DEF 14A 1 formdef14a.htm

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

Schedule 14A

 

Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934

 

Filed by the Registrant
   
Filed by a Party other than the Registrant

 

Check the appropriate box:

 

Preliminary Proxy Statement
   
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
   
Definitive Proxy Statement
   
Definitive Additional Materials
   
Soliciting Material Pursuant to § 240.14a-12

 

KAIROUS ACQUISITION CORP. LIMITED

(Name of Registrant as Specified In Its Charter)

 

 

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

 

Payment of Filing Fee (Check the appropriate box):

 

No fee required.
   
Fee paid previously with preliminary materials.
   
Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11

 

 

 

 

 

 

KAIROUS ACQUISITION CORP. LIMITED
Level 39 Marina Bay Financial Centre Tower 2
10 Marina Boulevard
City Singapore 018983, Singapore

November 28, 2023

 

Dear Shareholders:

 

On behalf of the Board of Directors of Kairous Acquisition Corp. Limited (the “Company” or “we”), I invite you to attend our Annual General Meeting of Shareholders (the “Annual Meeting”). We hope you can join us. The Annual Meeting will be held:

 

  At: Grand Hyatt Erawan Bangkok, 494 Ratchadamri Rd, Lumphini, Pathum Wan, Bangkok 10330, Thailand. (and via video conference at https://www.cstproxy.com/kairousacquisitioncorp/2023)
  On: December 14, 2023
  Time: 10 a.m. local time

 

The Notice of Annual Meeting of Shareholders, the Proxy Statement and the proxy card accompany this letter, together with our Annual Report on Form 10-K for the fiscal year ended June 30, 2023 will be first mailed to our shareholders on or about November 29, 2023.

 

As discussed in the enclosed Proxy Statement, the Annual Meeting will be devoted to:

 

(i) A proposal to amend (the “Charter Amendment”) the Company’s second amended and restated memorandum and articles of association (the “Charter”) to extend the date by which the Company has to consummate a business combination (the “Extension”) a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 (the “Current Termination Date”) to December 16, 2024 (the termination date as so extended, the “Extended Termination Date”);

 

(ii) A proposal to amend (the “Trust Amendment”) the Company’s investment management trust agreement (the “Trust Agreement”), dated as of December 13, 2021, by and between the Company and Continental Stock Transfer & Trust Company (the “trustee”), as amended, to extend the date on which to commence liquidating the trust account (the “Trust Account”) established in connection with the Company’s initial public offering (the “IPO”) a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 to December 16, 2024; by depositing into the trust account $50,000 for each one-month extension (each, an “Extension Payment”) in the event the Company has not consummated a business combination by the Extended Termination Date; and

 

(iii) To act on such other matters as may properly come before the meeting or any adjournment or adjournments thereof (the “Adjournment Proposal”).

 

The Company’s IPO prospectus dated December 13, 2021 originally provided that the Company had until December 16, 2022 to complete its initial business combination, but could extend such period for up to three times by an additional three months each time until September 16, 2023. The original way to extend the Combination Period from December 16, 2023 without the need for a separate shareholder vote under the Charter and Trust Agreement was for our insiders or their affiliates or designees, upon five (5) days’ advance notice prior to the applicable deadline, to deposit into the Trust Account $780,000 (i.e., $0.10 per each issued and outstanding Company ordinary share issued in the IPO (each, a “Public Share”)), for each three-month extension, on or prior to the date of the applicable deadline. Subsequently at the annual meeting of shareholders held on December 2, 2022, the Company’s shareholders approved an amended and restated memorandum and articles of association and an amendment to the Trust Agreement, such that the Company has the right to extend the time to complete a business combination a total of eight (8) times, as follows: (i) two (2) times for an additional three (3) months each time from December 16, 2022 to June 16, 2023, followed by (ii) six (6) times for an additional one (1) month each time from June 16, 2023 to December 16, 2023; by depositing into the trust account $360,000 for each three-month extension and $120,000 for each one-month extension.

 

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The purpose of the Charter Amendment and the Trust Amendment is to allow the Company an option to further extend the time to complete a business combination. Our board of directors has determined that it is in the best interests of our shareholders to allow the Company to extend the time to complete a business combination a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 to December 16, 2024, and provide that the date for cessation of operations of the Company if the Company has not completed a business combination would similarly be extended to the Extended Termination Date.

 

The purpose of the Charter Amendment and the Trust Amendment is to allow for twelve (12) one-month extensions, with a required Extension Payment of $50,000 for each one-month extension. Our insiders or their affiliates or designees will elect to exercise each extension on an as-needed basis only.

 

We know that many of our shareholders will be unable to attend the Annual Meeting. We are soliciting proxies so that each shareholder has an opportunity to vote on all matters that are scheduled to come before the shareholders at the Annual Meeting. Whether or not you plan to attend, please take the time now to read the Proxy Statement and vote by submitting by mail a paper copy of your proxy or vote instructions, so that your shares are represented at the meeting. You may also revoke your proxy or vote instructions and change your vote at any time prior to the Annual Meeting. Regardless of the number of Company shares you own, your presence in person or by proxy is important for quorum purposes and your vote is important for proper corporate action.

 

Thank you for your continuing interest in Kairous Acquisition Corp. Limited. We look forward to seeing you at the Annual General Meeting.

 

If you have any questions about the Proxy Statement, please contact us at Kairous Acquisition Corp. Limited, Level 39 Marina Bay Financial Centre Tower 2, 10 Marina Boulevard, City Singapore 018983, Singapore. You may also contact the proxy solicitor with any questions at:

 

Morrow Sodali LLC

333 Ludlow Street, 5th Floor, South Tower

Stamford, CT 06902

Individuals call toll-free (800) 662-5200

Banks and Brokers call (203) 658-9400

Email: KACL.info@investor.morrowsodali.com

 

Sincerely,

 

/s/ Athiwat Apichote

 
Athiwat Apichote  
Chief Executive Officer  

 

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KAIROUS ACQUISITION CORP. LIMITED

Level 39 Marina Bay Financial Centre Tower 2

10 Marina Boulevard

City Singapore 018983, Singapore

 

NOTICE OF ANNUAL GENERAL MEETING OF SHAREHOLDERS

TO BE HELD ON DECEMBER 14, 2023

 

To the Shareholders of Kairous Acquisition Corp. Limited:

 

NOTICE IS HEREBY GIVEN that an Annual General Meeting (the “Annual Meeting”) of Shareholders of Kairous Acquisition Corp. Limited (the “Company” or “we”), a Cayman Islands company, will be held at Grand Hyatt Erawan Bangkok , 494 Ratchadamri Rd, Lumphini, Pathum Wan, Bangkok 10330, Thailand (and via video conference at https://www.cstproxy.com/kairousacquisitioncorp/2023 and entering the control number included on your proxy card) on December 14, 2023, at 10 a.m. local time, for the purposes of considering and voting upon, and if thought fit, passing and approving the following resolutions:

 

1. To approve as a special resolution that the Company’s second amended and restated memorandum and articles of association (the “Charter”) be deleted in their entirety and the substitution in their place of the third amended and restated memorandum and articles of association of the Company in the form attached as Annex A hereto (the “Charter Amendment”) which reflects the extension of the date by which the Company has to consummate a business combination (the “Extension”) a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 (the “Current Termination Date”) to December 16, 2024 (the termination date as so extended, the “Extended Termination Date”).

 

2. To approve as an ordinary resolution that the Company’s investment management trust agreement (the “Trust Agreement”), dated as of December 13, 2021, by and between the Company and Continental Stock Transfer & Trust Company (the “trustee”), as amended, be amended (the “Trust Amendment”) to allow the Company to extend the date on which to commence liquidating the trust account (the “Trust Account”) established in connection with the Company’s initial public offering (the “IPO”) a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 to December 16, 2024; by depositing into the trust account $50,000 for each one-month extension (each, an “Extension Payment”) in the event the Company has not consummated a business combination by the Extended Termination Date.

 

3. To approve as an ordinary resolution that the Chairman of the Annual Meeting be directed to adjourn the Annual Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies if, based upon the tabulated vote at the time of the meeting, there are not sufficient votes to approve Charter Amendment and the Trust Amendment (the “Adjournment Proposal”).

 

The Board has fixed the close of business on November 1, 2023 as the record date for the meeting and only holders of shares of record at that time will be entitled to notice of and to vote at the Annual Meeting or any adjournment or adjournments thereof.

 

  By Order of the Board of Directors
   
 

/s/ Athiwat Apichote

  Athiwat Apichote
  Chief Executive Officer

 

Singapore
November 28, 2023

 

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IMPORTANT

 

IF YOU CANNOT PERSONALLY ATTEND THE ANNUAL MEETING, IT IS REQUESTED THAT YOU INDICATE YOUR VOTE ON THE ISSUES INCLUDED ON THE ENCLOSED PROXY AND DATE, SIGN AND MAIL IT IN THE ENCLOSED SELF-ADDRESSED ENVELOPE WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES OF AMERICA.

 

IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE ANNUAL MEETING OF SHAREHOLDERS TO BE HELD ON DECEMBER 14, 2023. THIS PROXY STATEMENT TO THE SHAREHOLDERS WILL BE AVAILABLE AT https://www.cstproxy.com/kairousacquisitioncorp/2023/proxy.

 

KAIROUS ACQUISITION CORP. LIMITED

Level 39 Marina Bay Financial Centre Tower 2

10 Marina Boulevard

City Singapore 018983, Singapore

 

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PROXY STATEMENT
FOR
ANNUAL GENERAL MEETING OF SHAREHOLDERS
TO BE HELD ON DECEMBER 14, 2023
FIRST MAILED ON OR ABOUT NOVEMBER 29, 2023

 

Date, Time and Place of the Annual Meeting

 

The enclosed proxy is solicited by the Board of Directors (the “Board”) of Kairous Acquisition Corp. Limited (the “Company”), an exempted Cayman Islands company, in connection with the Annual General Meeting of Shareholders (the “Annual Meeting”) to be held at Grand Hyatt Erawan Bangkok, 494 Ratchadamri Rd, Lumphini, Pathum Wan, Bangkok 10330, Thailand (and via video conference at https://www.cstproxy.com/kairousacquisitioncorp/2023 and entering the control number included on your proxy card) on December 14, 2023, at 10 a.m. local time, and any adjournments thereof, for the purposes set forth in the accompanying Notice of Meeting.

 

The principal executive office of the Company is Level 39 Marina Bay Financial Centre Tower 2, 10 Marina Boulevard, City Singapore 018983, Singapore, and its telephone number, including area code, is +662-255-6851.

 

Purpose of the Annual Meeting

 

At the Annual Meeting, you will be asked to consider and vote upon the following matters:

 

  1. A proposal to amend (the “Charter Amendment”) the Company’s second amended and restated memorandum and articles of association (the “Charter”) to extend the date by which the Company has to consummate a business combination (the “Extension”) a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 (the “Current Termination Date”) to December 16, 2024 (the termination date as so extended, the “Extended Termination Date”); each time.
     
  2. A proposal to amend (the “Trust Amendment”) the Company’s investment management trust agreement (the “Trust Agreement”), dated as of December 13, 2021, by and between the Company and Continental Stock Transfer & Trust Company (the “trustee”), as amended, to extend the date on which to commence liquidating the trust account (the “Trust Account”) established in connection with the Company’s initial public offering (the “IPO”) a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 to December 16, 2024 by depositing into the trust account $50,000 for each one-month extension (each, an “Extension Payment”) for each one-month extension in the event the Company has not consummated a business combination by the Extended Termination Date.
     
  3. To act on such other matters as may properly come before the meeting or any adjournment or adjournments thereof (the “Adjournment Proposal”).

 

The Company’s IPO prospectus originally provides that the Company has until December 16, 2022 to complete its initial business combination, but may extend such period for up to three times by an additional three months each time until September 16, 2023. Subsequently at the annual meeting of shareholders held on December 2, 2022, the Company’s shareholders approved an amended and restated memorandum and articles of association and an amendment to the Trust Agreement, such that the Company has the right to extend the time to complete a business combination a total of eight (8) times, as follows: (i) two (2) times for an additional three (3) months each time from December 16, 2022 to June 16, 2023, followed by (ii) six (6) times for an additional one (1) month each time from June 16, 2023 to December 16, 2023; by depositing into the trust account $360,000 for each three-month extension and $120,000 for each one-month extension.

 

Following the completion of our IPO in December 2021, our representatives have engaged in extensive discussions with business owners with respect to potential business combination opportunities. The purpose of the Charter Amendment and the Trust Amendment is to allow the Company an option to further extend the time to complete a business combination. Our board of directors has determined that it is in the best interests of our shareholders to extend the Current Termination Date so to allow the Company to extend the time to complete a business combination a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 to December 16, 2024; by depositing into the trust account an Extension Payment of $50,000 for each one-month extension and provide that the date for cessation of operations of the Company if the Company has not completed a business combination would similarly be extended to the Extended Termination Date (the “Extension”). Under our current Charter, if we do not consummate an initial business combination by December 16, 2023, we will be required to dissolve and liquidate our trust account by returning the then remaining funds in such account to the public shareholders and our warrants to purchase our ordinary shares will expire worthless.

 

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Both the Trust Agreement and the Company’s charter will be amended to reflect the foregoing. The Charter Amendment is attached hereto as Annex A, and the Trust Amendment is attached hereto as Annex B.

 

Our sponsor, Kairous Asia Limited (the “Sponsor”), wants to pay an extension amount that is less than that provided by the current Charter and Trust Agreement, on a month-to-month and as-needed basis only. Under the current Charter and Trust Agreement, each three-month extension payment is $360,000 and each one-month extension payment is $120,000. The amount now proposed to be paid would be $50,000 for each one-month extension. However, this could be contrary to the interests of our remaining public shareholders, given that there will be less funds in the Trust Account on an aggregate basis than if the extension provisions were not amended.

 

After consultation with the Sponsor, Company management has reasons to believe that, if the Charter Amendment and Trust Amendment proposals are approved, the Sponsor or its affiliates will, in connection with each extension, contribute $50,000 for each one-month extension, as the case may be, to the Company as a loan (each loan being referred to herein as a “contribution”) for the Company to deposit the funds into the Trust Account as the Extension Payment upon five (5) days’ advance notice prior to the applicable deadlines. The first extension payment after the approval of the Charter Amendment Proposal must be made prior to the Current Termination Date, while the second extension payment must be deposited into the trust account no fewer than five (5) calendar days prior to the then existing termination date. The contribution(s) will bear no interest and will be repayable by the Company to the Sponsor upon consummation of an initial business combination. The loans will be forgiven by the Sponsor or its affiliate if the Company is unable to consummate an initial business combination except to the extent of any funds held outside of the Trust Account. Each of the Charter Amendment, Trust Amendment, and the Adjournment Proposal are more fully described in the accompanying Proxy Statement.

 

As of November 24, 2023, there was approximately $23,895,981.58 in the Trust Account. If the Charter Amendment Proposal and Trust Amendment Proposal are not approved, and we do not consummate an initial business combination by December 16, 2023, we will be required to dissolve and liquidate our trust account by returning the then remaining funds in such account to the public shareholders and our warrants to purchase Ordinary Shares (as defined below) will expire worthless.

 

Voting Rights and Revocation of Proxies

 

The record date with respect to this solicitation is the close of business on November 1, 2023 (the “Record Date”) and only shareholders of record at that time will be entitled to vote at the Annual Meeting and any adjournment or adjournments thereof.

 

The Company’s ordinary shares (“Ordinary Shares”) represented by all validly executed proxies received in time to be taken to the meeting and not previously revoked will be voted at the meeting. This proxy may be revoked by the shareholder at any time prior to its being voted by filing with the Secretary of the Company either a notice of revocation or a duly executed proxy bearing a later date. We intend to release this Proxy Statement and the enclosed proxy card to our shareholders on or about November 28, 2023.

 

Dissenters’ Right of Appraisal

 

Holders of Ordinary Shares do not have appraisal rights under the laws of the Cayman Islands or under the governing documents of the Company in connection with this solicitation.

 

Outstanding Shares and Quorum

 

The number of outstanding Ordinary Shares entitled to vote at the meeting is 4,435,959. Each Ordinary Share is entitled to one vote. The presence in person or by proxy at the Annual Meeting of the holders of 2,217,981 shares, or a majority of the number of outstanding Ordinary Shares, will constitute a quorum. There is no cumulative voting. Shares that abstain or for which the authority to vote is withheld on certain matters (so-called “broker non-votes”) will be treated as present for quorum purposes on all matters.

 

Broker Non-Votes

 

Holders of Ordinary Shares that are held in street name must instruct their bank or brokerage firm that holds their shares how to vote their shares. If a shareholder does not give instructions to his or her bank or brokerage firm, it will nevertheless be entitled to vote the shares with respect to “routine” items, but it will not be permitted to vote the shares with respect to “non-routine” items. In the case of a non-routine item, such shares will be considered “broker non-votes” on that proposal. The Company believes that all of the proposals presented to the shareholders at this Annual Meeting will be considered “non-routine” items. Accordingly, banks or brokerages cannot use discretionary authority to vote shares on Proposals 1, 2 or 3 if they have not received instructions from their clients. Please submit your vote instruction form so your vote is counted.

 

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Required Votes for Each Proposal to Pass

 

Assuming the presence of a quorum at the Annual Meeting:

 

Proposal   Vote Required  

Broker

Discretionary Vote Allowed

         
Charter Amendment   Two-thirds majority of the shares present in person or by proxy and entitled to vote   No
Trust Amendment   Majority of the shares present in person or by proxy and entitled to vote   No
Adjournment   Majority of the outstanding shares in person or by proxy and entitled to vote   No

 

Abstentions will not count as a vote against each of the proposals.

 

Voting Procedures

 

Each Ordinary Share that you own in your name entitles you to one vote on each of the proposals for the Annual Meeting. Your proxy card shows the number of Ordinary Shares that you own.

 

  You can vote your Ordinary Shares in advance of the Annual Meeting by completing, signing, dating and returning the enclosed proxy card in the postage-paid envelope provided. If you hold your shares in “street name” through a broker, bank or other nominee, you will need to follow the instructions provided to you by your broker, bank or other nominee to ensure that your shares are represented and voted at the Annual Meeting. If you vote by proxy card, your “proxy,” whose name is listed on the proxy card, will vote your shares as you instruct on the proxy card. If you sign and return the proxy card but do not give instructions on how to vote your shares, your Ordinary Shares will be voted as recommended by our board of directors. Our board of directors recommends voting “FOR” each of the Charter Amendment, the Trust Amendment Proposal and the Adjournment Proposal.
     
  You can attend the Annual Meeting and vote in person even if you have previously voted by submitting a proxy. You will be given a ballot when you arrive. However, if your Ordinary Shares are held in the name of your broker, bank or other nominee, you must get a proxy from the broker, bank or other nominee. That is the only way we can be sure that the broker, bank or nominee has not already voted your shares.

 

Solicitation of Proxies

 

We have retained Morrow Sodali LLC, a proxy solicitation firm, for assistance in connection with the solicitation of proxies for the Annual Meeting. Any customary fees of Morrow Sodali LLC will be paid by us. In addition, our officers and directors may solicit proxies by mail, telephone, facsimile, and personal interview, for which no additional compensation will be paid, though they may be reimbursed for their out-of-pocket expenses. We will bear the cost of preparing, assembling and mailing the enclosed form of proxy, this proxy statement and other material which may be sent to stockholders in connection with this solicitation. We may reimburse brokerage firms and other nominee holders for their reasonable expenses in sending proxies and proxy material to the beneficial owners of our Ordinary Shares. You may contact the proxy solicitor with any questions at:

 

Morrow Sodali LLC

333 Ludlow Street, 5th Floor, South Tower

Stamford, CT 06902

Individuals call toll-free (800) 662-5200

Banks and Brokers call (203) 658-9400

Email: KACL.info@investor.morrowsodali.com

 

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Delivery of Proxy Materials to Households

 

Only one copy of the Annual Report on Form 10-K for the fiscal year ended June 30, 2023 (the “2023 Annual Report”) and this Proxy Statement will be delivered to an address where two or more shareholders reside with the same last name or whom otherwise reasonably appear to be members of the same family based on the shareholders’ prior express or implied consent.

 

We will deliver promptly upon written or oral request a separate copy of the 2023 Annual Report on Form 10-K and this Proxy Statement. If you share an address with at least one other shareholder, currently receive one copy of our Annual Report on Form 10-K and Proxy Statement at your residence, and would like to receive a separate copy of our Annual Report on Form 10-K and Proxy Statement for future shareholder meetings of the Company, please specify such request in writing and send such written request to Morrow Sodali LLC, 333 Ludlow Street, 5th Floor, South Tower, Stamford, CT 06902, Individuals call toll-free (800) 662-5200, Banks and Brokers call (203) 658-9400, Email: KACL.info@investor.morrowsodali.com.

 

If you share an address with at least one other shareholder and currently receive multiple copies of Annual Report on Form 10-K and Proxy Statement, and you would like to receive a single copy of Annual Report on Form 10-K and Proxy Statement, please specify such request in writing and send such written request to Morrow Sodali LLC, 333 Ludlow Street, 5th Floor, South Tower, Stamford, CT 06902, Individuals call toll-free (800) 662-5200, Banks and Brokers call (203) 658-9400, Email: KACL.info@investor.morrowsodali.com.

 

Redemption Rights

 

Pursuant to our current Charter, any holders of our public shares may demand that such shares be redeemed for a pro rata share of the aggregate amount on deposit in the trust account, less taxes payable, calculated as of two (2) business days prior to the Annual Meeting. Regardless whether you vote for or against the Charter Amendment and the Trust Amendment, if your request is properly made and the Charter Amendment and the Trust Amendment are approved, these shares will cease to be outstanding and will represent only the right to receive a pro rata share of the aggregate amount on deposit in the trust account which holds the proceeds of our IPO (calculated as of two (2) business days prior to the Annual Meeting). For illustrative purposes only, based on funds in the trust account of approximately $23,895,981.58 on November 24, 2023, the estimated per share redemption price would have been approximately $11.43.

 

In order to exercise your redemption rights, you must submit a request in writing prior to 5:00 p.m., Eastern time on December 12, 2023 (two (2) business days before the Annual Meeting) that we redeem your Public Shares for cash to Continental Stock Transfer & Trust Company, our transfer agent, at the following address:

 

Continental Stock Transfer & Trust Company
1 State Street, 30th Floor 1 State Street, 30th Floor
Attn: Mark Zimkind
E-mail: mzimkind@continentalstock.com

 

And

 

  deliver your public shares either physically or electronically through DTC to our transfer agent at least two (2) business days before the Annual Meeting. Shareholders seeking to exercise their redemption rights and opting to deliver physical certificates should allot sufficient time to obtain physical certificates from the transfer agent and time to effect delivery. It is our understanding that shareholders should generally allow at least two (2) weeks to obtain physical certificates from the transfer agent. However, we do not have any control over this process and it may take longer than two (2) weeks. Shareholders who hold their shares in street name will have to coordinate with their broker, bank or other nominee to have the shares certificated or delivered electronically. If you do not submit a written request and deliver your public shares as described above, your shares will not be redeemed.

 

Any demand for redemption, once made, may be withdrawn at any time until the deadline for exercising redemption requests (and submitting shares to the transfer agent) and thereafter, with our consent, until the vote is taken with respect to the Charter Amendment and the Trust Amendment. If you delivered your shares for redemption to our transfer agent and decide within the required timeframe not to exercise your redemption rights, you may request that our transfer agent return the shares (physically or electronically). You may make such request by contacting our transfer agent at the phone number or address listed above.

 

Prior to exercising redemption rights, shareholders should verify the market price of our Ordinary Shares, as they may receive higher proceeds from the sale of their Ordinary Shares in the public market than from exercising their redemption rights if the market price per share is higher than the redemption price. We cannot assure you that you will be able to sell your Ordinary Shares in the open market, even if the market price per share is higher than the redemption price stated above, as there may not be sufficient liquidity in our Ordinary Shares when you wish to sell your shares.

 

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If you exercise your redemption rights, your Ordinary Shares will cease to be outstanding immediately prior to the Annual Meeting (assuming the Charter Amendment and Trust Amendment are approved) and will only represent the right to receive a pro rata share of the aggregate amount on deposit in the trust account. You will no longer own those shares and will have no right to participate in, or have any interest in, the future growth of the Company, if any. You will be entitled to receive cash for these shares only if you properly and timely request redemption.

 

If the Charter Amendment Proposal and Trust Amendment Proposal are not approved, and we do not consummate an initial business combination by December 16, 2023, we will be required to dissolve and liquidate our trust account by returning the then remaining funds in such account to the public shareholders and our warrants to purchase Ordinary Shares will expire worthless.

 

Holders of outstanding units must separate the underlying public shares, public rights and public warrants prior to exercising redemption rights with respect to the public shares.

 

If you hold units registered in your own name, you must deliver the certificate for such units to Continental Stock Transfer & Trust Company with written instructions to separate such units into public shares, public rights and public warrants. This must be completed far enough in advance to permit the mailing of the public share certificates back to you so that you may then exercise your redemption rights with respect to the public shares upon the separation of the public shares from the units.

 

If a broker, dealer, commercial bank, trust company or other nominee holds your units, you must instruct such nominee to separate your units. Your nominee must send written instructions by facsimile to Continental Stock Transfer & Trust Company. Such written instructions must include the number of units to be split and the nominee holding such units. Your nominee must also initiate electronically, using DTC’s deposit withdrawal at custodian (DWAC) system, a withdrawal of the relevant units and a deposit of an equal number of public shares, public rights and public warrants. This must be completed far enough in advance to permit your nominee to exercise your redemption rights with respect to the public shares upon the separation of the public shares from the units. While this is typically done electronically the same business day, you should allow at least one full business day to accomplish the separation. If you fail to cause your public shares to be separated in a timely manner, you will likely not be able to exercise your redemption rights.

 

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

 

The following table sets forth certain information with respect to the beneficial ownership of our voting securities by (i) each person who is known by us to be the beneficial owner of more than 5% of our issued and outstanding Ordinary Shares, (ii) each of our officers and directors, and (iii) all of our officers and directors as a group as of November 28, 2023. Unless otherwise indicated, we believe that all persons named in the table have sole voting and investment power with respect to all ordinary shares beneficially owned by them. The following table does not reflect record of beneficial ownership of any ordinary shares issuable upon exercise of the warrants or conversion of rights, as the warrants are not exercisable within 60 days of November 28, 2023 and the rights are not convertible within 60 days of November 28, 2023.

 

Name and Address of Beneficial Owner(1)  Amount and Nature of Beneficial Ownership  

Approximate Percentage

of Outstanding

Ordinary Shares

 
Kairous Asia Limited(2)   2,143,143    21.12%
Athiwat Apichote   -    - 
Usanee Lekvanichkul   -    - 
Duke Fu   -    - 
Dhas Udomdhammabhakdi   -    - 
Chandresh Patel   -    - 
All directors and executive officers (five (5) individuals) as a group   -    - 
Joseph Lee Moh Hon (2)   2,143,143    21.12%
Owl Creek Asset Management, L.P. (3)   475,000    10.71%
Feis Equities LLC(4)   456,970    10.30%
Shaolin Capital Management LLC(5)   200,000    4.51%
Polar Asset Management Partners Inc.(6)   412,400    9.30%

 

* Less than 1%.

 

(1) Unless otherwise indicated, the business address of each of the individuals is c/o Kairous Acquisition Corp. Limited, Level 39 Marina Bay Financial Centre Tower 2, 10 Marina Boulevard, City Singapore 018983, Singapore.

 

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(2) Represents shares held by Kairous Asia Limited, our sponsor. Our sponsor is owned as to 51% by Kairous Ventures Limited, which in turn is owned as to 66.5% by Joseph Lee Moh Hon and 33.5% by Kean Yaw See Toh; and as to 49% by Regeneration Capital (Cayman) Limited. By virtue of Mr. Joseph Lee Moh Hon’s control over Kairous Ventures Limited and hence Kairous Asia Limited, he is deemed to have shared voting and investment power over the ordinary shares held by Kairous Asia Limited.  Mr. Joseph Lee Moh Hon disclaims his beneficial ownership of the shares held of record by Kairous Asia Limited other than his pecuniary interest therein.
   
(3) Based on a Schedule 13G filed by the reporting person. The address for the reporting person is 640 Fifth Avenue, 20th Floor, New York, NY 10019. Owl Creek Asset Management, L.P., is a Delaware limited partnership and the investment manager of Owl Creek Credit Opportunities Master Fund, Ltd. and a sub-advisor to a certain sub-account (collectively, the “Owl Creek Fund and Account”), with respect to the ordinary shares owned by the Owl Creek Fund and Account. Jeffrey A. Altman is managing member of the general partner of Owl Creek Asset Management, L.P., with respect to the Ordinary Shares owned by the Owl Creek Fund and Account.
   
(4) Based on a Schedule 13G filed by the reporting person. The address for the reporting persons is 20 North Wacker Drive, Suite 2115, Chicago, Illinois 60606.
   
(5) Based on a Schedule 13G filed by the reporting person. The address for the reporting person is 230 NW 24th Street, Suite 603, Miami, FL 33127. Shaolin Capital Management LLC, a company incorporated under the laws of State of Delaware, which serves as the investment advisor to Shaolin Capital Partners Master Fund, Ltd. a Cayman Islands exempted company, MAP 214 Segregated Portfolio, a segregated portfolio of LMA SPC, DS Liquid DIV RVA SCM LLC and Shaolin Capital Partners SP, a segregated portfolio of PC MAP SPC being managed accounts advised by the Shaolin Capital Management LLC.
   
(6) Based on a Schedule 13G filed by the reporting person. The address for the reporting person is 16 York Street, Suite 2900, Toronto, ON, Canada M5J 0E6. Polar Asset Management Partners Inc., a company incorporated under the laws of Ontario, Canada, serves as the investment advisor to Polar Multi-Strategy Master Fund, a Cayman Islands exempted company (“PMSMF”) with respect to the ordinary shares directly held by PMSMF.

 

All of the insider shares issued and outstanding prior to the IPO were placed in escrow with Continental, as escrow agent, until the earlier of (1) six months after the date of the consummation of our initial business combination; or (2) after the date of the consummation of our initial business combination, and subsequently, we consummate a liquidation, merger, share exchange or other similar transaction which results in all of our shareholders having the right to exchange their shares for cash, securities or other property; or (3) after 150 calendar days after the date of the consummation of our initial business combination, and subsequently, the closing price of our ordinary shares equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period. If after the consummation of our initial business combination, whereby all the outstanding shares are exchanged or redeemed for cash or another issuer’s shares, then the insider shares shall be permitted to come out of escrow to participate.

 

During the escrow period, the holders of these shares will not be able to sell or transfer their securities except (i) for transfers to our officers, directors or their respective affiliates (including for transfers to an entity’s members upon its liquidation), (ii) to relatives and trusts for estate planning purposes, (iii) by virtue of the laws of descent and distribution upon death, (iv) pursuant to a qualified domestic relations order, (v) by certain pledges to secure obligations incurred in connection with purchases of our securities, (vi) by private sales made at or prior to the consummation of a business combination at prices no greater than the price at which the shares were originally purchased or (vii) to us for no value for cancellation in connection with the consummation of our initial business combination, in each case (except for clause (vii)) where the transferee agrees to the terms of the escrow agreement, but will retain all other rights as our shareholders, including, without limitation, the right to vote their ordinary shares and the right to receive cash dividends, if declared. If dividends are declared and payable in ordinary shares, such dividends will also be placed in escrow. If we are unable to effect a business combination and liquidate the trust account, none of our initial shareholders will receive any portion of the liquidation proceeds with respect to their insider shares.

 

In order to meet our working capital needs, our initial shareholders, officers and directors or their affiliates may, but are not obligated to, loan us funds, from time to time or at any time, in whatever amount they deem reasonable in their sole discretion. Each loan would be evidenced by a promissory note. The notes would either be paid upon consummation of our initial business combination, without interest, or, at the lender’s discretion, up to $1,000,000 of the notes may be converted upon consummation of our business combination into private units at a price of $10.00 per unit (which, for example, would result in the holders being issued units to acquire 160,000 ordinary shares (which includes 10,000 shares issuable upon conversion of rights) and warrants to purchase 50,000 ordinary shares if $500,000 of notes were so converted). Our shareholders have approved the issuance of the units and underlying securities upon conversion of such notes, to the extent the holder wishes to so convert them at the time of the consummation of our initial business combination. If we do not complete a business combination, the loans will not be repaid.

 

Our Sponsor and our executive officers and directors are deemed to be our “promoters,” as that term is defined under the Federal securities laws.

 

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Risks Related to Being Deemed an Investment Company

 

If we are deemed to be an investment company for purposes of the Investment Company Act of 1940, as amended (the “Investment Company Act”), we would be required to institute burdensome compliance requirements and our activities would be severely restricted and, as a result, we may abandon our efforts to consummate an initial business combination and liquidate the Company.

 

The Company could potentially be subject to the Investment Company Act and the regulations thereunder. If we are deemed to be an unregistered investment company under the Investment Company Act, our activities would be severely restricted. In addition, we would be subject to burdensome compliance requirements. We do not believe that our principal activities will subject us to regulation as an investment company under the Investment Company Act. However, if we are deemed to be an investment company and subject to compliance with and regulation under the Investment Company Act, we would be subject to additional regulatory burdens and expenses for which we have not allotted funds. As a result, unless we are able to modify our activities so that we would not be deemed an investment company, we would expect to abandon our efforts to complete a Business Combination and instead to liquidate the Company. If we are required to liquidate the Company, our investors would not be able to realize the benefits of investing and owning shares in a successor operating business, including the potential appreciation in the value of our shares, warrants and rights following such a transaction, and upon a liquidation of the Company, our warrants and rights would expire worthless.

 

To mitigate the risk that we might be deemed to be an investment company for purposes of the Investment Company Act, we intend to convert all of the assets held in the Trust Account into cash or interest bearing deposits prior to November 30, 2023, and hold the funds in the Trust Account in cash until the earlier of the consummation of the Initial Business Combination or our liquidation.  As a result, following the conversion of securities in the Trust Account, we would likely receive minimal interest, if any, on the funds held in the Trust Account, which would reduce the dollar amount our public shareholders would receive upon any redemption or liquidation of the Company.

 

As of the date hereof, substantially all of the assets held in the Trust Account are held in treasury fund meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act. The fact that the funds in our Trust Account have been held in securities makes it more likely that we could be deemed to be an unregistered investment company than other special purpose acquisition companies that hold their trust account funds solely in cash.

 

The Company consummated its initial public offering on December 16, 2021. In order to mitigate the risk of us being deemed to be an unregistered investment company (including under the subjective test of Section 3(a)(1)(A) of the Investment Company Act) and thus subject to regulation under the Investment Company Act, the Company intends to convert all of the assets held in the Trust Account into cash or interest bearing deposits prior to November 30, 2023 to ensure that the Company does not fall within the definition of “investment company” under Section 3(a)(1)(A) of the Investment Company Act. Following such conversion, we would likely receive minimal interest, if any, on the funds held in the Trust Account. However, interest previously earned on the funds held in the Trust Account still may be released to us to pay our taxes, if any, and certain other expenses as permitted. As a result, any decision to convert the securities held in the Trust Account and thereafter to hold all funds in the Trust Account in cash would reduce the dollar amount our public shareholders would receive upon any redemption or liquidation of the Company.

 

In addition, the longer that the funds in the Trust Account are held in money market funds invested exclusively in such securities, the greater the risk that we may be considered an unregistered investment company, in which case we may be required to liquidate the Company. If we are required to liquidate the Company, our investors would not be able to realize the benefits of investing and owning shares in a successor operating business, including the potential appreciation in the value of our shares, warrants and rights following such a transaction, and, upon a liquidation of the Company, our warrants and rights would expire worthless. Accordingly, we may determine, in our discretion, to liquidate the securities held in the trust account at any time and instead hold all funds in the trust account in cash, which would further reduce the dollar amount our public stockholders would receive upon any redemption or liquidation of the Company.

 

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PROPOSAL 1: THE CHARTER AMENDMENT

 

The proposed Charter Amendment would amend our existing charter to extend the date by which the Company has to consummate a business combination (the “Extension”) a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 to December 16, 2024 (the termination date as so extended, the “Extended Termination Date”).

 

Initially, the Company had until December 16, 2022 to complete its initial business combination, before giving effect to three three-month extensions. Subsequently at the annual meeting of shareholders held on December 2, 2022, the Company’s shareholders approved an amended and restated memorandum and articles of association and an amendment to the Trust Agreement, such that the Company has the right to extend the time to complete a business combination a total of eight (8) times, as follows: (i) two (2) times for an additional three (3) months each time from December 16, 2022 to June 16, 2023, followed by (ii) six (6) times for an additional one (1) month each time from June 16, 2023 to December 16, 2023 (the “Current Termination Date”).

 

Pursuant to the terms of the proposed Charter Amendment, in order to extend the time available for us to consummate our initial business combination, our insiders or their affiliates or designees must deposit $50,000 into the trust account for each one (1) month extension. The first extension payment after the approval of the Charter Amendment Proposal must be made prior to the Current Termination Date, while the second extension payment must be deposited into the trust account no fewer than five (5) calendar days prior to the then existing termination date. Both the Trust Agreement and the Company’s charter will be amended to reflect the foregoing. The insiders will receive a non-interest bearing, unsecured promissory note equal to the amount of any such deposit that will not be repaid in the event that we are unable to close a business combination unless there are funds available outside the trust account to do so. Such notes would be paid upon consummation of our initial business combination. We intend to issue a press release announcing the deposit of funds promptly after such funds are deposited into the trust account. The full proposed third amended and restated memorandum and articles of association are attached to this proxy statement as Annex A. All shareholders are encouraged to read the proposed amendment in its entirety for a more complete description of its terms. However, the Company will not proceed with the Charter Amendment if the redemption of public shares in connection therewith would cause the Company to have net tangible assets of less than $5,000,001, and in such event, we will not affect the Charter Amendment or the Trust Amendment and we will move to liquidate the trust account and dissolve the Company promptly after the Annual Meeting.

 

Reasons for the Proposed Charter Amendment

 

The Company is proposing to amend its charter to allow the Company to extend its life a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 to December 16, 2024.

 

The Company’s IPO prospectus originally provides that the Company has until December 16, 2022 to complete its initial business combination, but may extend such period for up to three times by an additional three months each time until September 16, 2023. Subsequently at the annual meeting of shareholders held on December 2, 2022, the Company’s shareholders approved an amended and restated memorandum and articles of association and an amendment to the Trust Agreement, such that the Company has the right to extend the time to complete a business combination a total of eight (8) times, as follows: (i) two (2) times for an additional three (3) months each time from December 16, 2022 to June 16, 2023, followed by (ii) six (6) times for an additional one (1) month each time from June 16, 2023 to December 16, 2023.

 

Our board of directors has determined that it is in the best interests of our shareholders to allow the Company to extend the time to complete a business combination a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 to December 16, 2024; and provide that the date for cessation of operations of the Company if the Company has not completed a business combination would similarly be extended to the Extended Termination Date.

 

Our sponsor, Kairous Asia Limited (the “Sponsor”), wants to pay an extension amount that is less than that provided by the current Charter and Trust Agreement, on a month-to-month and as-needed basis only. Under the current Charter and Trust Agreement, each three-month extension payment is$360,000, and each one-month extension payment is $120,000. The amount now proposed to be paid would be $50,000 for each one-month extension. However, this could be contrary to the interests of our remaining public shareholders, given that there will be less funds in the Trust Account on an aggregate basis than if the extension provisions were not amended.

 

After consultation with the Sponsor, Company management has reasons to believe that, if the Charter Amendment and Trust Amendment proposals are approved, the Sponsor or its affiliates will, in connection with each one-month extension, contribute $50,000 to the Company as a loan (each loan being referred to herein as a “contribution”) for the Company to deposit the funds into the Trust Account as the Extension Payment, upon five (5) days’ advance notice prior to the applicable deadlines. The first extension payment after the approval of the Charter Amendment Proposal must be made prior to the Current Termination Date, while the second extension payment must be deposited into the trust account no fewer than five (5) calendar days prior to the then existing termination date. The contribution(s) will bear no interest and will be repayable by the Company to the Sponsor upon consummation of an initial business combination. The loans will be forgiven by the Sponsor or its affiliate if the Company is unable to consummate an initial business combination except to the extent of any funds held outside of the Trust Account. Each of the Charter Amendment, Trust Amendment and the Adjournment Proposal are more fully described in the accompanying Proxy Statement.

 

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If the Charter Amendment proposal is not approved and we have not consummated a business combination by the Current Termination Date, we will (a) cease all operations except for the purpose of winding up, (b) as promptly as reasonably possible but not more than ten business days thereafter, subject to lawfully available funds therefor, redeem 100% of the public shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the trust account, including interest income, divided by the number of then outstanding public shares, which redemption will completely extinguish public shareholders’ rights as shareholders (including the right to receive further liquidation distributions, if any), subject to applicable law, and (c) as promptly as reasonably possible following such redemption, subject to the approval of our remaining shareholders and our board of directors, dissolve and liquidate, subject in each case to our obligations under the laws of the Cayman Islands to provide for claims of creditors and the requirements of other applicable law. There will be no distribution from the trust account with respect to our warrants or rights which will expire worthless in the event we wind up.

 

If the Charter Amendment Proposal is not approved, and we do not consummate an initial business combination by December 16, 2023, we will be required to dissolve and liquidate our trust account by returning the then remaining funds in such account to the public shareholders and our warrants to purchase Ordinary Shares will expire worthless.

 

We may not be able to complete an initial business combination with a U.S. target company since such initial business combination may be subject to U.S. foreign investment regulations and review by a U.S. government entity such as the Committee on Foreign Investment in the United States (CFIUS), or ultimately prohibited.

 

Our Sponsor is Kairous Asia Limited, a non-U.S. person, which is controlled by Joseph Lee Moh Hon, also a non-U.S. person. We are therefore likely considered a “foreign person” under the regulations administered by CFIUS and will continue to be considered as such in the future for so long as our Sponsor has the ability to exercise control over us for purposes of CFIUS’s regulations. As such, an initial business combination with a U.S. business may be subject to CFIUS review, the scope of which was expanded by the Foreign Investment Risk Review Modernization Act of 2018 (“FIRRMA”), to include certain non-passive, non-controlling investments in sensitive U.S. businesses and certain acquisitions of real estate even with no underlying U.S. business. FIRRMA, and subsequent implementing regulations that are now in force, also subjects certain categories of investments to mandatory filings. If our potential initial business combination with a U.S. business falls within CFIUS’s jurisdiction, we may determine that we are required to make a mandatory filing or that we will submit a voluntary notice to CFIUS, or to proceed with the initial business combination without notifying CFIUS and risk CFIUS intervention, before or after closing the initial business combination. CFIUS may decide to block or delay our initial business combination, impose conditions to mitigate national security concerns with respect to such initial business combination or order us to divest all or a portion of a U.S. business of the combined company without first obtaining CFIUS clearance, which may limit the attractiveness of or prevent us from pursuing certain initial business combination opportunities that we believe would otherwise be beneficial to us and our shareholders. As a result, the pool of potential targets with which we could complete an initial business combination may be limited and we may be adversely affected in terms of competing with other special purpose acquisition companies which do not have similar foreign ownership issues.

 

Moreover, the process of government review, whether by the CFIUS or otherwise, could be lengthy and we have limited time to complete our initial business combination. If we cannot complete our initial business combination by December 16, 2023 because the review process drags on beyond such timeframe or because our initial business combination is ultimately prohibited by CFIUS or another U.S. government entity, we may be required to liquidate. If we liquidate, our public shareholders may only receive $11.38 per share, and our warrants and rights will expire worthless. This will also cause you to lose the investment opportunity in a target company and the chance of realizing future gains on your investment through any price appreciation in the combined company.

 

Vote Required and Board of Directors’ Recommendation

 

Approval of the Charter Amendment to the amended and restated memorandum and articles of association requires the affirmative vote of at least two-thirds of the outstanding shares present. If your shares are held in street name, your broker, bank, custodian, or other nominee holder cannot vote your shares on this proposal, unless you direct the holder how to vote, by marking your proxy card. Broker non-votes, abstentions or the failure to vote on the Charter Amendment will not count as a vote cast at the Annual Meeting and will have no effect on the outcome of the vote on any proposal.

 

The Board recommends a vote “FOR” the Charter Amendment.

 

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PROPOSAL 2: THE TRUST AMENDMENT

 

The proposed Trust Amendment would amend our existing Trust Agreement, allowing the Company to extend the time available for us to consummate our initial business combination a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 December 16, 2024 (the “Trust Amendment”) by depositing into the Trust Account the sum of $50,000 for each one-month extension, and make other conforming amendments. A copy of the proposed Trust Amendment is attached to this proxy statement as Annex B. All shareholders are encouraged to read the proposed amendment in its entirety for a more complete description of its terms. The first extension payment after the approval of the Charter Amendment Proposal must be made prior to the Current Termination Date, while the second extension payment must be deposited into the trust account no fewer than five (5) calendar days prior to the then existing termination date. The insiders will receive a non-interest bearing, unsecured promissory note equal to the amount of any such deposit that will not be repaid in the event that we are unable to close a business combination unless there are funds available outside the trust account to do so. Such notes would be paid upon consummation of our initial business combination. The complete text of the proposed amendment is attached to this proxy statement as Annex B. All shareholders are encouraged to read the proposed amendment in its entirety for a more complete description of its terms. However, the Company will not proceed with the Trust Amendment if the redemption of public shares in connection therewith would cause the Company to have net tangible assets of less than $5,000,001, and in such event, we will not affect the Charter Amendment or the Trust Amendment and we will move to liquidate the trust account and dissolve the Company promptly after the Annual Meeting.

 

Reasons for the Proposed Trust Amendment

 

The Company is proposing to amend its Trust Agreement allow the Company to extend its life a total of twelve (12) times for an additional one (1) month each time from December 16, 2023 to December 16, 2024.

 

The Trust Amendment is essential to allow the Company an option to further extend the time to consummate a business combination. Approval of the Trust Amendment is a condition to the implementation of the extension.

 

Our sponsor, Kairous Asia Limited (the “Sponsor”), wants to pay an extension amount that is less than that provided by the current Charter and Trust Agreement, on a month-to-month as-needed basis only. Under the current Charter and Trust Agreement, each three-month extension payment is $360,000 and each one-month extension payment would be $120,000. The amount now proposed to be paid would be $50,000 for each one-month extension. However, this could be contrary to the interests of our remaining public shareholders, given that there will be less funds in the Trust Account on an aggregate basis than if the extension provisions were not amended.

 

After consultation with the Sponsor, Company management has reasons to believe that, if the Charter Amendment and Trust Amendment proposals are approved, the Sponsor or its affiliates will, in connection with each one-month extension, contribute $50,000 to the Company as a loan (each loan being referred to herein as a “contribution”) for the Company to deposit the funds into the Trust Account as the Extension Payment, upon five (5) days’ advance notice prior to the applicable deadlines. The first extension payment after the approval of the Charter Amendment Proposal must be made prior to the Current Termination Date, while the second extension payment must be deposited into the trust account no fewer than five (5) calendar days prior to the then existing termination date. The contribution(s) will bear no interest and will be repayable by the Company to the Sponsor upon consummation of an initial business combination. The loans will be forgiven by the Sponsor or its affiliate if the Company is unable to consummate an initial business combination except to the extent of any funds held outside of the Trust Account. Each of the Charter Amendment, Trust Amendment and the Adjournment Proposal are more fully described in the accompanying Proxy Statement.

 

If the Trust Amendment proposal is not approved and we have not consummated a business combination by the Current Termination Date, we will (a) cease all operations except for the purpose of winding up, (b) as promptly as reasonably possible but not more than ten business days thereafter, subject to lawfully available funds therefor, redeem 100% of the public shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the trust account, including interest income, divided by the number of then outstanding public shares, which redemption will completely extinguish public shareholders’ rights as shareholders (including the right to receive further liquidation distributions, if any), subject to applicable law, and (c) as promptly as reasonably possible following such redemption, subject to the approval of our remaining shareholders and our board of directors, dissolve and liquidate, subject in each case to our obligations under the laws of the Cayman Islands to provide for claims of creditors and the requirements of other applicable law. There will be no distribution from the trust account with respect to our warrants or rights which will expire worthless in the event we wind up.

 

If the Trust Amendment Proposal is not approved, and we do not consummate an initial business combination by December 16, 2023, we will be required to dissolve and liquidate our trust account by returning the then remaining funds in such account to the public shareholders and our warrants to purchase Ordinary Shares will expire worthless.

 

Vote Required and Board of Directors’ Recommendation

 

The affirmative vote of holders of at least a majority of the outstanding shares present is required to approve the Trust Amendment. Broker non-votes, abstentions or the failure to vote on the Trust Amendment will not count as a vote cast at the Annual Meeting and will have no effect on the outcome of the vote on any proposal.

 

The Board recommends a vote “FOR” the Trust Amendment.

 

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TRANSACTIONS WITH RELATED PERSONS, PROMOTERS AND CERTAIN CONTROL

PERSONS

 

On May 13 and October 21, 2021, the Sponsor received an aggregate of 2,156,250 of the Company’s Ordinary Shares (the “Founder Shares”) in exchange for a capital contribution of $25,000 that was paid by the Sponsor for deferred offering costs. All share amounts have been retroactively restated to reflect this number of Founder Shares. The Founder Shares included an aggregate of up to 281,250 shares subject to forfeiture to the extent that the underwriters’ over-allotment is not exercised in full or in part, so that the number of Founder Shares will equal, on an as-converted basis, approximately 20% of the Company’s issued and outstanding ordinary shares after the Initial Public Offering. Due to the partial exercise of the over-allotment option by the underwriters, these 75,000 shares are no longer subject to forfeiture.

 

The Sponsor has agreed, subject to limited exceptions, not to transfer, assign or sell any of the Founder Shares until the earlier to occur of: (A) six months after the completion of a Business Combination or (B) the date of the consummation of our initial business combination, and subsequently, we consummate a liquidation, merger, stock exchange or other similar transaction which results in all of our shareholders having the right to exchange their ordinary shares for cash, securities or other property or (C) after 150 calendar days after the date of the consummation of our initial business combination, and subsequently, the closing price of our ordinary shares equals or exceeds $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period.

 

Concurrently with our IPO, our Sponsor purchased from us an aggregate of 357,143 private units at $10.00 per private unit (for a total purchase price of $3,571,430). These purchases took place on a private placement basis simultaneously with the consummation of our IPO. All of the proceeds we received from these purchases were placed in the Trust Account. The private units are identical to the units sold in the IPO except as otherwise described in the Company’s IPO prospectus dated December 13, 2021 (“Prospectus”). Our Sponsor also has agreed not to transfer, assign or sell any of the private units or underlying securities (except to the same permitted transferees as the insider shares and provided the transferees agree to the same terms and restrictions as the permitted transferees of the insider shares must agree to, each as described above) until after the completion of our initial business combination.

 

The Sponsor paid certain administrative expenses and offering costs on behalf of the Company. These advances are due on demand and are non-interest bearing. For the year ended June 30, 2022, the related party paid $213,746 of offering costs and other expenses on behalf of the Company. The advances were repaid in full upon completion of the Initial Public Offering. As of June 30, 2023 and 2022, there was no balance due to the related party, respectively. 

 

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On April 23, 2021, the Sponsor issued an unsecured promissory note to the Company (the “Working Capital Note”), pursuant to which the Company may borrow up to an aggregate principal amount of $200,000. On May 12, 2021, the amount of the Working Capital Note was further increased to $1,000,000. On December 10, 2021, the Sponsor agreed to extend the maturity date of the original Working Capital Note to the earlier of (i) July 30, 2023 or (ii) the consummation of the initial business combination. On May 10, 2023, the Company and the Sponsor entered in to an amendment to the Working Capital Note, whereby the Sponsor and the Company agreed that the Working Capital Note shall be payable on the earlier of: (i) July 30, 2023 or (ii) the date on which the Company consummates the initial business combination, by conversion of the Working Capital Note into ordinary shares of the Company concurrently with the closing of a business combination at a price of $10.10 per share. On September 18, 2023, the Company and the Sponsor amended the Working Capital Note to extend the maturity date to the earlier of: (i) December 16, 2023 or (ii) the date on which the Company consummates the initial business combination. On October 25, 2023, the Company and the Sponsor amended the Working Capital Note to increase the principal amount from $1,000,000 to $2,000,000. As of June 30, 2023, there was $420,000 outstanding under the Working Capital Note.

 

On December 14, 2022 and March 10, 2023, the Company issued two unsecured promissory notes to the Sponsor, each in the amount of $360,000, which amounts were deposited into the Trust Account to extend the available time to complete a business combination for an additional six months in total, from December 16, 2022 to March 16, 2023, then further to June 16, 2023. Subsequently on June 9, 2023, June 30, 2023, August 10, 2023, September 11, 2023, October 10, 2023, and November 10, 2023 we issued six unsecured promissory note arrangements to the Sponsor, each in the amount of $120,000, which amounts were deposited into the Trust Account to extend the available time to complete a business combination for an additional five months in total, from June 16, 2023 to December 16, 2023 (all the promissory notes abovementioned, collectively, the “Extension Notes”). The Sponsor deposited such amount into the Company’s trust account on June 9, 2023, June 30, 2023, August 10, 2023, September 11, 2023, October 10, 2023 and November 10, 2023, respectively.

 

On May 10, 2023, we entered in to an amendment to Extension Notes that were issued prior to such date with the Sponsor in respect of each of such Extension Notes so as to amend certain terms of the Extension Notes, whereby the Sponsor and us agreed that each of the Extension Notes shall be converted into ordinary shares of the Company prior to or concurrently with the closing of a business combination at a price of $10.10 per share. In the event that a business combination does not close on or prior to December 16, 2023, as such deadline may be further extended, each of the Extension Notes shall be deemed to be terminated and no amounts will thereafter be due from the Company to the Sponsor under the terms thereof.

 

In order to meet our working capital needs, our initial shareholders, officers and directors and their respective affiliates may, but are not obligated to, loan us funds, from time to time or at any time, in whatever amount they deem reasonable in their sole discretion. Each loan would be evidenced by a promissory note. The notes would either be paid upon consummation of our initial business combination, without interest, or, at the lender’s discretion, up to $1,000,000 of the notes may be converted upon consummation of our business combination into private units at a price of $10.00 per unit (which, for example, would result in the holders being issued units to acquire 160,000 ordinary shares (which includes 50,000 shares issuable upon exercise of warrants and 10,000 shares issuable upon conversion of rights) if $1,000,000 of notes were so converted). Our shareholders have approved the issuance of the units and underlying securities upon conversion of such notes, to the extent the holder wishes to so convert them at the time of the consummation of our initial business combination. If we do not complete a business combination, the loans would be repaid out of funds not held in the trust account, and only to the extent available. As of June 30, 2023 and 2022 and up to the date of this proxy statement, there was $420,000 and $70,000 outstanding under the Working Capital Loans, respectively.

 

The holders of our insider shares, as well as the holders of the private units (and all underlying securities) and any securities our initial shareholders, officers, directors or their affiliates may be issued in payment of working capital loans or loans to extend our life made to us, will be entitled to registration rights pursuant to an existing agreement signed in connection with the IPO. The holders of a majority of these securities are entitled to make up to two demands that we register such securities. The holders of the majority of the insider shares can elect to exercise these registration rights at any time commencing three months prior to the date on which these ordinary shares are to be released from escrow. The holders of a majority of the private units or securities issued in payment of working capital loans or loans to extend our life made to us can elect to exercise these registration rights at any time after we consummate a business combination. In addition, the holders have certain “piggy-back” registration rights with respect to registration statements filed subsequent to our consummation of a business combination. We will bear the expenses incurred in connection with the filing of any such registration statements.

 

17

 

 

Commencing on the date the Units are first listed on the Nasdaq, the Company has agreed to pay the Sponsor a total of $5,000 per month for office space, utilities and secretarial and administrative support during the Combination Period. Upon the earlier of the completion of the Initial Business Combination or the Company’s liquidation, the Company will cease paying these monthly fees. During the years ended June 30, 2023 and June 30, 2022, the Company recorded $60,000 and $32,833 in management fees, respectively. 

 

Other than the fees described above, no compensation or fees of any kind, including finder’s fees, consulting fees or other similar compensation, have been paid to any of our initial shareholders, officers or directors who own our ordinary shares, or to any of their respective affiliates, prior to or with respect to the business combination (regardless of the type of transaction that it is).

 

We will reimburse our officers and directors for any reasonable out-of-pocket business expenses incurred by them in connection with certain activities on our behalf such as identifying and investigating possible target businesses and business combinations. There is no limit on the amount of out-of-pocket expenses reimbursable by us; provided, however, that to the extent such expenses exceed the available proceeds not deposited in the trust account, such expenses would not be reimbursed by us unless we consummate an initial business combination. Our audit committee will review and approve all reimbursements and payments made to any initial shareholder or member of our management team, or our or their respective affiliates, and any reimbursements and payments made to members of our audit committee will be reviewed and approved by our Board of Directors, with any interested director abstaining from such review and approval.

 

The Sponsor has paid the expenses incurred by the Company an aggregate of $213,746 on a non-interest bearing basis as of June 30, 2023. As of June 30, 2023 and 2022, the Company owed a balance of $1,260,000 and $70,000, respectively, to our Sponsor.  

 

All ongoing and future transactions between us and any of our officers and directors or their respective affiliates will be on terms believed by us to be no less favorable to us than are available from unaffiliated third parties. Such transactions, including the payment of any compensation, will require prior approval by a majority of our uninterested “independent” directors (to the extent we have any) or the members of our board who do not have an interest in the transaction, in either case who had access, at our expense, to our attorneys or independent legal counsel. We will not enter into any such transaction unless our disinterested “independent” directors (or, if there are no “independent” directors, our disinterested directors) determine that the terms of such transaction are no less favorable to us than those that would be available to us with respect to such a transaction from unaffiliated third parties.

 

Procedures for Approval of Related Party Transactions

 

Our Code of Ethics, which we have adopted upon consummation of the IPO, requires us to avoid, wherever possible, all related party transactions that could result in actual or potential conflicts of interests, except under guidelines approved by the board of directors (or the audit committee). Related-party transactions are defined as transactions in which (1) the aggregate amount involved will or may be expected to exceed $120,000 in any calendar year, (2) we or any of our subsidiaries is a participant, and (3) any (a) executive officer, director or nominee for election as a director, (b) greater than 5% beneficial owner of our ordinary shares, or (c) immediate family member, of the persons referred to in clauses (a) and (b), has or will have a direct or indirect material interest (other than solely as a result of being a director or a less than 10% beneficial owner of another entity). A conflict of interest situation can arise when a person takes actions or has interests that may make it difficult to perform his or her work objectively and effectively. Conflicts of interest may also arise if a person, or a member of his or her family, receives improper personal benefits as a result of his or her position.

 

We also require each of our directors and executive officers to annually complete a directors’ and officers’ questionnaire that elicits information about related party transactions.

 

Our audit committee, pursuant to its written charter, will be responsible for reviewing and approving related-party transactions to the extent we enter into such transactions. All ongoing and future transactions between us and any of our officers and directors or their respective affiliates will be on terms believed by us to be no less favorable to us than are available from unaffiliated third parties. Such transactions will require prior approval by our audit committee and a majority of our uninterested “independent” directors, or the members of our board who do not have an interest in the transaction, in either case who had access, at our expense, to our attorneys or independent legal counsel. We will not enter into any such transaction unless our audit committee and a majority of our disinterested “independent” directors determine that the terms of such transaction are no less favorable to us than those that would be available to us with respect to such a transaction from unaffiliated third parties. Additionally, we require each of our directors and executive officers to complete a directors’ and officers’ questionnaire that elicits information about related party transactions.

 

These procedures are intended to determine whether any such related party transaction impairs the independence of a director or presents a conflict of interest on the part of a director, employee or officer.

 

To further minimize potential conflicts of interest, we have agreed not to consummate a business combination with an entity which is affiliated with any of our initial shareholders unless we obtain an opinion from an independent investment banking firm that the business combination is fair to our unaffiliated shareholders from a financial point of view. Furthermore, in no event will any of our existing officers, directors or initial shareholders, or any entity with which they are affiliated, be paid any finder’s fee, consulting fee or other compensation prior to, or for any services they render in order to effectuate, the consummation of a business combination.

 

18

 

 

SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE

 

Section 16(a) of the Securities Exchange Act of 1934 requires our officers, directors and persons who own more than ten percent of a registered class of our equity securities to file reports of ownership and changes in ownership with the Securities and Exchange Commission. Officers, directors and ten percent shareholders are required by regulation to furnish us with copies of all Section 16(a) forms they file. We believe that, during the year ended June 30, 2023, all filing requirements applicable to our officers, directors and greater than ten percent beneficial owners were complied with.

 

DIRECTOR INDEPENDENCE

 

The Company currently has three (3) independent directors: Mr. Duke Fu, Dr. Dhas Udomdhammabhakdi, and Mr. Chandresh Patel. Each is independent under the Nasdaq Marketplace Rules.

 

Board Leadership Structure and Role in Risk Oversight

 

Section 16(a) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, requires our executive officers, directors and persons who beneficially own more than 10% of a registered class of our equity securities to file with the Securities and Exchange Commission initial reports of ownership and reports of changes in ownership of our ordinary shares and other equity securities. These executive officers, directors, and greater than 10% beneficial owners are required by SEC regulation to furnish us with copies of all Section 16(a) forms filed by such reporting persons.

 

Based solely on our review of such forms furnished to us and written representations from certain reporting persons, we believe that all filing requirements applicable to our executive officers, directors and greater than 10% beneficial owners were filed in a timely manner.

 

Audit Committee

 

We established an Audit Committee of the board of directors at the closing of our initial public offering, which currently consists of Mr. Duke Fu, Dr. Dhas Udomdhammabhakdi, and Mr. Chandresh Patel, each of whom is an independent director. Dr. Dhas Udomdhammabhakdi is the Chairperson of the Audit Committee. The Audit Committee’s duties, which are specified in our Audit Committee Charter, include, but are not limited to:

 

  reviewing and discussing with management and the independent auditor the annual audited financial statements, and recommending to the board whether the audited financial statements should be included in our Form 10-K;
  discussing with management and the independent auditor significant financial reporting issues and judgments made in connection with the preparation of our financial statements;
  discussing with management major risk assessment and risk management policies;
  monitoring the independence of the independent auditor;

 

19

 

 

  verifying the rotation of the lead (or coordinating) audit partner having primary responsibility for the audit and the audit partner responsible for reviewing the audit as required by law;
  reviewing and approving all related-party transactions;
  inquiring and discussing with management our compliance with applicable laws and regulations;
  pre-approving all audit services and permitted non-audit services to be performed by our independent auditor, including the fees and terms of the services to be performed;
  appointing or replacing the independent auditor;
  determining the compensation and oversight of the work of the independent auditor (including resolution of disagreements between management and the independent auditor regarding financial reporting) for the purpose of preparing or issuing an audit report or related work;
  establishing procedures for the receipt, retention and treatment of complaints received by us regarding accounting, internal accounting controls or reports which raise material issues regarding our financial statements or accounting policies; and
  approving reimbursement of expenses incurred by our management team in identifying potential target businesses.

 

Financial Expert on Audit Committee

 

The Audit Committee will at all times be composed exclusively of “independent directors” who are “financially literate” as defined under the Nasdaq listing standards. The Nasdaq listing standards define “financially literate” as being able to read and understand fundamental financial statements, including a company’s balance sheet, income statement and cash flow statement.

 

In addition, we must certify to Nasdaq that the committee has, and will continue to have, at least one member who has past employment experience in finance or accounting, requisite professional certification in accounting, or other comparable experience or background that results in the individual’s financial sophistication. The board of directors has determined that Dr. Dhas Udomdhammabhakdi qualifies as an “Audit Committee financial expert,” as defined under rules and regulations of the SEC.

 

Compensation Committee

 

We established a Compensation Committee of the board of directors at the closing of our initial public offering, which currently consists of Mr. Duke Fu, Dr. Dhas Udomdhammabhakdi, and Mr. Chandresh Patel, each of whom is an independent director under Nasdaq’s listing standards. Mr. Chandresh Patel is the Chairperson of the compensation committee. We adopted a Compensation Committee charter, which details the principal functions of the Compensation Committee, including:

 

  reviewing and approving on an annual basis the corporate goals and objectives relevant to our President and Chief Executive Officer’s compensation, evaluating our President and Chief Executive Officer’s performance in light of such goals and objectives and determining and approving the remuneration (if any) of our President and Chief Executive Officer based on such evaluation;
  reviewing and approving the compensation of all of our other executive officers;
  reviewing our executive compensation policies and plans;
  implementing and administering our incentive compensation equity-based remuneration plans;
  assisting management in complying with our proxy statement and annual report disclosure requirements;
  approving all special perquisites, special cash payments and other special compensation and benefit arrangements for our executive officers and employees;
  producing a report on executive compensation to be included in our annual proxy statement; and
  reviewing, evaluating and recommending changes, if appropriate, to the remuneration for directors.

 

20

 

 

Nominating Committee

 

We established a Nominating Committee of the board of directors at the closing of our initial public offering, which currently consists of Mr. Duke Fu, Dr. Dhas Udomdhammabhakdi, and Mr. Chandresh Patel, each of whom is an independent director under Nasdaq’s listing standards. Mr. Duke Fu is the Chairperson of the nominating committee. The Nominating Committee is responsible for overseeing the selection of persons to be nominated to serve on our board of directors. The Nominating Committee considers persons identified by its members, management, shareholders, investment bankers and others. The guidelines for selecting nominees, which are specified in the Nominating Committee Charter, generally provide that the persons to be nominated:

 

  should have demonstrated notable or significant achievements in business, education or public service;
  should possess the requisite intelligence, education and experience to make a significant contribution to the board of directors and bring a range of skills, diverse perspectives and backgrounds to its deliberations; and
  should have the highest ethical standards, a strong sense of professionalism and intense dedication to serving the interests of the shareholders.

 

Shareholders who wish to recommend individuals for consideration by the Nominating Committee to become nominees for election to the Board at our next Annual Meeting of Shareholders may do so by submitting a written recommendation to the Nominating Committee, Kairous Acquisition Corp. Limited, Level 39 Marina Bay Financial Centre Tower 2, 10 Marina Boulevard, City Singapore 018983, Singapore; Attention: Chief Executive Officer, in accordance with the procedures set forth below in this proxy statement under the heading “Shareholder Proposals.” For nominees for election to the Board proposed by shareholders to be considered, the following information concerning each nominee must be timely submitted in accordance with the required procedures:

 

  The candidate’s name, age, business address, residence address, principal occupation or employment, the class and number of shares of our capital stock the candidate beneficially owns, a brief description of any direct or indirect relationships with us, and the other information that would be required in a proxy statement soliciting proxies for the election of the candidate as a director;
     
  A signed consent of the nominee to being named as a nominee, to cooperate with reasonable background checks and personal interviews and to serve as a director, if elected; and
     
  As to the shareholder proposing such nominee, that shareholder’s name and address, the class and number of shares of our capital stock the shareholder beneficially owns, a description of all arrangements or understandings between the shareholder and the candidate and any other person or persons (including their names) pursuant to which the recommendation is being made, a list of all other companies to which the shareholder has recommended the candidate for election as a director in that fiscal year, and a representation that the shareholder intends to appear in person or by proxy at the meeting to nominate the person named in its notice.

 

SHAREHOLDER COMMUNICATIONS

 

Shareholders who wish to communicate with the Board or with specified members of the Board should do so by sending any communication to Kairous Acquisition Corp. Limited, Level 39 Marina Bay Financial Centre Tower 2, 10 Marina Boulevard, City Singapore 018983, Singapore; Attention: Chief Executive Officer.

 

Any such communication should state the number of shares beneficially owned by the shareholder making the communication. Our Secretary will forward such communication to the full Board or to any individual member or members of the Board to whom the communication is directed, unless the communication is unduly hostile, threatening, illegal or similarly inappropriate, in which case the Secretary has the authority to discard the communication or take appropriate legal action regarding the communication.

 

CODE OF ETHICS

 

We adopted a code of conduct and ethics applicable to our directors, officers and employees in accordance with applicable federal securities laws. The code of ethics codifies the business and ethical principles that govern all aspects of our business.

 

21

 

 

EXECUTIVE OFFICERS AND DIRECTOR COMPENSATION

 

None of our directors or executive officers has received any compensation from us for services rendered to us. Our new CEO and director, Athiwat Apichote, will receive 100,000 Baht (approximately $2,800) each month, and our new CFO and director, Usanee Lekvanichkul will receive 100,000 Baht (approximately $2,800) each month. Each of our directors, Duke Fu, Dhas Udomdhammabhakdi and Chandresh Patel will receive 8,000 ordinary shares. With respect to our executive officers:

 

  we do not maintain, sponsor or contribute to, and have not had and do not have any obligation to contribute to, any benefit plans, including any qualified or nonqualified defined benefit plans, nonqualified defined contribution plans or other deferred compensation plans,
  we have not entered into any employment, service, retention or other agreements or entered into any agreements to provide benefits upon termination of employment or other service with us, and
  we have not granted any equity-based awards.

 

Other than the monthly administration fee payable to our Sponsor , no compensation or fees of any kind, including finder’s fees, consulting fees and other similar fees, will be paid to our insiders or any of the members of our current management team, for services rendered prior to or in connection with the consummation of a business combination. However, such individuals will receive reimbursement for any out-of-pocket expenses incurred by them in connection with activities on our behalf. There is no limit on the amount of out-of-pocket expenses reimbursable by us, except that to the extent such expenses exceed the available proceeds not deposited in the trust account, such expenses would not be reimbursed by us unless we consummate a business combination.

 

SHAREHOLDER PROPOSALS

 

Shareholders who wish to present proposals for inclusion in the Company’s proxy materials for the next Annual Meeting of Shareholders may do so by following the procedures prescribed in Rule 14a-8 under the Securities Exchange Act of 1934, as amended. To be eligible, the shareholder proposals must be received by us at our principal executive office on or before June 30, 2024. Under SEC rules, you must have continuously held for at least one year prior to the submission of the proposal (and continue to hold through the date of the meeting) at least $2,000 in market value, or 1%, of our outstanding stock in order to submit a proposal which you seek to have included in the Company’s proxy materials. We may, subject to SEC review and guidelines, decline to include any proposal in our proxy materials.

 

Shareholders who wish to make a proposal at the next Annual Meeting, other than one that will be included in our proxy materials, must notify us no later than June 30, 2024. If a shareholder who wishes to present a proposal fails to notify us by June 30, 2024, the proxies that management solicits for the meeting will confer discretionary authority to vote on the shareholder’s proposal if it is properly brought before the meeting.

 

OTHER BUSINESS

 

While the accompanying Notice of Annual Meeting of Shareholders provides for the transaction of such other business as may properly come before the Annual Meeting, the Company has no knowledge of any matters to be presented at the Annual Meeting other than those listed as Proposals 1, 2, 3 and 4, in the notice. However, the enclosed Proxy gives discretionary authority in the event that any other matters should be presented.

 

ANNUAL REPORT

 

Upon written request to Secretary, Kairous Acquisition Corp. Limited, Level 39 Marina Bay Financial Centre Tower 2, 10 Marina Boulevard, City Singapore Postcode 018983, Singapore, we will provide without charge to each person requesting a copy of our 2023 Annual Report on Form 10-K, including the financial statements filed therewith. We will furnish a requesting shareholder with any exhibit not contained therein upon specific request.

 

22

 

 

PROPOSAL 3: THE ADJOURNMENT PROPOSAL

 

The adjournment proposal, if approved, will request the chairman of the Annual Meeting (who has agreed to act accordingly) to adjourn the Annual Meeting to a later date or dates to permit further solicitation of proxies. The adjournment proposal will only be presented to our shareholders in the event, based on the tabulated votes, there are not sufficient votes at the time of the Annual Meeting to approve the Charter Amendment Proposal in this proxy statement. If the adjournment proposal is not approved by our shareholders, the chairman of the meeting has the power to adjourn the Annual Meeting to a later date in the event, based on the tabulated votes, there are not sufficient votes at the time of the Annual Meeting to approve the Charter Amendment Proposal and the Trust Amendment Proposal.

 

Vote Required and Board of Directors’ Recommendation

 

If a majority of the shares represented in person or by proxy and voting on the matter at the Annual Meeting vote for the adjournment proposal, the chairman of the Annual Meeting will exercise his or her power to adjourn the meeting as set out above.

 

Recommendation

 

The Company’s Board of Directors recommends that you vote “FOR” the adjournment proposal.

 

23

 

 

  By Order of the Board of Directors.
   
   
  Athiwat Apichote
  Chief Executive Officer
   
Singapore  
            , 2023  

 

24

 

 

Annex A

 

Companies Act (revised)

 

Company Limited by Shares

 

 

THIRD AMENDED AND RESTATED

 

MEMORANDUM AND ARTICLES OF ASSOCIATION

 


OF

 


KAIROUS ACQUISITION CORP. LIMITED

 

 

Adopted by special resolution PASSED ON [  ] 2023

 

 

 

 

 

 

 

 

 

 

[182233.00001]

 

 

 

 

Companies Act (Revised)

 

Company Limited by Shares

 

Third Amended and Restated

 

Memorandum of Association

 

of

 

Kairous Acquisition Corp. Limited

 

Adopted by special resolution passed on [   ] 2023

 

1The name of the Company is Kairous Acquisition Corp. Limited.

 

2The Company’s registered office will be situated at the office of Ogier Global (Cayman) Limited, 89 Nexus Way, Camana Bay, Grand Cayman, KY1-9009,, Cayman Islands, or at such other place in the Cayman Islands as the directors may at any time decide.

 

3The Company’s objects are unrestricted. As provided by section 7(4) of the Companies Act (Revised), the Company has full power and authority to carry out any object not prohibited by any law of the Cayman Islands.

 

4The Company has unrestricted corporate capacity. Without limitation to the foregoing, as provided by section 27 (2) of the Companies Act (Revised), the Company has and is capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit.

 

5Nothing in any of the preceding paragraphs permits the Company to carry on any of the following businesses without being duly licensed, namely:

 

(a)the business of a bank or trust company without being licensed in that behalf under the Banks and Trust Companies Act (Revised); or

 

(b)insurance business from within the Cayman Islands or the business of an insurance manager, agent, sub-agent or broker without being licensed in that behalf under the Insurance Act (Revised);or

 

(c)the business of company management without being licensed in that behalf under the Companies Management Act (Revised).

 

6The Company will not trade in the Cayman Islands with any person, firm or corporation except in furtherance of its business carried on outside the Cayman Islands. Despite this, the Company may effect and conclude contracts in the Cayman Islands and exercise in the Cayman Islands any of its powers necessary for the carrying on of its business outside the Cayman Islands.

 

7The Company is a company limited by shares and accordingly the liability of each member is limited to the amount (if any) unpaid on that member’s shares.

 

8The share capital of the Company is US$50,000 divided into 500,000,000 ordinary shares of par value US$0.0001 each. Subject to the Companies Act (Revised) and the Company’s articles of association, the Company has power to do any one or more of the following:

 

(a)to redeem or repurchase any of its shares; and

 

(b)to increase or reduce its capital; and

 

(c)to issue any part of its capital (whether original, redeemed, increased or reduced):

 

(i)with or without any preferential, deferred, qualified or special rights, privileges or conditions; or

 

(ii)subject to any limitations or restrictions

 

and unless the condition of issue expressly declares otherwise, every issue of shares (whether declared to be ordinary, preference or otherwise) is subject to this power; or

 

(d) to alter any of those rights, privileges, conditions, limitations or restrictions.

 

9The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands.

 

 

 

 

Companies Act (revised)

 

Company Limited by ShareS

 

THIRD Amended and Restated

 

articles of Association

 

of

 

KAIROUS ACQUISITION CORP. LIMITED

 

Adopted by special resolution PASSED ON [  ] 2023

 

 

 

 

CONTENTS

 

1. Definitions, interpretation and exclusion of Table A 1
     
  Definitions 1
     
  Interpretation 4
     
  Exclusion of Table A Articles 5
     
2. Commencement of Business 5
     
3. Shares 5
     
  Power to issue Shares and options, with or without special rights 5
     
  Power to issue fractions of a Share 6
     
  Power to pay commissions and brokerage fees 6
     
  Trusts not recognised 6
     
  Power to vary class rights 6
     
  Effect of new Share issue on existing class rights 7
     
  No bearer Shares or warrants 7
     
  Treasury Shares 7
     
  Rights attaching to Treasury Shares and related matters 7
     
4. Register of Members 8
     
5. Share certificates 8
     
  Issue of share certificates 8
     
  Renewal of lost or damaged share certificates 8
     
6. Lien on Shares 9
     
  Nature and scope of lien 9
     
  Company may sell Shares to satisfy lien 9
     
  Authority to execute instrument of transfer 9
     
  Consequences of sale of Shares to satisfy lien 9
     
  Application of proceeds of sale 10
     
7.  Calls on Shares and forfeiture 10
     
  Power to make calls and effect of calls 10
     
  Time when call made 10
     
  Liability of joint holders 10
     
  Interest on unpaid calls 10
     
  Deemed calls 11
     
  Power to accept early payment 11
     
  Power to make different arrangements at time of issue of Shares 11
     
  Notice of default 11

 

i

 

 

  Forfeiture or surrender of Shares 11
     
  Disposal of forfeited or surrendered Share and power to cancel forfeiture or surrender 11
     
  Effect of forfeiture or surrender on former Member 12
     
  Evidence of forfeiture or surrender 12
     
  Sale of forfeited or surrendered Shares 12
     
8. Transfer of Shares 12
     
  Form of transfer 12
     
  Power to refuse registration 13
     
  Power to suspend registration 13
     
  Company may retain instrument of transfer 13
     
9. Transmission of Shares 13
     
  Persons entitled on death of a Member 13
     
  Registration of transfer of a Share following death or bankruptcy 13
     
  Indemnity 14
     
  Rights of person entitled to a Share following death or bankruptcy 14
     
10. Alteration of capital 14
     
  Increasing, consolidating, converting, dividing and cancelling share capital 14
     
  Dealing with fractions resulting from consolidation of Shares 15
     
  Reducing share capital 15
     
11. Redemption and purchase of own Shares 15
     
  Power to issue redeemable Shares and to purchase own Shares 15
     
  Power to pay for redemption or purchase in cash or in specie 16
     
  Effect of redemption or purchase of a Share 16
     
12. Meetings of Members 16
     
  Power to call meetings 16
     
  Content of notice 17
     
  Period of notice 18
     
  Persons entitled to receive notice 18
     
  Publication of notice on a website 18
     
  Time a website notice is deemed to be given 18
     
  Required duration of publication on a website 18
     
  Accidental omission to give notice or non-receipt of notice 19
     
13. Proceedings at meetings of Members 19
     
  Quorum 19
     
  Lack of quorum 19

 

ii

 

 

  Use of technology 19
     
  Chairman 19
     
  Right of a director to attend and speak 20
     
  Adjournment and Postponement 20
     
  Method of voting 20
     
  Taking of a poll 20
     
  Chairman’s casting vote 21
     
  Amendments to resolutions 21
     
  Written resolutions 21
     
  Sole-member company 22
     
14. Voting rights of Members 22
     
  Right to vote 22
     
  Rights of joint holders 22
     
  Representation of corporate Members 22
     
  Member with mental disorder 23
     
  Objections to admissibility of votes 23
     
  Form of proxy 23
     
  How and when proxy is to be delivered 23
     
  Voting by proxy 24
     
15. Number of directors 24
     
16. Appointment, disqualification and removal of directors 24
     
  No age limit 24
   
  Corporate directors 24
     
  No shareholding qualification 25
     
  Appointment and removal of directors 25
     
  Resignation of directors 26
     
  Termination of the office of director 26
     
17. Alternate directors 26
     
  Appointment and removal 26
     
  Notices 27
     
  Rights of alternate director 27
     
  Appointment ceases when the appointor ceases to be a director 27
     
  Status of alternate director 28
     
  Status of the director making the appointment 28
     
18. Powers of directors 28

 

iii

 

 

  Powers of directors 28
     
  Appointments to office 28
     
  Remuneration  29
     
  Disclosure of information 29
     
19. Delegation of powers 29
     
  Power to delegate any of the directors’ powers to a committee 29
     
  Power to appoint an agent of the Company 30
     
  Power to appoint an attorney or authorised signatory of the Company 30
     
  Power to appoint a proxy 31
     
20.  Meetings of directors 31
     
  Regulation of directors’ meetings 31
     
  Calling meetings 31
     
  Notice of meetings 31
     
  Period of notice 31
     
  Use of technology 31
     
  Place of meetings 31
     
  Quorum 31
     
  Voting 32
     
  Validity 32
     
  Recording of dissent 32
     
  Written resolutions 32
     
  Sole director’s minute 32
     
21. Permissible directors’ interests and disclosure 32
     
  Permissible interests subject to disclosure 32
     
  Notification of interests 33
     
  Voting where a director is interested in a matter 33
     
22. Minutes 33
     
23. Accounts and audit 33
     
  No automatic right of inspection 34
     
  Sending of accounts and reports 34
     
  Validity despite accidental error in publication on website 34
     
  Audit 34
     
24. Financial year 35
     
25. Record dates 35
     
26. Dividends 36

 

iv

 

 

  Declaration of dividends by Members 36
     
  Payment of interim dividends and declaration of final dividends by directors 36
     
  Apportionment of dividends 36
     
  Right of set off 37
     
  Power to pay other than in cash 37
     
  How payments may be made 37
     
  Dividends or other moneys not to bear interest in absence of special rights 38
     
  Dividends unable to be paid or unclaimed 38
     
27. Capitalisation of profits 38
     
  Capitalisation of profits or of any share premium account or capital redemption reserve 38
     
  Applying an amount for the benefit of members 38
     
28. Share premium account 38
     
  directors to maintain share premium account 38
     
  Debits to share premium account 39
     
29. Seal 39
     
  Company seal 39
     
  Duplicate seal 39
     
  When and how seal is to be used 39
     
  If no seal is adopted or used 39
     
  Power to allow non-manual signatures and facsimile printing of seal 39
     
  Validity of execution 40
     
30. Indemnity 40
     
  Indemnity 40
     
  Release 40
     
  Insurance 40
     
31. Notices 41
     
  Form of notices 41
     
  Electronic communications 41
     
  Persons authorised to give notices 41
     
  Delivery of written notices 42
     
  Joint holders 42
     
  Signatures 42
     
  Evidence of transmission 42
     
  Giving notice to a deceased or bankrupt Member 42

 

v

 

 

  Date of giving notices 43
     
  Saving provision 43
     
32. Authentication of Electronic Records 43
     
  Application of Articles 43
     
  Authentication of documents sent by Members by Electronic means 43
     
  Authentication of document sent by the Secretary or Officers of the Company by Electronic means 44
     
  Manner of signing 44
     
  Saving provision 44
     
33. Transfer by way of continuation 44
     
34. Winding up 45
     
  Distribution of assets in specie 45
     
  No obligation to accept liability 45
     
  The directors are authorised to present a winding up petition 45
     
35. Amendment of Memorandum and Articles 45
     
  Power to change name or amend Memorandum 45
     
  Power to amend these Articles 45
     
36. Mergers and Consolidations 45
     
37. Business Combination 46
     
38.  Certain Tax Filings 49
     
39. Business Opportunities 49

 

vi

 

 

Companies Act (Revised)

 

Company Limited by Shares

 

Third Amended and Restated

 

Articles of Association

 

of

 

Kairous Acquisition Corp. Limited

 

Adopted by special resolution passed on [   ] 2023

 

1.Definitions, interpretation and exclusion of Table A

 

Definitions

 

1.1In these Articles, the following definitions apply:

 

Act means the Companies Act (Revised) of the Cayman Islands.

 

Affiliate in respect of a person, means any other person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person, and (a) in the case of a natural person, shall include, without limitation, such person’s spouse, parents, children, siblings, mother-in-law and father-in-law and brothers and sisters-in-law, whether by blood, marriage or adoption or anyone residing in such person’s home, a trust for the benefit of any of the foregoing, a company, partnership or any natural person or entity wholly or jointly owned by any of the foregoing and (b) in the case of an entity, shall include a partnership, a corporation or any natural person or entity which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.

 

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, as appropriate:

 

(a)these Amended and Restated Articles of Association as amended, restated, supplemented and/or otherwise modified from time to time: or

 

(b)two or more particular Articles of these Articles;

 

and Article refers to a particular Article of these Articles.

 

Audit Committee means the audit committee of the board of directors of the Company established pursuant to Article 23.8 hereof, or any successor audit committee.

 

Auditor means the person for the time being performing the duties of auditor of the Company.

 

Business Combination means a merger, share exchange, asset acquisition, share purchase, reorganisation or similar business combination involving the Company, with one or more businesses or entities (each a target business), which Business Combination: (a) must be with one or more operating businesses or assets with a fair market value equal to at least 80% of the net assets held in the trust account (net of amounts disbursed to management for working capital purposes, if permitted, and excluding the amount of any deferred underwriting discount and taxes payable on the interest earned on the trust account); and (b) must not be effectuated solely with another blank cheque company or a similar company with nominal operations.

 

1

 

 

Business Day means a day other than a day on which banking institutions or trust companies are authorised or obligated by law to close in New York City, a Saturday or a Sunday.

 

Clear Days, in relation to a period of notice, means that period excluding:

 

(a)the day when the notice is given or deemed to be given; and

 

(b)the day for which it is given or on which it is to take effect.

 

Clearing House means a clearing house recognised by the laws of the jurisdiction in which the Shares (or depositary receipts therefor) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction.

 

Company means the above-named company.

 

Compensation Committee means the compensation committee of the board of directors of the Company established pursuant to the Articles, or any successor committee.

 

Default Rate means 10% (ten per cent) per annum.

 

Designated Stock Exchange means any United States national securities exchange, including the Nasdaq Stock Market LLC, the NYSE American LLC or The New York Stock Exchange LLC or any OTC market on which the Shares are listed for trading.

 

Electronic has the meaning given to that term in the Electronic Transactions Act (Revised).

 

Electronic Record has the meaning given to that term in the Electronic Transactions Act (Revised).

 

Electronic Signature has the meaning given to that term in the Electronic Transactions Act (Revised).

 

Exchange Act means the United States Securities Exchange Act of 1934, as amended.

 

Founders means all Members immediately prior to the consummation of the IPO.

 

Fully Paid and Paid Up:

 

(a)in relation to a Share with par value, means that the par value for that Share and any premium payable in respect of the issue of that Share, has been fully paid or credited as paid in money or money’s worth;

 

(b)in relation to a Share without par value, means that the agreed issue price for that Share has been fully paid or credited as paid in money or money’s worth.

 

Independent Director means a director who is an independent director as defined in the rules and regulations of the Designated Stock Exchange as determined by the directors.

 

Investor Group means the Sponsor and its Affiliates, successors and assigns.

 

2

 

 

IPO means the Company’s initial public offering of securities.

 

IPO Redemption has the meaning given to it in Article 37.6.

 

Islands means the British Overseas Territory of the Cayman Islands.

 

Member means any person or persons entered on the Register of Members from time to time as the holder of a Share.

 

Memorandum means the Amended and Restated Memorandum of Association of the Company as amended, restated, supplemented and/or otherwise modified from time to time.

 

Nominating Committee means the nominating committee of the board of directors of the Company established pursuant to the Articles, or any successor committee.

 

Officer means a person then appointed to hold an office in the Company; and the expression includes a director, alternate director or liquidator.

 

Ordinary Resolution means a resolution of a duly constituted general meeting of the Company passed by a simple majority of the votes cast by, or on behalf of, the Members entitled to vote thereon. The expression also includes a unanimous written resolution.

 

Over-Allotment Option means the option of the Underwriters to purchase up to an additional 15% of the firm units (as described at Article 3.4) issued in the IPO at a price equal to US$10.00 per unit, less underwriting discount and commissions.

 

Public Share means a Share issued as part of the units (as described in Article 3.4) issued in the IPO.

 

Redemption Price has the meaning given to it in Article 37.6.

 

Register of Members means the register of Members maintained in accordance with the Act and includes (except where otherwise stated) any branch or duplicate register of Members.

 

Representative means a representative of the Underwriters.

 

SEC means the United States Securities and Exchange Commission.

 

Secretary means a person appointed to perform the duties of the secretary of the Company, including a joint, assistant or deputy secretary.

 

Share means a share in the share capital of the Company; and the expression:

 

(a)includes stock (except where a distinction between shares and stock is expressed or implied); and

 

(b)where the context permits, also includes a fraction of a share.

 

Special Resolution has the meaning given to that term in the Act; and the expression includes a unanimous written resolution.

 

Sponsor means Kairous Asia Limited, a limited liability company incorporated under the laws of the British Virgin Islands.

 

3

 

 

Tax Filing Authorised Person means such person as any director shall designate from time to time, acting severally.

 

Treasury Shares means Shares of the Company held in treasury pursuant to the Act and Article 3.14.

 

Trust Account means the trust account established by the Company upon the consummation of its IPO and into which a certain amount of the net proceeds of the IPO, together with a certain amount of the proceeds of a private placement of warrants simultaneously with the closing date of the IPO, will be deposited.

 

Underwriter means an underwriter of the IPO from time to time, and any successor underwriter.

 

Interpretation

 

1.2In the interpretation of these Articles, the following provisions apply unless the context otherwise requires:

 

(a)A reference in these Articles to a statute is a reference to a statute of the Islands as known by its short title, and includes:

 

(i)any statutory modification, amendment or re-enactment; and

 

(ii)any subordinate legislation or regulations issued under that statute.

 

Without limitation to the preceding sentence, a reference to a revised Act of the Cayman Islands is taken to be a reference to the revision of that Act in force from time to time as amended from time to time.

 

(b)Headings are inserted for convenience only and do not affect the interpretation of these Articles, unless there is ambiguity.

 

(c)If a day on which any act, matter or thing is to be done under these Articles is not a Business Day, the act, matter or thing must be done on the next Business Day.

 

(d)A word which denotes the singular also denotes the plural, a word which denotes the plural also denotes the singular, and a reference to any gender also denotes the other genders.

 

(e)A reference to a person includes, as appropriate, a company, trust, partnership, joint venture, association, body corporate or government agency.

 

(f)Where a word or phrase is given a defined meaning another part of speech or grammatical form in respect to that word or phrase has a corresponding meaning.

 

(g)All references to time are to be calculated by reference to time in the place where the Company’s registered office is located.

 

(h)The words written and in writing include all modes of representing or reproducing words in a visible form, but do not include an Electronic Record where the distinction between a document in writing and an Electronic Record is expressed or implied.

 

(i)The words including, include and in particular or any similar expression are to be construed without limitation.

 

(j)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.

 

(k)Sections 8 and 19(3) of the Electronic Transactions Act shall not apply.

 

(l)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.

 

4

 

 

Exclusion of Table A Articles

 

1.3The regulations contained in Table A in the First Schedule of the Act and any other regulations contained in any statute or subordinate legislation are expressly excluded and do not apply to the Company.

 

2.Commencement of Business

 

2.1The business of the Company may be commenced as soon after incorporation of the Company as the directors see fit.

 

2.2The directors may pay, out of the capital or any other monies of the Company, all expenses incurred in or about the formation and establishment of the Company, including the expenses of registration.

 

3.Shares

 

Power to issue Shares and options, with or without special rights

 

3.1Subject to the provisions, if any, in the Act the Memorandum (and to any direction that may be given by the Company in general meeting), these Articles and, where applicable, the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, and without prejudice to any rights attached to any existing Shares, the directors have general and unconditional authority to allot (with or without confirming rights of renunciation), issue, grant options over or otherwise deal with any unissued Shares of the Company to such persons, at such times and on such terms and conditions as they may decide. No Share may be issued at a discount except in accordance with the provisions of the Act.

 

3.2Without limitation to the preceding Article, the directors may so deal with the unissued Shares of the Company:

 

(a)either at a premium or at par;

 

(b)with or without preferred, deferred or other special rights or restrictions whether in regard to dividend, voting, return of capital or otherwise.

 

3.3The Company may issue rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company at such times and on such terms and conditions as the directors may decide.

 

3.4The Company may issue units of securities in the Company, which may be comprised of Shares, rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company, on such terms and conditions as the directors may decide. The securities comprising any such units which are issued pursuant to the IPO can only be traded separately from one another on the 52nd day following the date of the prospectus relating to the IPO unless the Representative(s) determines that an earlier date is acceptable, subject to the Company having filed a current report on Form 8-K containing an audited balance sheet reflecting the Company’s receipt of the gross proceeds of the IPO with the SEC and a press release announcing when such separate trading will begin. Prior to such date, the units can be traded, but the securities comprising such units cannot be traded separately from one another.

 

5

 

 

Power to issue fractions of a Share

 

3.5Subject to the Act, the Company may issue fractions of a Share of any class. A fraction of a Share shall be subject to and carry the corresponding fraction of liabilities (whether with respect to calls or otherwise), limitations, preferences, privileges, qualifications, restrictions, rights and other attributes of a Share of that class of Shares.

 

Power to pay commissions and brokerage fees

 

3.6The Company may, in so far as the Act permits, pay a commission to any person in consideration of that person:

 

(a)subscribing or agreeing to subscribe, whether absolutely or conditionally; or

 

(b)procuring or agreeing to procure subscriptions, whether absolute or conditional

 

for any Shares in the Company. That commission may be satisfied by the payment of cash or the allotment of Fully Paid or partly-paid Shares or partly in one way and partly in another.

 

3.7The Company may employ a broker in the issue of its capital and pay him any proper commission or brokerage.

 

Trusts not recognised

 

3.8Except as required by Applicable Law:

 

(a)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 these Articles or the Act) any other rights in respect of any Share other than an absolute right to the entirety thereof in the holder; and

 

(b)no person other than the Member shall be recognised by the Company as having any right in a Share.

 

Power to vary class rights

 

3.9If the share capital is divided into different classes of Shares then, unless the terms on which a class of Shares was issued state otherwise, the rights attaching to a class of Shares may only be varied if one of the following applies:

 

(a)the Members holding two thirds of the issued Shares of that class consent in writing to the variation; or

 

(b)the variation is made with the sanction of a Special Resolution passed at a separate general meeting of the Members holding the issued Shares of that class.

 

3.10For the purpose of paragraph (b) of the preceding Article, all the provisions of these Articles relating to general meetings apply, mutatis mutandis, to every such separate meeting except that:

 

(a)the necessary quorum shall be one or more persons holding, or representing by proxy, not less than one third of the issued Shares of the class; and

 

(b)any Member holding issued Shares of the class, present in person or by proxy or, in the case of a corporate Member, by its duly authorised representative, may demand a poll.

 

6

 

 

Effect of new Share issue on existing class rights

 

3.11Unless the terms on which a class of Shares was issued state otherwise, the rights conferred on the Member holding Shares of any class shall not be deemed to be varied by the creation or issue of further Shares ranking pari passu with the existing Shares of that class.

 

Capital contributions without issue of further Shares

 

3.12With the consent of a Member, the directors may accept a voluntary contribution to the capital of the Company from that Member without issuing Shares in consideration for that contribution. In that event, the contribution shall be dealt with in the following manner:

 

(a)It shall be treated as if it were a share premium.

 

(b)Unless the Member agrees otherwise:

 

(i)if the Member holds Shares in a single class of Shares, it shall be credited to the share premium account for that class of Shares;

 

(ii)if the Member holds Shares of more than one class, it shall be credited rateably to the share premium accounts for those classes of Shares (in the proportion that the sum of the issue prices for each class of Shares that the Member holds bears to the total issue prices for all classes of Shares that the Member holds).

 

(c)It shall be subject to the provisions of the Act and these Articles applicable to share premiums.

 

No bearer Shares or warrants

 

3.13The Company shall not issue Shares or warrants to bearers.

 

Treasury Shares

 

3.14Shares that the Company purchases, redeems or acquires by way of surrender in accordance with the Act shall be held as Treasury Shares and not treated as cancelled if:

 

(a)the directors so determine prior to the purchase, redemption or surrender of those shares; and

 

(b)the relevant provisions of the Memorandum and Articles and the Act are otherwise complied with.

 

Rights attaching to Treasury Shares and related matters

 

3.15No dividend may be declared or paid, and no other distribution (whether in cash or otherwise) of the Company’s assets (including any distribution of assets to members on a winding up) may be made to the Company in respect of a Treasury Share.

 

3.16The Company shall be entered in the Register as the holder of the Treasury Shares. However:

 

(a)the Company shall not be treated as a member for any purpose and shall not exercise any right in respect of the Treasury Shares, and any purported exercise of such a right shall be void;

 

(b)a Treasury Share shall not be voted, directly or indirectly, at any meeting of the Company and shall not be counted in determining the total number of issued shares at any given time, whether for the purposes of these Articles or the Act.

 

7

 

 

3.17Nothing in the preceding Article prevents an allotment of Shares as fully paid bonus shares in respect of a Treasury Share and Shares allotted as fully paid bonus shares in respect of a Treasury Share shall be treated as Treasury Shares.

 

3.18Treasury Shares may be disposed of by the Company in accordance with the Act and otherwise on such terms and conditions as the directors determine.

 

4.Register of Members

 

4.1The Company shall maintain or cause to be maintained the Register of Members in accordance with the Act.

 

4.2The directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Act. The directors may also determine which Register of Members shall constitute the principal register and which shall constitute the branch register or registers, and to vary such determination from time to time.

 

5.Share certificates

 

Issue of share certificates

 

5.1Upon being entered in the Register of Members as the holder of a Share, a Member shall be entitled:

 

(a)without payment, to one certificate for all the Shares of each class held by that Member (and, upon transferring a part of the Member’s holding of Shares of any class, to a certificate for the balance of that holding); and

 

(b)upon payment of such reasonable sum as the directors may determine for every certificate after the first, to several certificates each for one or more of that Member’s Shares.

 

5.2Every certificate shall specify the number, class and distinguishing numbers (if any) of the Shares to which it relates and whether they are Fully Paid or partly paid up. A certificate may be executed under seal or executed in such other manner as the directors determine.

 

5.3The Company shall not be bound to issue more than one certificate for Shares held jointly by several persons and delivery of a certificate for a Share to one joint holder shall be a sufficient delivery to all of them.

 

Renewal of lost or damaged share certificates

 

5.4If a share certificate is defaced, worn-out, lost or destroyed, it may be renewed on such terms (if any) as to:

 

(a)evidence;

 

(b)indemnity;

 

(c)payment of the expenses reasonably incurred by the Company in investigating the evidence; and

 

(d)payment of a reasonable fee, if any, for issuing a replacement share certificate

 

as the directors may determine, and (in the case of defacement or wearing-out) on delivery to the Company of the old certificate.

 

8

 

 

6.Lien on Shares

 

Nature and scope of lien

 

6.1The Company has a first and paramount lien on all Shares (whether Fully Paid or not) registered in the name of a Member (whether solely or jointly with others). The lien is for all moneys payable to the Company by the Member or the Member’s estate:

 

(a)either alone or jointly with any other person, whether or not that other person is a Member; and

 

(b)whether or not those moneys are presently payable.

 

6.2At any time the directors may declare any Share to be wholly or partly exempt from the provisions of this Article.

 

Company may sell Shares to satisfy lien

 

6.3The Company may sell any Shares over which it has a lien if all of the following conditions are met:

 

(a)the sum in respect of which the lien exists is presently payable;

 

(b)the Company gives notice to the Member holding the Share (or to the person entitled to it in consequence of the death or bankruptcy of that Member) demanding payment and stating that if the notice is not complied with the Shares may be sold; and

 

(c)that sum is not paid within 14 Clear Days after that notice is deemed to be given under these Articles.

 

6.4The Shares may be sold in such manner as the directors determine.

 

6.5To the maximum extent permitted by Applicable Law, the directors shall incur no personal liability to the Member concerned in respect of the sale.

 

Authority to execute instrument of transfer

 

6.6To give effect to a 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 title of the transferee of the Shares shall not be affected by any irregularity or invalidity in the proceedings in respect of the sale.

 

Consequences of sale of Shares to satisfy lien

 

6.7On sale pursuant to the preceding Articles:

 

(a)the name of the Member concerned shall be removed from the Register of Members as the holder of those Shares; and

 

(b)that person shall deliver to the Company for cancellation the certificate for those Shares.

 

Despite this, that person shall remain liable to the Company for all monies which, at the date of sale, were presently payable by him to the Company in respect of those Shares. That person shall also be liable to pay interest on those monies from the date of sale until payment at the rate at which interest was payable before that sale or, failing that, at the Default Rate. The directors may waive payment wholly or in part or enforce payment without any allowance for the value of the Shares at the time of sale or for any consideration received on their disposal.

 

9

 

 

Application of proceeds of sale

 

6.8The net proceeds of the sale, after payment of the costs, shall be applied in payment of so much of the sum for which the lien exists as is presently payable. Any residue shall be paid to the person whose Shares have been sold:

 

(a)if no certificate for the Shares was issued, at the date of the sale; or

 

(b)if a certificate for the Shares was issued, upon surrender to the Company of that certificate for cancellation

 

but, in either case, subject to the Company retaining a like lien for all sums not presently payable as existed on the Shares before the sale.

 

7.Calls on Shares and forfeiture

 

Power to make calls and effect of calls

 

7.1Subject to the terms of allotment, the directors may make calls on the Members in respect of any moneys unpaid on their Shares including any premium. The call may provide for payment to be by instalments. Subject to receiving at least 14 Clear Days’ notice specifying when and where payment is to be made, each Member shall pay to the Company the amount called on his Shares as required by the notice.

 

7.2Before receipt by the Company of any sum due under a call, that call may be revoked in whole or in part and payment of a call may be postponed in whole or in part. Where a call is to be paid in instalments, the Company may revoke the call in respect of all or any remaining instalments in whole or in part and may postpone payment of all or any of the remaining instalments in whole or in part.

 

7.3A Member on whom a call is made shall remain liable for that call notwithstanding the subsequent transfer of the Shares in respect of which the call was made. A person shall not be liable for calls made after such person is no longer registered as Member in respect of those Shares.

 

Time when call made

 

7.4A call shall be deemed to have been made at the time when the resolution of the directors authorising the call was passed.

 

Liability of joint holders

 

7.5Members registered as the joint holders of a Share shall be jointly and severally liable to pay all calls in respect of the Share.

 

Interest on unpaid calls

 

7.6If a call remains unpaid after it has become due and payable the person from whom it is due and payable shall pay interest on the amount unpaid from the day it became due and payable until it is paid:

 

(a)at the rate fixed by the terms of allotment of the Share or in the notice of the call; or

 

(b)if no rate is fixed, at the Default Rate.

 

The directors may waive payment of the interest wholly or in part.

 

10

 

 

Deemed calls

 

7.7Any amount payable in respect of a Share, whether on allotment or on a fixed date or otherwise, shall be deemed to be payable as a call. If the amount is not paid when due the provisions of these Articles shall apply as if the amount had become due and payable by virtue of a call.

 

Power to accept early payment

 

7.8The Company may accept from a Member the whole or a part of the amount remaining unpaid on Shares held by him although no part of that amount has been called up.

 

Power to make different arrangements at time of issue of Shares

 

7.9Subject to the terms of allotment, the directors may make arrangements on the issue of Shares to distinguish between Members in the amounts and times of payment of calls on their Shares.

 

Notice of default

 

7.10If a call remains unpaid after it has become due and payable the directors may give to the person from whom it is due not less than 14 Clear Days’ notice requiring payment of:

 

(a)the amount unpaid;

 

(b)any interest which may have accrued;

 

(c)any expenses which have been incurred by the Company due to that person’s default.

 

7.11The notice shall state the following:

 

(a)the place where payment is to be made; and

 

(b)a warning that if the notice is not complied with the Shares in respect of which the call is made will be liable to be forfeited.

 

Forfeiture or surrender of Shares

 

7.12If the notice under the preceding Article is not complied with, the directors may, before the payment required by the notice has been received, resolve that any Share the subject of that notice be forfeited. The forfeiture shall include all dividends or other moneys payable in respect of the forfeited Share and not paid before the forfeiture. Despite the foregoing, the directors may determine that any Share the subject of that notice be accepted by the Company as surrendered by the Member holding that Share in lieu of forfeiture.

 

7.13The directors may accept the surrender for no consideration of any Fully Paid Share.

 

Disposal of forfeited or surrendered Share and power to cancel forfeiture or surrender

 

7.14A forfeited or surrendered Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the directors determine either to the former Member who held that Share or to any other person. The forfeiture or surrender may be cancelled on such terms as the directors think fit at any time before a sale, re-allotment or other disposition. Where, for the purposes of its disposal, a forfeited or surrendered Share is to be transferred to any person, the directors may authorise some person to execute an instrument of transfer of the Share to the transferee.

 

11

 

 

Effect of forfeiture or surrender on former Member

 

7.15On forfeiture or surrender:

 

(a)the name of the Member concerned shall be removed from the Register of Members as the holder of those Shares and that person shall cease to be a Member in respect of those Shares; and

 

(b)that person shall surrender to the Company for cancellation the certificate (if any) for the forfeited or surrendered Shares.

 

7.16Despite the forfeiture or surrender of his Shares, that person shall remain liable to the Company for all moneys which at the date of forfeiture or surrender were presently payable by him to the Company in respect of those Shares together with:

 

(a)all expenses; and

 

(b)interest from the date of forfeiture or surrender until payment:

 

(i)at the rate of which interest was payable on those moneys before forfeiture; or

 

(ii)if no interest was so payable, at the Default Rate.

 

The directors, however, may waive payment wholly or in part.

 

Evidence of forfeiture or surrender

 

7.17A declaration, whether statutory or under oath, made by a director or the Secretary shall be conclusive evidence of the following matters stated in it as against all persons claiming to be entitled to forfeited Shares:

 

(a)that the person making the declaration is a director or Secretary of the Company, and

 

(b)that the particular Shares have been forfeited or surrendered on a particular date.

 

Subject to the execution of an instrument of transfer, if necessary, the declaration shall constitute good title to the Shares.

 

Sale of forfeited or surrendered Shares

 

7.18Any person to whom the forfeited or surrendered Shares are disposed of shall not be bound to see to the application of the consideration, if any, of those Shares nor shall his title to the Shares be affected by any irregularity in, or invalidity of the proceedings in respect of, the forfeiture, surrender or disposal of those Shares.

 

8.Transfer of Shares

 

Form of transfer

 

8.1Subject to the following Articles about the transfer of Shares, and provided that such transfer complies with the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, a Member may transfer Shares to another person by completing an instrument of transfer in a common form or in a form prescribed by the rules and regulations of 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, executed:

 

(a)where the Shares are Fully Paid, by or on behalf of that Member; and

 

(b)where the Shares are partly paid, by or on behalf of that Member and the transferee.

 

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8.2The transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered into the Register of Members.

 

Power to refuse registration

 

8.3If the Shares in question were issued in conjunction with rights, options or warrants issued pursuant to Article 3.4 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.

 

Power to suspend registration

 

8.4The directors may suspend registration of the transfer of Shares at such times and for such periods, not exceeding 30 days in any calendar year, as they determine.

 

Company may retain instrument of transfer

 

8.5The Company shall be entitled to retain any instrument of transfer which is registered; but an instrument of transfer which the directors refuse to register shall be returned to the person lodging it when notice of the refusal is given.

 

9.Transmission of Shares

 

Persons entitled on death of a Member

 

9.1If a Member dies, the only persons recognised by the Company as having any title to the deceased Members’ interest are the following:

 

(a)where the deceased Member was a joint holder, the survivor or survivors; and

 

(b)where the deceased Member was a sole holder, that Member’s personal representative or representatives.

 

9.2Nothing in these Articles shall release the deceased Member’s estate from any liability in respect of any Share, whether the deceased was a sole holder or a joint holder.

 

Registration of transfer of a Share following death or bankruptcy

 

9.3A person becoming entitled to a Share in consequence of the death or bankruptcy of a Member may elect to do either of the following:

 

(a)to become the holder of the Share; or

 

(b)to transfer the Share to another person.

 

9.4That person must produce such evidence of his entitlement as the directors may properly require.

 

9.5If the person elects to become the holder of the Share, he must give notice to the Company to that effect. For the purposes of these Articles, that notice shall be treated as though it were an executed instrument of transfer.

 

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9.6If the person elects to transfer the Share to another person then:

 

  (a) if the Share is Fully Paid, the transferor must execute an instrument of transfer; and
     
  (b) if the Share is partly paid, the transferor and the transferee must execute an instrument of transfer.

 

9.7All these Articles relating to the transfer of Shares shall apply to the notice or, as appropriate, the instrument of transfer.

 

Indemnity

 

9.8A person registered as a Member by reason of the death or bankruptcy of another Member shall indemnify the Company and the directors against any loss or damage suffered by the Company or the directors as a result of that registration.

 

Rights of person entitled to a Share following death or bankruptcy

 

9.9A person becoming entitled to a Share by reason of the death or bankruptcy of a Member shall have the rights to which he would be entitled if he were registered as the holder of the Share. However, until he is registered as Member in respect of the Share, he shall not be entitled to attend or vote at any meeting of the Company or at any separate meeting of the holders of that class of Shares in the Company.

 

10.Alteration of capital

 

Increasing, consolidating, converting, dividing and cancelling share capital

 

10.1To the fullest extent permitted by the Act, the Company may by Ordinary Resolution do any of the following and amend its Memorandum for that purpose:

 

(a)increase its share capital by new Shares of the amount fixed by that Ordinary Resolution and with the attached rights, priorities and privileges set out in that Ordinary Resolution;

 

(b)consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares;

 

(c)convert all or any of its Paid Up Shares into stock, and reconvert that stock into Paid Up Shares of any denomination;

 

(d)sub-divide its Shares or any of them into Shares of an amount smaller than that fixed by the Memorandum, so, however, that in the sub-division, the proportion between the amount paid and the amount, if any, unpaid on each reduced Share shall be the same as it was in case of the Share from which the reduced Share is derived; and

 

(e)cancel Shares which, at the date of the passing of that Ordinary Resolution, have not been taken or agreed to be taken by any person, and diminish the amount of its share capital by the amount of the Shares so cancelled or, in the case of Shares without nominal par value, diminish the number of Shares into which its capital is divided.

 

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Dealing with fractions resulting from consolidation of Shares

 

10.2Whenever, as a result of a consolidation of Shares, any Members would become entitled to fractions of a Share the directors may on behalf of those Members:

 

(a)sell the Shares representing the fractions for the best price reasonably obtainable to any person (including, subject to the provisions of the Act, the Company); and

 

(b)distribute the net proceeds in due proportion among those Members.

 

For that purpose, the directors may authorise some person to execute an instrument of transfer of the Shares to, or in accordance with the directions of, the purchaser. The transferee shall not be bound to see to the application of the purchase money nor shall the transferee’s title to the Shares be affected by any irregularity in, or invalidity of, the proceedings in respect of the sale.

 

Reducing share capital

 

10.3Subject to the Act and to any rights for the time being conferred on the Members holding a particular class of Shares, the Company may, by Special Resolution, reduce its share capital in any way.

 

11.Redemption and purchase of own Shares

 

Power to issue redeemable Shares and to purchase own Shares

 

11.1Subject to the Act and Article 37, and to any rights for the time being conferred on the Members holding a particular class of Shares, and, where applicable, 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 by its directors:

 

(a)issue Shares that are to be redeemed or liable to be redeemed, at the option of the Company or the Member holding those redeemable Shares, on the terms and in the manner its directors determine before the issue of those Shares;

 

(b)with the consent by Special Resolution of the Members holding Shares of a particular class, vary the rights attaching to that class of Shares so as to provide that those Shares are to be redeemed or are liable to be redeemed at the option of the Company on the terms and in the manner which the directors determine at the time of such variation; and

 

(c)purchase all or any of its own Shares of any class including any redeemable Shares on the terms and in the manner which the directors determine at the time of such purchase.

 

The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner authorised by the Act, including out of any combination of the following: capital, its profits and the proceeds of a fresh issue of Shares.

 

11.2With respect to redeeming, repurchasing or surrendering of Shares:

 

(a)Members who hold Public Shares are entitled to request the redemption of such Shares in the circumstances described in Article 37.3;

 

(b)Shares held by the Sponsor shall be surrendered by the Sponsor for no consideration to the extent that the Over-Allotment Option is not exercised in full so that such shares will represent 20% of the Company’s issued Shares after the IPO (exclusive of any securities purchased in a private placement simultaneously with the IPO); and

 

(c)Public Shares shall be repurchased by way of Tender Offer in the circumstances set out in Article 37.2(b).

 

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Power to pay for redemption or purchase in cash or in specie

 

11.3When making a payment in respect of the redemption or purchase of Shares, the directors may make the payment in cash or in specie (or partly in one and partly in the other) if so authorised by the terms of the allotment of those Shares, or by the terms applying to those Shares in accordance with Article 11.1, or otherwise by agreement with the Member holding those Shares.

 

Effect of redemption or purchase of a Share

 

11.4Upon the date of redemption or purchase of a Share:

 

(a)the Member holding that Share shall cease to be entitled to any rights in respect of the Share other than the right to receive:

 

(i)the price for the Share; and

 

(ii)any dividend declared in respect of the Share prior to the date of redemption or purchase;

 

(b)the Member’s name shall be removed from the Register of Members with respect to the Share; and

 

(c)the Share shall be cancelled or held as a Treasury Shares, as the directors may determine.

 

For the purpose of this Article, the date of redemption or purchase is the date when the redemption or purchase falls due.

 

11.5For the avoidance of doubt, redemptions and repurchases of Shares in the circumstances described in Articles 11.2(a), 11.2(b) and 11.2(c) above shall not require further approval of the Members.

 

12.Meetings of Members

 

Power to call meetings

 

12.1To the extent 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, an annual general meeting of the Company shall be held no later than one year after the first financial year end occurring after the IPO, and shall be held in each year thereafter at such time as determined by the directors and the Company may, but shall not (unless required by the Act or the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law) be obliged to, in each year hold any other general meeting.
  
12.2The agenda of the annual general meeting shall be set by the directors and shall include the presentation of the Company’s annual accounts and the report of the directors (if any).

 

12.3Annual general meetings shall be held in New York, USA or in such other places as the directors may determine.

 

12.4All general meetings other than annual general meetings shall be called extraordinary general meetings and the Company shall specify the meeting as such in the notices calling it.

 

12.5The directors may call a general meeting at any time.

 

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12.6If there are insufficient directors to constitute a quorum and the remaining directors are unable to agree on the appointment of additional directors, the directors must call a general meeting for the purpose of appointing additional directors.
  
12.7The directors must also call a general meeting if requisitioned in the manner set out in the next two Articles.
  
12.8The requisition must be in writing and given by one or more Members who together hold not less than 10% of the rights to vote at such general meeting.
  
12.9The requisition must also:

 

(a)specify the purpose of the meeting.

 

(b)be signed by or on behalf of each requisitioner (and for this purpose each joint holder shall be obliged to sign). The requisition may consist of several documents in like form signed by one or more of the requisitioners.

 

(c)be delivered in accordance with the notice provisions.

 

12.10Should the directors fail to call a general meeting within 21 Clear Days from the date of receipt of a requisition, the requisitioners or any of them may call a general meeting within three months after the end of that period.

 

12.11Without limitation to the foregoing, if there are insufficient directors to constitute a quorum and the remaining directors are unable to agree on the appointment of additional directors, any one or more Members who together hold at least 40% of the rights to vote at a general meeting may call a general meeting for the purpose of considering the business specified in the notice of meeting which shall include as an item of business the appointment of additional directors.

 

12.12Members seeking to bring business before the annual general meeting or to nominate candidates for election 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.

 

Content of notice

 

12.13Notice of a general meeting shall specify each of the following:

 

(a)the place, the date and the hour of the meeting;

 

(b)if the meeting is to be held in two or more places, the technology that will be used to facilitate the meeting;

 

(c)subject to paragraph (d), the general nature of the business to be transacted; and

 

(d)if a resolution is proposed as a Special Resolution, the text of that resolution.

 

12.14In each notice there shall appear with reasonable prominence the following statements:

 

(a)that a Member who is entitled to attend and vote is entitled to appoint one or more proxies to attend and vote instead of that Member; and

 

(b)that a proxyholder need not be a Member.

 

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Period of notice

 

12.15At least ten days’ notice of a general meeting must be given to Members, 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 these Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed:

 

(a)in the case of an annual general meeting, by all of the Members entitled to attend and vote thereat; and

 

(b)in the case of an extraordinary general meeting, by a majority in number of the Members having a right to attend and vote at the meeting, together holding not less than 95% in par value of the Shares giving that right.

 

Persons entitled to receive notice

 

12.16Subject to the provisions of these Articles and to any restrictions imposed on any Shares, the notice shall be given to the following people:

 

(a)the Members;

 

(b)persons entitled to a Share in consequence of the death or bankruptcy of a Member; and

 

(c)the directors.

 

Publication of notice on a website

 

12.17Subject to the Act or the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law, a notice of a general meeting may be published on a website providing the recipient is given separate notice of:

 

(a)the publication of the notice on the website;

 

(b)the place on the website where the notice may be accessed;

 

(c)how it may be accessed; and

 

(d)the place, date and time of the general meeting.

 

12.18If a Member notifies the Company that he is unable for any reason to access the website, the Company must as soon as practicable give notice of the meeting to that Member by any other means permitted by these Articles. This will not affect when that Member is deemed to have received notice of the meeting.

 

Time a website notice is deemed to be given

 

12.19A website notice is deemed to be given when the Member is given notice of its publication.

 

Required duration of publication on a website

 

12.20Where the notice of meeting is published on a website, it shall continue to be published in the same place on that website from the date of the notification until at least the conclusion of the meeting to which the notice relates.

 

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Accidental omission to give notice or non-receipt of notice

 

12.21Proceedings at a meeting shall not be invalidated by the following:

 

(a)an accidental failure to give notice of the meeting to any person entitled to notice; or

 

(b)non-receipt of notice of the meeting by any person entitled to notice.

 

12.22In addition, where a notice of meeting is published on a website, proceedings at the meeting shall not be invalidated merely because it is accidentally published:

 

(a)in a different place on the website; or

 

(b)for part only of the period from the date of the notification until the conclusion of the meeting to which the notice relates.

 

13.Proceedings at meetings of Members

 

Quorum

 

13.1Save as provided in the following Article, no business shall be transacted at any meeting unless a quorum is present in person or by proxy. One or more Members who together hold not less than one-third of the Shares entitled to vote at such meeting 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; provided that a quorum in connection with any meeting that is convened to vote on a Business Combination or any meeting convened with regards to an amendment described in Article 37.9 shall be a majority of the Shares entitled to vote at such meeting being individuals present in person or by proxy or if a corporation or other non-natural person by its duly authorised representative or proxy.

 

Lack of quorum

 

13.2If a quorum is not present within 15 minutes of the time appointed for the meeting, or if at any time during the meeting it becomes inquorate, then the following provisions apply:

 

(a)If the meeting was requisitioned by Members, it shall be cancelled.

 

(b)In any other case, the meeting shall stand adjourned to the same time and place seven days hence, or to such other time or place as is determined by the directors. If a quorum is not present within 15 minutes of the time appointed for the adjourned meeting, then the meeting shall be dissolved.

 

Use of technology

 

13.3A person may participate in a general meeting through the medium of conference telephone, video or any other form of communications equipment providing all persons participating in the meeting are able to hear and speak to each other throughout the meeting. A person participating in this way is deemed to be present in person at the meeting.

 

Chairman

 

13.4The chairman of a general meeting shall be the chairman of the board or such other director as the directors have nominated to chair board meetings in the absence of the chairman of the board. Absent any such person being present within 15 minutes of the time appointed for the meeting, the directors present shall elect one of their number to chair the meeting.

 

13.5If no director is present within 15 minutes of the time appointed for the meeting, or if no director is willing to act as chairman, the Members present in person or by proxy and entitled to vote shall choose one of their number to chair the meeting.

 

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Right of a director to attend and speak

 

13.6Even if a director is not a Member, he shall be entitled to attend and speak at any general meeting and at any separate meeting of Members holding a particular class of Shares in the Company.

 

Adjournment and Postponement

 

13.7The chairman may at any time adjourn a meeting. The chairman must adjourn the meeting if so directed by the meeting. No business, however, can be transacted at an adjourned meeting other than business which might properly have been transacted at the original meeting.
  
13.8Should a meeting be adjourned for more than twenty Clear Days, whether because of a lack of quorum or otherwise, Members shall be given at least five Clear Days’ notice of the date, time and place of the adjourned meeting and the general nature of the business to be transacted. Otherwise it shall not be necessary to give any notice of the adjournment.
  
13.9If, prior to a Business Combination, a notice is issued in respect of a general meeting and the directors, in their absolute discretion, consider that it is impractical or undesirable for any reason to hold that general meeting at the place, the day and the hour specified in the notice calling such general meeting, the directors may postpone the general meeting to another place, day and/or hour provided that notice of the place, the day and the hour of the rearranged general meeting is promptly given to all Members. No business shall be transacted at any postponed meeting other than the business specified in the notice of the original meeting.
  
13.10When a general meeting is postponed for thirty days or more, notice of the postponed meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of a postponed meeting. All proxy forms submitted for the original general meeting shall remain valid for the postponed meeting. The directors may postpone a general meeting which has already been postponed.

 

Method of voting

 

13.11A resolution put to the vote of the meeting shall be decided on a poll.

 

Taking of a poll

 

13.12A poll demanded on the question of adjournment shall be taken immediately.
  
13.13A poll demanded on any other question shall be taken either immediately or at an adjourned meeting at such time and place as the chairman directs, not being more than 30 Clear Days after the poll was demanded.
  
13.14The demand for a poll shall not prevent the meeting continuing to transact any business other than the question on which the poll was demanded.
  
13.15A poll shall be taken in such manner as the chairman directs. He may appoint scrutineers (who need not be Members) and fix a place and time for declaring the result of the poll. If, through the aid of technology, the meeting is held in more than place, the chairman may appoint scrutineers in more than place; but if he considers that the poll cannot be effectively monitored at that meeting, the chairman shall adjourn the holding of the poll to a date, place and time when that can occur.

 

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Chairman’s casting vote

 

13.16If the votes on a resolution are equal, the chairman may if he wishes exercise a casting vote.

 

Amendments to resolutions

 

13.17An Ordinary Resolution to be proposed at a general meeting may be amended by Ordinary Resolution if:

 

(a)not less than 48 hours before the meeting is to take place (or such later time as the chairman of the meeting may determine), notice of the proposed amendment is given to the Company in writing by a Member entitled to vote at that meeting; and

 

(b)the proposed amendment does not, in the reasonable opinion of the chairman of the meeting, materially alter the scope of the resolution.

 

13.18A Special Resolution to be proposed at a general meeting may be amended by Ordinary Resolution, if:

 

(a)the chairman of the meeting proposes the amendment at the general meeting at which the resolution is to be proposed, and

 

(b)the amendment does not go beyond what the chairman considers is necessary to correct a grammatical or other non-substantive error in the resolution.

 

13.19If the chairman of the meeting, acting in good faith, wrongly decides that an amendment to a resolution is out of order, the chairman’s error does not invalidate the vote on that resolution.

 

Written resolutions

 

13.20Members may pass a resolution in writing without holding a meeting if the following conditions are met:

 

(a)all Members entitled so to vote are given notice of the resolution as if the same were being proposed at a meeting of Members;

 

(b)all Members entitled so to vote :

 

(i)sign a document; or

 

(ii)sign several documents in the like form each signed by one or more of those Members; and

 

(c)the signed document or documents is or are delivered to the Company, including, if the Company so nominates, by delivery of an Electronic Record by Electronic means to the address specified for that purpose.

 

Such written resolution shall be as effective as if it had been passed at a meeting of the Members entitled to vote duly convened and held.

 

13.21If a written resolution is described as a Special Resolution or as an Ordinary Resolution, it has effect accordingly.
  
13.22The directors may determine the manner in which written resolutions shall be put to Members. In particular, they may provide, in the form of any written resolution, for each Member to indicate, out of the number of votes the Member would have been entitled to cast at a meeting to consider the resolution, how many votes he wishes to cast in favour of the resolution and how many against the resolution or to be treated as abstentions. The result of any such written resolution shall be determined on the same basis as on a poll.

 

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Sole-member company

 

13.23If the Company has only one Member, and the Member records in writing his decision on a question, that record shall constitute both the passing of a resolution and the minute of it.

 

14.Voting rights of Members

 

Right to vote

 

14.1Subject to any rights or restrictions attached to any Member’s Shares, or unless a call or other amount presently payable has not been paid, all Members are entitled to vote at a general meeting, and all Members holding Shares of a particular class of Shares are entitled to vote at a meeting of the holders of that class of Shares.
  
14.2Members may vote in person or by proxy.
  
14.3Every Member shall have one vote for each Share he holds, unless any Share carries special voting rights.
  
14.4A fraction of a Share shall entitle its holder to an equivalent fraction of one vote.
  
14.5No Member is bound to vote on his Shares or any of them; nor is he bound to vote each of his Shares in the same way.

 

Rights of joint holders

 

14.6If Shares are held jointly, only one of the joint holders may vote. If more than one of the joint holders tenders a vote, the vote of the holder whose name in respect of those Shares appears first in the Register of Members shall be accepted to the exclusion of the votes of the other joint holder.

 

Representation of corporate Members

 

14.7Save where otherwise provided, a corporate Member must act by a duly authorised representative.
  
14.8A corporate Member wishing to act by a duly authorised representative must identify that person to the Company by notice in writing.
  
14.9The authorisation may be for any period of time, and must be delivered to the Company not less than two hours before the commencement of the meeting at which it is first used.
  
14.10The directors of the Company may require the production of any evidence which they consider necessary to determine the validity of the notice.
  
14.11Where a duly authorised representative is present at a meeting that Member is deemed to be present in person; and the acts of the duly authorised representative are personal acts of that Member.
  
14.12A corporate Member may revoke the appointment of a duly authorised representative at any time by notice to the Company; but such revocation will not affect the validity of any acts carried out by the duly authorised representative before the directors of the Company had actual notice of the revocation.
  
14.13If 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)).

 

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Member with mental disorder

 

14.14A Member in respect of whom an order has been made by any court having jurisdiction (whether in the Islands or elsewhere) in matters concerning mental disorder may vote, by that Member’s receiver, curator bonis or other person authorised in that behalf appointed by that court.

 

14.15For the purpose of the preceding Article, evidence to the satisfaction of the directors of the authority of the person claiming to exercise the right to vote must be received not less than 24 hours before holding the relevant meeting or the adjourned meeting in any manner specified for the delivery of forms of appointment of a proxy, whether in writing or by Electronic means. In default, the right to vote shall not be exercisable.

 

Objections to admissibility of votes

 

14.16An objection to the validity of a person’s vote may only be raised at the meeting or at the adjourned meeting at which the vote is sought to be tendered. Any objection duly made shall be referred to the chairman whose decision shall be final and conclusive.

 

Form of proxy

 

14.17An instrument appointing a proxy shall be in any common form or in any other form approved by the directors.

 

14.18The instrument must be in writing and signed in one of the following ways:

 

(a)by the Member; or

 

(b)by the Member’s authorised attorney; or

 

(c)if the Member is a corporation or other body corporate, under seal or signed by an authorised officer, secretary or attorney.

 

If the directors so resolve, the Company may accept an Electronic Record of that instrument delivered in the manner specified below and otherwise satisfying these Articles about authentication of Electronic Records.

 

14.19The directors may require the production of any evidence which they consider necessary to determine the validity of any appointment of a proxy.
  
14.20A Member may revoke the appointment of a proxy at any time by notice to the Company duly signed in accordance with the Article above about signing proxies; but such revocation will not affect the validity of any acts carried out by the proxy before the directors of the Company had actual notice of the revocation.

 

How and when proxy is to be delivered

 

14.21Subject to the following Articles, the form of appointment of a proxy and any authority under which it is signed (or a copy of the authority certified notarially or in any other way approved by the directors) must be delivered so that it is received by the Company not less than 48 hours before the time for holding the meeting or adjourned meeting at which the person named in the form of appointment of proxy proposes to vote. They must be delivered in either of the following ways:

 

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(a)In the case of an instrument in writing, it must be left at or sent by post:

 

(i)to the registered office of the Company; or

 

(ii)to such other place specified in the notice convening the meeting or in any form of appointment of proxy sent out by the Company in relation to the meeting.

 

(b)If, pursuant to the notice provisions, a notice may be given to the Company in an Electronic Record, an Electronic Record of an appointment of a proxy must be sent to the address specified pursuant to those provisions unless another address for that purpose is specified:

 

(i)in the notice convening the meeting; or

 

(ii)in any form of appointment of a proxy sent out by the Company in relation to the meeting; or

 

(iii)in any invitation to appoint a proxy issued by the Company in relation to the meeting.

 

14.22Where a poll is taken:

 

(a)if it is taken more than seven Clear Days after it is demanded, the form of appointment of a proxy and any accompanying authority (or an Electronic Record of the same) must be delivered as required under the preceding Article not less than 24 hours before the time appointed for the taking of the poll;

 

(b)but if it to be taken within seven Clear Days after it was demanded, the form of appointment of a proxy and any accompanying authority (or an Electronic Record of the same) must be e delivered as required under the preceding Article not less than two hours before the time appointed for the taking of the poll.

 

14.23If the form of appointment of proxy is not delivered on time, it is invalid.

 

Voting by proxy

 

14.24A proxy shall have the same voting rights at a meeting or adjourned meeting as the Member would have had except to the extent that the instrument appointing him limits those rights. Notwithstanding the appointment of a proxy, a Member may attend and vote at a meeting or adjourned meeting. If a Member votes on any resolution a vote by his proxy on the same resolution, unless in respect of different Shares, shall be invalid.

 

15.Number of directors

 

Unless otherwise determined by Ordinary Resolution, the minimum number of directors shall be one and the maximum shall be ten.

 

16.Appointment, disqualification and removal of directors

 

No age limit

 

16.1There is no age limit for directors save that they must be aged at least 18 years.

 

Corporate directors

 

16.2Unless prohibited by law, a body corporate may be a director. If a body corporate is a director, these Articles about representation of corporate Members at general meetings apply, mutatis mutandis, to these Articles about directors’ meetings.

 

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No shareholding qualification

 

16.3Unless a shareholding qualification for directors is fixed by Ordinary Resolution, no director shall be required to own Shares as a condition of his appointment.

 

Appointment and removal of directors

 

16.4All directors shall hold office for a term of two years or until their successors shall have been elected and qualified. A director elected 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 elected and qualified.
  
16.5After the closing of a Business Combination, the Company may by Ordinary Resolution appoint any person to be a director or may by Ordinary Resolution remove any director.
  
16.6Without prejudice to the Company’s power to appoint a person to be a director pursuant to these Articles, the directors shall have power at any time to appoint any person who is willing to act as a director, either to fill a vacancy or as an additional director. A director elected 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 elected and qualified.
  
16.7Notwithstanding the other provisions of these Articles, in any case where, as a result of death, the Company has no directors and no shareholders, the personal representatives of the last shareholder to have died have the power, by notice in writing to the Company, to appoint a person to be a director. For the purpose of this Article:

 

(a)where two or more shareholders die in circumstances rendering it uncertain who was the last to die, a younger shareholder is deemed to have survived an older shareholder;

 

(b)if the last shareholder died leaving a will which disposes of that shareholder’s shares in the Company (whether by way of specific gift, as part of the residuary estate, or otherwise):

 

(i)the expression personal representatives of the last shareholder means:

 

(A)until a grant of probate in respect of that will has been obtained from the Grand Court of the Cayman Islands, all of the executors named in that will who are living at the time the power of appointment under this Article is exercised; and

 

(B)after such grant of probate has been obtained, only such of those executors who have proved that will;

 

(ii)without derogating from section 3(1) of the Succession Act (Revised), the executors named in that will may exercise the power of appointment under this Article without first obtaining a grant of probate.

 

16.8A remaining director may appoint a director even though there is not a quorum of directors.
  
16.9No appointment can cause the number of directors to exceed the maximum; and any such appointment shall be invalid.
  
16.10For so long as Shares are listed on a Designated Stock Exchange, the directors shall include at least such number of Independent Directors as Applicable Law or the rules and regulations of the Designated Stock Exchange require, subject to applicable phase-in rules of the Designated Stock Exchange.

 

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Resignation of directors

 

16.11A director may at any time resign office by giving to the Company notice in writing or, if permitted pursuant to the notice provisions, in an Electronic Record delivered in either case in accordance with those provisions.

 

16.12Unless the notice specifies a different date, the director shall be deemed to have resigned on the date that the notice is delivered to the Company.

 

Termination of the office of director

 

16.13A director’s office shall be terminated forthwith if:

 

(a)he is prohibited by the law of the Islands from acting as a director; or

 

(b)he is made bankrupt or makes an arrangement or composition with his creditors generally; or

 

(c)in the opinion of a registered medical practitioner by whom he is being treated he becomes physically or mentally incapable of acting as a director; or

 

(d)he is made subject to any law relating to mental health or incompetence, whether by court order or otherwise;

 

(e)without the consent of the other directors, he is absent from meetings of directors for a continuous period of six months; or

 

(f)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 these Articles or by a resolution in writing signed by all of the other directors.

 

17.Alternate directors

 

Appointment and removal

 

17.1Any director may appoint any other person, including another director, to act in his place as an alternate director. No appointment shall take effect until the director has given notice of the appointment to the other directors. Such notice must be given to each other director by either of the following methods:

 

(a)by notice in writing in accordance with the notice provisions;

 

(b)if the other director has an email address, by emailing to that address a scanned copy of the notice as a PDF attachment (the PDF version being deemed to be the notice unless Article 32.7 applies), in which event notice shall be taken to be given on the date of receipt by the recipient in readable form. For the avoidance of doubt, the same email may be sent to the email address of more than one director (and to the email address of the Company pursuant to Article 17.4(c)).

 

17.2Without limitation to the preceding Article, a director may appoint an alternate for a particular meeting by sending an email to his fellow directors informing them that they are to take such email as notice of such appointment for such meeting. Such appointment shall be effective without the need for a signed notice of appointment or the giving of notice to the Company in accordance with Article 17.4.

 

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17.3A director may revoke his appointment of an alternate at any time. No revocation shall take effect until the director has given notice of the revocation to the other directors. Such notice must be given by either of the methods specified in Article 17.1.

 

17.4A notice of appointment or removal of an alternate director must also be given to the Company by any of the following methods:

 

(a)by notice in writing in accordance with the notice provisions;

 

(b)if the Company has a facsimile address for the time being, by sending by facsimile transmission to that facsimile address a facsimile copy or, otherwise, by sending by facsimile transmission to the facsimile address of the Company’s registered office a facsimile copy (in either case, the facsimile copy being deemed to be the notice unless Article 32.7 applies), in which event notice shall be taken to be given on the date of an error-free transmission report from the sender’s fax machine;

 

(c)if the Company has an email address for the time being, by emailing to that email address a scanned copy of the notice as a PDF attachment or, otherwise, by emailing to the email address provided by the Company’s registered office a scanned copy of the notice as a PDF attachment (in either case, the PDF version being deemed to be the notice unless Article 32.7 applies), in which event notice shall be taken to be given on the date of receipt by the Company or the Company’s registered office (as appropriate) in readable form; or

 

(d)if permitted pursuant to the notice provisions, in some other form of approved Electronic Record delivered in accordance with those provisions in writing.

 

Notices

 

17.5All notices of meetings of directors shall continue to be given to the appointing director and not to the alternate.

 

Rights of alternate director

 

17.6An alternate director shall be entitled to attend and vote at any board meeting or meeting of a committee of the directors at which the appointing director is not personally present, and generally to perform all the functions of the appointing director in his absence.

 

17.7For the avoidance of doubt:

 

(a)if another director has been appointed an alternate director for one or more directors, he shall be entitled to a separate vote in his own right as a director and in right of each other director for whom he has been appointed an alternate; and

 

(b)if a person other than a director has been appointed an alternate director for more than one director, he shall be entitled to a separate vote in right of each director for whom he has been appointed an alternate.

 

17.8An alternate director, however, is not entitled to receive any remuneration from the Company for services rendered as an alternate director.

 

Appointment ceases when the appointor ceases to be a director

 

17.9An alternate director shall cease to be an alternate director if the director who appointed him ceases to be a director.

 

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Status of alternate director

 

17.10An alternate director shall carry out all functions of the director who made the appointment.
  
17.11Save where otherwise expressed, an alternate director shall be treated as a director under these Articles.
  
17.12An alternate director is not the agent of the director appointing him.
  
17.13An alternate director is not entitled to any remuneration for acting as alternate director.

 

Status of the director making the appointment

 

17.14A director who has appointed an alternate is not thereby relieved from the duties which he owes the Company.

 

18.Powers of directors

 

Powers of directors

 

18.1Subject to the provisions of the Act, the Memorandum and these Articles, the business of the Company shall be managed by the directors who may for that purpose exercise all the powers of the Company.

 

18.2No prior act of the directors shall be invalidated by any subsequent alteration of the Memorandum or these Articles. However, to the extent allowed by the Act, following the consummation of the IPO Members may by Special Resolution validate any prior or future act of the directors which would otherwise be in breach of their duties.

 

Appointments to office

 

18.3The directors may appoint a director:

 

(a)as chairman of the board of directors;

 

(b)as vice-chairman of the board of directors;

 

(c)as managing director;

 

(d)to any other executive office

 

for such period and on such terms, including as to remuneration, as they think fit.

 

18.4The appointee must consent in writing to holding that office.
  
18.5Where a chairman is appointed he shall, unless unable to do so, preside at every meeting of directors.
  
18.6If there is no chairman, or if the chairman is unable to preside at a meeting, that meeting may select its own chairman; or the directors may nominate one of their number to act in place of the chairman should he ever not be available.
  
18.7Subject to the provisions of the Act, the directors may also appoint any person, who need not be a director:

 

(a)as Secretary; and

 

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(b)to any office that may be required (including, for the avoidance of doubt, one or more chief executive officers, presidents, a chief financial officer, a treasurer, vice-presidents, one or more assistant vice-presidents, one or more assistant treasurers and one or more assistant secretaries),

 

for such period and on such terms, including as to remuneration, as they think fit. In the case of an Officer, that Officer may be given any title the directors decide.

 

18.8The Secretary or Officer must consent in writing to holding that office.

 

18.9A director, Secretary or other Officer of the Company may not hold the office, or perform the services, of Auditor.

 

Remuneration

 

18.10The remuneration to be paid to the directors, if any, shall be such remuneration as the directors shall determine, provided that no cash remuneration shall be paid to any director prior to the consummation of a Business Combination. The directors shall also, whether prior to or after the consummation of a Business Combination, be entitled to be paid all out of pocket expenses properly incurred by them in connection with activities on behalf of the Company, including identifying and consummating a Business Combination.
  
18.11Remuneration may take any form and may include arrangements to pay pensions, health insurance, death or sickness benefits, whether to the director or to any other person connected to or related to him.
  
18.12Unless his fellow directors determine otherwise, a director is not accountable to the Company for remuneration or other benefits received from any other company which is in the same group as the Company or which has common shareholdings.

 

Disclosure of information

 

18.13The directors may release or disclose to a third party any information regarding the affairs of the Company, including any information contained in the Register of Members relating to a Member, (and they may authorise any director, Officer or other authorised agent of the Company to release or disclose to a third party any such information in his possession) if:

 

(a)the Company or that person, as the case may be, is lawfully required to do so under the laws of any jurisdiction to which the Company is subject; or

 

(b)such disclosure is in compliance with the rules of any stock exchange upon which the Company’s shares are listed; or

 

(c)such disclosure is in accordance with any contract entered into by the Company; or

 

(d)the directors are of the opinion such disclosure would assist or facilitate the Company’s operations.

 

19.Delegation of powers

 

Power to delegate any of the directors’ powers to a committee

 

19.1The directors may delegate any of their powers to any committee consisting of one or more persons who need not be Members (including, without limitation, the Audit Committee, the Compensation Committee and the Nominating Committee). Persons on the committee may include non-directors so long as the majority of those persons are directors.

 

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19.2The delegation may be collateral with, or to the exclusion of, the directors’ own powers.
  
19.3The delegation may be on such terms as the directors think fit, including provision for the committee itself to delegate to a sub-committee; save that any delegation must be capable of being revoked or altered by the directors at will.
  
19.4Unless otherwise permitted by the directors, a committee must follow the procedures prescribed for the taking of decisions by directors.
  
19.5The 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, the Compensation Committee and the Nominating 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). For so long as any class of Shares is listed on the Designated Stock Exchange, the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee shall be made up of such number of Independent Directors as is required from time to time by the rules and regulations of the rules and regulations of the Designated Stock Exchange, the SEC and/or any other competent regulatory authority or otherwise under Applicable Law.

 

Power to appoint an agent of the Company

 

19.6The directors may appoint any person, either generally or in respect of any specific matter, to be the agent of the Company with or without authority for that person to delegate all or any of that person’s powers. The directors may make that appointment:

 

(a)by causing the Company to enter into a power of attorney or agreement; or

 

(b)in any other manner they determine.

 

Power to appoint an attorney or authorised signatory of the Company

 

19.7The directors may appoint any person, whether nominated directly or indirectly by the directors, to be the attorney or the authorised signatory of the Company. The appointment may be:

 

(a)for any purpose;

 

(b)with the powers, authorities and discretions;

 

(c)for the period; and

 

(d)subject to such conditions

 

as they think fit. The powers, authorities and discretions, however, must not exceed those vested in, or exercisable, by the directors under these Articles. The directors may do so by power of attorney or any other manner they think fit.

 

19.8Any power of attorney or other appointment may contain such provision for the protection and convenience for persons dealing with the attorney or authorised signatory as the directors think fit. Any power of attorney or other appointment may also authorise the attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in that person.

 

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Power to appoint a proxy

 

19.9Any director may appoint any other person, including another director, to represent him at any meeting of the directors. If a director appoints a proxy, then for all purposes the presence or vote of the proxy shall be deemed to be that of the appointing director.
  
19.10Articles 17.1 to 17.4 inclusive (relating to the appointment by directors of alternate directors) apply, mutatis mutandis, to the appointment of proxies by directors.
  
19.11A proxy is an agent of the director appointing him and is not an Officer.

 

20.Meetings of directors

 

Regulation of directors’ meetings

 

20.1Subject to the provisions of these Articles, the directors may regulate their proceedings as they think fit.

 

Calling meetings

 

20.2Any director may call a meeting of directors at any time. The Secretary, if any, must call a meeting of the directors if requested to do so by a director.

 

Notice of meetings

 

20.3Every director shall be given notice of a meeting, although a director may waive retrospectively the requirement to be given notice. Notice may be oral. Attendance at a meeting without written objection shall be deemed to be a waiver of such notice requirement.

 

Period of notice

 

20.4At least five Clear Days’ notice of a meeting of directors must be given to directors. A meeting may be convened on shorter notice with the consent of all directors.

 

Use of technology

 

20.5A director may participate in a meeting of directors through the medium of conference telephone, video or any other form of communications equipment providing all persons participating in the meeting are able to hear and speak to each other throughout the meeting.
  
20.6A director participating in this way is deemed to be present in person at the meeting.

 

Place of meetings