vii) the risk of downturns in the highly competitive fintech as a service industry, (viii) the ability of DigiAsia to build the DigiAsia’s brand and consumers’ recognition, acceptance and adoption of the DigiAsia brand, (ix) the risk that DigiAsia may not be able to effectively manage its growth, including its design, research, development and maintenance capabilities, (x) technological changes and risks associated with doing business in an emerging market, (xi) risks relating to New DigiAsia’s dependence on and use of certain intellectual property and technology and (xii) other factors discussed under the section titled “Risk Factors” in the Proxy Statement/Prospectus, which section is incorporated herein by reference.
The foregoing list of risk factors is not exhaustive. Should one or more of these risks or uncertainties materialize, or should any of New DigiAsia’s assumptions prove incorrect, actual results may vary in material respects from those projected in the forward-looking statements herein. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this Report. New DigiAsia and DigiAsia undertake no obligation, except as required by law, to revise publicly any forward-looking statement to reflect circumstances or events after the date of this Report or to reflect the occurrence of unanticipated events. You should, however, review the factors and risks described in the reports we will file from time to time with the Securities and Exchange Commission (the “SEC”) after the date of this Report.
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ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
A. Directors and Senior Management
Information regarding the directors and executive officers of New DigiAsia after the completion of the Business Combination is included in Item 6.A, “Directors and Senior Management” below, and in the Proxy Statement/Prospectus under the section titled “Management of PubCo Following the Business Combination” and is incorporated herein by reference.
The business address for each of the directors and executive officers of New DigiAsia is One Raffles Place #28-02, Singapore 048616.
B. Advisers
Norton Rose Fulbright US LLP acted as counsel to DigiAsia with respect to U.S. Federal law. Winston & Strawn LLP will act as counsel to New DigiAsia with respect to U.S. Federal law upon and following the consummation of the Business Combination.
Rajah & Tann Singapore LLP acted as counsel for DigiAsia with respect to Singapore law. Conyers Dill & Pearman LLP will act as counsel to New DigiAsia with respect to Cayman Islands law following the completion of the Business Combination.
C. Auditors
Following the Business Combination, we retained BDO India LLP as New DigiAsia’s independent registered public accounting firm for the year ending December 31, 2023.
ITEM 2. OFFER STATISTICS AND EXPECTED TIMETABLE
Not applicable.
A. [Reserved]
1
B. Capitalization and Indebtedness
The following table sets forth the capitalization of New DigiAsia on an unaudited pro forma combined basis as of September 30, 2023 after giving effect to the Business Combination.
| As of September 30, 2023 | (US$) | |||
| Cash and cash equivalents | $ | 1,235,842 | ||
| Equity | $ | 12,842,875 | ||
| Debt: | ||||
| Loans and borrowings (current) | $ | 9,727,126 | ||
| Loans and borrowings (non-current) | $ | 480,705 | ||
| Total debt | $ | 10,207,831 | ||
| Total capitalization(1) | $ | 23,050,706 | ||
Note:
| (1) | Total capitalization is equal to the sum of total equity and total debt. |
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
The risk factors associated with New DigiAsia are described in the Proxy Statement/Prospectus under the section titled “Risk Factors”, which information is incorporated herein by reference.
ITEM 4. INFORMATION ON THE COMPANY
A. History and Development of the Company
DigiAsia Corp. (formerly known as StoneBridge Acquisition Corporation), the “Company” or “New DigiAsia”, is an exempted company limited by shares incorporated under the laws of the Cayman Islands on February 2, 2021. The history and development of the Company and the material terms of the Business Combination are described in the Form F-4 under the headings “Summary of the Proxy Statement/Prospectus,” “The Business Combination Proposal,” “The Business Combination Agreement,” “Related Agreements,” and “Description of PubCo Securities,” which are incorporated herein by reference. For further information, see also “Explanatory Note” above.
New DigiAsia is subject to certain of the informational filing requirements of the Exchange Act. Since New DigiAsia is a “foreign private issuer”, it is exempt from the rules and regulations under the Exchange Act prescribing the furnishing and content of proxy statements, and the officers, directors and principal shareholders of New DigiAsia are exempt from the reporting and “short-swing” profit recovery provisions contained in Section 16 of the Exchange Act with respect to their purchase and sale of New DigiAsia’s ordinary shares. In addition, New DigiAsia is not required to file reports and financial statements with the SEC as frequently or as promptly as U.S. domestic public companies whose securities are registered under the Exchange Act. However, New DigiAsia is required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. The SEC maintains a website at www.sec.gov where you may access reports and other information that New DigiAsia files with or furnishes electronically to the SEC.
New DigiAsia’s registered office is One World Trade Center, Suite 8500, New York, NY 10007, and its principal executive office is One Raffles Place #28-02, Singapore 048616. New DigiAsia’s website address is www.digiasia.asia. The information accessible on the website does not form a part of, and is not incorporated by reference in, this Report.
B. Business Overview
Prior to the Business Combination, the Company did not conduct any material activities other than those incidental to its formation and the matters contemplated by the Business Combination Agreement, such as the making of certain required securities law filings with the SEC. Following and as a result of the Business Combination, all of the Company’s business is conducted through DigiAsia and its subsidiaries. Information regarding DigiAsia’s business is included in the Proxy Statement/Prospectus under the sections titled “DigiAsia’s Business” and “DigiAsia’s Management’s Discussion and Analysis of Financial Condition and Results of Operations”, which are incorporated herein by reference.
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C. Organizational Structure
Upon the closing of the Business Combination, DigiAsia became a wholly owned subsidiary of New DigiAsia. The organizational chart of New DigiAsia is included in the Proxy Statement/Prospectus under the heading “DigiAsia’s Business – The Reorganization” and is incorporated herein by reference.
D. Property, Plants and Equipment
New DigiAsia’s property, plants and equipment are held through DigiAsia and its subsidiaries. Information regarding DigiAsia’s property, plants and equipment is included in the Proxy Statement/Prospectus under the section titled “DigiAsia’s Business —Facilities and Locations of Operations” and is incorporated herein by reference.
ITEM 4A. UNRESOLVED STAFF COMMENTS
None.
ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS
Following and as a result of the Business Combination, all of the Company’s business is conducted through DigiAsia and its subsidiaries. The discussion and analysis of the financial condition and results of operations of DigiAsia is included in the Proxy Statement/Prospectus under the section titled “DigiAsia’s Management’s Discussion and Analysis of Financial Condition and Results of Operations”, which is incorporated herein by reference.
ITEM 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
A. Directors and Senior Management
Information regarding the directors and executive officers of New DigiAsia after the closing of the Business Combination is included in the Proxy Statement/Prospectus under the section titled “Management of PubCo After the Business Combination” and is incorporated herein by reference.
B. Compensation
Information regarding the compensation of the directors and executive officers of New DigiAsia is included in the Proxy Statement/Prospectus under the section titled “Compensation of Directors and Executive Officers” and is incorporated herein by reference.
C. Board Practices
Information regarding New DigiAsia’s board practices is included in the Proxy Statement/Prospectus under the section titled “Management of PubCo After the Business Combination” and is incorporated herein by reference.
D. Employees
Information regarding the employees of DigiAsia is included in the Proxy Statement/Prospectus under the section titled “DigiAsia’s Business — Employees and Culture” and is incorporated herein by reference.
E. Share Ownership
Information regarding the ownership of Ordinary Shares by New DigiAsia’s directors and executive officers is set forth in Item 7.A of this Report.
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ITEM 7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
A. Major Shareholders
The following table sets forth information relating to the beneficial ownership of Ordinary Shares as of the Closing Date by:
| ● | each person, or group of affiliated persons, known by us to beneficially own more than 5% of outstanding Ordinary Shares; |
| ● | each of New DigiAsia’s directors; |
| ● | each of New DigiAsia’s named executive officers; and |
| ● | all of New DigiAsia’s directors and executive officers as a group. |
Beneficial ownership is determined in accordance with the rules of the SEC and includes voting or investment power with respect to, or the power to receive the economic benefit of ownership of, the securities. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, shares that the person has the right to acquire within 60 days are included, including shares underlying any option, warrant or other right or the conversion of any other security. However, these shares are not included in the computation of the percentage ownership of any other person.
The percentage of Ordinary Shares beneficially owned is computed on the basis of 60,691,837 Ordinary Shares issued and outstanding on April 5, 2024, after giving effect to the Business Combination and the receipt of all required letters of transmittal by shareholders of New DigiAsia.
| Beneficial Owners(1) | Number of New DigiAsia Ordinary Shares(14) | % of New DigiAsia Ordinary Shares(14) | ||||||
| 5% Holders | ||||||||
| StoneBridge Acquisition Sponsor LLC and BP SPAC Sponsor LLC(2) | 4,750,000 | 7.8 | % | |||||
| Pay Square Capital Pte. Ltd(9) | 3,227,766 | 5.3 | % | |||||
| Interchange Payment Group Holding Ltd.(10) | 10,218,729 | 16.8 | % | |||||
| Mastercard Asia Pacific Pte. Ltd.(11) | 5,331,511 | 8.8 | % | |||||
| Grand Mavericks Limited(12) | 4,503,683 | 7.4 | % | |||||
| Rajnish Gopinath(13) | 3,167,008 | 5.2 | % | |||||
| Beneficial Owners(1) | Number of New DigiAsia Ordinary Shares(14) | % of New DigiAsia Ordinary Shares(14) | ||||||
| Directors and Executive Officers | ||||||||
| Alexander Rusli(3) | 7,775,385 | 12.8 | % | |||||
| Prashant Gokarn(4) | 7,019,708 | 11.6 | % | |||||
| Subir Lohani(5) | 784,423 | 1.3 | % | |||||
| Bhargav Marepally(2) | 4,750,000 | 7.8 | % | |||||
| Prabhu Antony(2) | 4,750,000 | 7.8 | % | |||||
| Kenneth Sommer(6) | 30,000 | * | ||||||
| Andreas Gregori(7) | 30,000 | * | % | |||||
| Rudiantara(8) | 65,115 | * | % | |||||
| All New DigiAsia directors and executive officers as a group (8 individuals) | 25,204,631 | 41.5 | % | |||||
| * | Less than 1%. |
| (1) | Unless otherwise noted, the business address of each of the directors and officers prior to the Business Combination is One World Trade Center, Suite 8500, New York, New York 10007 and the business address of each of the directors and officers after the Business Combination is One Raffles Place #28-02, Singapore 048616. |
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| (2) | The number of shares prior to the Business Combination consists entirely of 5,000,000 StoneBridge Class B Ordinary Shares, each of which will convert into one StoneBridge Class A Ordinary Shares in connection with the Business Combination pursuant to the Sponsor Share Conversion, and then into one PubCo Ordinary Share at the Effective Time. The shares are held by StoneBridge Acquisition Sponsor LLC (referred to elsewhere in this proxy statement/prospectus as the “Sponsor”). Pursuant to a director founder share assignment agreement dated as of June 1, 2023, between the Sponsor and each of the five non-employee members of the board of directors of StoneBridge (being Sylvia Barnes, Shamla Naidoo, Richard Saldanha, Jeff Najarian and Naresh Kothari) (such agreement the “Director Founder Share Assignment Agreement”), the Sponsor has agreed to transfer and assign, at the closing of the Business Combination, 50,000 PubCo Ordinary Shares to each of the aforementioned five non-employee members of the board of directors of StoneBridge, subject to each such director’s continued service as a member of the board of directors of StoneBridge through the closing of the Business Combination. The number of shares after the Business Combination consists of the 5,000,000 PubCo Ordinary Shares resulting from the aforementioned conversions, less the aggregate of 250,000 PubCo Ordinary Shares that will be transferred to the non-employee directors of StoneBridge pursuant to the Director Founder Share Assignment Agreement. StoneBridge Acquisition Sponsor LLC is managed by its managing member, BP SPAC Sponsor LLC, which in turn is managed by Bhargav Marepally and Prabhu Antony. Any voting and dispositive decisions by BP SPAC Sponsor LLC are made by a vote of its managing members. Accordingly, Messrs. Marepally and Antony may be deemed to be beneficial owners of the shares. The address of StoneBridge Acquisition Sponsor LLC is One World Trade Center, Suite 8500, New York, New York 10007, and the address of BP SPAC Sponsor LLC is 1104 Linnea Lane, Southlake, Texas 76092. |
| (3) | Consists of (i) 2,327,789 PubCo Ordinary Shares to be held on record by Vambery Assets Limited, which is wholly owned and controlled by Alexander Rusli (ii) 385,699 PubCo Ordinary Shares based on his beneficial ownership of DigiAsia shares held of record by Chipping Hill, (iii) 2,635,376 PubCo Ordinary Shares to be held on record by Maxwell Universal Group Inc., in which Alexander Rusli holds the position of Director and exercises complete share ownership, (iii) 2,130,326 PubCo Ordinary Shares to be held on record by Ion Pacific Java Limited, in which Alexander Rusli has a 50% ownership interest, and (iv) 296,195 PubCo Ordinary Shares to be held on record by Genesis Global Pte. Ltd., which is wholly-owned and controlled by Alexander Rusli. Chipping Hill is 100% held of record by Mr. Rusli, however, the DigiAsia shares held by Chipping Hill have been allocated to participating employees and will be exchanged for PubCo Ordinary Shares which will be granted to such employees upon the consummation of the Amalgamation. |
| (4) | Consists of (i) 4,503,683 PubCo Ordinary Shares to be held on record by Grand Mavericks Limited, which is wholly owned and controlled by Prashant Gokarn (ii) 385,699 PubCo Ordinary Shares based on his beneficial ownership of DigiAsia shares held of record by Chipping Hill and (iii) 2,130,326 PubCo Ordinary Shares to be held on record by Ion Pacific Java Limited, in which Prashant Gokarn has a 50% ownership interest. |
| (5) | Consist of 784,423 PubCo Ordinary Shares allocated to Mr. Lohani based on his beneficial ownership of DigiAsia shares held of record by Chipping Hill, which will be granted to Mr. Lohani upon the consummation of the Amalgamation. |
| (6) | Consists of 30,000 PubCo Ordinary Shares to be granted to Mr. Sommer pursuant to a Director Offer Letter. |
| (7) | Consists of 30,000 PubCo Ordinary Shares to be granted to Mr. Andreas pursuant to a Director Offer Letter. |
| (8) | Consists of 65,115 PubCo Ordinary Shares to be granted to Mr. Rudiantara pursuant to a Director Offer Letter. |
| (9) | The principal business address is 1 Raffles Place #28-02 One Raffles Place Singapore (048616). Heri Sunaryadi, as a majority owner, a principal officer and chair of the Board, may be deemed to have voting and dispositive control of the 3,227,766 PubCo Ordinary Shares. |
| (10) | The principal business address is The Grand Pavilion Commercial Centre, Oleander Way, 802 West Bay Road, P.O Box 32052, Grand Cayman KY1-1208. Paulo Angelo G. Saycon, as the majority owner and a principal officer, may be deemed to have voting and dispositive control of 10,218,729 PubCo Ordinary Shares. |
| (11) | The principal business address is 3 Fraser Street #17-21/28, Duo Tower Singapore (189352). Mastercard Asia Pacific Pte. Ltd. is a wholly owned subsidiary of MasterCard Incorporated, which is a public listed company. |
| (12) | The principal business address is TORTOLA PIER PARK, BUILDING 1, 2ND FLOOR, WICKHAMS CAY I ROAD TOWN, TORTOLA, BRITISH VIRGIN ISLANDS. Prashant Gokarn, as a majority owner, a principal officer and chair of the Board, may be deemed to have voting and dispositive control of the 4,503,683 PubCo Ordinary Shares. |
| (13) | Rajnish Gopinath with address 1 TANJONG RHU ROAD, #10-03 THE WATERSIDE SINGAPORE 436879 may be deemed to have voting and dispositive control of 3,167,008 PubCo Ordinary Shares. |
| (14) | The number of New DigiAsia ordinary shares outstanding and percentage of New DigiAsia ordinary shares outstanding assumes the submission by all New DigiAsia shareholders of required letters of transmittal and the subsequent issuances of 50,000,000 New DigiAsia ordinary shares. |
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B. Related Party Transactions
Information regarding DigiAsia’s and New DigiAsia’s related party transactions is included in the Proxy Statement/Prospectus under the section titled “Certain Relationships and Related Person Transactions” and is incorporated herein by reference.
C. Interests of Experts and Counsel
Not applicable.
A. Consolidated Statements and Other Financial Information
Consolidated Financial Statements
See Item 18 of this Report for consolidated financial statements and other financial information.
Legal and Arbitration Proceedings
Information regarding legal proceedings involving DigiAsia is included in the Proxy Statement/Prospectus under the section titled “DigiAsia’s Business—Legal Proceedings” and is incorporated herein by reference.
Dividend Policy
Information regarding New DigiAsia’s dividend policy is included in the Proxy Statement/Prospectus under the sections titled “Description of PubCo Securities—PubCo Ordinary Shares—Dividends” is incorporated herein by reference.
B. Significant Changes
None.
A. Offer and Listing Details
Nasdaq Capital Markets Ordinary Shares
The Ordinary Shares and Warrants are listed on Nasdaq Capital Markets under the symbol “FAAS” and “FAASW,” respectively. Holders of Ordinary Shares and Warrants should obtain current market quotations for their securities. There can be no assurance that the Ordinary Shares and/or the Warrants will remain listed on Nasdaq Capital Markets. If New DigiAsia fails to comply with the Nasdaq Capital Markets listing requirements, the Ordinary Shares and/or the Warrants could be delisted from Nasdaq Capital Markets. A delisting of the Ordinary Shares and/or the Warrants will likely affect their liquidity and could inhibit or restrict the ability of New DigiAsia to raise additional financing.
Lock-up Agreements
Information regarding the lock-up restrictions applicable to the Ordinary Shares held by and/or issued to employees of, or service providers to, DigiAsia or any of its subsidiaries, is included in the Proxy Statement/Prospectus under the section titled “Shares Eligible for Future Sale — Lock-up Agreement” and is incorporated herein by reference.
B. Plan of Distribution
Not applicable.
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C. Markets
The Ordinary Shares and Warrants are listed on Nasdaq Capital Markets under the symbol “FAAS” and “FAASW,” respectively. There can be no assurance that the Ordinary Shares and/or the Warrants will remain listed on Nasdaq Capital Markets. If New DigiAsia fails to comply with the Nasdaq Capital Markets listing requirements, the Ordinary Shares and/or the Warrants could be delisted from Nasdaq Capital Markets. A delisting of the Ordinary Shares and/or the Warrants will likely affect their liquidity and could inhibit or restrict the ability of New DigiAsia to raise additional financing.
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
ITEM 10. ADDITIONAL INFORMATION
A. Share Capital
New DigiAsia is authorized to issue 200,000,000 Ordinary Shares, $0.0001 par value each, and 1,000,000 preference shares, $0.0001 par value each.
As of the date hereof, subsequent to the closing of the Business Combination, there are 10,691,837 Ordinary Shares issued and outstanding. There are also 9,999,980 public warrants issued and outstanding and 8,000,010 private placement warrants held by the Sponsor and Cantor, each exercisable at $11.50 per one Ordinary Share. Information regarding our share capital is included in the Proxy Statement/Prospectus under the section titled “Description of PubCo Securities” and is incorporated herein by reference.
B. Memorandum and Articles of Association
The Second Amended and Restated Memorandum and Articles of Association of the Company (“Articles”), effective as of April 2, 2024 are filed as Exhibit 1.1 to this Report. Information regarding certain material provisions of the Articles is included in the Proxy Statement/Prospectus under the section titled “Description of PubCo Securities” and is incorporated herein by reference.
C. Material Contracts
Information regarding certain material contracts is included in the Proxy Statement/Prospectus under the sections titled “DigiAsia’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—Liquidity and Capital Resources”, “The Business Combination Agreement,” “Related Agreements,” and “Certain Relationships and Related Person Transactions” which are incorporated herein by reference.
D. Exchange Controls
There are no governmental laws, decrees, regulations or other legislation in the Cayman Islands that may affect the import or export of capital, including the availability of cash and cash equivalents for use by New DigiAsia, or that may affect the remittance of dividends, interest, or other payments by New DigiAsia to non-resident holders of its ordinary shares. There is no limitation imposed by the laws of Cayman Islands or in New DigiAsia’s articles of association on the right of non-residents to hold or vote shares.
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E. Taxation
Information regarding certain U.S. tax consequences of owning and disposing of Ordinary Shares and Warrants is included in the Proxy Statement/Prospectus under the section titled “Material Tax Considerations” and is incorporated herein by reference.
F. Dividends and Paying Agents
Information regarding New DigiAsia’s policy on dividends is described in the Proxy Statement/Prospectus under the sections titled “Description of PubCo Securities—PubCo Ordinary Shares—Dividends” is incorporated herein by reference. New DigiAsia has not identified a paying agent.
G. Statement by Experts
Not applicable.
H. Documents on Display
New DigiAsia is subject to certain of the informational filing requirements of the Exchange Act. Since New DigiAsia is a “foreign private issuer”, it is exempt from the rules and regulations under the Exchange Act prescribing the furnishing and content of proxy statements, and the officers, directors and principal shareholders of New DigiAsia are exempt from the reporting and “short-swing” profit recovery provisions contained in Section 16 of the Exchange Act with respect to their purchase and sale of Ordinary Shares. In addition, New DigiAsia is not required to file reports and financial statements with the SEC as frequently or as promptly as U.S. public companies whose securities are registered under the Exchange Act. However, New DigiAsia is required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. The SEC also maintains a website at www.sec.gov that contains reports and other information that New DigiAsia files with or furnishes electronically to the SEC. You may read and copy any report or document we file, including the exhibits, at the SEC’s public reference room located at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room.
The Ordinary Shares and Warrants are quoted on the Nasdaq Capital Markets. Information about New DigiAsia is also available on its website at www.digiasia.asia. The website and the information accessible therein or connected thereto is not incorporated by reference or otherwise into this Report and you should not rely on any such information in making a decision as to whether to purchase New DigiAsia securities.
I. Subsidiary Information
Not applicable.
ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Information regarding quantitative and qualitative disclosures about market risk is included in the Proxy Statement/Prospectus under the section titled “DigiAsia’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—Quantitative and Qualitative Disclosures about Market Risk” and is incorporated herein by reference.
ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
Information pertaining to New DigiAsia public warrants and private placement warrants is set forth in the Proxy Statement/Prospectus under the sections titled “Description of PubCo Securities—Warrants” which is incorporated herein by reference.
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Not applicable.
9
See Item 18.
DigiAsia’s audited consolidated financial statements for the years ended December 31, 2022, and 2021 are incorporated by reference to pages F-48 to F-76 in the Form F-4. DigiAsia’s unaudited interim condensed consolidated financial statements as of December 31, 2022, and June 30, 2023, and for the six months ended June 30, 2023, and 2022 are incorporated by reference to pages F-77 to F-84 in the Form F-4.
StoneBridge Acquisition Corporation’s audited financial statements as of December 31, 2022 and 2021 and for the year ended December 31, 2022 and the period from February 2, 2021 (inception) through December 31, 2021 are incorporated by reference to pages F-3 to F-23 in the Form F-4. StoneBridge’s unaudited interim condensed financial statements as of September 30, 2023, and December 31, 2022, and the three and nine months ended September 30, 2023 and 2022 are incorporated by reference to pages F-24 to F-46 in the Form F-4.
The unaudited pro forma condensed combined financial statements of New DigiAsia are attached as Exhibit 15.1 to this Report.
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| * | Filed herewith. |
| # | Certain schedules, annexes and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K, but will be furnished supplementally to the SEC upon request. |
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SIGNATURES
The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this report on its behalf.
| DIGIASIA CORP. | ||
| Date: April 8, 2024 | By: | /s/ Prashant Gokarn |
| Name: | Prashant Gokarn | |
| Title: | Chief Executive Officer | |
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Exhibit 1.1
THE COMPANIES ACT (AS RevisED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
SECOND AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
DigiAsia CORP.
(adopted by special resolution dated 19 DECEMBER 2023, WHICH BECAME EFFECTIVE ON 2 APRIL 2024)
THE COMPANIES ACT (AS Revised)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
SECOND AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
DigiAsia CORP.
(adopted by special resolution dated 19 DECEMBER 2023, WHICH BECAME EFFECTIVE ON 2 APRIL 2024)
| 1 | The name of the Company is DigiAsia Corp. |
| 2 | The Registered Office of the Company shall be at the offices of Conyers Trust Company (Cayman) Limited at SIX, 2nd Floor, Cricket Square, PO Box 2681, Grand Cayman KY1-1111, or at such other place within the Cayman Islands as the Directors may decide. |
| 3 | The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by the laws of the Cayman Islands. |
| 4 | The liability of each Member is limited to the amount unpaid on such Member’s shares. |
| 5 | The share capital of the Company is US$20,100 divided into 200,000,000 ordinary shares of a par value of US$0.0001 each and 1,000,000 preference shares of a par value of US$0.0001 each. |
| 6 | The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands. |
| 7 | Capitalised terms that are not defined in this Second Amended Memorandum of Association bear the respective meanings given to them in the Second Amended Articles of Association of the Company. |
THE COMPANIES ACT (AS Revised)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
SECOND AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
DigiAsia CORP.
(ADOPTED BY SPECIAL RESOLUTION DATED 19 DECEMBER 2023, WHICH BECAME EFFECTIVE ON 2 APRIL 2024)
| 1 | Interpretation |
| 1.1 | In the Articles Table A in the First Schedule to the Statute does not apply and, unless there is something in the subject or context inconsistent therewith: |
| “Affiliate” | has the same meaning as in Rule 12b-2 promulgated under the Exchange Act. |
| “Applicable Law” | means, with respect to any person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to such person. |
| “Articles” | means these second amended and restated articles of association of the Company. |
| “Audit Committee” | means the audit committee of the Company formed pursuant to the Articles, or any successor audit committee. |
| “Auditor” | means the person for the time being performing the duties of auditor of the Company (if any). |
| “clearing house” | a clearing house recognised by the laws of the jurisdiction in which the Shares (or depositary receipts therefor) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction. |
| “Company” | means the above named company. |
| “Compensation Committee” | means the compensation committee of the board of directors of the Company established pursuant to the Articles, or any successor committee. |
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| “Designated Stock Exchange” | means any national securities exchange in the United States on which the securities are listed for trading, including the NASDAQ Stock Market LLC (Nasdaq Capital Market), the NYSE MKT LLC, the New York Stock Exchange LLC or any OTC market. |
| “Directors” | means the directors for the time being of the Company. |
| “Dividend” | means any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles. |
| “Electronic Record” | has the same meaning as in the Electronic Transactions Law. |
| “Electronic Transactions Law” | means the Electronic Transactions Act (As Revised) of the Cayman Islands. |
| “Exchange Act” | means the United States Securities Exchange Act of 1934, as amended, or any similar U.S. federal statute and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time. |
| “Investor Group” | Means Sponsor and its Affiliates, and the respective successors and assigns of the foregoing. |
| “Member” | has the same meaning as in the Statute. |
| “Memorandum” | means the second amended and restated memorandum of association of the Company. |
| “Ordinary Resolution” | means a resolution passed by a simple majority of the Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting, and includes a unanimous written resolution. In computing the majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled by the Articles. |
| “Ordinary Share” | means an ordinary share of a par value of US$0.0001 in the share capital of the Company, designated as an Ordinary Share and having the rights provided for in these Articles. |
| “Preference Share” | means a preference share of a par value of US$0.0001 in the share capital of the Company, designated as a Preference Share, and having the rights provided for in these Articles. |
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| “Register of Members” | means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members. |
| “Registered Office” | means the registered office for the time being of the Company. |
| “Seal” | means the common seal of the Company and includes every duplicate seal. |
| “SEC” | means the United States Securities and Exchange Commission. |
| “Share” | means any share in the capital of the Company, including an Ordinary Share, a Preference Share and shares of other classes and includes a fraction of a share in the Company. |
| “signed” | means a signature or representation of a signature affixed by mechanical means or an electronic symbol or process attached to or logically associated with an electronic communication and executed or adopted by a person with the intent to sign the electronic communication. |
| “Special Resolution” | has the same meaning as in the Statute, and includes a unanimous written resolution. |
| “Sponsor” | means StoneBridge Acquisition Sponsor, LLC, a Delaware limited liability company. |
| “Statute” | means the Companies Act (As Revised) of the Cayman Islands. |
| “Treasury Share” | means a Share held in the name of the Company as a treasury share in accordance with the Statute. |
| 1.2 | In the Articles: |
| (a) | words importing the singular number include the plural number and vice versa; |
| (b) | words importing the masculine gender include the feminine gender; |
| (c) | words importing persons include corporations as well as any other legal or natural person; |
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| (d) | “written” and “in writing” include all modes of representing or reproducing words in visible form, including in the form of an Electronic Record; |
| (e) | “shall” shall be construed as imperative and “may” shall be construed as permissive; |
| (f) | references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced; |
| (g) | all references to money refer to the lawful currency of the United States, unless otherwise specified; |
| (h) | any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
| (i) | the term “and/or” is used herein to mean both “and” as well as “or.” The use of “and/or” in certain contexts in no respects qualifies or modifies the use of the terms “and” or “or” in others. The term “or” shall not be interpreted to be exclusive and the term “and” shall not be interpreted to require the conjunctive (in each case, unless the context otherwise requires); |
| (j) | headings are inserted for reference only and shall be ignored in construing the Articles; |
| (k) | any requirements as to delivery under the Articles include delivery in the form of an Electronic Record; |
| (l) | any requirements as to execution or signature under the Articles including the execution of the Articles themselves can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Law; |
| (m) | sections 8 and 19(3) of the Electronic Transactions Law shall not apply; |
| (n) | the term “clear days” in relation to the period of a notice means that period excluding the day when the notice is received or deemed to be received and the day for which it is given or on which it is to take effect; and |
| (o) | the term “holder” in relation to a Share means a person whose name is entered in the Register of Members as the holder of such Share. |
| 2 | Commencement of Business |
| 2.1 | The business of the Company may be commenced as soon after incorporation of the Company as the Directors shall see fit. |
| 2.2 | The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in or about the formation and establishment of the Company, including the expenses of registration. |
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| 3 | Issue of Shares and other Securities |
| 3.1 | Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company in general meeting) and, where applicable, the rules of the Designated Stock Exchange, the SEC and/or any competent regulatory authority or otherwise under Applicable Law, and without prejudice to any rights attached to any existing Shares, the Directors may allot, issue, grant options over or otherwise dispose of Shares (including fractions of a Share) with or without preferred, deferred or other rights or restrictions, whether in regard to Dividend or other distribution, voting, return of capital or otherwise and to such persons, at such times and on such other terms as they think proper, and may also (subject to the Statute and the Articles) vary such rights. |
| 3.2 | The Company may issue rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company on such terms as the Directors may from time to time determine. |
| 3.3 | The Company shall not issue Shares to bearer form and shall only issue shares as fully paid. |
| 4 | Ordinary Shares |
| 4.1 | The holders of the Ordinary Shares shall be: |
| (a) | entitled to dividends in accordance with the relevant provisions of these Articles; |
| (b) | entitled to and are subject to the provisions in relation to winding up of the Company provided for in these Articles; |
| (c) | entitled to attend general meetings of the Company and shall be entitled to one vote for each Ordinary Share registered in his or her name in the Register of Members, both in accordance with the relevant provisions of these Articles. |
| 4.2 | All Ordinary Shares shall rank pari passu with each other in all respects. |
| 5 | Register of Members |
| 5.1 | The Company shall maintain or cause to be maintained the Register of Members in accordance with the Statute, provided that for so long as the securities of the Company are listed for trading on the Designated Stock Exchange, title to such securities may be evidenced and transferred in accordance with the laws applicable to and the rules and regulations of the Designated Stock Exchange. |
| 5.2 | The Directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Statute. The Directors may also determine which register of Members shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time. |
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| 6 | Closing Register of Members or Fixing Record Date |
| 6.1 | For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose, the Directors may, after notice has been given by advertisement in an appointed newspaper or any other newspaper or by any other means in accordance with the requirements of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, provide that the Register of Members shall be closed for transfers for a stated period which shall not in any case exceed forty days. |
| 6.2 | In lieu of, or apart from, closing the Register of Members, the Directors may fix in advance or arrears a date as the record date for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any adjournment thereof, or for the purpose of determining the Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose. |
| 6.3 | If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a Dividend or other distribution, the date on which notice of the meeting is sent or the date on which the resolution of the Directors resolving to pay such Dividend or other distribution is passed, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment thereof. |
| 7 | Certificates for Shares |
| 7.1 | A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share certificates shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer shall be cancelled and, subject to the Articles, no new certificate shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled. |
| 7.2 | The Company shall not be bound to issue more than one certificate for Shares held jointly by more than one person and delivery of a certificate to one joint holder shall be a sufficient delivery to all of them. |
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| 7.3 | If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating evidence, as the Directors may prescribe, and (in the case of defacement or wearing out) upon delivery of the old certificate. |
| 7.4 | Every share certificate sent in accordance with the Articles will be sent at the risk of the Member or other person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course of delivery. |
| 7.5 | Share certificates shall be issued within the relevant time limit as prescribed by the Statute, if applicable, or as the Designated Stock Exchange, the SEC and/or any other competent authority or otherwise under Applicable Law may from time to time determine, whichever is shorter, after the allotment or, except in the case of a Share transfer which the Company is for the time being entitled to refuse to register and does not register, after lodgement of a Share transfer with the Company. |
| 8 | Transfer of Shares |
| 8.1 | Subject to the terms of the Articles, any Member may transfer all or any of his Shares by an instrument of transfer provided that such transfer complies with applicable rules of the Designated Stock Exchange, the SEC, federal and state securities laws of the United States and/or any other competent regulatory authority or otherwise under Applicable Law. If the Shares in question were issued in conjunction with rights, options or warrants issued pursuant to the Articles on terms that one cannot be transferred without the other, the Directors shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer of such option or warrant. |
| 8.2 | The instrument of transfer of any Share shall be in writing in the usual or common form or in a form prescribed by the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law or in any other form approved by the Directors and shall be executed by or on behalf of the transferor (and if the Directors so require, signed by or on behalf of the transferee) and may be under hand or, if the transferor or transferee is a clearing house or its nominee(s), by hand or by machine imprinted signature or by such other manner of execution as the Directors may approve from time to time. The transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered in the Register of Members. |
| 8.3 | The Directors may, in their absolute discretion, decline to register any transfer of Shares, subject to any applicable requirements imposed from time to time by the SEC and the Designated Stock Exchange. |
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| 9 | Redemption, Repurchase and Surrender of Shares |
| 9.1 | Subject to the provisions, if any, in these Articles, the Memorandum, applicable law, including the Statute, and the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, the Company may issue Shares that are to be redeemed or are liable to be redeemed at the option of the Member or the Company. The redemption of such Shares shall be effected in such manner and upon such other terms as the Company may, by Special Resolution, determine before the issue of the Shares. |
| 9.2 | Subject to the provisions of the Statute, the Company may purchase its own Shares (including any redeemable Shares) in such manner and on such other terms as the Directors may agree with the relevant Member, provided that the manner of purchase is in accordance with any applicable requirements imposed from time to time by the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under applicable Law. |
| 9.3 | The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Statute, including out of capital. |
| 9.4 | The Directors may accept the surrender for no consideration of any fully paid Share. |
| 10 | Treasury Shares |
| 10.1 | The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share shall be held as a Treasury Share. |
| 10.2 | The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think proper (including, without limitation, for nil consideration). |
| 11 | Variation of Rights of Shares |
| 11.1 | Subject to Article 3.1, if at any time the share capital of the Company is divided into different classes of Shares, all or any of the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued Shares of that class where such variation is considered by the Directors not to have a material adverse effect upon such rights; otherwise, any such variation shall be made only with the consent in writing of the holders of not less than two thirds of the issued Shares of that class, or with the approval of a resolution passed by a majority of not less than two thirds of the votes cast at a separate meeting of the holders of the Shares of that class. For the avoidance of doubt, the Directors reserve the right, notwithstanding that any such variation may not have a material adverse effect, to obtain consent from the holders of Shares of the relevant class. To any such meeting all the provisions of the Articles relating to general meetings shall apply mutatis mutandis, except that the necessary quorum shall be one person holding or representing by proxy at least one-third of the issued Shares of the class and that any holder of Shares of the class present in person or by proxy may demand a poll. |
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| 11.2 | For the purposes of a separate class meeting, the Directors may treat two or more or all the classes of Shares as forming one class of Shares if the Directors consider that such class of Shares would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate classes of Shares. |
| 11.3 | The rights conferred upon the holders of the Shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith. |
| 12 | Commission on Sale of Shares |
The Company may, in so far as the Statute permits, pay a commission to any person in consideration of his subscribing or agreeing to subscribe (whether absolutely or conditionally) or procuring or agreeing to procure subscriptions (whether absolutely or conditionally) for any Shares. Such commissions may be satisfied by the payment of cash and/or the issue of fully or partly paid-up Shares. The Company may also on any issue of Shares pay such brokerage as may be lawful.
| 13 | Non Recognition of Trusts |
The Company shall not be bound by or compelled to recognise in any way (even when notified) any equitable, contingent, future or partial interest in any Share, or (except only as is otherwise provided by the Articles or the Statute) any other rights in respect of any Share other than an absolute right to the entirety thereof in the holder.
| 14 | Lien on Shares |
| 14.1 | The Company shall have a first and paramount lien on all Shares (whether fully paid-up or not) registered in the name of a Member (whether solely or jointly with others) for all debts, liabilities or engagements to or with the Company (whether presently payable or not) by such Member or his estate, either alone or jointly with any other person, whether a Member or not, but the Directors may at any time declare any Share to be wholly or in part exempt from the provisions of this Article. The registration of a transfer of any such Share shall operate as a waiver of the Company’s lien thereon. The Company’s lien on a Share shall also extend to any amount payable in respect of that Share. |
| 14.2 | The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, if a sum in respect of which the lien exists is presently payable, and is not paid within fourteen clear days after notice has been received or deemed to have been received by the holder of the Shares, or to the person entitled to it in consequence of the death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the Shares may be sold. |
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| 14.3 | To give effect to any such sale the Directors may authorise any person to execute an instrument of transfer of the Shares sold to, or in accordance with the directions of, the purchaser. The purchaser or his nominee shall be registered as the holder of the Shares comprised in any such transfer, and he shall not be bound to see to the application of the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity in the sale or the exercise of the Company’s power of sale under the Articles. |
| 14.4 | The net proceeds of such sale after payment of costs, shall be applied in payment of such part of the amount in respect of which the lien exists as is presently payable and any balance shall (subject to a like lien for sums not presently payable as existed upon the Shares before the sale) be paid to the person entitled to the Shares at the date of the sale. |
| 15 | Call on Shares |
| 15.1 | Subject to the terms of the allotment and issue of any Shares, the Directors may make calls upon the Members in respect of any monies unpaid on their Shares (whether in respect of par value or premium), and each Member shall (subject to receiving at least fourteen clear days’ notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on the Shares. A call may be revoked or postponed, in whole or in part, as the Directors may determine. A call may be required to be paid by instalments. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the Shares in respect of which the call was made. |
| 15.2 | A call shall be deemed to have been made at the time when the resolution of the Directors authorising such call was passed. |
| 15.3 | The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof. |
| 15.4 | If a call remains unpaid after it has become due and payable, the person from whom it is due shall pay interest on the amount unpaid from the day it became due and payable until it is paid at such rate as the Directors may determine (and in addition all expenses that have been incurred by the Company by reason of such non-payment), but the Directors may waive payment of the interest or expenses wholly or in part. |
| 15.5 | An amount payable in respect of a Share on issue or allotment or at any fixed date, whether on account of the par value of the Share or premium or otherwise, shall be deemed to be a call and if it is not paid all the provisions of the Articles shall apply as if that amount had become due and payable by virtue of a call. |
| 15.6 | The Directors may issue Shares with different terms as to the amount and times of payment of calls, or the interest to be paid. |
| 15.7 | The Directors may, if they think fit, receive an amount from any Member willing to advance all or any part of the monies uncalled and unpaid upon any Shares held by him, and may (until the amount would otherwise become payable) pay interest at such rate as may be agreed upon between the Directors and the Member paying such amount in advance. |
| 15.8 | No such amount paid in advance of calls shall entitle the Member paying such amount to any portion of a Dividend or other distribution payable in respect of any period prior to the date upon which such amount would, but for such payment, become payable. |
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| 16 | Forfeiture of Shares |
| 16.1 | If a call or instalment of a call remains unpaid after it has become due and payable the Directors may give to the person from whom it is due not less than fourteen clear days’ notice requiring payment of the amount unpaid together with any interest which may have accrued and any expenses incurred by the Company by reason of such non-payment. The notice shall specify where payment is to be made and shall state that if the notice is not complied with the Shares in respect of which the call was made will be liable to be forfeited. |
| 16.2 | If the notice is not complied with, any Share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors. Such forfeiture shall include all Dividends, other distributions or other monies payable in respect of the forfeited Share and not paid before the forfeiture. |
| 16.3 | A forfeited Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale, re-allotment or disposition the forfeiture may be cancelled on such terms as the Directors think fit. Where for the purposes of its disposal a forfeited Share is to be transferred to any person the Directors may authorise some person to execute an instrument of transfer of the Share in favour of that person. |
| 16.4 | A person any of whose Shares have been forfeited shall cease to be a Member in respect of them and shall surrender to the Company for cancellation the certificate for the Shares forfeited and shall remain liable to pay to the Company all monies which at the date of forfeiture were payable by him to the Company in respect of those Shares together with interest at such rate as the Directors may determine, but his liability shall cease if and when the Company shall have received payment in full of all monies due and payable by him in respect of those Shares. |
| 16.5 | A certificate in writing under the hand of one Director or officer of the Company that a Share has been forfeited on a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the Share. The certificate shall (subject to the execution of an instrument of transfer) constitute a good title to the Share and the person to whom the Share is sold or otherwise disposed of shall not be bound to see to the application of the purchase money, if any, nor shall his title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share. |
| 16.6 | The provisions of the Articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the par value of the Share or by way of premium as if it had been payable by virtue of a call duly made and notified. |
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| 17 | Transmission of Shares |
| 17.1 | If a Member dies, the survivor or survivors (where he was a joint holder), or his legal personal representatives (where he was a sole holder), shall be the only persons recognised by the Company as having any title to his Shares. The estate of a deceased Member is not thereby released from any liability in respect of any Share, for which he was a joint or sole holder. |
| 17.2 | Any person becoming entitled to a Share in consequence of the death or bankruptcy or liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may be required by the Directors, elect, by a notice in writing sent by him to the Company, either to become the holder of such Share or to have some person nominated by him registered as the holder of such Share. If he elects to have another person registered as the holder of such Share he shall sign an instrument of transfer of that Share to that person. The Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before his death or bankruptcy or liquidation or dissolution, as the case may be. |
| 17.3 | A person becoming entitled to a Share by reason of the death or bankruptcy or liquidation or dissolution of a Member (or in any other case than by transfer) shall be entitled to the same Dividends, other distributions and other advantages to which he would be entitled if he were the holder of such Share. However, he shall not, before becoming a Member in respect of a Share, be entitled in respect of it to exercise any right conferred by membership in relation to general meetings of the Company and the Directors may at any time give notice requiring any such person to elect either to be registered himself or to have some person nominated by him be registered as the holder of the Share (but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before his death or bankruptcy or liquidation or dissolution or any other case than by transfer, as the case may be). If the notice is not complied with within ninety days of being received or deemed to be received (as determined pursuant to the Articles), the Directors may thereafter withhold payment of all Dividends, other distributions, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with. |
| 18 | Amendments of Memorandum and Articles and Alteration of Capital |
| 18.1 | Subject to these Articles, the Company may by Ordinary Resolution: |
| (a) | increase its share capital by such sum, to be divided into shares of such classes and amount, as the Ordinary Resolution shall prescribe and with such rights, priorities and privileges annexed thereto, as the Company in general meeting may determine; |
| (b) | consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares, provided that any fractions of a share that result from such a consolidation or division of its share capital shall be automatically repurchased by the Company at (i) the market price on the date of such consolidation or division, in the case of any shares listed on a Designated Stock Exchange and (ii) a price to be agreed between the Company and the applicable Member in the case of any shares not listed on a Designated Stock Exchange; |
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| (c) | convert all or any of its paid-up Shares into stock, and reconvert that stock into paid-up Shares of any denomination; |
| (d) | by subdivision of its existing Shares or any of them divide the whole or any part of its share capital into Shares of smaller amount than is fixed by the Memorandum or into Shares without par value; and |
| (e) | cancel any Shares that at the date of the passing of the Ordinary Resolution have not been taken or agreed to be taken by any person and diminish the amount of its share capital by the amount of the Shares so cancelled. |
| 18.2 | All new Shares created in accordance with the provisions of the preceding Article shall be subject to the same provisions of the Articles with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise as the Shares in the original share capital. |
| 18.3 | Subject to the provisions of the Statute, the provisions of the Articles as regards the matters to be dealt with by Ordinary Resolution, the Company may by Special Resolution: |
| (a) | change its name; |
| (b) | alter or add to the Articles; |
| (c) | alter or add to the Memorandum with respect to any objects, powers or other matters specified therein; and |
| (d) | reduce its share capital or any capital redemption reserve fund. |
| 19 | Offices and Places of Business |
Subject to the provisions of the Statute, the Company may by resolution of the Directors change the location of its Registered Office. The Company may, in addition to its Registered Office, maintain such other offices or places of business as the Directors determine.
| 20 | General Meetings |
| 20.1 | All general meetings other than annual general meetings shall be called extraordinary general meetings. |
| 20.2 | The Company shall, in each year hold a general meeting as its annual general meeting, and shall specify the meeting as such in the notices calling it. Any annual general meeting shall be held at such time and place as the Directors shall approve. At these meetings the report of the Directors (if any) shall be presented. |
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| 20.3 | The Directors, the chief executive officer or the chairman or a co-chairman of the board of Directors may call general meetings, and they shall on a Members’ requisition forthwith proceed to convene an extraordinary general meeting of the Company. |
| 20.4 | Business transacted at any extraordinary general meeting shall be limited to matters relating to the purpose or purposes stated in the notice of meeting. |
| 20.5 | A Members’ requisition is a requisition of Members holding at the date of deposit of the requisition not less than ten per cent in par value of the issued Shares which as at that date carry the right to vote at general meetings of the Company. |
| 20.6 | The Members’ requisition must state the objects of the meeting and must be signed by the requisitionists and deposited at the principal executive offices of the Company (with a copy forwarded to the Registered Office),and may consist of several documents in like form each signed by one or more requisitionists. |
| 20.7 | If the Directors do not within twenty-one days from the date of the deposit of the Members’ requisition duly proceed to convene a general meeting to be held within a further twenty-one days, the requisitionists, or any of them representing more than one-half of the total voting rights of all of the requisitionists, may themselves convene a general meeting, but any meeting so convened shall be held no later than the day which falls three months after the expiration of the said twenty-one day period. |
| 20.8 | A general meeting convened as aforesaid by requisitionists shall be convened in the same manner as nearly as possible as that in which general meetings are to be convened by Directors. |
| 20.9 | Subject to these Articles, Members seeking to bring business before the annual general meeting or to nominate candidates for appointment as Directors at the annual general meeting must deliver notice to the principal executive offices of the Company not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the scheduled date of the annual general meeting. At an annual general meeting of the Company, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual general meeting, business must be (a) specified in a notice of meeting given by or at the direction of the board of Directors, (b) if not specified in a notice of meeting, otherwise brought before the meeting by the board of Directors or the chairman or co-chairmen or (c) otherwise properly brought before the meeting by a Member present in person who (1) (x) was a record owner of shares of the Company both at the time of giving the notice provided for in this Article 21 and at the time of the meeting, (y) is entitled to vote at the meeting, and (z) has complied with this Article 20.9 in all applicable respects or (2) properly made such proposal in accordance with Rule 14a-8 under the Exchange Act. The foregoing provision (z) shall be the exclusive means for a Member to propose business to be brought before an annual general meeting. The only matters that may be brought before an extraordinary general meeting are the matters specified in the notice of such meeting, and Members shall not be permitted to propose business to be brought before an extraordinary general meeting. For purposes of this Article 20.9, “present in person” shall mean that the Member proposing that the business be brought before the annual meeting of the Company, or a qualified representative of such proposing Member, appear at such annual general meeting. A “qualified representative” of such proposing Member shall be a duly authorized officer, manager or partner of such Member or any other person authorized by a writing executed by such Member or an electronic transmission delivered by such Member to act for such Member as proxy at the meeting of Members and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of Members. Members seeking to nominate persons for election to the board of Directors must comply with this Article 20.9. |
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| 21 | Notice of General Meetings |
| 21.1 | At least five clear days’ notice shall be given of any general meeting. Every notice shall be exclusive of the day on which it is given or deemed to be given and of the day for which it is given. Every notice shall specify the place, the day and the hour of the meeting and the general nature of the business to be conducted at the general meeting and shall be given in the manner hereinafter mentioned or in such other manner if any as may be prescribed by the Company, provided that a general meeting of the Company shall, whether or not the notice specified in this Article has been given and whether or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed: |
| (a) | in the case of an annual general meeting, by all of the Members (or their proxies) entitled to attend and vote thereat; and |
| (b) | in the case of an extraordinary general meeting, by a majority in number of the Members (or their proxies) having a right to attend and vote at the meeting, together holding not less than ninety-five per cent in par value of the Shares giving that right. |
| 21.2 | The notice convening an annual general meeting shall specify the meeting as such, and the notice convening a meeting to pass a Special Resolution shall specify the intention to propose the resolution as a Special Resolution. Notice of every general meeting shall be given to all Members other than such as, under the provisions hereof or the terms of issue of the Shares they hold, are not entitled to receive such notice from the Company. |
| 21.3 | In cases where instruments of proxy are sent out with a notice of general meeting, the accidental omission to send such instrument of proxy to, or the non-receipt of any such instrument of proxy by, any person entitled to receive notice shall not invalidate any resolution passed or any proceeding at any such meeting. |
| 21.4 | The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a general meeting by, any person entitled to receive such notice shall not invalidate the proceedings of that general meeting. |
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| 22 | Proceedings at General Meetings |
| 22.1 | No business shall be transacted at any general meeting unless a quorum is present. The holders of a simple majority of the issued Shares being individuals present in person or by proxy or if a corporation or other non-natural person by its duly authorised representative or proxy shall be a quorum. |
| 22.2 | A person may participate at a general meeting by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other. Participation by a person in a general meeting in this manner is treated as presence in person at that meeting. |
| 22.3 | A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by or on behalf of all of the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or, being corporations or other non-natural persons, signed by their duly authorised representatives) shall be as valid and effective as if the resolution had been passed at a general meeting of the Company duly convened and held. |
| 22.4 | If a quorum is not present within half an hour from the time appointed for the meeting to commence or if during such a meeting a quorum ceases to be present, the meeting, if convened upon a Members’ requisition, shall be dissolved and in any other case it shall stand adjourned to the same day in the next week at the same time and/or place or to such other day, time and/or place as the Directors may determine, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting to commence, the meeting shall be dissolved. |
| 22.5 | The Directors may, at any time prior to the time appointed for the meeting to commence, appoint any person to act as chairman or as a co-chairman of a general meeting of the Company or, if the Directors do not make any such appointment, the chairman or co-chairmen, if any, of the board of Directors shall preside as chairman or as a co-chairman at such general meeting. If there are no such chairman or co-chairmen, or if they shall not be present within fifteen minutes after the time appointed for the meeting to commence, or are unwilling to act, the Directors present shall elect two of their number to be chairman or co-chairmen of the meeting. |
| 22.6 | If no Director or Directors are willing to act as chairman or as co-chairmen or if no Director is present within fifteen minutes after the time appointed for the meeting to commence, the Members present shall choose any of their number to be chairman or co-chairmen of the meeting. |
| 22.7 | The chairman or co-chairmen may, with the consent of a meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. |
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| 22.8 | When a general meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of an adjourned meeting. |
| 22.9 | A resolution put to the vote of the meeting shall be decided on a poll. |
| 22.10 | A poll shall be taken as the chairman or co-chairmen direct, and the result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. |
| 22.11 | A poll demanded on the election of the co-chairmen or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such date, time and place as the chairman or co-chairmen of the general meeting direct, and any business other than that upon which a poll has been demanded or is contingent thereon may proceed pending the taking of the poll. |
| 22.12 | In the case of an equality of votes, the chairman or each co-chairmen shall be entitled to a second or casting vote. |
| 23 | Votes of Members |
| 23.1 | Subject to any rights or restrictions attached to any Shares, every Member present in person and every person representing a Member by proxy at a general meeting of the Company, shall have one vote for every Share of which he is the holder, registered in such Member’s name in the Register of Members. No cumulative voting shall be allowed. |
| 23.2 | In the case of joint holders the vote of the senior holder who tenders a vote, whether in person or by proxy (or, in the case of a corporation or other non-natural person, by its duly authorised representative or proxy), shall be accepted to the exclusion of the votes of the other joint holders, and seniority shall be determined by the order in which the names of the holders stand in the Register of Members. |
| 23.3 | A Member of unsound mind, or in respect of whom an order has been made by any court, having jurisdiction in lunacy, may vote on a poll, by his committee, receiver, curator bonis, or other person on such Member’s behalf appointed by that court, and any such committee, receiver, curator bonis or other person may on a poll, vote by proxy. |
| 23.4 | No person shall be entitled to vote at any general meeting unless he or she is registered as a Member on the record date for such meeting nor unless all calls or other monies then payable by him in respect of Shares have been paid. |
| 23.5 | No objection shall be raised as to the qualification of any voter except at the general meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at the meeting shall be valid. Any objection made in due time in accordance with this Article shall be referred to the chairman or co-chairmen whose decision shall be final and conclusive. |
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| 23.6 | Votes may be cast either personally or by proxy (or in the case of a corporation or other non-natural person by its duly authorised representative or proxy). A Member may appoint more than one proxy or the same proxy under one or more instruments to attend and vote at a meeting. Where a Member appoints more than one proxy the instrument of proxy shall specify the number of Shares in respect of which each proxy is entitled to exercise the related votes. |
| 23.7 | A Member holding more than one Share need not cast the votes in respect of his Shares in the same way on any resolution and therefore may vote a Share or some or all such Shares either for or against a resolution and/or abstain from voting a Share or some or all of the Shares and, subject to the terms of the instrument appointing him, a proxy appointed under one or more instruments may vote a Share or some or all of the Shares in respect of which he is appointed either for or against a resolution and/or abstain from voting a Share or some or all of the Shares in respect of which he is appointed. |
| 24 | Proxies |
| 24.1 | The instrument appointing a proxy shall be in writing and shall be executed under the hand of the appointor or of his attorney duly authorised in writing, or, if the appointor is a corporation or other non-natural person, under the hand of its duly authorised representative. A proxy need not be a Member. |
| 24.2 | The Directors may, in the notice convening any meeting or adjourned meeting, or in an instrument of proxy sent out by the Company, specify the manner by which the instrument appointing a proxy shall be deposited and the place and the time (being not later than the time appointed for the commencement of the meeting or adjourned meeting to which the proxy relates) at which the instrument appointing a proxy shall be deposited. In the absence of any such direction from the Directors in the notice convening any meeting or adjourned meeting or in an instrument of proxy sent out by the Company, the instrument appointing a proxy shall be deposited physically at the Registered Office, or at such other place as is specified for that purpose in the notice convening the meeting, or in any instrument of proxy sent out by the Company, not less than 48 hours before the time appointed for the meeting or adjourned meeting to commence at which the person named in the instrument proposes to vote. |
| 24.3 | The chairman or co-chairmen may in any event at their discretion declare that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner permitted, or which has not been declared to have been duly deposited by the chairman or co-chairmen, shall be invalid. |
| 24.4 | The instrument appointing a proxy may be in any usual or common form (or such other form as the Directors may approve) and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument appointing a proxy shall be deemed to include the power to demand or join or concur in demanding a poll. |
| 24.5 | Votes given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the proxy or of the authority under which the proxy was executed, or the transfer of the Share in respect of which the proxy is given unless notice in writing of such death, insanity, revocation or transfer was received by the Company at the Registered Office, or at such other place as is specified for that purpose in the notice convening the meeting, or in any instrument of proxy sent out by the Company before the commencement of the general meeting, or adjourned meeting at which it is sought to use the proxy. |
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| 25 | Corporate Members |
| 25.1 | Any corporation or other non-natural person which is a Member may in accordance with its constitutional documents, or in the absence of such provision by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as the corporation could exercise if it were an individual Member. |
| 25.2 | If a clearing house (or its nominee(s)), being a corporation, is a Member, it may authorise such persons as it sees fit to act as its representative at any meeting of the Company or at any meeting of any class of Members provided that the authorisation shall specify the number and class of Shares in respect of which each such representative is so authorised. Each person so authorised under the provisions of this Article shall be deemed to have been duly authorised without further evidence of the facts and be entitled to exercise the same rights and powers on behalf of the clearing house (or its nominee(s)) as if such person was the registered holder of such Shares held by the clearing house (or its nominee(s)). |
| 26 | Clearing Houses |
If a clearing house or depository (or its nominee) is a Member it may, by resolution of its directors, other governing body or authorised individual(s) 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; 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 provision shall be entitled to exercise the same powers on behalf of the clearing house (or its nominee) which he or she represents as that clearing house (or its nominee) could exercise if it were an individual Member of the Company holding the number and class of Shares specified in such authorisation.
| 27 | Shares that May Not be Voted |
Shares and Treasury Shares in the Company that are beneficially owned by the Company shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding Shares at any given time.
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| 28 | Directors |
There shall be a board of Directors consisting of such number of Directors as fixed by the Directors from time to time (not less than one Director) provided however that the Company may by Ordinary Resolution increase or reduce the limits in the number of Directors.
| 29 | Powers of Directors |
| 29.1 | Subject to the provisions of the Statute, the Memorandum and the Articles and to any directions given by Special Resolution, the business of the Company shall be managed by the Directors who may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. A duly convened meeting of Directors at which a quorum is present may exercise all powers exercisable by the Directors. |
| 29.2 | All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be in such manner as the Directors shall determine by resolution. |
| 29.3 | The Directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any Director who has held any other salaried office or place of profit with the Company or to his widow or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance. |
| 29.4 | The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of any third party. |
| 29.5 | The Directors may, from time to time, and except as required by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, adopt, institute, amend, modify or revoke the corporate governance policies or initiatives, which shall be intended to set forth the policies of the Company and the Directors on various corporate governance related matters, as the Directors shall determine by resolution from time to time. |
| 30 | Appointment and Removal of Directors |
| 30.1 | The Company may by Ordinary Resolution appoint any person to be a Director or may by Ordinary Resolution remove any Director. |
| 30.2 | Subject to these Articles, the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, the Directors may appoint any person to be a Director, either to fill a vacancy or as an additional Director provided that the appointment does not cause the number of Directors to exceed any number fixed by or in accordance with the Articles as the maximum number of Directors. |
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| 30.3 | Subject to these Articles, the persons to be nominated for appointment as a Director shall be selected at the sole discretion of the Directors. In the exercise of such discretion, the Directors shall have regard to the terms of any agreements or other contractual arrangements that the Company is a party to from time to time. |
| 30.4 | Commencing at the Company’s first annual general meeting following the adoption of the Articles, and at each annual general meeting thereafter, Directors elected to succeed those Directors whose terms expire shall be elected for a term of office to expire at the next succeeding annual general meeting after their election. All Directors shall hold office until the expiration of their respective terms of office and until their successors shall have been appointed and qualified. A Director appointed to fill a vacancy resulting from the death, resignation or removal of a Director shall serve for the remainder of the full term of the Director whose death, resignation or removal shall have created such vacancy and until his successor shall have been appointed and qualified. |
| 30.5 | A Director shall not be required to hold any Shares in the Company by way of qualification. A Director who is not a Member of the Company shall nevertheless be entitled to receive notice of and to attend and speak at general meetings of the Company. |
| 31 | Vacation of Office of Director |
The office of a Director shall be vacated if:
| (a) | the Director gives notice in writing to the Company that he resigns the office of Director; or |
| (b) | the Director absents himself (for the avoidance of doubt, without being represented by proxy) from three consecutive meetings of the board of Directors without special leave of absence from the Directors, and the Directors pass a resolution that he has by reason of such absence vacated office; or |
| (c) | the Director dies, becomes bankrupt or makes any arrangement or composition with his creditors generally; or |
| (d) | the Director is found to be or becomes of unsound mind; or |
| (e) | all of the other Directors (being not less than two in number) determine that he should be removed as a Director, either by a resolution passed by all of the other Directors at a meeting of the Directors duly convened and held in accordance with the Articles or by a resolution in writing signed by all of the other Directors. |
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| 32 | Proceedings of Directors |
| 32.1 | The quorum for the transaction of the business of the Directors shall be a majority of the authorized number of Directors. Meetings of Directors may be held at any place within or outside the Cayman Islands that has been designated by the Directors. In the absence of such a designation, meetings of the Directors shall be held at the principal executive office of the Company. Subject to the provisions of the Articles, the Directors may regulate their proceedings as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In the case of an equality of votes, the chairman or each co-chairmen shall have a second or casting vote. |
| 32.2 | A person may participate in a meeting of the Directors or any committee of Directors by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other at the same time. Participation by a person in a meeting in this manner is treated as presence in person at that meeting. Unless otherwise determined by the Directors, the meeting shall be deemed to be held at the place where the chairman or co-chairmen are located at the start of the meeting (or to the extent that the co-chairmen are in more than one location as decided by the co-chairmen). |
| 32.3 | A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Directors or, in the case of a resolution in writing relating to the removal of any Director or the vacation of office by any Director, all of the Directors other than the Director who is the subject of such resolution shall be as valid and effectual as if it had been passed at a meeting of the Directors, or committee of Directors as the case may be, duly convened and held. |
| 32.1 | A Director may, chairman or co-chairmen of the Board (if appointed) or other officer of the Company on the direction of a Director shall, call a meeting of the Directors by at least two days’ notice in writing, in person, by telephone, electronic email, or in such other manner as the Directors may from time to time determine to every Director which notice shall set forth the general nature of the business to be considered unless notice is waived by all the Directors either at, before or after the meeting is held. All such waivers, consents, and approvals shall be filed with the corporate records or made part of the minutes of the meeting. To any such notice of a meeting of the Directors all the provisions of the Articles relating to the giving of notices by the Company to the Members shall apply mutatis mutandis. |
| 32.2 | The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to the Articles as the necessary quorum of Directors the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to such fixed number, or of summoning a general meeting of the Company, but for no other purpose. |
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| 32.3 | The Directors may elect, by the affirmative vote of a majority of the Directors then in office, a chairman or co-chairmen of their board and determine the period for which they are to hold office; but if no such chairman or co-chairmen are elected, or if at any meeting the chairman or co-chairmen are not present within five minutes after the time appointed for the meeting to commence, the Directors present may choose two of their number to be chairman or co-chairmen of the meeting. The chairman or each co-chairmen of the Board may be a director or an officer of the Company. Subject to the provisions of these Articles and the direction of the Directors, the chairman or each co-chairmen of the Board shall perform all duties and have all powers which are commonly incident to the position of chairman or co-chairmen of a board or which are delegated to him or her by the Directors, preside at all general meetings and meetings of the Directors at which he or she is present and have such powers and perform such duties as the Directors may from time to time prescribe. |
| 32.4 | All acts done by any meeting of the Directors or of a committee of the Directors shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director, and/or that they or any of them were disqualified, and/or had vacated their office and/or were not entitled to vote, be as valid as if every such person had been duly appointed and/or not disqualified to be a Director and/or had not vacated their office and/or had been entitled to vote, as the case may be. |
| 32.5 | A Director may be represented at any meetings of the board of Directors by a proxy appointed in writing by him or her. The proxy shall count towards the quorum and the vote of the proxy shall for all purposes be deemed to be that of the appointing Director. |
| 32.6 | A committee appointed by the Directors may elect a chairman of its meetings. If no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for holding the same, the members present may choose one of their number to be chairman of the meeting. |
| 32.7 | A committee appointed by the Directors may meet and adjourn as it thinks proper. Questions arising at any meeting shall be determined by a majority of votes of the committee members present and in case of an equality of votes the chairman shall not have a second or casting vote. |
| 33 | Presumption of Assent |
A Director who is present at a meeting of the board of Directors at which action on any Company matter is taken shall be presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent from such action with the person acting as chairman or as a co-chairman or secretary of the meeting before the adjournment thereof or shall forward such dissent by registered post to such person immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favour of such action.
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| 34 | Directors’ Interests |
| 34.1 | A Director may hold any other office or place of profit under the Company (other than the office of Auditor) in conjunction with his office of Director for such period and on such terms as to remuneration and otherwise as the Directors may determine. |
| 34.2 | A Director may act by himself or by, through or on behalf of his firm in a professional capacity for the Company and he or his firm shall be entitled to remuneration for professional services as if he were not a Director. |
| 34.3 | A Director may be or become a director or other officer of or otherwise interested in any company promoted by the Company or in which the Company may be interested as a shareholder, a contracting party or otherwise, and no such Director shall be accountable to the Company for any remuneration or other benefits received by him as a director or officer of, or from his interest in, such other company. |
| 34.4 | No person shall be disqualified from the office of Director or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by or on behalf of the Company in which any Director shall be in any way interested be or be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by or arising in connection with any such contract or transaction by reason of such Director holding office or of the fiduciary relationship thereby established. A Director shall be at liberty to vote in respect of any contract or transaction in which he is interested provided that the nature of the interest of any Director in any such contract or transaction shall be disclosed by him at or prior to its consideration and any vote thereon. Any Director who enters into a contract or arrangement or has a relationship that is reasonably likely to be implicated under this Article or that would reasonably be likely to affect a Director’s status as an “Independent Director”, if applicable, under the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law shall disclose the nature of his or her interest in any such contract or arrangement in which he or she is interested or any such relationship. |
| 34.5 | A general notice that a Director is a shareholder, director, officer or employee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure for the purposes of voting on a resolution in respect of a contract or transaction in which he has an interest, and after such general notice it shall not be necessary to give special notice relating to any particular transaction. |
| 35 | Minutes |
The Directors shall cause minutes to be made in books kept for the purpose of recording all appointments of officers made by the Directors, all proceedings at meetings of the Company or the holders of any class of Shares and of the Directors, and of committees of the Directors, including the names of the Directors present at each meeting.
| 36 | Delegation of Directors’ Powers |
| 36.1 | The Directors may delegate any of their powers, authorities and discretions, including the power to sub-delegate, to any committee consisting of one or more Directors. Any such delegation may be made subject to any conditions the Directors may impose and either collaterally with or to the exclusion of their own powers and any such delegation may be revoked or altered by the Directors. Subject to any such conditions, the proceedings of a committee of Directors shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. |
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| 36.2 | The Directors may establish any committees, local boards or agencies or appoint any person to be a manager or agent for managing the affairs of the Company and may appoint any person to be a member of such committees, local boards or agencies. Any such appointment may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of their own powers and any such appointment may be revoked or altered by the Directors. Subject to any such conditions, the proceedings of any such committee, local board or agency shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. |
| 36.3 | The Directors may adopt formal written charters for committees and, if so adopted, shall review and assess the adequacy of such formal written charters on an annual basis. Each of these committees shall be empowered to do all things necessary to exercise the rights of such committee set forth in the Articles and shall have such powers as the Directors may delegate pursuant to the Articles and as required by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law. Each of the Audit Committee, and the Compensation Committee, if established, shall consist of such number of Directors as the Directors shall from time to time determine (or such minimum number as may be required from time to time by the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law). |
| 36.4 | The Directors may by power of attorney or otherwise appoint any person to be the agent of the Company on such conditions as the Directors may determine, provided that the delegation is not to the exclusion of their own powers and may be revoked by the Directors at any time. |
| 36.5 | The Directors may by power of attorney or otherwise appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or authorised signatory of the Company for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under the Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or other appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories as the Directors may think fit and may also authorise any such attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in him. |
| 36.6 | The Directors may appoint such officers of the Company (including, for the avoidance of doubt and without limitation, any chairman or co-chairmen of the board of Directors, chief executive officer, president, chief financial officer, vice-presidents, secretary, assistant secretary, treasurer or any other officers as may be determined by the Directors) as they consider necessary on such terms, at such remuneration and to perform such duties, and subject to such provisions as to disqualification and removal as the Directors may think fit. Unless otherwise specified in the terms of his appointment an officer of the Company may be removed by resolution of the Directors or Members. An officer of the Company may vacate his office at any time if he gives notice in writing to the Company that he resigns his office. |
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| 37 | No Minimum Shareholding |
The Company in general meeting may fix a minimum shareholding required to be held by a Director, but unless and until such a shareholding qualification is fixed a Director is not required to hold Shares.
| 38 | Remuneration of Directors |
| 38.1 | The remuneration to be paid to the Directors, if any, shall be such remuneration as the Directors shall determine. |
| 38.2 | The Directors shall also be entitled to be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of Directors or committees of Directors, or general meetings of the Company, or separate meetings of the holders of any class of Shares or debentures of the Company, or otherwise in connection with the business of the Company or the discharge of their duties as a Director, or to receive a fixed allowance in respect thereof as may be determined by the Directors, or a combination partly of one such method and partly the other. |
| 38.3 | The Directors may by resolution approve additional remuneration to any Director for any services which in the opinion of the Directors go beyond his ordinary routine work as a Director. Any fees paid to a Director who is also counsel, attorney or solicitor to the Company, or otherwise serves it in a professional capacity shall be in addition to his remuneration as a Director. |
| 39 | Seal |
| 39.1 | The Company may, if the Directors so determine, have a Seal. The Seal shall only be used by the authority of the Directors or of a committee of the Directors authorised by the Directors. Every instrument to which the Seal has been affixed shall be signed by at least one person who shall be either a Director or some officer of the Company or other person appointed by the Directors for the purpose. |
| 39.2 | The Company may have for use in any place or places outside the Cayman Islands a duplicate Seal or Seals each of which shall be a facsimile of the common Seal of the Company and, if the Directors so determine, with the addition on its face of the name of every place where it is to be used. |
| 39.3 | A Director or officer, representative or attorney of the Company may without further authority of the Directors affix the Seal over his signature alone to any document of the Company required to be authenticated by him under seal or to be filed with the Registrar of Companies in the Cayman Islands or elsewhere wheresoever. |
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| 40 | Dividends, Distributions and Reserve |
| 40.1 | Subject to the Statute and these Articles and except as otherwise provided by the rights attached to any Shares, the Directors may resolve to pay Dividends and other distributions on Shares in issue and authorise payment of the Dividends or other distributions out of the funds of the Company lawfully available therefor. A Dividend shall be deemed to be an interim Dividend unless the terms of the resolution pursuant to which the Directors resolve to pay such Dividend specifically state that such Dividend shall be a final Dividend. The Directors shall establish an account to be called the “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 in the Company. Unless otherwise provided by the provisions of these Articles, the Directors may apply the share premium account in any manner permitted by the Statute and the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law. The Company shall at all times comply with the provisions of these Articles, the Statute and the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law in relation to the share premium account. No Dividend or other distribution shall be paid except out of the realised or unrealised profits of the Company, out of the share premium account or as otherwise permitted by law. |
| 40.2 | Except as otherwise provided by the rights attached to any Shares, all Dividends and other distributions shall be paid according to the par value of the Shares that a Member holds. If any Share is issued on terms providing that it shall rank for Dividend as from a particular date, that Share shall rank for Dividend accordingly. |
| 40.3 | The Directors may deduct from any Dividend or other distribution payable to any Member all sums of money (if any) then payable by him to the Company on account of calls or otherwise. |
| 40.4 | The Directors may resolve that any Dividend or other distribution be paid wholly or partly by the distribution of specific assets and in particular (but without limitation) by the distribution of shares, debentures, or securities of any other company or in any one or more of such ways and where any difficulty arises in regard to such distribution, the Directors may settle the same as they think expedient and in particular may issue fractional Shares and may fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the basis of the value so fixed in order to adjust the rights of all Members and may vest any such specific assets in trustees in such manner as may seem expedient to the Directors. |
| 40.5 | Except as otherwise provided by the rights attached to any Shares, Dividends and other distributions may be paid in any currency. The Directors may determine the basis of conversion for any currency conversions that may be required and how any costs involved are to be met. |
| 40.6 | The Directors may, before resolving to pay any Dividend or other distribution, set aside such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose of the Company and pending such application may, at the discretion of the Directors, be employed in the business of the Company. |
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| 40.7 | Any Dividend, other distribution, interest or other monies payable in cash in respect of Shares may be paid by wire transfer to the holder or by cheque or warrant sent through the post directed to the registered address of the holder or, in the case of joint holders, to the registered address of the holder who is first named on the Register of Members or to such person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent. Any one of two or more joint holders may give effectual receipts for any Dividends, other distributions, bonuses, or other monies payable in respect of the Share held by them as joint holders. |
| 40.8 | No Dividend or other distribution shall bear interest against the Company. |
| 40.9 | Any Dividend or other distribution which cannot be paid to a Member and/or which remains unclaimed after six months from the date on which such Dividend or other distribution becomes payable may, in the discretion of the Directors, be paid into a separate account in the Company’s name, provided that the Company shall not be constituted as a trustee in respect of that account and the Dividend or other distribution shall remain as a debt due to the Member. Any Dividend or other distribution which remains unclaimed after a period of six years from the date on which such Dividend or other distribution becomes payable shall be forfeited and shall revert to the Company. |
| 41 | Capitalisation |
The Directors may at any time capitalise any sum standing to the credit of any of the Company’s reserve accounts or funds (including the share premium account and capital redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution; appropriate such sum to Members in the proportions in which such sum would have been divisible amongst such Members had the same been a distribution of profits by way of Dividend or other distribution; and apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid-up to and amongst them in the proportion aforesaid. In such event the Directors shall do all acts and things required to give effect to such capitalisation, with full power given to the Directors to make such provisions as they think fit in the case of Shares becoming distributable in fractions (including provisions whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Directors may authorise any person to enter on behalf of all of the Members interested into an agreement with the Company providing for such capitalisation and matters incidental or relating thereto and any agreement made under such authority shall be effective and binding on all such Members and the Company.
| 42 | Books of Account |
| 42.1 | The Directors shall cause proper books of account (including, where applicable, material underlying documentation including contracts and invoices) to be kept with respect to all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company. Such books of account must be retained for a minimum period of five years from the date on which they are prepared. Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company’s affairs and to explain its transactions. |
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| 42.2 | The Directors shall determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members not being Directors and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by Statute or authorised by the Directors or by the Company in general meeting. |
| 42.3 | The Directors may cause to be prepared and to be laid before the Company in general meeting profit and loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law. |
| 43 | Audit |
| 43.1 | The Directors may appoint an Auditor of the Company who shall hold office on such terms as the Directors determine. |
| 43.2 | Without prejudice to the freedom of the Directors to establish any other committee, if the Shares (or depositary receipts therefor) 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 as a committee of the 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. |
| 43.3 | If the Shares (or depositary receipts therefor) are listed or quoted on the Designated Stock Exchange, the Company shall conduct an appropriate review of all related party transactions on an ongoing basis and shall utilise the Audit Committee for the review and approval of potential conflicts of interest. |
| 43.4 | The remuneration of the Auditor shall be fixed by the Audit Committee. |
| 43.5 | If the office of Auditor becomes vacant by resignation or death of the Auditor, or by his becoming incapable of acting by reason of illness or other disability at a time when his services are required, the Directors shall fill the vacancy and determine the remuneration of such Auditor. |
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| 43.6 | Every Auditor of the Company shall have a right of access at all times to the books and accounts and vouchers of the Company and shall be entitled to require from the Directors and officers of the Company such information and explanation as may be necessary for the performance of the duties of the Auditor. |
| 43.7 | Auditors shall, if so required by the Directors, make a report on the accounts of the Company during their tenure of office at the next annual general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an ordinary company, and at the next extraordinary general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an exempted company, and at any other time during their term of office, upon request of the Directors or any general meeting of the Members. |
| 44 | Notices |
| 44.1 | Notices shall be in writing and may be given by the Company to any Member either personally or by sending it by courier, post, cable, telex, fax or e-mail to him or her or to his or her address as shown in the Register of Members (or where the notice is given by e-mail by sending it to the e-mail address provided by such Member). Notice may also be served in accordance with the requirements of the Designated Stock Exchange. |
| 44.2 | Where a notice is sent by courier, service of the notice shall be deemed to be effected by delivery of the notice to a courier company, and shall be deemed to have been received on the third day (not including Saturdays or Sundays or legal holiday or a day on which banking institutions or trust companies are authorised or obligated by law to close in New York City and the Cayman islands) following the day on which the notice was delivered to the courier. Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, pre paying and posting a letter containing the notice, and shall be deemed to have been received on the fifth day (not including Saturdays or Sundays or public holidays in the Cayman Islands) following the day on which the notice was posted. Where a notice is sent by cable, telex or fax, service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received on the same day that it was transmitted. Where a notice is given by e-mail service shall be deemed to be effected by transmitting the e-mail to the e-mail address provided by the intended recipient and shall be deemed to have been received on the same day that it was sent, and it shall not be necessary for the receipt of the e-mail to be acknowledged by the recipient. |
| 44.3 | A notice may be given by the Company to the person or persons which the Company has been advised are entitled to a Share or Shares in consequence of the death or bankruptcy of a Member in the same manner as other notices which are required to be given under the Articles and shall be addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the persons claiming to be so entitled, or at the option of the Company by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred. |
| 44.4 | Notice of every general meeting shall be given in any manner authorised by the Articles to every holder of Shares carrying an entitlement to receive such notice on the record date for such meeting except that in the case of joint holders the notice shall be sufficient if given to the joint holder first named in the Register of Members and every person upon whom the ownership of a Share devolves by reason of his being a legal personal representative or a trustee in bankruptcy of a Member where the Member but for his death or bankruptcy would be entitled to receive notice of the meeting, and no other person shall be entitled to receive notices of general meetings. |
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| 45 | Winding Up |
| 45.1 | If the Company shall be wound up, the liquidator shall apply the assets of the Company in satisfaction of creditors’ claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any Shares, in a winding up: |
| (a) | if the assets available for distribution amongst the Members shall be insufficient to repay the whole of the Company’s issued share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the par value of the Shares held by them; or |
| (b) | if the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the Company’s issued share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value of the Shares held by them at the commencement of the winding up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls or otherwise. |
| 45.2 | If the Company shall be wound up the liquidator may, subject to the rights attaching to any Shares and with the approval of a Special Resolution of the Company and any other approval required by the Statute, divide amongst the Members in kind the whole or any part of the assets of the Company (whether such assets shall consist of property of the same kind or not) and may for that purpose value any assets and determine how the division shall be carried out as between the Members or different classes of Members. The liquidator may, with the like approval, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator, with the like approval, shall think fit, but so that no Member shall be compelled to accept any asset upon which there is a liability. |
| 46 | Indemnity and Insurance |
| 46.1 | Every Director and officer of the Company (which for the avoidance of doubt, shall not include auditors of the Company), together with every former Director and former officer of the Company (each an “Indemnified Person”) shall be indemnified out of the assets of the Company against any liability, action, proceeding, claim, demand, costs, damages or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any act or failure to act in carrying out their functions other than such liability (if any) that they may incur by reason of their own actual fraud or wilful default. No Indemnified Person shall be liable to the Company for any loss or damage incurred by the Company as a result (whether direct or indirect) of the carrying out of their functions unless that liability arises through the actual fraud or wilful default of such Indemnified Person. No person shall be found to have committed actual fraud or wilful default under this Article unless or until a court of competent jurisdiction shall have made a finding to that effect. |
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| 46.2 | The Company shall advance to each Indemnified Person reasonable attorneys’ fees and other costs and expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person for which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the Indemnified Person shall execute an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification pursuant to this Article. If it shall be determined by a final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification with respect to such judgment, costs or expenses, then such party shall not be indemnified with respect to such judgment, costs or expenses and any advancement shall be returned to the Company (without interest) by the Indemnified Person. |
| 46.3 | The Directors, on behalf of the Company, may purchase and maintain insurance for the benefit of any Director or other officer of the Company against any liability which, by virtue of any rule of law, would otherwise attach to such person in respect of any negligence, default, breach of duty or breach of trust of which such person may be guilty in relation to the Company. |
| 47 | Financial Year |
Unless the Directors otherwise prescribe, the financial year of the Company shall end on 31st December in each year and, following the year of incorporation, shall begin on 1st January in each year.
| 48 | Transfer by Way of Continuation |
If the Company is exempted as defined in the Statute, it shall, subject to the provisions of the Statute and with the approval of a Special Resolution, have the power to register by way of continuation as a body corporate under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands. 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.
| 49 | Mergers and Consolidations |
The Company shall have the power to merge or consolidate with one or more other constituent companies (as defined in the Statute) upon such terms as the Directors may determine and (to the extent required by the Statute) with the approval of a Special Resolution.
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| 50 | Business Opportunities |
| 50.1 | 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 this Article 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. |
| 50.2 | 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. To the fullest extent permitted by Applicable Law, the Company renounces any 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. 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. |
| 50.3 | Except as provided elsewhere in this Article, the Company hereby renounces any 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. |
| 50.4 | To the fullest extent permitted by Applicable Law, the foregoing waiver of corporate opportunities by the Company shall not apply to any such corporate opportunity that is expressly offered to a Director or an officer of the Company in his or her capacity as such (which such opportunity the Company does not renounce an interest or expectancy in). |
To the extent a court might hold that the conduct of any activity related to a corporate opportunity that is renounced in this Article to be a breach of duty to the Company or its Members, the Company hereby waives, to the fullest extent permitted by Applicable Law, any and all claims and causes of action that the Company may have for such activities. To the fullest extent permitted by Applicable Law, the provisions of this Article apply equally to activities conducted in the future and that have been conducted in the past.
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Exhibit 2.1
| NUMBER: | ORDINARY SHARES: |
SEE REVERSE FOR CERTAIN DEFINITIONS
CUSIP [ ]
DIGIASIA CORP.
ORDINARY SHARES
THIS CERTIFIES THAT ___________________ is the owner of ordinary shares, par value $0.0001 per share (each, an “Ordinary Share”), of DigiAsia Corp., a Cayman Islands exempted company (the “Company”), transferable on the books of the Company in person or by duly authorized attorney upon surrender of this certificate properly endorsed. This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar of the Company.
Witness the facsimile signature of a duly authorized signatory of the Company.
| Dated: | |
| Authorized Signatory | Transfer Agent |
DIGIASIA CORP.
The Company will furnish without charge to each shareholder who so requests, a statement of the powers, designations, preferences and relative, participating, optional or other special rights of each class of equity or series thereof of the Company and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to all the provisions of the Second Amended and Restated Memorandum and Articles of Association of the Company and all amendments thereto and resolutions of the Board of Directors providing for the issue of securities (copies of which may be obtained from the secretary of the Company), to all of which the holder of this certificate by acceptance hereof assents.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
| TEN COM | — | as tenants in common | UNIF GIFT MIN ACT |
— | Custodian | |||||||||||||
| (Cust) | (Minor) | |||||||||||||||||
| TEN ENT | — | as tenants by the entireties | ||||||||||||||||
| Under Uniform Gifts to Minors Act | ||||||||||||||||||
| JT TEN | — | as joint tenants with right of survivorship and not as tenants in common | (State) | |||||||||||||||
Additional abbreviations may also be used though not in the above list.
For value received, hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER(S) OF ASSIGNEE(S))
(PLEASE PRINT OR TYPEWRITE NAME(S) AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S))
Ordinary Shares represented by the within certificate, and do hereby irrevocably constitute and appoint Attorney to transfer the said Ordinary Shares on the books of the within named Company with full power of substitution in the premises.
Dated: _____________
| Notice: | The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatsoever. |
Signature(s) Guaranteed:
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (OR ANY SUCCESSOR RULE)).
Exhibit 2.2
[Form of Warrant Certificate]
[FACE]
Number
Warrants
THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW
DIGIASIA CORP.
Incorporated Under the Laws of the Cayman Islands
CUSIP [ ]
Warrant Certificate
This Warrant Certificate certifies that [●], or registered assigns, is the registered holder of [●] warrant(s) evidenced hereby (the “Warrants” and each, a “Warrant”) to purchase ordinary shares, of $0.0001 par value per share (“Ordinary Shares”), of DigiAsia Corp., a Cayman Islands exempted company (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and non-assessable Ordinary Shares as set forth below, at the exercise price (the “Warrant Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Warrant Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Each whole Warrant is initially exercisable for one fully paid and non-assessable Ordinary Share. No fractional shares will be issued upon exercise of any Warrant. If, upon the exercise of Warrants, a holder would be entitled to receive a fractional interest in an Ordinary Share, the Company will, upon exercise, round down to the nearest whole number of Ordinary Shares to be issued to the Warrant holder. The number of Ordinary Shares issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
The initial Warrant Price per Ordinary Share for any Warrant is equal to $11.50 per share. The Warrant Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Warrant Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void. The Warrants may be redeemed, subject to certain conditions, as set forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.
This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.
| DIGIASIA CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||
|
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent | ||
| By: | ||
| Name: | ||
| Title: | ||
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive Ordinary Shares and are issued or to be issued pursuant to a Warrant Agreement dated as of July 15, 2021 (as amended and assumed, the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Warrant Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the Ordinary Shares to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the Ordinary Shares is current, except through “cashless exercise” as provided for in the Warrant Agreement.
The Warrant Agreement provides that upon the occurrence of certain events the number of Ordinary Shares issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number of Ordinary Shares to be issued to the holder of the Warrant.
Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company.
2
Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive [●] Ordinary Shares and herewith tenders payment for such Ordinary Shares to the order of DigiAsia Corp. (the “Company”) in the amount of $[●] in accordance with the terms hereof. The undersigned requests that a certificate for such Ordinary Shares be registered in the name of [●], whose address is [●] and that such Ordinary Shares be delivered to [●] whose address is [●]. If said number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of [●], whose address is [●] and that such Warrant Certificate be delivered to [●], whose address is [●].
In the event that the Warrant has been called for redemption by the Company pursuant to Section 6 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section 6.3 of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(b) and Section 6.3 of the Warrant Agreement.
In the event that the Warrant is a Private Placement Warrant that is to be exercised on a “cashless” basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.
In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 7.4 of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.
In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of Ordinary Shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive Ordinary Shares. If said number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of [●], whose address is [●] and that such Warrant Certificate be delivered to [●], whose address is [●].
[Signature Page Follows]
| Date: [●] | ||
| (Signature) | ||
| (Address) | ||
| (Tax Identification Number) | ||
| Signature Guaranteed: |
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (OR ANY SUCCESSOR RULE)).
3
Exhibit 8.1
List of Subsidiaries of DigiAsia Corp.
| Name of Subsidiary | Jurisdiction of Organization | |
| DigiAsia Inc. | Delaware | |
| DigiAsia Bios Pte. Ltd. | Singapore | |
| PT Digi Asia Bios | Indonesia | |
| Migrant Lifeline Technologies Private Limited | Indonesia | |
| PT Solusi Pasti Indonesia | Indonesia | |
| PT Tri Digi Fin | Indonesia | |
| PT Digital Distribusi Logistik Nusantara | Indonesia | |
| Digi Tech Limited | Dubai |
Exhibit 15.1
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
The following unaudited pro forma condensed combined balance sheet as of September 30, 2023 combines the historical unaudited balance sheet of StoneBridge as of September 30, 2023, with the historical unaudited consolidated balance sheet of DigiAsia as of June 30, 2023, giving pro forma effect to the Business Combination and related transactions, as if they had occurred as of September 30, 2023.
The following unaudited pro forma condensed combined statement of operations for the three months ended September 30, 2023 combines the historical unaudited statements of operations of StoneBridge for the three months ended September 30, 2023 and the historical unaudited consolidated statement of operations of DigiAsia for the three months ended June 30, 2023, on a pro forma basis as if the Business Combination had been consummated on July 1, 2023, the beginning of the earliest period presented. Further, the unaudited pro forma combined statement of operations for the year ended December 31, 2022, combines the historical audited statement of operations of StoneBridge for the year ended December 31, 2022 and the historical audited consolidated statement of operations of DigiAsia for the year ended December 31, 2022, on a pro forma basis as if the Business Combination had been consummated on January 1, 2022, the beginning of the earliest period presented.
The unaudited pro forma condensed combined financial information has been derived from:
| ● | the historical unaudited financial statements of StoneBridge as of and for three and nine months ended September 30, 2023 and the historical audited financial statements of StoneBridge as of December 31, 2022 and 2021, and for the year ended December 31, 2022 and the period from February 2, 2021 (inception) to December 31, 2021; and |
| ● | the unaudited interim financial information of DigiAsia as of and for six months ended June 30, 2023, and the historical audited consolidated financial statements of DigiAsia as of and for the years ended December 31, 2022 and 2021. |
Accounting treatment of the Business Combination
Management of StoneBridge concluded that DigiAsia is the accounting acquirer and the Company is the accounting acquiree, and the Business Combination is accounted for as a reverse capitalization in accordance with U.S. GAAP. All debts, liabilities and duties of DigiAsia and the Company have become the debts, liabilities and duties of New DigiAsia, as defined by the Business Combination Agreement.
StoneBridge concluded that the Business Combination is to be accounted for as a reverse recapitalization in accordance with U.S. GAAP. Under this method of accounting, StoneBridge is to be treated as the “acquired” company for financial reporting purposes. Accordingly, for accounting purposes, the financial statements of PubCo will represent a continuation of the financial statements of DigiAsia with the Business Combination treated as the equivalent of DigiAsia issuing shares for the net assets of StoneBridge, accompanied by a recapitalization whereby no goodwill or other intangible assets are recorded. Operations prior to the Business Combination will be those of DigiAsia in future reports of PubCo. PubCo has been determined to be the accounting acquirer based on evaluation of the following facts and circumstances:
| ● | DigiAsia equityholders will have a relative majority of the voting power of PubCo; |
| ● | DigiAsia equityholders will have the ability to nominate the majority of the members of the board of directors of PubCo; |
| ● | DigiAsia senior management will comprise the senior management roles of PubCo and be responsible for the day-to-day operations of PubCo; |
| ● | The relative size of DigiAsia is significantly larger compared to StoneBridge; |
| ● | PubCo will assume the DigiAsia name; and |
| ● | The intended strategy and operations of PubCo will continue DigiAsia’s current strategy and operations. |
We currently expect the StoneBridge warrants outstanding to remain liability classified instruments upon the Closing.
Description of the Business Combination
On April 2, 2024, StoneBridge and DigiAsia consummated the previously announced Business Combination Agreement, by and among the StoneBridge, DigiAsia and Amalgamation Sub. The Business Combination Agreement provided that the parties thereto would enter into the Business Combination pursuant to which, among other things, Amalgamation Sub would merge with and into DigiAsia with DigiAsia surviving the merger as a wholly owned subsidiary of StoneBridge, and StoneBridge will immediately be renamed “DigiAsia Corp”.
The Business Combination Agreement provided that:
| ● | the cancellation and exchange of all issued and outstanding DigiAsia Ordinary Shares into 50,000,000 PubCo Ordinary Shares; |
| ● | the capital distribution of $500.0 million to former DigiAsia shareholders; and |
| ● | the cancellation of all employee share options granted, and outstanding vested and unvested DigiAsia options will not accelerate nor vest upon the consummation of the Business Combination. All share options shall be assumed by PubCo and converted into options to acquire such number of PubCo Ordinary Shares as determined in accordance with the Business Combination Agreement. |
Basis of Pro Forma Presentation
The historical financial information has been adjusted to give pro forma effect to the transaction accounting required for the Business Combination. The adjustments in the unaudited pro forma condensed combined financial information have been identified and presented to provide relevant information necessary for an accurate understanding of the combined entity upon the Closing.
The unaudited pro forma condensed combined financial information has been presented for illustrative purposes only and is not necessarily indicative of the operating results and financial position that would have been achieved had the Business Combination occurred on the dates indicated, and does not reflect adjustments for any anticipated synergies, operating efficiencies, tax savings or cost savings. Any cash proceeds remaining after the consummation of the Business Combination are expected to be used for general corporate purposes. The unaudited pro forma condensed combined financial information does not purport to project the future operating results or financial position of PubCo following the completion of the Business Combination. StoneBridge and DigiAsia have not had any historical operational relationship prior to the Business Combination. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.
Accounting policies
Upon consummation of the Business Combination, management will perform a comprehensive review of the Company’s and DigiAsia’s accounting policies. As a result of the review, management may identify differences between the accounting policies of the two entities which, when conformed, could have a material impact on the financial statements of the post-combination company. Based on its initial analysis, management did not identify any differences that would have a material impact on the unaudited pro forma condensed combined financial information.
2
UNAUDITED PRO FORMA CONDENSED
COMBINED BALANCE SHEET
AS OF SEPTEMBER 30, 2023
| Unaudited Pro forma Combined Balance sheet as of September 30, 2023 | ||||||||||||||||||||
| Particulars | StoneBridge | DigiAsia | Transaction accounting adjustment | Reference | Pro Forma combined | |||||||||||||||
| (Historical) | (Historical) | |||||||||||||||||||
| ASSETS | ||||||||||||||||||||
| Current assets | ||||||||||||||||||||
| Cash and cash equivalents | $ | 123,789 | $ | 1,163,159 | $ | (255,281 | ) | (1) | $ | 1,235,842 | ||||||||||
| 26,974,295 | (2) | |||||||||||||||||||
| (25,953,173 | ) | (3) | ||||||||||||||||||
| (2,285,000 | ) | (4) | ||||||||||||||||||
| (2,631,948 | ) | (5) | ||||||||||||||||||
| 4,100,000 | (6) | |||||||||||||||||||
| Restricted cash | 2,410,149 | 2,410,149 | ||||||||||||||||||
| Account receivables | 18,541,318 | 18,541,318 | ||||||||||||||||||
| Loans | 2,466,438 | 2,466,438 | ||||||||||||||||||
| Other current assets | 1,373,232 | 1,373,232 | ||||||||||||||||||
| Prepaid expenses and other assets | 3,333 | - | 3,333 | |||||||||||||||||
| Total current assets | 127,122 | 25,954,296 | (51,106 | ) | 26,030,312 | |||||||||||||||
| Investments | 26,974,295 | 12,420,231 | (26,974,295 | ) | (2) | 12,420,231 | ||||||||||||||
| Deferred tax assets | - | - | ||||||||||||||||||
| Property and equipment | 20,720 | 20,720 | ||||||||||||||||||
| Intangible assets | 13,403,792 | 13,403,792 | ||||||||||||||||||
| Right-of-use asset | - | - | ||||||||||||||||||
| Total assets | $ | 27,101,417 | $ | 51,799,039 | $ | (27,025,401 | ) | $ | 51,875,055 | |||||||||||
| LIABILITIES AND EQUITY | ||||||||||||||||||||
| Current liabilities | ||||||||||||||||||||
| Trade payables | $ | 946,600 | $ | 21,258,203 | $ | 22,204,803 | ||||||||||||||
| Due to affiliate | 437,693 | - | 437,693 | |||||||||||||||||
| Note Payable - related party | 2,631,948 | - | (2,631,948 | ) | (5) | |||||||||||||||
| Accrued expenses | 1,106,912 | 3,920,000 | (4) | 5,026,912 | ||||||||||||||||
| Current portion of post-employment benefit liabilities | 7,249 | 7,249 | ||||||||||||||||||
| Short-term borrowings | 5,627,126 | 4,100,000 | (6) | 9,727,126 | ||||||||||||||||
| Taxes payable | 94,177 | 94,177 | ||||||||||||||||||
| Total current liabilities | 4,016,241 | 28,093,667 | 5,388,052 | 37,497,960 | ||||||||||||||||
| Derivative warrant liabilities | 540,000 | - | - | 540,000 | ||||||||||||||||
| Deferred underwriting fee payable | 9,000,000 | - | (9,000,000 | ) | (1) | - | ||||||||||||||
| Long-term debt | 480,705 | 480,705 | ||||||||||||||||||
| Non-current portion of post-employment benefit liabilities | 513,515 | 513,515 | ||||||||||||||||||
| Total liabilities | 13,556,241 | 29,087,887 | (3,611,948 | ) | 39,032,180 | |||||||||||||||
| Redeemable ordinary shares | 26,974,295 | - | (26,974,295 | ) | (3) | - | ||||||||||||||
| Equity | ||||||||||||||||||||
| Common stock | 39,483,703 | (39,483,703 | ) | (3) | - | |||||||||||||||
| Preferred stock | 25,004,125 | (25,004,125 | ) | (3) | - | |||||||||||||||
| Class B Ordinary shares | 500 | (500 | ) | (3) | - | |||||||||||||||
| 5,614 | (3) | 5,614 | ||||||||||||||||||
| Additional paid-in-capital | 24,322,159 | 76,003,836 | (3)(8) | 78,936,096 | ||||||||||||||||
| (6,205,000 | ) | (4) | ||||||||||||||||||
| (13,429,619 | ) | (7) | ||||||||||||||||||
| (6,000,000 | ) | (8) | ||||||||||||||||||
| 4,244,719 | (1) | |||||||||||||||||||
| Accumulated deficit | (13,429,619 | ) | (29,510,166 | ) | - | (62,662,592 | ) | |||||||||||||
| 13,429,619 | (7) | |||||||||||||||||||
| (33,152,426 | ) | (9) | ||||||||||||||||||
| Total Shareholder’s (Deficit)/Equity | (13,429,119 | ) | 59,299,821 | (29,591,584 | ) | 16,279,118 | ||||||||||||||
| Noncontrolling interest | - | (36,588,669 | ) | 33,152,426 | (9) | (3,436,243 | ) | |||||||||||||
| Total equity | (13,429,119 | ) | 22,711,152 | 3,560,842 | 12,842,875 | |||||||||||||||
| Total liabilities, redeemable ordinary shares and equity | $ | 27,101,417 | $ | 51,799,039 | $ | (27,025,401 | ) | $ | 51,875,055 | |||||||||||
3
UNAUDITED PRO FORMA CONDENSED
COMBINED STATEMENT OF OPERATIONS
FOR THE THREE MONTHS ENDED SEPTEMBER 30, 2023
| Unaudited Pro forma Combined Statement of Operations for the three months ended September 30, 2023 | ||||||||||||||||||
| Particulars | StoneBridge | Digi Asia | Transaction accounting adjustment | Reference | Pro forma combined | |||||||||||||
| (Historical) | (Historical) | |||||||||||||||||
| Revenues | $ | 19,421,932 | $ | 19,421,932 | ||||||||||||||
| Cost of revenues | (612,712 | ) | (612,712 | ) | ||||||||||||||
| Gross profit | - | 18,809,220 | 18,809,220 | |||||||||||||||
| Sales and marketing | (17,362,928 | ) | (17,362,928 | ) | ||||||||||||||
| General and administrative | (417,108 | ) | (1,578,579 | ) | (1,995,687 | ) | ||||||||||||
| Depreciation and amortization | (3,616 | ) | (3,616 | ) | ||||||||||||||
| Total operating expenses | (417,108 | ) | (18,945,123 | ) | (19,362,231 | ) | ||||||||||||
| Loss from operations | (417,108 | ) | (135,903 | ) | - | (553,011 | ) | |||||||||||
| Interest expense | (519,421 | ) | (519,421 | ) | ||||||||||||||
| Non-operating income | 368,576 | 7,690 | (366,916 | ) | (10) | 9,350 | ||||||||||||
| Share of net profits of investments accounted for using equity method | 83 | - | 83 | |||||||||||||||
| Loss before tax | (48,532 | ) | (647,551 | ) | (366,916 | ) | (1,062,999 | ) | ||||||||||
| Income tax expense | - | - | - | |||||||||||||||
| Net loss | (48,532 | ) | (647,551 | ) | (366,916 | ) | (1,062,999 | ) | ||||||||||
| Profit/(Loss) attributable to noncontrolling interest | - | 598,636 | (514,666 | ) | (9) | 83,970 | ||||||||||||
| Loss attributable to Company | $ | (48,532 | ) | $ | (1,246,187 | ) | $ | 514,666 | $ | (1,146,969 | ) | |||||||
| Historical loss per share | ||||||||||||||||||
| Basic | (110.97 | ) | ||||||||||||||||
| Diluted | (110.97 | ) | ||||||||||||||||
| Basic and diluted net income per share, Class A ordinary share | $ | 0.09 | ||||||||||||||||
| Basic and diluted net income per share, Class B ordinary share | $ | (0.06 | ) | |||||||||||||||
| Historical number of shares used in computing EPS | ||||||||||||||||||
| Basic | 11,230 | |||||||||||||||||
| Diluted | 11,230 | |||||||||||||||||
| Weighted average shares outstanding of Class A ordinary share | 2,528,906 | |||||||||||||||||
| Weighted average shares outstanding of Class B ordinary share | 5,000,000 | |||||||||||||||||
| Pro forma loss per share | ||||||||||||||||||
| Basic | $ | (0.02 | ) | |||||||||||||||
| Diluted | $ | (0.02 | ) | |||||||||||||||
| Pro forma number of shares used in computing EPS | ||||||||||||||||||
| Basic | 56,141,836 | |||||||||||||||||
| Diluted | 56,141,836 | |||||||||||||||||
4
UNAUDITED PRO FORMA CONDENSED
COMBINED STATEMENT OF OPERATIONS
FOR THE YEAR ENDED DECEMBER 31, 2022
| Unaudited Pro forma Combined Statement of Operations for the year ended December 31, 2022 | ||||||||||||||||||
| Particulars | StoneBridge | Digi Asia | Transaction accounting adjustment | Reference | Pro forma combined | |||||||||||||
| (Historical) | (Historical) | |||||||||||||||||
| Revenues | - | $ | 42,451,599 | $ | 42,451,599 | |||||||||||||
| Cost of revenues | - | (2,607,387 | ) | (2,607,387 | ) | |||||||||||||
| Gross profit | - | 39,844,212 | 39,844,212 | |||||||||||||||
| Sales and marketing | - | (39,711,859 | ) | (39,711,859 | ) | |||||||||||||
| General and administrative | (1,368,675 | ) | (7,098,657 | ) | (8,467,332 | ) | ||||||||||||
| Depreciation and amortization | - | (17,506 | ) | (17,506 | ) | |||||||||||||
| Total operating expenses | (1,368,675 | ) | (46,828,022 | ) | (48,196,697 | ) | ||||||||||||
| Loss from operations | (1,368,675 | ) | (6,983,810 | ) | - | (8,352,485 | ) | |||||||||||
| Interest expense | (1,005,326 | ) | (1,005,326 | ) | ||||||||||||||
| Non-operating income | 11,374,920 | 6,574 | (2,920,785 | ) | (10) | 8,530,709 | ||||||||||||
| Share of net profits of investments accounted for using equity method | - | 266 | - | 266 | ||||||||||||||
| Loss before tax | 10,006,245 | (7,912,296 | ) | (2,920,785 | ) | (826,836 | ) | |||||||||||
| Income tax expense | - | - | - | |||||||||||||||
| Net loss | 10,006,245 | (7,912,296 | ) | (2,920,785 | ) | (826,836 | ) | |||||||||||
| Loss attributable to noncontrolling interest | - | (3,671,104 | ) | 3,560,190 | (9) | (110,914 | ) | |||||||||||
| Income/(Loss) attributable to Company | $ | 10,006,245 | $ | (4,241,192 | ) | $ | (3,560,190 | ) | $ | (715,922 | ) | |||||||
| Historical earnings/(loss) per share | ||||||||||||||||||
| Basic | $ | (377.67 | ) | |||||||||||||||
| Diluted | $ | (377.67 | ) | |||||||||||||||
| Basic and diluted net earnings/(loss) income per share, Class A ordinary share | $ | 0.43 | ||||||||||||||||
| Basic and diluted net earnings/(loss) income per share, Class B ordinary share | $ | 0.28 | ||||||||||||||||
| Historical number of shares used in computing EPS | ||||||||||||||||||
| Basic | 11,230 | |||||||||||||||||
| Diluted | 11,230 | |||||||||||||||||
| Weighted average shares outstanding of Class A ordinary share | 20,000,000 | |||||||||||||||||
| Weighted average shares outstanding of Class B ordinary share | 5,000,000 | |||||||||||||||||
| Pro forma loss per share | ||||||||||||||||||
| Basic | $ | (0.01 | ) | |||||||||||||||
| Diluted | $ | (0.01 | ) | |||||||||||||||
| Pro forma number of shares used in computing EPS | ||||||||||||||||||
| Basic | 56,141,836 | |||||||||||||||||
| Diluted | 56,141,836 | |||||||||||||||||
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NOTES TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION
| 1. | Basis of Presentation |
The unaudited pro forma condensed combined financial information has been adjusted to give effect to transaction accounting adjustments related to the Business Combination linking the effects of the Business Combination to the historical financial information.
The Business Combination will be accounted for as a reverse recapitalization in accordance with the FASB’s Accounting Standards Codification Topic 805, Business Combinations. DigiAsia has been determined to be the accounting acquirer. Under the reverse recapitalization model, the Business Combination will be treated as DigiAsia issuing equity for the net assets of StoneBridge, with no goodwill or intangible assets recorded.
The pro forma adjustments have been prepared as if the Business Combination had been consummated on June 30, 2023, in the case of the unaudited pro forma condensed combined balance sheet, and as if the Business Combination had been consummated on January 1, 2022, the beginning of the earliest period presented, in the case of the unaudited pro forma condensed combined statements of operations.
The pro forma condensed combined balance sheet as of September 30, 2023, has been prepared using the following:
| ● | DigiAsia’s unaudited interim consolidated balance sheet as of June 30, 2023, as included in this statement; and |
| ● | StoneBridge’s historical unaudited condensed balance sheet as of September 30, 2023, as included in this statement. |
The pro forma condensed combined statement of operations for the three months ended September 30, 2023, has been prepared using the following:
| ● | DigiAsia’s unaudited interim consolidated statement of operations for the six months ended June 30, 2023, as included in this statement; and |
| ● | StoneBridge’s historical unaudited condensed statement of operations for the three and nine months ended September 30, 2023, as included in this statement. |
The pro forma condensed combined statement of operations for the year ended December 31, 2022, has been prepared using the following:
| ● | DigiAsia’s historical audited consolidated statement of operations for the year ended December 31, 2022, as included in this statement; and |
| ● | StoneBridge’s historical audited statement of operations for the year ended December 31, 2022, as included in this statement. |
The adjustments presented in the unaudited pro forma condensed combined financial information have been identified and presented to provide relevant information necessary for an accurate understanding of DigiAsia after giving effect to the Business Combination. Management has made significant estimates and assumptions in its determination of the pro forma adjustments. As the unaudited pro forma condensed combined financial information has been prepared based on these estimates, the final amounts recorded may differ materially from the information presented.
The pro forma adjustments reflecting the consummation of the Business Combination are based on certain currently available information and certain assumptions and methodologies that management believes are reasonable under the circumstances. The unaudited condensed pro forma adjustments, which are described in the accompanying notes, may be revised as additional information becomes available and is evaluated. Therefore, it is likely that the actual adjustments will differ from the pro forma adjustments, and it is possible the difference may be material. Management believes that its assumptions and methodologies provide a reasonable basis for presenting all of the significant effects of the Business Combination based on information available to management at this time and that the pro forma adjustments give appropriate effect to those assumptions and are properly applied in the unaudited pro forma condensed combined financial information. StoneBridge has elected not to present any “management adjustments.”
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The unaudited pro forma condensed combined financial information is not necessarily indicative of what the actual results of operations and financial position would have been had the Business Combination taken place on the dates indicated, nor are they indicative of the future consolidated results of operations or financial position of the combined company. They should be read in conjunction with the historical financial statements and notes thereto of DigiAsia and StoneBridge.
| 2. | Adjustments to Unaudited Pro Forma Condensed Combined Balance Sheet as of September 30, 2023 |
The Transaction Accounting Adjustments included in the unaudited pro forma condensed combined balance sheet as of September 30, 2023, are as follows:
| (A) | Derived from the unaudited interim consolidated balance sheet of DigiAsia as of June 30, 2023. |
| (B) | Derived from the unaudited condensed balance sheet of StoneBridge as of September 30, 2023. |
| 1. | Deferred underwriting fee payable of $ 9.0 million to be paid on consummation of Business Combination to underwriter. Out of this, $4.5 million to be settled by way of issuance of 450,000 ordinary shares resulting an increase in ordinary shares and additional paid-in capital. Further, underwriter is eligible for 25% of the amount left in Trust Account after redemptions subject to maximum of $4.5 million. Impact of balance deferred underwriting fees payable, if any, has been shown as addition to additional paid-in capital of the combined company. |
| 2. | Represents cash equivalents that will be released from the Trust Account and relieved of restrictions regarding use upon the Closing and, accordingly, will be available for redemptions and general use by the combined company. Such amount represents a reclassification from the investments held in trust line of the pro forma balance sheet to the cash and cash equivalents line. |
| 3. | To reflect the recapitalization of DigiAsia through (a) the contribution of all the share capital in DigiAsia (consisting of preferred shares and ordinary shares) to DigiAsia common stock (b) the issuance of 50,000,000 PubCo shares and to reflect the redemptions of Class A ordinary share . |
| 4. | Represents the impact of certain transaction costs that are expected to be incurred for the Business Combination and are to be reflected as a reduction of additional paid-in capital of the combined company. Further, some of these transaction costs have been considered as a part of accrued expenses outstanding and will be paid at later date depending upon terms agreed with the vendor. |
| 5. | Reflects repayment of note payable to related party in the amount of $2.63 million with corresponding reduction in cash. |
| 6. | Reflects the proceeds from the secured promissory note of $4.1 million. |
| 7. | Reflects the elimination of StoneBridge’s historical accumulated deficit with a corresponding adjustment to additional paid-in-capital for PubCo in connection with the reverse recapitalization at the Closing. |
| 8. | Reflects payment of certain transaction costs related to the Business Combination by way of issuance of ordinary shares. The unaudited pro forma condensed combined balance sheet reflects these costs as an increase in common stock and additional paid-in capital, with a corresponding decrease in additional paid-in capital. |
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| 9. | Represents the impact of conversion of the CLAs by DigiAsia into shares of PT DAB, such that, following such conversion, DigiAsia will hold 99.9999% of the entire issued capital of PT DAB. Conversion will result in the consolidation of PT DAB as a voting interest entity, and eliminate the non-controlling interest portion for the portion DigiAsia owns. |
Unaudited Condensed Combined Pro Forma Adjustments to the Statements of Operations
| 3. | Adjustments to Unaudited Pro Forma Condensed Combined Statements of Operations for the Three Months Ended September 30, 2023 |
The Transaction Accounting Adjustments included in the unaudited pro forma condensed combined statements of operations are as follows:
| (A) | Derived from the unaudited interim consolidated statement of operations of DigiAsia for the six months ended June 30, 2023. |
| (B) | Derived from the unaudited condensed statement of operations of StoneBridge for the nine months ended September 30, 2023. |
| 10. | Represents an adjustment to eliminate dividend income on marketable securities held in the Trust Account as of the beginning of the period. |
| 4. | Adjustments to Unaudited Pro Forma Condensed Combined Statements of Operations for the Year Ended December 31, 2022 |
The Transaction Accounting Adjustments included in the unaudited pro forma condensed combined statements of operations are as follows:
| (A) | Derived from the audited consolidated statement of operations of DigiAsia for the year ended December 31, 2022. |
| (B) | Derived from the audited statement of operations of StoneBridge for the year ended December 31, 2022. |
| 10. | Represents an adjustment to eliminate interest income on marketable securities held in the Trust Account as of the beginning of the period. |
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As the Business Combination is being reflected as if it had occurred at the beginning of the period presented, the calculation of weighted average shares outstanding for basic and diluted net income (loss) per share assumes that the shares have been outstanding for the entire period presented. This calculation is retroactively adjusted to eliminate the number of all shares redeemed for the entire period.
| 5. | Net Loss per Share |
Represents the net income per share calculated using the historical weighted average shares outstanding, and the issuance of additional shares in connection with the Business Combination, assuming the shares were outstanding since January 1, 2022. As the Business Combination is being reflected as if it had occurred at the beginning of the period presented, the calculation of weighted average shares outstanding for basic and diluted net income per share assumes that the shares issued in connection with the Business Combination have been outstanding for the entire period presented.
The unaudited pro forma combined per share information has been presented as follows:
| Three months ended September 30, 2023 | ||||
| Numerator: | ||||
| Net loss attributable to common shareholders – basic and diluted | $ | (1,146,968 | ) | |
| Denominator: | ||||
| Weighted average shares outstanding | 56,141,836 | |||
| Basic and diluted net loss per share attributable to controlling interests | $ | (0.02 | ) | |
| Year ended December 31, 2022 | ||||
| Numerator: | ||||
| Net loss attributable to common shareholders – basic and diluted | $ | (715,922 | ) | |
| Denominator: | ||||
| Weighted average shares outstanding | 56,141,836 | |||
| Basic and diluted net loss per share attributable to controlling interests | $ | (0.01 | ) | |
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