Anghami Inc 20-F, filed Feb 9, 2022
Anghami Inc (ANGH)
About this 20-F
Anghami Inc filed this 20-F on February 9, 2022, covering the fiscal year ended February 3, 2022.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 20-F
(Mark One)
☐ REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☐ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended
OR
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
OR
☒ SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of event requiring this shell company report February 3, 2022
Commission file number: 001-41263
ANGHAMI INC.
(Exact name of Registrant as specified in its charter)
Cayman Islands
(Jurisdiction of incorporation or organization)
16th
Floor, Al-Khatem Tower, WeWork Hub71
Abu Dhabi Global Market Square, Al Maryah Island, Abu Dhabi,
United Arab Emirates
(Address of principal executive offices)
Edgard
Maroun
16th Floor, Al-Khatem Tower, WeWork Hub71
Abu Dhabi Global Market Square, Al Maryah Island, Abu Dhabi, United Arab Emirates
Telephone: +971 2 443 4317
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act
| Title of each class | Trading Symbol(s) |
Name of each exchange on which registered | ||
| Ordinary Shares, par value $0.0001 per share | ANGH | The Nasdaq Stock Market LLC | ||
| Warrants exercisable to purchase Ordinary Shares | ANGHW | The Nasdaq Stock Market LLC |
Securities registered or to be registered pursuant to Section 12(g) of the Act: None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act: None
Indicate the number of outstanding shares of each of the issuer’s classes of capital stock or common stock as of the close of business covered by this shell company report.
On February 3, 2022, the issuer had 25,768,967 Ordinary Shares of par value $0.0001 each.
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☐ No ☒
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934. Yes ☐ No ☐
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☐ No ☒
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ | Emerging growth company | ☒ |
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards † provided pursuant to Section 13(a) of the Exchange Act. ☐
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☐
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:
| U.S. GAAP ☐ | International Financial Reporting Standards as issued | Other ☐ | ||||||
| by the International Accounting Standards Board | ☒ |
If “Other” has been checked in response to the previous question indicate by check mark which financial statement item the registrant has elected to follow. Item 17 ☐ Item 18 ☐
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☐
TABLE OF CONTENTS
| Page | ||
| PART I | 1 | |
| ITEM 1. | IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS | 1 |
| ITEM 2. | OFFER STATISTICS AND EXPECTED TIMETABLE | 1 |
| ITEM 3. | KEY INFORMATION | 1 |
| ITEM 4. | INFORMATION ON THE COMPANY | 3 |
| ITEM 4A. | UNRESOLVED STAFF COMMENTS | 4 |
| ITEM 5. | OPERATING AND FINANCIAL REVIEW AND PROSPECTS | 4 |
| ITEM 6. | DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES | 4 |
| ITEM 7. | MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS | 4 |
| ITEM 8. | FINANCIAL INFORMATION | 6 |
| ITEM 9. | THE OFFER AND LISTING | 6 |
| ITEM 10. | ADDITIONAL INFORMATION | 7 |
| ITEM 11. | QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK | 8 |
| ITEM 12. | DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES | 8 |
| PART II | 9 | |
| PART III | 10 | |
| ITEM 17. | FINANCIAL STATEMENTS | 10 |
| ITEM 18. | FINANCIAL STATEMENTS | 10 |
| ITEM 19. | EXHIBITS | 11 |
| SIGNATURES | 12 | |
i
EXPLANATORY NOTE
On February 3, 2022, Anghami Inc., an exempted company incorporated under the laws of the Cayman Islands (“Anghami Inc.” or the “Company”), consummated the previously announced business combination (the “Business Combination”) pursuant to the Business Combination Agreement (the “Business Combination Agreement”), dated March 3, 2021, by and among the Company, Vistas Media Acquisition Company Inc., a Delaware corporation (“VMAC”), Anghami, an exempted company incorporated under the laws of the Cayman Islands (“Anghami”), Anghami Vista 1, a Cayman Islands exempted company and wholly-owned subsidiary of the Company (“Vistas Merger Sub”), and Anghami Vista 2, a Cayman Islands exempted company and wholly-owned subsidiary of the Company (“Anghami Merger Sub”). Pursuant to the Business Combination Agreement, each of the following transactions occurred at the closing of the Business Combination in the following order:
| ● | immediately prior to the consummation of the Business Combination, VMAC sold 4,056,000 shares of its Class A common stock, par value $0.0001 per share (“VMAC Class A Common Stock”) for gross proceeds of $40,560,000 to the subscribers in the private placement (the “PIPE”); |
| ● | immediately prior to the consummation of the Business Combination, VMAC issued 640,000 shares of VMAC Class A Common Stock (the “Share Based Payments”) and 152,800 warrants to purchase VMAC Class A Common Stock at an exercise price of $11.50 per share to certain service providers for services rendered in connection with the Business Combination; |
| ● | VMAC and Vistas Merger Sub consummated the merger of Vistas Merger Sub with and into VMAC, with VMAC being the surviving company and continuing as a wholly-owned subsidiary of the Company; |
| ● | Anghami and Anghami Merger Sub consummated the merger of Anghami Merger Sub with and into Anghami, with Anghami being the surviving company and continuing as a wholly-owned subsidiary of Anghami Inc.; |
| ● | each outstanding share of VMAC’s Class A Common Stock, including the PIPE shares and the Share Based Payment shares, and Class B common stock, par value $0.0001 per share, was exchanged for one common ordinary share, par value of $0.0001 per share, of the Company (“Ordinary Shares”); |
| ● | each issued and outstanding VMAC warrant to purchase VMAC Class A Common Stock ceased to represent a right to acquire shares of VMAC Class A Common Stock and was converted into the right to acquire the same number of Ordinary Shares, at the same exercise price and on the same terms as in effect immediately prior to the closing of the Business Combination; and |
| ● | all ordinary shares of Anghami were exchanged for Ordinary Shares. |
Following the closing of the Business Combination, the Company has 25,768,967 Ordinary Shares issued and outstanding, 10,947,800 warrants to purchase Ordinary Shares at an exercise price of $11.50 per share issued and outstanding and 500,000 warrants to purchase Ordinary Shares at an exercise price of $12.00 per share issued and outstanding.
As a result of the Business Combination, Anghami and VMAC have become wholly-owned subsidiaries of the Company. On February 4, 2022, the Company’s Ordinary Shares commenced trading on the Nasdaq Global Market under the symbol “ANGH” and the VMAC warrants to purchase VMAC Class A Common Stock that were converted into warrants to purchase Ordinary Shares of Anghami at an exercise price of $11.50 per share (“Pubco Warrants”) commenced trading on the Nasdaq Capital Market under the symbol “ANGHW.”
Except as otherwise indicated or required by context, references in this Form 20-F (the “Report”) to “we”, “us”, “our” or the “Company” refer to Anghami Inc., an exempted company incorporated under the laws of the Cayman Islands, and its consolidated subsidiaries.
ii
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Report includes statements that express our opinions, expectations, beliefs, plans, objectives, assumptions or projections regarding future events or future results and therefore are, or may be deemed to be, “forward-looking statements.” These forward-looking statements can generally be identified by the use of forward-looking terminology, including the terms “believes,” “estimates,” “anticipates,” “expects,” “seeks,” “projects,” “intends,” “plans,” “may,” “will” or “should” or, in each case, their negative or other variations or comparable terminology. These forward-looking statements include all matters that are not historical facts. They appear in a number of places throughout this Report and include statements regarding our intentions, beliefs or current expectations. Such forward-looking statements are based on available current market material and management’s expectations, beliefs and forecasts concerning future events impacting Anghami Inc.. Factors that may impact such forward-looking statements include:
| ● | the Company’s financial performance following the Business Combination; |
| ● | the ability to maintain the listing of the Company’s Ordinary Shares and Warrants on Nasdaq, following the Business Combination; |
| ● | the Company’s growth strategy, future operations, financial position, estimated revenues and losses, projected capex, prospects and plans; |
| ● | the Company’s strategic advantages and the impact those advantages will have on future financial and operational results; |
| ● | the implementation, market acceptance and success of the Company’s platform and new offerings; |
| ● | the Company’s approach and goals with respect to technology; |
| ● | the Company’s expectations regarding its ability to obtain and maintain intellectual property protection and not infringe on the rights of others; |
| ● | the impact of the COVID-19 pandemic on the Company’s business; |
| ● | changes in applicable laws or regulations; |
| ● | the outcome of any known and unknown litigation and regulatory proceedings; |
| ● | the outcome of any legal proceedings that may be instituted against the Company; |
| ● | our ability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition and the ability of the Company to grow and manage growth profitably following the Business Combination; |
| ● | costs related to the Business Combination; |
| ● | the ability to implement business plans, forecasts, and other expectations after the completion of the Business Combination, and identify and realize additional opportunities; |
| ● | the Company’s ability to attract and retain users; |
| ● | risks related to licensing agreements that the Company enters into, including the obligations that arise from it, adverse changes to it that could impact the Company, and the complexity involved in royalty payment; |
| ● | the Company’s dependence upon third-party licenses for sound recordings and musical composition, and ability to comply with such complex license agreements; |
| ● | the Company’s lack of control over the providers of our content and their effect on our access to music and other content; |
| ● | the risk that the Company may never achieve or sustain profitability; |
| ● | the risk that the Company will need to raise additional capital to execute its business plan, which may not be available on acceptable terms or at all; |
| ● | the risk that the Company experiences difficulties in managing its growth and expanding operations; |
| ● | that the Company has identified material weaknesses in its internal control over financial reporting which, if not corrected, could affect the reliability of the Company’s financial statements; |
| ● | the possibility that the Company may be adversely affected by other economic, business, and/or competitive factors; and |
| ● | other risks disclosed in the Proxy Statement/Prospectus (as defined below). |
Forward-looking statements are subject to known and unknown risks and uncertainties and are based on potentially inaccurate assumptions that could cause actual results to differ materially from those expected or implied by the forward-looking statements. Actual results could differ materially from those anticipated in forward-looking statements for many reasons, including the factors discussed under the “Risk Factors” section in the Proxy Statement and Prospectus (the “Proxy Statement/Prospectus”) part of the Registration Statement on Form F-4 of the Company (File No. 333-260234) (the “Registration Statement”), which section is incorporated herein by reference. Accordingly, you should not rely on these forward-looking statements, which speak only as of the date of this Report. We undertake no obligation to publicly revise any forward-looking statement to reflect circumstances or events after the date of this Report or to reflect the occurrence of unanticipated events. You should, however, review the factors and risks described in the reports we will file from time to time with the United States Securities and Exchange Commission (the “SEC”) after the date of this Report.
Although we believe the expectations reflected in the forward-looking statements were reasonable at the time made, we cannot guarantee future results, level of activity, performance or achievements. Moreover, neither we nor any other person assume responsibility for the accuracy or completeness of any of these forward-looking statements. You should carefully consider the cautionary statements contained or referred to in this section in connection with the forward-looking statements contained in this Report and any subsequent written or oral forward-looking statements that may be issued by us or persons acting on our behalf.
iii
ITEM 1. IDENTITY OF DIRECTORS, SENIOR MANAGEMENT AND ADVISERS
A. Directors and Senior Management
Information regarding the directors and executive officers of Anghami Inc. after the closing of the Business Combination is included in the Proxy Statement/Prospectus under the section titled “Management of Pubco After the Business Combination” and is incorporated herein by reference.
The business address for each of the directors and executive officers of the Company is 16th Floor, Al-Khatem Tower, WeWork Hub71, Abu Dhabi Global Market Square, Al Maryah Island, Abu Dhabi, United Arab Emirates.
B. Advisers
Norton Rose Fulbright US LLP, 1301 Avenue of the Americas, New York, New York 10019, United States, has acted as U.S. securities counsel for the Company and will continue to act as U.S. securities counsel to the Company following the completion of the Business Combination.
Maples and Calder (Dubai) LLP, Level 14, Burj Daman, Dubai International Financial Centre, PO Box 119980, Dubai, United Arab Emirates, has acted as counsel for the Company with respect to Cayman Islands law and will continue to act as counsel for the Company with respect to Cayman Islands law following the completion of the Business Combination.
C. Auditors
The consolidated financial statements of Anghami at December 31, 2020 and 2019, and for each of the two years in the period ended December 31, 2020, have been audited by Ernst & Young — Middle East (Abu Dhabi), an independent registered public accounting firm. Ernst & Young — Middle East (Abu Dhabi) will continue to act as the Company’s independent registered public accounting firm following the completion of the Business Combination.
ITEM 2. OFFER STATISTICS AND EXPECTED TIMETABLE
Not applicable.
A. [Reserved]
1
B. Capitalization and Indebtedness
The following table sets forth the capitalization of the Company on an unaudited pro forma combined basis as of June 30, 2021, after giving effect to the Business Combination, and should be read together with the unaudited pro forma condensed combined financial information of the Company as of and for the six months ended June 30, 2021 and for the year ended December 31, 2020, attached as Exhibit 15.1 to this Report.
| Unaudited Pro Forma Combined Statement of Financial Position As of June 30, 2021 | Pro forma Combined | |||
| $ | ||||
| Assets | ||||
| Non-Current | ||||
| Property and equipment | 248,782 | |||
| Intangible assets | 1,837,033 | |||
| Right-of-use assets | 212,214 | |||
| Cash held in Trust Account | — | |||
| Non-current Assets | 2,298,029 | |||
| Current | ||||
| Trade and other receivables | 5,141,055 | |||
| Amount due from related parties | 733,476 | |||
| Contract assets | 1,647,486 | |||
| Cash and bank balances | 32,284,746 | |||
| Current Assets | 39,806,763 | |||
| Total Assets | 42,104,792 | |||
| Liabilities | ||||
| Non-Current | ||||
| Provision for employees’ end-of-service benefits | 136,844 | |||
| Convertible notes | — | |||
| Derivative warrant liabilities | 13,001,116 | |||
| Lease liabilities | 207,868 | |||
| Deferred tax liabilities | 17,898 | |||
| Non-current Liabilities | 13,363,726 | |||
| Current | ||||
| Trade and other payables | 15,657,478 | |||
| Contract liabilities | 1,830,073 | |||
| Convertible notes | — | |||
| Amount due to related parties | 1,701,933 | |||
| Income tax payables | 486,174 | |||
| Bank overdrafts | 17 | |||
| Lease liabilities | 71,938 | |||
| Current Liabilities | 19,747,613 | |||
| Total Liabilities | 33,111,339 | |||
| Shareholders Equity | ||||
| Ordinary share capital | 2,577 | |||
| Share premium reserve | 111,215,638 | |||
| Share-based payment reserves | 3,126,804 | |||
| Other reserves | (269,033 | |||
| Accumulated losses | (104,132,105 | |||
| Non-controlling interest | (950,428 | |||
| Total shareholders equity | 8,993,453 | |||
| Total Liabilities and Shareholders’ Equity | 42,104,792 | |||
2
C. Reasons for the Offer and Use of Proceeds
Not applicable.
D. Risk Factors
The risk factors related to the business and operations of Anghami Inc. are described in the Proxy Statement/Prospectus under the section titled “Risk Factors”, which is incorporated herein by reference.
ITEM 4. INFORMATION ON THE COMPANY
A. History and Development of the Company
See the section entitled “Explanatory Note” in this Report for additional information regarding Anghami Inc. and the Business Combination Agreement. Certain additional information about Anghami Inc. is included in the Proxy Statement/Prospectus under the section titled “Information About Anghami” and is incorporated herein by reference. The material terms of the Business Combination are described in the Proxy Statement/Prospectus under the sections titled “The Business Combination” and “The Business Combination Agreement” which is incorporated herein by reference.
Anghami Inc. is subject to certain of the informational filing requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). Because Anghami Inc. is a “foreign private issuer”, it is exempt from the rules and regulations under the Exchange Act prescribing the furnishing and content of proxy statements, and the officers, directors and principal shareholders of Anghami Inc. are exempt from the reporting and “short-swing” profit recovery provisions contained in Section 16 of the Exchange Act with respect to their purchase and sale of common shares. In addition, Anghami Inc. is not required to file reports and financial statements with the SEC as frequently or as promptly as U.S. public companies whose securities are registered under the Exchange Act. However, the Company is required to file with the SEC an Annual Report on Form 20-F containing financial statements audited by an independent accounting firm. The SEC also maintains a website at www.sec.gov that contains reports and other information that Anghami Inc. files with or furnishes electronically to the SEC.
The website address of Anghami Inc. is www.anghami.com. The information contained on the website does not form a part of, and is not incorporated by reference into, this Report.
B. Business Overview
Information regarding the business of Anghami Inc. is included in the Proxy Statement/Prospectus under the sections titled “Information About Anghami” “Management of Anghami,” and “Anghami Management’s Discussion and Analysis of Financial Condition and Results of Operations”, which is incorporated herein by reference.
C. Organizational Structure
Anghami Inc. was incorporated on March 1, 2021. On February 3, 2022, the Company completed the Business Combination and Anghami and VMAC became wholly owned subsidiaries of the Company. A list of the subsidiaries of the Company as of the closing date of the Business Combination is included in Exhibit 8.1 to this Report.
D. Property, Plants and Equipment
Information regarding the facilities of Anghami Inc. is included in the Proxy Statement/Prospectus under the sections titled “Information About Anghami” and “Anghami Management’s Discussion and Analysis of Financial Condition and Results of Operations”, which is incorporated herein by reference.
3
ITEM 4A. UNRESOLVED STAFF COMMENTS
None.
ITEM 5. OPERATING AND FINANCIAL REVIEW AND PROSPECTS
The discussion and analysis of the financial condition and results of operations of Anghami Inc. is included in the Proxy Statement/Prospectus under the section titled “Anghami’s Management’s Discussion and Analysis of Financial Condition and Results of Operations”, which is incorporated herein by reference.
ITEM 6. DIRECTORS, SENIOR MANAGEMENT AND EMPLOYEES
A. Directors and Senior Management
Information regarding the directors and executive officers of Anghami Inc. after the closing of the Business Combination is included in the Proxy Statement/Prospectus under the section titled “Management of Pubco After the Business Combination” and is incorporated herein by reference.
B. Compensation
Information regarding the compensation of the directors and executive officers of Anghami Inc., including a summary of the Anghami Long Term Incentive Plan, is included in the Proxy Statement/Prospectus under the section titled “Management of Anghami” and is incorporated herein by reference.
Anghami Inc. has also entered into indemnification agreements with its directors and executive officers. Information regarding such indemnification agreements is included in the Proxy Statement/Prospectus under the section titled “Description of Pubco’s Securities— Indemnification of Directors and Executive Officers and Limitation of Liability” and is incorporated herein by reference.
C. Board Practices
Information regarding the board of directors of Anghami Inc. subsequent to the Business Combination is included in the Proxy Statement/Prospectus under the section titled “Management of Pubco After the Business Combination” and is incorporated herein by reference.
D. Employees
Information regarding the employees of Anghami Inc. is included in the Proxy Statement/Prospectus under the section titled “Information About Anghami—Employees” and is incorporated herein by reference.
E. Share Ownership
See “Item 7. Major Shareholders and Related Party Transactions—A. Major Shareholders” of this Report.
ITEM 7. MAJOR SHAREHOLDERS AND RELATED PARTY TRANSACTIONS
A. Major Shareholders
The following table shows the beneficial ownership of common shares and ordinary shares as of the closing date of the Business Combination by:
| ● | each person known to us who will beneficially own more than 5% of the common shares and ordinary shares; |
| ● | each of our executive officers and directors; and |
| ● | all of the executive officers and directors of as a group. |
The SEC has defined “beneficial ownership” of a security to mean the possession, directly or indirectly, of voting power and/or investment power over such security. A shareholder is also deemed to be, as of any date, the beneficial owner of all securities that such shareholder has the right to acquire within 60 days after that date through (i) the exercise of any option, warrant or right, (ii) the conversion of a security, (iii) the power to revoke a trust, discretionary account or similar arrangement, or (iv) the automatic termination of a trust, discretionary account or similar arrangement. In computing the number of shares beneficially owned by a person and the percentage ownership of that person, ordinary shares or common shares subject to options or other rights (as set forth above) held by that person that are currently exercisable, or will become exercisable within 60 days thereafter, are deemed outstanding, while such shares are not deemed outstanding for purposes of computing percentage ownership of any other person. Each person named in the table has sole voting and investment power with respect to all of the ordinary shares and common shares shown as beneficially owned by such person, except as otherwise indicated in the table or footnotes below.
4
The percentage of shares beneficially owned is computed on the basis of 25,768,967 ordinary shares outstanding on the closing date of the Business Combination, and except as noted in the footnotes to this table, does not include 11,447,800 ordinary shares issuable upon the exercise of the new warrants that will remain outstanding following the Business Combination.
| Number | % of Class |
|||||||
| Executive Officers and Directors(1): | ||||||||
| Edgard Jean Maroun | 2,486,052 | 9.6 | % | |||||
| Elias Nabil Habib | 2,486,052 | 9.6 | % | |||||
| Choucri Khairallah | 113,451 | * | ||||||
| Elie Abou Saleh | 100,626 | * | ||||||
| Omar Sukarieh | 69,057 | * | ||||||
| Hossam El Gamal | 19,731 | * | ||||||
| Raja Baz | 78,922 | * | ||||||
| Mary Monir Shafik Ghobrial | — | * | ||||||
| F. Jacob Cherian(2) | 4,058,500 | 15.3 | %(3) | |||||
| Walid Samir Hanna(4) | 7,680 | * | (5) | |||||
| Kaswara Saria Alkhatib | — | * | ||||||
| Maha Al-Qattan | 37,320 | * | ||||||
| Jana Yamani | — | * | ||||||
| Klaas Baks | 18,000 | * | ||||||
| Abhayanand Singh(6) | 3,808,500 | 14.4 | %(3) | |||||
| Fawad Tariq Khan | 29,412 | * | ||||||
| Wissam Moukahal | — | * | ||||||
| All directors and executive officers as a group (17 individuals) | 9,504,803 | 35.9 | %(7) | |||||
| Five Percent or More Holders: | ||||||||
| Entities affiliated with Vistas Media Sponsor, LLC(8) | 3,808,500 | 14.4 | %(3) | |||||
| MBC Ventures Limited(9) | 3,124,533 | 12.1 | % | |||||
| MEVP Cayman LTD(10) | 2,294,862 | 8.9 | % | |||||
| Samena Beats Holdings(11) | 1,976,608 | 7.7 | % | |||||
| Mobily Ventures Holdings W.L.L.(12) | 1,318,002 | 5.1 | % | |||||
To our knowledge, except as noted above, no person or entity is the beneficial owner of more than 5% of the voting power of the Company’s stock.
| * | Less than 1%. |
| (1) | Unless otherwise noted, the address of each director and executive officer of the Company is c/o Anghami Inc., 16th Floor, Al-Khatem Tower, WeWork Hub71, Abu Dhabi Global Market Square, Al Maryah Island, Abu Dhabi, United Arab Emirates. |
| (2) | Includes (i) 250,000 held of record by Mr. Cherian, (ii) 2,088,500 ordinary shares held of record by Vistas Media Sponsor, LLC, (iii) 1,000,000 shares held of record by Vistas Media Capital Pte. Ltd, (iv) 720,000 warrants to purchase ordinary shares held of record by Vistas Media Sponsor, LLC. Vistas Media Capital Pte. Ltd. and Mr. Cherian are the members of Vistas Media Sponsor, LLC. Mr. Cherian, Mr. Singh and Saurabh Gupta are the managers of Vistas Media Sponsor, LLC and share voting and investment discretion with respect to the common stock held of record by the Vistas Media Sponsor, LLC. Mr. Cherian disclaims any beneficial ownership of any shares held by Vistas Media Sponsor, LLC and Vistas Media Capital Pte. Ltd except to the extent of his respective pecuniary interest therein. The address for Mr. Cherian is c/o 30 Wall Street, 8th Floor, New York, New York 10005 |
| (3) | The denominator used in calculating the percentage of beneficial ownership includes 720,000 ordinary shares issuable upon exercise of warrants beneficially owned by such person. |
| (4) | Includes (i) 5,840 ordinary shares and (ii) 1,840 warrants to purchase ordinary shares. |
| (5) | The denominator used in calculating the percentage of beneficial ownership includes 1,840 ordinary shares issuable upon exercise of warrants beneficially owned by such person. |
| (6) | Includes (i) 2,088,500 ordinary shares held of record by Vistas Media Sponsor, LLC, (iii) 1,000,000 shares held of record by Vistas Media Capital Pte. Ltd, (iv) 720,000 warrants to purchase ordinary shares held of record by Vistas Media Sponsor, LLC. Vistas Media Capital Pte. Ltd. and Mr. Cherian are the members of Vistas Media Sponsor, LLC. Mr. Cherian, Mr. Singh and Saurabh Gupta are the managers of Vistas Media Sponsor, LLC and share voting and investment discretion with respect to the common stock held of record by the Vistas Media Sponsor, LLC. Mr. Cherian disclaims any beneficial ownership of any shares held by Vistas Media Sponsor, LLC and Vistas Media Capital Pte. Ltd except to the extent of his respective pecuniary interest therein. The address for Mr. Singh is c/o 30 Wall Street, 8th Floor, New York, New York 10005. |
| (7) | The denominator used in calculating the percentage of beneficial ownership includes 721,840 ordinary shares issuable upon exercise of warrants beneficially owned by such person. |
| (8) | Includes (i) 2,088,500 ordinary shares held of record by Vistas Media Sponsor, LLC, (iii) 1,000,000 shares held of record by Vistas Media Capital Pte. Ltd, (iv) 720,000 warrants to purchase ordinary shares held of record by Vistas Media Sponsor, LLC. Vistas Media Capital Pte. Ltd. and Mr. Cherian are the members of Vistas Media Sponsor, LLC. Mr. Cherian, Mr. Singh and Saurabh Gupta are the managers of Vistas Media Sponsor, LLC and share voting and investment discretion with respect to the common stock held of record by the Vistas Media Sponsor, LLC. The address for Vistas Media Sponsor, LLC is c/o 30 Wall Street, 8th Floor, New York, New York 10005. |
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| (9) | The address of MBC Ventures Limited is Craigmuir Chambers, Road Town, Tortola VG1110, British Virgin Islands. Sheikh Walid Al Brahim is the sole shareholder of MBC Ventures Limited. |
| (10) | The address of MEVP Cayman LTD is P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands. Investment and voting decisions for MEVP Cayman LTD are made by a majority vote of its investment committees and /or the board of directors, as applicable. As a result, no single person controls investment or voting decisions with respect to the shares held by the MEVP Cayman LTD or has or shares beneficial ownership of such securities. |
| (11) | The address of Semena Beats Holdings is P.O. Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands. |
| (12) | The address of Mobily Ventures Holdings W.L.L. is Unit 1237, Building 574, Road 31, Block 611, Al-Himriya, Kingdom of Bahrain. |
B. Related Party Transactions
Information regarding certain related party transactions is included in the Proxy Statement/Prospectus under the section titled “Certain Anghami Relationships and Related Person Transactions” and is incorporated herein by reference.
C. Interests of Experts and Counsel
Not applicable.
A. Consolidated Statements and Other Financial Information
Financial Statements
See “Item 18. Financial Statements” of this Report for consolidated financial statements and other financial information.
Legal Proceedings
From time to time, we may be a party to litigation or subject to claims incident to the ordinary course of business. There are currently no claims or actions pending against us that, in the opinion of our management, are likely to have a material adverse effect on our business.
B. Significant Changes
A discussion of the significant changes in our business can be found under “Item 4. Information on the Company—A. History and Development of the Company” and “Item 4. Information on the Company—B. Business Overview” of this Report.
A. Offering and Listing Details
Nasdaq Listing of Ordinary Shares and Warrants
The Company’s Ordinary Shares are listed on the Nasdaq Global Market under the symbol “ANGH” and the Pubco Warrants are listed on the Nasdaq Capital Market under the symbol “ANGHW.” Holders of Ordinary Shares and Pubco Warrants should obtain current market quotations for their securities.
Lock-up Agreements
Information regarding the lock-up restrictions applicable to the securities of the Company is included in the Proxy Statement/Prospectus under the sections titled “Certain Agreements Related to the Business Combination—Lock-Up Agreement” and is incorporated herein by reference. In connection with the Business Combination, the Company entered into lock-up agreement covering a total of 18,005,809 shares of which the lock-up agreements with respect to (i) 295,000 shares expire on the date that is 30 days after the closing date of the Business Combination, (ii) 15,210,809 shares expire on the date that is six months after the closing date of the Business Combination, and (iv) 2,500,000 shares held by the Vistas Media Sponsor, LLC, a Delaware limited liability company (the “Sponsor”), and certain of its affiliates that expire on the earlier of (A) one year after the completion of the Business Combination and (B) subsequent to the Business Combination, (x) if the closing price of 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 commencing at least 150 days after the Business Combination.
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Pubco Warrants
Following the closing of the Business Combination, there were 10,947,800 warrants to purchase Ordinary Shares at an exercise price of $11.50 per share issued and outstanding.
Information regarding our Pubco Warrants is included in the Proxy Statement/Prospectus under the section titled “Description of Pubco’s Securities—Pubco Warrants” and is incorporated herein by reference.
Representative Warrants
Following the closing of the Business Combination, there were 500,000 warrants to purchase Ordinary Shares at an exercise price of $12.00 per share issued and outstanding.
Information regarding our Representative Warrants is included in the Proxy Statement/Prospectus under the section titled “Description of Pubco’s Securities—Representative Warrants” and is incorporated herein by reference.
B. Plan of Distribution
Not applicable.
C. Markets
The Company’s Ordinary Shares are listed on the Nasdaq Global Market under the symbol “ANGH” and the Pubco Warrants are listed on the Nasdaq Capital Market under the symbol “ANGHW.” There can be no assurance that the Ordinary Shares and/or Pubco Warrants will remain listed on Nasdaq. If the Company fails to comply with the Nasdaq listing requirements, the Ordinary Shares and/ Pubco Warrants could be delisted from Nasdaq.
D. Selling Shareholders
Not applicable.
E. Dilution
Not applicable.
F. Expenses of the Issue
Not applicable.
ITEM 10. ADDITIONAL INFORMATION
A. Share Capital
As of February 3, 2022, the Company had 25,768,967 Ordinary Shares issued and outstanding, 10,947,800 warrants to purchase Ordinary Shares at an exercise price of $11.50 per share issued and outstanding and 500,000 warrants to purchase Ordinary Shares at an exercise price of $12.00 per share issued and outstanding.
Information regarding our share capital is included in the Proxy Statement/Prospectus under the section titled “Description of Pubco’s Securities” and is incorporated herein by reference.
B. Memorandum and Articles of Association
Information regarding certain material provisions of the Articles is included in the Proxy Statement/Prospectus under the section titled “Description of Pubco’s Securities” and is incorporated herein by reference.
C. Material Contracts
Information regarding certain material contracts is included in the Proxy Statement/Prospectus under the section titled “Information About Anghami—Licensing Agreements” and is incorporated herein by reference.
D. Exchange Controls
There is no exchange control legislation or regulation in the Cayman Islands, except by way of such as freezing of funds of, and/or prohibition of new investments in, certain jurisdictions subject to international sanction.
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E. Taxation
Information regarding certain tax consequences of owning and disposing of ordinary shares and warrants is included in the Proxy Statement/Prospectus under the sections titled “Material Cayman Islands Income Tax Considerations” and “Material U.S. Federal Income Tax Considerations” and is incorporated herein by reference.
F. Dividends and Paying Agents
Information regarding the Company’s policy on dividends is described in the Proxy Statement/Prospectus under the sections titled “Price Range of Securities and Dividend,” which is incorporated herein by reference. The Company has not identified a paying agent.
G. Statement by Experts
The consolidated financial statements of Anghami appearing in the prospectus of Anghami Inc. and the proxy statement of VMAC for the years ended December 31, 2020 and 2019 have been audited by Ernst & Young — Middle East (Abu Dhabi), independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
The financial statements of VMAC included in this prospectus and elsewhere in the registration statement have been so included in reliance upon the report of Prager Metis CPAs, LLC, independent registered public accountants, upon the authority of said firm as experts in accounting and auditing.
H. Documents on Display
We are subject to the informational requirements of the Exchange Act. Accordingly, we are required to file reports and other information with the SEC, including annual reports on Form 20-F and reports on Form 6-K. The SEC maintains an Internet site at www.sec.gov that contains reports, proxy and information statements and other information we have filed electronically with the SEC. As a foreign private issuer, we are exempt under the Exchange Act from, among other things, the rules prescribing the furnishing and content of proxy statements, and our executive officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies whose securities are registered under the Exchange Act.
We also make available on our website, free of charge, our annual reports on Form 20-F and the text of our reports on Form 6-K, including any amendments to these reports, as well as certain other SEC filings, as soon as reasonably practicable after they are electronically filed with or furnished to the SEC. Our website address is www.anghami.com/investors. The reference to our website is an inactive textual reference only, and information contained therein or connected thereto is not incorporated into this Report.
I. Subsidiary Information
See the section titled “Information on the Company – C. Organizational Structure” in this Report.
ITEM 11. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Information regarding quantitative and qualitative disclosure about market risk is included in the Proxy Statement/Prospectus under the section titled “Anghami Management’s Discussion and Analysis of Financial Condition and Results of Operations—Quantitative and Qualitative Disclosures about Market Risk” and is incorporated herein by reference.
ITEM 12. DESCRIPTION OF SECURITIES OTHER THAN EQUITY SECURITIES
Not applicable.
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Not applicable.
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See “Item 18. Financial Statements” of this Report.
The audited consolidated financial statements of the Company are incorporated by reference to pages F-62 to F-108 of the Proxy Statement/Prospectus.
The audited financial statements of VMAC are incorporated by reference to pages F-2 to F-44 of the Proxy Statement/Prospectus.
The unaudited interim financial statements of the Company are incorporated by reference to pages F-45 to F-61 of the Proxy Statement/Prospectus.
The unaudited interim financial statements of VMAC as of and for the period ended September 30, 2021 are incorporated by reference from Exhibit 15.4.
The unaudited pro forma condensed combined financial statements of the Company are attached as Exhibit 15.1 to this Report.
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| * | Filed herewith. | |
| † | Schedules to this exhibit have been omitted pursuant to Item 601(b)(2) of Registration S-K. The Registrant hereby agrees to furnish a copy of any omitted schedules to the Commission upon request. | |
| ^ | Indicates management contract or compensatory plan |
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The registrant hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this report on its behalf.
| Anghami Inc. | ||
|
By: |
/s/ Edgard Maroun |
| Date: February 9, 2022 | Name: | Edgard Maroun |
| Title: | Chief Executive Officer | |
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Exhibit 1.1
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
ANGHAMI INC.
(ADOPTED BY SPECIAL RESOLUTION
DATED 1 FEBRUARY 2022 AND EFFECTIVE ON 1 FEBRUARY 2022)
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
MEMORANDUM OF ASSOCIATION
OF
ANGHAMI INC.
(ADOPTED BY SPECIAL RESOLUTION
DATED 1 FEBRUARY 2022 AND EFFECTIVE ON 1 FEBRUARY 2022)
| 1 | The name of the Company is Anghami Inc. |
| 2 | The Registered Office of the Company shall be at the offices of Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands, or at such other place within the Cayman Islands as the Board may from time to time determine. The Company may in addition establish and maintain such other offices and places of business and agencies in such places as the Board may from time to time determine. |
| 3 | The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by the laws of the Cayman Islands. |
| 4 | The liability of each Member is limited to the amount unpaid on such Member’s shares. |
| 5 | The authorised share capital of the Company at the date of adoption of this Memorandum is US$215,500 divided into 2,150,000,000 common ordinary shares of a par value of US$0.0001 each, and 5,000,000 preference shares of a par value of US$0.0001 each. |
| 6 | The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands. |
| 7 | Capitalised terms that are not defined in this Amended and Restated Memorandum of Association bear the respective meanings given to them in the Amended and Restated Articles of Association of the Company. |
THE COMPANIES ACT (AS REVISED)
OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
ANGHAMI INC.
(ADOPTED BY SPECIAL RESOLUTION
DATED 1 FEBRUARY 2022 AND EFFECTIVE ON 1 FEBRUARY 2022)
| 1 | Interpretation |
| 1.1 | The regulations in Table A in the First Schedule to the Statute do not apply to the Company and, unless there is something in the subject or context inconsistent therewith, in these Articles the following defined terms will have the meanings ascribed to them: |
“Affiliate” of any person means any other person which (i) directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such person, and (ii) as to any individual, in addition to any person in clause (i), (a) any member of the Immediate Family of an individual Member, including parents, siblings, spouse and children (including those by adoption), the parents, siblings, spouse, or children (including those by adoption) of such Immediate Family member, and, in any such case, any trust whose primary beneficiary is such individual Member or one or more members of such Immediate Family and/or such Member’s lineal descendants, and (b) the legal representative or guardian of such individual Member or of any such Immediate Family member in the event such individual Member or any such Immediate Family member becomes mentally incompetent; provided, however, that in no event shall the Company or any of its subsidiaries be deemed an Affiliate of any Member. The term “control” (including the terms “controlling”, “controlled” and “under common control with”) as used with respect to any person means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise. For the purpose of this definition, each Director and Member of the Company will be deemed not to control the Company.
“Anghami” means Anghami, an exempted company incorporated in the Cayman Islands
“Applicable Law” means, with respect to any person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to such person.
“Articles” means these amended and restated articles of association of the Company.
“Audit Committee” means the audit committee of the Board established pursuant to the Articles, or any successor committee.
“Auditor” means the person for the time being performing the duties of auditor of the Company (if any).
“beneficially own”, “beneficial owner” and “beneficial ownership” have the meaning assigned to such terms in Rule 13d-3 under the Exchange Act, and a person’s beneficial ownership of securities shall be calculated in accordance with the provisions of such Rule (in each case, irrespective of whether or not such rule is actually applicable in such circumstance).
“Board” means the board of Directors of the Company.
“Class” or “Classes” means any class or classes of Shares as may from time to time be issued by the Company.
“Clearing House” means a clearing house recognized 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.
“Closing Date” means the closing date of the Share Purchase. “Company” means Anghami Inc.
“Company’s Website” means the website of the Company or its applicable subsidiary and/or the corresponding web-address or domain name (if any).
“Compensation Committee” means the compensation committee of the Board established pursuant to the Articles, or any successor committee.
“Designated Stock Exchange” means any United States national securities exchange on which the securities of the Company are listed for trading, including the Nasdaq Stock Market LLC.
“Directors” means the directors for the time being of the Company.
“Dividend” means any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles.
“Electronic Communication” means a communication sent by electronic means, including electronic posting to the Company’s Website, transmission to any number, address or internet website (including the website of the U.S. Securities and Exchange Commission) or other electronic delivery methods as otherwise decided and approved by the Board.
“Electronic Facility” means, without limitation, website addresses, virtual meeting facilities and conference call systems, and any device, system, procedure, method or other facility whatsoever providing an electronic means of place for the conduct of the general meeting of the Company, and any reference to “place” in the context of a general meeting of the Company shall be construed accordingly.
“Electronic Record” has the same meaning as in the Electronic Transactions Act.
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“Electronic Transactions Act” means the Electronic Transactions Act (As Revised) of the Cayman Islands.
“Exchange Act” shall mean the United States Securities Exchange Act of 1934, as it may be amended from time to time.
“Immediate Family” means any relationship by blood, marriage, domestic partnership or adoption, not more remote than first cousin.
“Independent Director” has the same meaning as in the rules and regulations of the Designated Stock Exchange or in Rule 10A-3 under the Exchange Act, as the case may be.
“Member” has the same meaning as in the Statute.
“Member Associated Person” has the meaning given in Article 24.2(d).
“Memorandum” means the amended and restated memorandum of association of the Company.
“Nominating Committee” means the nominating committee of the Board established pursuant to the Articles, or any successor committee.
“Officer” means a person appointed to hold an office in the Company.
“Ordinary Resolution” means a resolution passed by a simple majority of the Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting, and includes a unanimous written resolution. In computing the majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled by the Articles.
“Ordinary Shares” means the Company’s common ordinary shares with a per share par value of US$0.0001 each having the rights set out in the Memorandum and these Articles.
“person” means any individual, sole proprietorship, partnership, limited liability company, joint venture, trust, incorporated organization, association, corporation, institution, public benefit corporation, governmental authority or any other entity.
“Preference Share” means a preference share of a par value of US$0.0001 in the share capital of the Company.
“Register of Members” means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members.
“Registered Office” means the registered office for the time being of the Company. “Seal” means the common seal of the Company and includes every duplicate seal.
“Secretary” includes an assistant secretary and any person appointed to perform the duties of secretary of the Company.
“Share” means an Ordinary Share or a Preference Share and includes a fraction of a share in the Company.
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“Share Premium Account” means the share premium account established in accordance with these Articles and the Statute.
“Share Purchase” means the Company’s acquisition of all outstanding capital shares of Anghami, an exempted company incorporated in the Cayman Islands.
“Special Resolution” has the same meaning as in the Statute, and includes a unanimous written resolution.
“Statute” means the Companies Act (As Revised) of the Cayman Islands.
“Treasury Share” means a Share held in the name of the Company as a treasury share in accordance with the Statute.
“U.S. Securities Act” means the United States Securities Act of 1933, as it may be amended from time to time.
“U.S. Securities and Exchange Commission” means the United States Securities and Exchange Commission.
| 1.2 | In the Articles: |
| (a) | words importing the singular number include the plural number and vice versa; |
| (b) | words importing persons include corporations as well as any other legal or natural person; |
| (c) | “written” and “in writing” include all modes of representing or reproducing words in visible form, including in the form of an Electronic Record; |
| (d) | “shall” shall be construed as imperative and “may” shall be construed as permissive; |
| (e) | references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced; |
| (f) | any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
| (g) | the term “and/or” is used herein to mean both “and” as well as “or.” The use of “and/or” in certain contexts in no respects qualifies or modifies the use of the terms “and” or “or” in others. The term “or” shall not be interpreted to be exclusive and the term “and” shall not be interpreted to require the conjunctive (in each case, unless the context otherwise requires); |
| (h) | headings are inserted for reference only and shall be ignored in construing the Articles; |
4
| (i) | any requirements as to delivery under the Articles include delivery in the form of an Electronic Record; |
| (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 as defined in the Electronic Transactions Act; |
| (k) | sections 8 and 19(3) of the Electronic Transactions Act shall not apply; |
| (l) | the term “clear days” in relation to the period of a notice means that period excluding the day when the notice is received or deemed to be received and the day for which it is given or on which it is to take effect; and |
| (m) | the term “holder” in relation to a Share means a person whose name is entered in the Register of Members as the holder of such Share. |
| 2 | Preliminary |
| 2.1 | The business of the Company may be conducted as the Board sees fit. |
| 2.2 | The Registered Office of the Company shall be at the offices of Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands, or at such other place within the Cayman Islands as the Board may from time to time determine. The Company may in addition establish and maintain such other offices and places of business and agencies in such places as the Board may from time to time determine. |
| 2.3 | The expenses incurred in the formation of the Company and in connection with the offer for subscription and issue of Shares shall be paid by the Company. Such expenses may be amortized over such period as the Board may determine and the amount so paid shall be charged against income and/or capital in the accounts of the Company as the Board shall determine. |
| 2.4 | The Board shall keep, or cause to be kept, the Register of Members at such place as the Board may from time to time determine and, in the absence of any such determination, the Register of Members shall be kept at the Registered Office. |
| 3 | Issue of Shares and other Securities |
| 3.1 | The authorised share capital of the Company at the date of the adoption of these Articles is US$215,500 divided into 2,150,000,000 Ordinary Shares of a par value of US$0.0001 each and 5,000,000 Preference Shares of a par value of US$0.0001 each. |
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| 3.2 | Subject to the Statute, the Memorandum and these Articles (and to any direction that may be given by the Company in general meeting) and, where applicable, the rules and regulations of the Designated Stock Exchange, the U.S. Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law, and without prejudice to any rights attached to any existing Shares, the Board may: |
| (a) | allot, issue, grant options, rights or warrants over or otherwise dispose of Shares (including fractions of a Share) with or without preferred, deferred, qualified or other rights or restrictions, whether in regard to Dividends or other distributions, voting, return of capital or otherwise and to such persons, at such times and on such other terms as they think proper; and |
| (b) | issue rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any Class of Shares or other securities in the Company on such terms as the Board may from time to time determine. |
Notwithstanding and without prejudice to the generality of the foregoing, the Board is expressly authorised and empowered to implement or effect at its sole discretion the issuance of a Preference Share purchase right to be issued on a pro rata basis (determined based on relative ownership of Ordinary Shares, excluding any options, warrants or other similar equity-linked or derivative securities) to each holder of an Ordinary Share with such terms and for such purposes, including the influencing of takeovers, as may be described in a rights agreement between the Company and a rights agent.
| 3.3 | Neither the Company nor the Board shall be obliged, when making or granting any allotment of, offer of, option over or disposal of shares, to make, or make available, any such allotment, offer, option over or disposal of shares to Members or others with registered addresses in any particular territory or territories being a territory or territories where, in the absence of a registration statement or other special formalities, this would or might, in the opinion of the Board, be unlawful or impracticable. Members affected as a result of the foregoing sentence shall not be, or be deemed to be, a separate class of Members for any purpose whatsoever. Subject to the Memorandum and these Articles, and except as otherwise expressly provided in the resolution or resolutions providing for the establishment of any class or series of shares, no vote of the holders of any class or series of shares shall be a prerequisite to the issuance of any shares of any class or series of shares authorised by and complying with the conditions of the Memorandum and these Articles. |
| 3.4 | The Company may issue units of securities in the Company, which may be comprised of whole or fractional Shares, rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any Class of Shares or other securities in the Company, upon such terms as the Board may from time to time determine. All Shares shall be issued fully paid as to their nominal value and any premium determined by the Board at the time of issue and shall be non-assessable. |
| 3.5 | The Company shall not issue Shares to bearer. |
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| 4 | Ordinary Shares |
| 4.1 | Other than with regard to the Ordinary Shares, the rights, preferences and privileges thereof are as established and divided as set forth in the Memorandum and these Articles, the Board may authorise the division of Shares into any number of Classes and the different Classes shall be authorised, established and designated (or re-designated as the case may be) and the variations in the relative rights (including, without limitation, voting, dividend and redemption rights), restrictions, preferences, privileges and payment obligations as between the different Classes (if any) may be fixed and determined by the Board or by a Special Resolution (subject to Article 13). Holders of Ordinary Shares shall be entitled to one (1) vote for each Ordinary Share registered in the Member’s name in the Register of Members. |
| 5 | Preference Shares |
| 5.1 | Preference Shares may be issued from time to time in one or more series, each of such series to have such voting powers (full or limited or without voting powers), designations, preferences and relative, participating, optional or other special rights and qualifications, limitations or restrictions thereof as are stated and expressed, or in any resolution or resolutions providing for the issue of such series adopted by the Board as hereinafter provided. |
| 5.2 | Authority is hereby granted to the Board, subject to the provisions of the Memorandum, these Articles and Applicable Law, to create one or more series of Preference Shares and, with respect to each such series, to fix by resolution or resolutions, without any further vote or action by the Members of the Company providing for the issue of such series: |
| (a) | the number of Preference Shares to constitute such series and the distinctive designation thereof; |
| (b) | the dividend rate on the Preference Shares of such series, the dividend payment dates, the periods in respect of which dividends are payable, whether such dividends shall be cumulative and, if cumulative, the date or dates from which dividends shall accumulate; |
| (c) | whether the Preference Shares of such series shall be subject to redemption by the Company, and, if so, the times, prices and other conditions of such redemption; |
| (d) | whether the Preference Shares of such series shall be convertible into, or exchangeable for, Shares of any other Class or Classes or any other series of the same or any other Class or Classes of Shares and the conversion price or prices or rate or rates, or the rate or rates at which such exchange may be made, with such adjustments, if any, as shall be stated and expressed or provided in such resolution or resolutions; |
| (e) | the preferences, if any, and the amounts thereof, which the Preference Shares of such series shall be entitled to receive upon the winding up of the Company; |
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| (f) | the voting power, if any, of the Preference Shares of such series transfer restrictions and rights of first refusal with respect to the Preference Shares of such series; and such other terms, conditions, special rights and provisions as may seem advisable to the Board; and |
| (g) | any other powers, preferences and relative, participating, optional and other special rights, and any qualifications, limitations and restrictions thereof. |
| 5.3 | Notwithstanding the fixing of the number of Preference Shares constituting a particular series upon the issuance thereof, the Board at any time thereafter may authorise the issuance of additional Preference Shares of the same series subject always to the Statute and the Memorandum. |
| 5.4 | If, upon the winding up of the Company, the assets of the Company distributable among the holders of any one or more series of Preference Shares which (i) are entitled to a preference over the holders of the Ordinary Shares upon such winding up, and (ii) rank equally in connection with any such distribution, shall be insufficient to pay in full the preferential amount to which the holders of such Preference Shares shall be entitled, then such assets, or the proceeds thereof, shall be distributed among the holders of each such series of the Preference Shares ratably in accordance with the sums which would be payable on such distribution if all sums payable were discharged in full. |
| 6 | Issue of Warrants and Options |
| 6.1 | The Board may issue warrants or options to subscribe for any Class of Shares or other securities of the Company on such terms as it may from time to time determine. No warrants or options shall be issued to bearer. |
| 7 | Register of Members |
| 7.1 | The Company shall maintain or cause to be maintained the Register of Members in accordance with the Statute. |
| 7.2 | The Board may determine that the Company shall maintain one or more branch registers of Members in accordance with the Statute at such location or locations within or outside the Cayman Islands as the Board thinks fit. The Board may also determine which register of Members shall constitute the principal register and which shall constitute the duplicate or branch register or registers, and to vary such determination from time to time. |
| 7.3 | The Company, or any agent(s) appointed by it to maintain the duplicate or branch Register of Members in accordance with these Articles, shall as soon as practicable and on a regular basis record or procure the recording in the original Register of Members all transfers of Shares effected on any duplicate or branch Register of Members and shall at all times maintain the original Register of Members in such manner as to show at all times the Members for the time being and the Shares respectively held by them, in all respects in accordance with the Statute. |
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| 7.4 | The Company shall not be bound to register more than four (4) persons as joint holders of any Share. If any Share shall stand in the names of two (2) or more persons, the person first named in the Register of Members shall be deemed the sole holder thereof as regards service of notices and, subject to the provisions of these Articles, all or any other matters connected with the Company. |
| 8 | Closing Register of Members or Fixing Record Date |
| 8.1 | For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose, the Board may, after notice has been given by advertisement in an appointed newspaper or any other newspaper or by any other means in accordance with the rules and regulations of the Designated Stock Exchange, the U.S. Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law, provide that the Register of Members shall be closed for transfers for a stated period which shall not in any case exceed forty (40) days. If the Register of Members shall be so closed for the purpose of determining Members entitled to notice of or to attend or vote at a meeting of Members such Register of Members shall be so closed for at least ten (10) days immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register of Members. |
| 8.2 | In lieu of, or apart from, closing the Register of Members, the Board may fix in advance or arrears a date as the record date (a) for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any adjournment thereof, which record date shall not be more than sixty (60) days nor less than ten (10) days before the date of such meeting, (b) for the purpose of determining the Members entitled to receive payment of any Dividend or other distribution, which record date shall not be more than ninety (90) days prior to the date of payment of such Dividend, or (c) in order to make a determination of Members for any other purpose. |
| 8.3 | If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a Dividend or other distribution, the date on which notice of the meeting is sent or the date on which the resolution of the Board resolving to pay such Dividend or other distribution is passed, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Article 8.3, such determination shall apply to any adjournment thereof; provided, however, that the Board may fix a new record date of the adjourned meeting, if they think fit. |
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| 9 | Certificates for Shares |
| 9.1 | A Member shall only be entitled to a share certificate if the Board resolves that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Board may determine. No certificate shall be issued representing Shares of more than one class. Share certificates shall be signed by one (1) or more Directors or other person authorised by the Board. The Board may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process. Every share certificate shall specify the number of Shares in respect of which it is issued and the amount paid thereon or the fact that they are fully paid, as the case may be, and may otherwise be in such form as shall be determined by the Board. Such certificates may be under Seal. All certificates for Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. The name and address of the person to whom the Shares represented thereby are issued, with the number of Shares and date of issue, shall be entered in the Register of Members of the Company. All certificates surrendered to the Company for transfer shall be cancelled and, subject to these Articles, no new certificate shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled. The Board may authorise certificates to be issued with the Seal and/or to be signed by such person(s) as may be authorised by the Board and may authorise certificates to be issued with the authorised signature(s) affixed by some method or system of mechanical or automated process. |
| 9.2 | Every share certificate of the Company shall bear legends required under the Applicable Law, including the U.S. Securities Act. |
| 9.3 | Any two (2) or more certificates representing Shares of any one (1) Class held by any Member may at the Member’s request be cancelled and a single new certificate for such Shares issued in exchange for payment (if the Board shall so require) of US$1.00 or such smaller sum as the Board shall determine. |
| 9.4 | The Company shall not be bound to issue more than one (1) certificate for Shares held jointly by more than one (1) person and delivery of a certificate to one (1) joint holder shall be a sufficient delivery to all of them. |
| 9.5 | If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating evidence, as the Board may prescribe, and (in the case of defacement or wearing out) upon delivery of the old certificate. |
| 9.6 | Every share certificate sent in accordance with these Articles will be sent at the risk of the Member or other person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course of delivery. |
| 9.7 | Share certificates shall be issued within the relevant time limit as prescribed by the Statute, if applicable, or as the rules and regulations of the Designated Stock Exchange, the U.S. Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law may from time to time determine, whichever is shorter, after the allotment or, except in the case of a Share transfer which the Company is for the time being entitled to refuse to register and does not register, after lodgement of a Share transfer with the Company. |
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| 10 | Transfer of Shares |
| 10.1 | Subject to the terms of these, any Member may transfer all or any of such Member’s Shares by an instrument of transfer provided that such transfer complies with the rules and regulations of the Designated Stock Exchange, the U.S. Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law. If the Shares in question were issued in conjunction with rights, options or warrants issued pursuant to these Articles on terms that one cannot be transferred without the other, the Board shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer of such option or warrant. |
| 10.2 | The instrument of transfer of any Share shall be in writing in the usual or common form or in a form prescribed by the rules and regulations of the Designated Stock Exchange, the U.S. Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law or in any other form approved by the Board and shall be executed by or on behalf of the transferor (and if the Board so requires, signed by or on behalf of the transferee) and may be under hand or, if the transferor or transferee is a Clearing House or its nominee(s), by hand or by machine imprinted signature or by such other manner of execution as the Board may approve from time to time. The transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered in the Register of Members in respect of the relevant Shares. |
10.3
| (a) | The Board may in its absolute discretion and without giving any reason therefor, decline to register any transfer of Shares which are: |
| (i) | not fully paid up or on which the Company has a lien; or |
| (ii) | issued under any share incentive scheme for employees upon which a restriction on transfer imposed thereby still subsists. |
| (b) | The Board may also, but is not required to, decline to register any transfer of any Share unless: |
| (i) | the instrument of transfer is lodged with the Company, accompanied by the certificate (if any) for the Share(s) to which it relates and such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer; |
| (ii) | the instrument of transfer is in respect of only one (1) Class of Shares; |
| (iii) | the instrument of transfer is properly stamped, if required by Applicable Law; |
| (iv) | in the case of a transfer to joint holders, the number of joint holders to whom the Share is to be transferred does not exceed four (4); |
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| (v) | the Shares transferred are fully paid and free of any lien in favour of the Company; and |
| (vi) | any applicable fee of such maximum sum as the Designated Stock Exchange may determine to be payable, or such lesser sum as the Board may from time to time require, related to the transfer is paid to the Company. |
| (c) | Unless the Board has an express ability to decline to register any transfer of Shares pursuant to this Article 10.3, the Board shall register a transfer of Shares. |
| 10.4 | The registration of transfers may, on fourteen (14) days’ notice being given by advertisement in such one (1) or more newspapers or by electronic means, be suspended and the Register of Members closed at such times and for such periods as the Board may, in its absolute discretion, from time to time determine, provided always that such registration of transfer shall not be suspended nor the Register of Members closed for more than thirty (30) days in any year. |
| 10.5 | All instruments of transfer that are registered shall be retained by the Company. If the Board refuses to register a transfer of any Shares, they shall within three (3) months after the date on which the instrument of transfer was lodged with the Company send to each of the transferor and the transferee notice of the refusal. |
| 11 | Redemption, Repurchase and Surrender of Shares |
| 11.1 | Subject to the provisions of the Statute, and, where applicable, the rules and regulations of the Designated Stock Exchange, the U.S. Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law, the Company may issue Shares that are to be redeemed or are liable to be redeemed at the option of the Member or the Company. |
| 11.2 | Subject to the provisions of the Statute, and, where applicable, the rules and regulations of the Designated Stock Exchange, the U.S. Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law, any power of the Company to repurchase or otherwise acquire its own Shares (including any redeemable Shares) shall be exercisable by the Board in such manner, upon such terms and subject to such conditions as it thinks fit. |
| 11.3 | The repurchase of any Share shall not oblige the Company to repurchase any other Share other than as may be required pursuant to Applicable Law, or any rules and regulations applicable to the listing of the Shares on the Designated Stock Exchange, or any contractual obligations of the Company. |
| 11.4 | The Company may make a payment in respect of the redemption or repurchase of its own Shares in any manner permitted by the Statute, including out of capital. |
| 11.5 | The holder of the Shares being repurchased shall be bound to deliver up to the Company at its Registered Office or such other place as the Board shall specify, the certificate(s) (if any) thereof for cancellation and thereupon the Company shall pay to such holder the repurchase or redemption monies or consideration in respect thereof. |
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| 11.6 | For the avoidance of doubt, redemptions, repurchases and surrenders of Shares in the circumstances described in this Article 11 shall not require further approval of the Members. |
| 12 | Treasury Shares |
| 12.1 | The Board may, prior to the repurchase, redemption or surrender of any Share, determine that such Share shall be held as a Treasury Share. |
| 12.2 | The Board may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think proper (including, without limitation, for nil consideration). |
| 13 | Variation of Rights of Shares |
| 13.1 | Subject to Article 3.2, if at any time the share capital of the Company is divided into different Classes of Shares, all or any of the rights attached to any Class (unless otherwise provided by the terms of issue of the Shares of that Class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued Shares of that Class where such variation is considered by the Board not to have a material and adverse effect upon such rights; otherwise, any such variation shall be made only with the consent in writing of all of the holders of the issued Shares of that Class, or with the approval of a resolution passed by a majority of not less than two thirds (2/3) of the votes cast at a separate meeting of the holders of the Shares of that Class. For the avoidance of doubt, the Board reserves the right, notwithstanding that any such variation may not have a material and adverse effect, to obtain consent from the holders of Shares of the relevant Class. To any such meeting all the provisions of these Articles relating to general meetings shall apply mutatis mutandis, except that the necessary quorum shall be at least one (1) person holding or representing by proxy at least one third (1/3) of the issued Shares of the Class and that any holder of Shares of the Class present in person or by proxy may demand a poll. |
| 13.2 | For the purposes of a separate class meeting, the Board may treat two (2) or more or all the Classes of Shares as forming one (1) Class of Shares if the Board considers that such class of Shares would be affected in the same way by the proposals under consideration, but in any other case shall treat them as separate Classes of Shares. Such a determination shall not affect the number of votes required, including with respect to any Class. |
| 13.3 | The rights conferred upon the holders of the Shares of any Class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that Class, be deemed to be varied by the creation or issue of further Shares ranking pari passu therewith or Shares issued with preferred or other rights. The rights of holders of Ordinary Shares shall not be deemed to be varied by the creation or issue of Shares with preference or other rights which may be effected by the Board as provided in these Articles without any vote or consent of the holders of Ordinary Shares. |
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| 14 | Commission on Sale of Shares |
| 14.1 | The Company may, insofar as the Statute and Applicable Law permit, pay a commission to any person in consideration of his or her subscribing or agreeing to subscribe (whether absolutely or conditionally) or procuring or agreeing to procure subscriptions (whether absolutely or conditionally) for any Shares. Such commissions may be satisfied by the payment of cash and/or the issue of fully or partly paid-up Shares. The Company may also on any issue of Shares pay such brokerage as may be lawful. |
| 15 | Non-Recognition of Trusts |
| 15.1 | The Company shall not be obligated to recognize any person as holding any Share upon any trust and the Company shall not be bound by or compelled to recognize 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 Statute) any other rights in respect of any Share other than an absolute right to the entirety thereof in the registered holder. |
| 16 | Lien on Shares |
| 16.1 | The Company shall have a first and paramount lien on all Shares (whether fully paid-up or not) registered in the name of a Member (whether solely or jointly with others) for all debts, liabilities or engagements to or with the Company (whether presently payable or not) by such Member or such Member’s estate, either alone or jointly with any other person, whether a Member or not, but the Board may at any time declare any Share to be wholly or in part exempt from the provisions of this Article 16. The registration of a transfer of any such Share shall operate as a waiver of the Company’s lien thereon. The Company’s lien on a Share shall also extend to any amount payable in respect of that Share. |
| 16.2 | The Company may sell, in such manner as the Board thinks fit, any Shares on which the Company has a lien, if a sum in respect of which the lien exists is presently payable, and is not paid within fourteen (14) calendar days after notice has been received or deemed to have been received by the holder of the Shares, or to the person entitled to it in consequence of the death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the Shares may be sold. |
| 16.3 | To give effect to any such sale the Board may authorise any person to execute an instrument of transfer of the Shares sold to, or in accordance with the directions of, the purchaser. The purchaser or the purchaser’s nominee shall be registered as the holder of the Shares comprised in any such transfer, and the purchaser shall not be bound to see to the application of the purchase money, nor shall the purchaser’s title to the Shares be affected by any irregularity or invalidity in the sale or the exercise of the Company’s power of sale under these Articles. |
| 16.4 | The net proceeds of such sale after payment of costs, shall be applied in payment of such part of the amount in respect of which the lien exists as is presently payable and any balance shall (subject to a like lien for sums not presently payable as existed upon the Shares before the sale) be paid to the person entitled to the Shares at the date of the sale. |
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| 17 | Call on Shares |
| 17.1 | Subject to the terms of the allotment and issue of any Shares, the Board may make calls upon the Members in respect of any monies unpaid on their Shares (whether in respect of par value or premium), and each Member shall (subject to receiving at least fourteen (14) calendar days’ notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on the Shares. A call may be revoked or postponed, in whole or in part, as the Board may determine. A call may be required to be paid by instalments. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the Shares in respect of which the call was made. |
| 17.2 | A call shall be deemed to have been made at the time when the resolution of the Board authorising such call was passed. |
| 17.3 | The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof. |
| 17.4 | If a call remains unpaid after it has become due and payable, the person from whom it is due shall pay interest on the amount unpaid from the day it became due and payable until it is paid at such rate as the Board may determine (and in addition all expenses that have been incurred by the Company by reason of such non-payment), but the Board may waive payment of the interest or expenses wholly or in part. |
| 17.5 | An amount payable in respect of a Share on issue or allotment or at any fixed date, whether on account of the par value of the Share or premium or otherwise, shall be deemed to be a call and if it is not paid all the provisions of these Articles shall apply as if that amount had become due and payable by virtue of a call. |
| 17.6 | The Board may issue Shares with different terms as to the amount and times of payment of calls, or the interest to be paid. |
| 17.7 | The Board may, if it thinks fit, receive an amount from any Member willing to advance all or any part of the monies uncalled and unpaid upon any Shares held by him, and may (until the amount would otherwise become payable) pay interest at such rate as may be agreed upon between the Board and the Member paying such amount in advance. |
| 17.8 | No such amount paid in advance of calls shall entitle the Member paying such amount to any portion of a Dividend or other distribution payable in respect of any period prior to the date upon which such amount would, but for such payment, become payable. |
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| 18 | Forfeiture of Shares |
| 18.1 | If a call or instalment of a call remains unpaid after it has become due and payable the Board may give to the person from whom it is due not less than fourteen (14) clear days’ notice requiring payment of the amount unpaid together with any interest which may have accrued and any expenses incurred by the Company by reason of such non-payment. The notice shall specify where payment is to be made and shall state that if the notice is not complied with the Shares in respect of which the call was made will be liable to be forfeited. |
| 18.2 | If the notice is not complied with, any Share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Board. Such forfeiture shall include all Dividends, other distributions or other monies payable in respect of the forfeited Share and not paid before the forfeiture. |
| 18.3 | A forfeited Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Board thinks fit and at any time before a sale, re-allotment or disposition the forfeiture may be cancelled on such terms as the Board thinks fit. Where for the purposes of its disposal a forfeited Share is to be transferred to any person, the Board may authorise some person to execute an instrument of transfer of the Share in favour of that person. |
| 18.4 | A person any of whose Shares have been forfeited shall cease to be a Member in respect of them and shall surrender to the Company for cancellation the certificate for the Shares forfeited and shall remain liable to pay to the Company all monies which at the date of forfeiture were payable by him to the Company in respect of those Shares together with interest at such rate as the Board may determine, but his or her liability shall cease if and when the Company shall have received payment in full of all monies due and payable by him in respect of those Shares. |
| 18.5 | A declaration by a Director or the Secretary that a Share has been forfeited on a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the Share. The declaration shall (subject to the execution of an instrument of transfer by the Company if necessary) constitute a good title to the Share and the person to whom the Share is sold or otherwise disposed of shall not be bound to see to the application of the consideration, if any, nor shall his or her title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share. |
| 18.6 | The provisions of these Articles as to forfeiture shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the par value of the Share or by way of premium as if it had been payable by virtue of a call duly made and notified. |
| 19 | Transmission of Shares |
| 19.1 | If a Member dies, the survivor or survivors (where the deceased was a joint holder), or the legal personal representatives of the deceased (where such Member was a sole holder), shall be the only persons recognized by the Company as having any title to the Member’s interest in the Shares, but nothing herein contained shall release the estate of any such deceased Member from any liability in respect of any Share, for which the Member was a joint or sole holder. |
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| 19.2 | Any person becoming entitled to a Share in consequence of the death or bankruptcy or liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may be required by the Board, elect, by a notice in writing sent by such person to the Company, either to become the holder of such Share or to have some person nominated by him registered as the holder of such Share. If such person elects to have another person registered as the holder of such Share such person shall sign an instrument of transfer of that Share to that person. The Board shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before his or her death or bankruptcy or liquidation or dissolution, as the case may be. |
| 19.3 | A person becoming entitled to a Share by reason of the death or bankruptcy or liquidation or dissolution of a Member (or in any other case than by transfer) shall be entitled to the same Dividends, other distributions and other advantages to which such person would be entitled if such person were the registered holder of such Share. However, such person shall not, before becoming registered as a Member in respect of a Share, be entitled in respect of it to exercise any right conferred by membership in relation to general meetings of the Company and the Board may at any time give notice requiring any such person to elect either to be registered themselves or to have some person nominated by such person to be registered as the holder of the Share (but the Board shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before their death or bankruptcy or liquidation or dissolution or any other case than by transfer, as the case may be). If the notice is not complied with within ninety (90) days of being received or deemed to be received (as determined pursuant to these Articles), the Board may thereafter withhold payment of all Dividends, other distributions, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with. |
| 20 | Untraceable Members |
| 20.1 | Without prejudice to the rights of the Company under Article 20.2, the Company may cease sending cheques for dividend entitlements or dividend warrants by post if such cheques or warrants have been left uncashed on two consecutive occasions. However, the Company may exercise the power to cease sending cheques for dividend entitlements or dividend warrants after the first occasion on which such a cheque or warrant is returned undelivered. |
| 20.2 | The Company shall have the power to sell, in such manner as the Board thinks fit, any shares of a Member who is untraceable, but no such sale shall be made unless: |
| (a) | all cheques or warrants payable in cash to the holder of such shares in respect of them sent during the relevant period in the manner authorised by these Articles have remained uncashed; |
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| (b) | so far as it is aware at the end of the relevant period, the Company has not at any time during the relevant period received any indication of the existence of the Member who is the holder of such shares or of a person entitled to such shares by death, bankruptcy or operation of law; and |
| (c) | the Company, if so required by the rules governing the listing of shares on the Designated Stock Exchange, has given notice to, and caused advertisement in newspapers to be made in accordance with the requirements of, the Designated Stock Exchange of its intention to sell such shares in the manner required by the Designated Stock Exchange, and a period of three (3) months or such shorter period as may be allowed by the Designated Stock Exchange has elapsed since the date of such advertisement. |
For the purpose of the foregoing, the “relevant period” means the period commencing twelve (12) years before the date of publication of the advertisement referred to in paragraph (c) of this Article 20.2 and ending at the expiry of the period referred to in that paragraph.
| 20.3 | To give effect to any such sale the Board may authorise some person to transfer the said shares and an instrument of transfer signed or otherwise executed by or on behalf of such person shall be as effective as if it had been executed by the registered holder or the person entitled by transmission to such shares, and the purchaser shall not be bound to see to the application of the purchase money nor shall his or her title to the shares be affected by any irregularity. |
| 21 | Amendments of Memorandum and Articles of Association and Alteration of Capital |
| 21.1 | The Company may by Ordinary Resolution: |
| (a) | increase its share capital by such sum as the Ordinary Resolution shall prescribe and with such rights, priorities and privileges annexed thereto, as the Company in general meeting may determine; |
| (b) | consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares; |
| (c) | convert all or any of its paid-up Shares into stock, and reconvert that stock into paid-up Shares of any denomination; |
| (d) | sub-divide its existing Shares or divide the whole or any part of its share capital into Shares of smaller amount than is fixed by the Memorandum or into Shares without par value; and |
| (e) | cancel any Shares that at the date of the passing of the Ordinary Resolution have not been taken or agreed to be taken by any person and diminish the amount of its share capital by the amount of the Shares so cancelled. |
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| 21.2 | All new Shares created in accordance with the provisions of the preceding Article 21.1 shall be subject to the same provisions of these Articles with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise as the Shares in the original share capital. |
| 21.3 | Subject to the provisions of the Statute and the provisions of these Articles as regards the matters to be dealt with by Ordinary Resolution, the Company may by Special Resolution: |
| (a) | change its name; |
| (b) | alter or add to these Articles; |
| (c) | alter or add to the Memorandum with respect to any objects, powers or other matters specified therein; and |
| (d) | reduce its share capital or any capital redemption reserve fund. |
| 22 | Offices and Places of Business |
| 22.1 | Subject to the provisions of the Statute, the Company may by resolution of the Board change the location of its Registered Office. The Company may, in addition to its Registered Office, establish and maintain such other offices and places of business and agencies in such places as the Board may from time to time determine. |
| 23 | General Meetings |
| 23.1 | All general meetings other than annual general meetings shall be called extraordinary general meetings. |
| 23.2 | The Company may, but shall not (unless required by the Statute) be obliged to, in each year hold a general meeting as its annual general meeting, and shall specify the meeting as such in the notices calling it. Any annual general meeting shall be held at such time and place as the Board shall appoint provided that the period between the date of one annual general meeting of the Company and that of the next shall not be longer than such period as Applicable Law or the relevant code, rules and regulations applicable to the listing of the Shares on the Designated Stock Exchange permits. At these meetings the report of the Board (if any) shall be presented. |
| 23.3 | The Board or the chairperson of the Board may call general meetings, and, for the avoidance of doubt, Members shall not have the ability to call general meetings. |
| 23.4 | General meetings of the Company (other than the annual general meeting) may be held at such place, either within or without the Cayman Islands, as determined by the Board. |
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| 24 | Notice of General Meetings |
| 24.1 | Subject to any requirements of the Designated Stock Exchange with respect to required notice timing, at least five (5) calendar days’ notice shall be given of any general meeting in accordance with the requirements of the Designated Stock Exchange. Every notice shall be exclusive of the day on which it is given or deemed to be given and of the day for which it is given. Every notice shall specify the place, the day and the hour of the meeting and shall be given in the manner hereinafter mentioned or in such other manner if any as may be prescribed by the Company, provided that a general meeting of the Company shall, whether or not the notice specified in this Article 24 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 Applicable Law so permits and it is so agreed: |
| (a) | in the case of an annual general meeting, by all of the Members entitled to attend and vote thereat or their proxies; 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 sixty-six and two-thirds per cent (66⅔%) in par value of the Shares giving a right to vote or their proxies. |
| 24.2 | No business may be transacted at any general meeting, other than business that is either (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorized committee thereof), (B) otherwise properly brought before an annual general meeting by or at the direction of the Board (or any duly authorized committee thereof) or (C) in the case of an annual general meeting, otherwise properly brought before such general meeting by any Member of the Company who (1) is a Member of record on both (x) the date of the giving of the notice by such Member provided for in this Article and (y) the record date for the determination of Members entitled to vote at such annual general meeting and (2) complies with the notice procedures set forth in this Article 24.2. |
| (a) | In addition to any other applicable requirements, for a proposal for business to be brought properly before an annual general meeting by a Member,: |
| (i) | such Member must have given timely notice of such proposal in proper written form to the Secretary of the Company; and |
| (ii) | subject to Article 24.2(i), the Board of Directors shall have resolved to include such proposal in the notice of such general meeting. The Board of Directors may at their absolute discretion resolve not to include any proposal for business made by a Member, save that the Board of Directors shall not be entitled to refuse to include a proposal related to the nomination of a Director made by a Member in accordance with Article 24.2(f). |
| (b) | The Board shall cause notice to be given pursuant to the Articles. No business other than as set forth in such notice may be transacted at a general meeting, except in the case of an annual general meeting, where matters may be presented for consideration by Members, provided they comply with the requirements of the Articles, including those set forth in this Article 24.2. |
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| (c) | For matters other than for the nomination for election of a Director to be made by a Member of the Company at an annual general meeting, to be timely, such Member’s notice shall be delivered to the Secretary at the principal executive offices of the Company at least forty- five (45) days and not more than seventy-five (75) days prior to the one year anniversary of the date on which the Company first mailed proxy materials for the prior year’s annual general meeting; provided, however, that if the Company’s annual general meeting occurs on a date more than twenty-five (25) days earlier or later than the Company’s prior year’s annual general meeting, then the Board shall determine a date a reasonable period prior to the Company’s annual general meeting by which date the Members notice must be delivered and publicize such date in a filing pursuant to the Exchange Act, or via press release. Such publication shall occur at least ten (10) days prior to the date set by the Board. |
| (d) | To be in proper written form, a Member’s notice to the Secretary must set forth as to such matter such Member proposes to bring before the annual general meeting (1) a brief description of the business desired to be brought before the annual general meeting and the proposed text of any proposal regarding such business (including the text of any resolutions proposed for consideration and, if such business includes a proposal to amend these Articles or the Memorandum of the Company, the text of the proposed amendment) and the reasons for conducting such business at the annual general meeting, (2) the name and address, as they appear on the Company’s books, of the Member proposing such business and any Member Associated Person (as defined below), (3) the class or series and number of shares of the Company that are held of record or are beneficially owned by such Member or any Member Associated Person and any derivative positions held or beneficially held by the Member or any Member Associated Person, (4) the name of each nominee holder of shares of the Company owned beneficially but not of record by the Member or any Member Associated Person, and the number of such shares of the Company held by each such nominee holder, (5) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of such Member or any Member Associated Person with respect to any securities of the Company, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such Member or any Member Associated Person with respect to any securities of the Company, (6) a description of all agreements, arrangements, or understandings (whether written or oral) between or among such Member or a Member Associated Person and any other person or persons (including their names) in connection with or relating to (A) the Company or any securities of the Company or (B) the proposal, including any material interest or anticipated benefit of the Member or a Member Associated Person in such business, (6) a statement whether either such Member or any Member Associated Person will deliver a proxy statement and form of proxy to holders of at least the percentage of the Company’s voting shares required under the Memorandum and Articles of the Company, applicable law and the rules of the Designated Stock Exchange to carry the proposal and a representation that the Member giving notice intends to appear in person or by proxy at the annual general meeting to bring such business before the meeting, and (7) any other information relating to such Member that would be required to be disclosed in a proxy statement or other filing required to be made in connection with the solicitation of proxies by such person with respect to the proposed business to be brought by such person before the Annual General Meeting pursuant to Section 14 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder. A Member providing notice of business proposed to be brought before a general meeting shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Article 24.2(e) shall be true and correct as of the record date for determining the Members entitled to receive notice of the general meeting and such update and supplement shall be delivered to or be mailed and received by the Secretary at the principal executive offices of the Company not later than five (5) business days after the record date for determining the Members entitled to receive notice of the general meeting. For purposes of this Article 24.2, a “Member Associated Person” of any Member shall mean (i) any person controlling, directly or indirectly, or acting in concert with, such Member, (ii) any beneficial owner of shares of the Company owned of record or beneficially by such Member and on whose behalf the proposal or nomination, as the case may be, is being made, or (iii) any person controlling, controlled by, under common control or acting in concert with such person referred to in the preceding clauses (i) and (ii). |
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| (e) | No business shall be conducted at the annual general meeting except business brought before the annual general meeting in accordance with the procedures set forth in this Article 24.2, provided, however, that once business has been properly brought before the annual general meeting in accordance with such procedures, nothing in this Article shall be deemed to preclude discussion by any Member of any such business. If the Chairperson of an annual general meeting determines that business was not properly brought before the annual general meeting in accordance with the foregoing procedures, the Chairperson shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted. |
| (f) | In addition to any other applicable requirements, for a nomination for election of a Director to be made by a Member of the Company, such Member must (A) be a Member of record on both (x) the date of the giving of the notice by such Member provided for in this Article and (y) the record date for the determination of Members entitled to vote at such annual general meeting and (B) have given timely notice thereof in proper written form to the Secretary of the Company. If a Member is entitled to vote only for a specific class or category of directors at a meeting of the Members, such Member’s right to nominate one or more persons for election as a director at the meeting shall be limited to such class or category of directors. |
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| (g) | To be timely for purposes of Article 24.2(f), a Member’s notice shall be delivered to or mailed and received at the principal executive offices of the Company not less than one hundred twenty (120) days and not more than one hundred fifty (150) days prior to the meeting; provided, however, that in the event less than one hundred thirty (130) days’ notice or prior public disclosure of the date of the meeting is given or made to Members, notice by the Member to be timely must be so received not later than the close of business on the tenth (10th) day following the earlier of the day on which such notice of the date of the meeting was mailed or such public disclosure was made. |
| (h) | To be in proper written form for purposes of Article 24.2(f), a Member’s notice to the Secretary must be set forth (A) as to each person whom the Member proposes to nominate for election as a director (1) the name, age, business address and residence address of the person, (2) the principal occupation or employment of the person, (3) (A) the class or series and number of shares of the Company, if any, which are owned beneficially or of record by the person and any affiliates and associates of the person and any derivative positions held or beneficially held by the such person or any affiliates or associates of such person, (B) the name of each nominee holder of shares of the Company owned beneficially but not of record by such person or any affiliates or associates of such person, and the number of such shares of the Company held by each such nominee holder, and (C) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of such person or any affiliates or associates of such person with respect to any securities of the Company, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such such person or any affiliates or associates of such person with respect to any securities of the Company, and (4) any other information relating to the person that would be required to be disclosed pursuant to any applicable law and rules of the Designated Stock Exchange; and (B) as to the Member giving notice (1) the name and record address of such Member, (2) the class or series and number of shares of the Company which are owned beneficially or of record by such Member or any Member Associated Person and any derivative positions held or beneficially held by the Member or any Member Associated Person, (3) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of such Member or any Member Associated Person with respect to any securities of the Company, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such Member or any Member Associated Person with respect to any securities of the Company, (4) a description of all agreements, arrangements or understandings (whether written or oral) between such Member or any Member Associated Person and each proposed nominee (and any affiliates and associates of any proposed nominee) and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such Member or otherwise relating to the Company or any securities of the Company, (5) a representation that such Member intends to appear in person or by proxy at the annual meeting to nominate the person(s) named in its notice and (6) any other information relating to such Member that would be required to be disclosed pursuant to any applicable law and rules of the Designated Stock Exchange. Such notice must be accompanied by each proposed nominee’s written representation and agreement that such proposed nominee: (A) is not and will not become a party to any agreement, arrangement or understanding with, and has not given any commitment or assurance to, any person or entity as to how such person, if elected as a director of the Company, will act or vote on any issue or question, (B) is not and will not become a party to any agreement, arrangement or understanding with any person or entity other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company that has not been disclosed to the Company in such representation and agreement, (C) in such person’s individual capacity, would be in compliance with, if elected as a director of the Company, and will comply with and, upon election, execute any requisite documentation pertaining to all applicable publicly disclosed confidentiality, corporate governance, conflict of interest, Regulation FD, code of conduct and ethics, and stock ownership and trading policies and guidelines of the Company, and (D) consents to being named as a nominee by the Member and in any proxy statement of the Company, or other filings required to be made by the Company in connection with the solicitation of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder and to serve as a director if elected. A Member providing notice pursuant to this Article 24.2(h) shall further update and supplement such notice, if necessary, so that the information provided or required to be provided in such notice pursuant to this Article 24.2(h)shall be true and correct as of the record date for determining the Members entitled to receive notice of the annual general meeting and such update and supplement shall be delivered to or be mailed and received by the Secretary at the principal executive offices of the Company not later than five (5) business days after the record date for determining the Members entitled to receive notice of the annual general meeting. |
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| (i) | Nothing contained in this Article 24.2 shall be deemed to affect any rights of Members to request inclusion of proposals in the Company’s proxy statement pursuant to Rule 14a-8 under the Exchange Act (or any successor provision of law). |
| 24.3 | The accidental omission to give notice of a general meeting to, or the non-receipt of notice of a general meeting by, any person entitled to receive such notice shall not invalidate the proceedings of that general meeting. |
| 24.4 | The notice convening an annual general meeting shall specify the meeting as such, and the notice convening a meeting to pass a Special Resolution shall specify the intention to propose the resolution as a Special Resolution. Notice of every general meeting shall be given to all Members other than such as, under the provisions of these Articles or the terms of issue of the Shares they hold, are not entitled to receive such notice from the Company. |
| 24.5 | There shall appear with reasonable prominence in every notice of general meetings of the Company a statement that a Member entitled to attend and vote is entitled to appoint a proxy to attend and vote instead of him and that a proxy need not be a Member. |
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| 24.6 | In cases where instruments of proxy are sent out with notices, the accidental omission to send such instrument of proxy to, or the non-receipt of such instrument of proxy by, any person entitled to receive notice shall not invalidate any resolution passed or any proceeding at any such meeting. |
| 25 | Proceedings at General Meetings |
| 25.1 | No business shall be transacted at any general meeting unless a quorum is present at the time when the meeting proceeds to business. The quorum required for a general meeting of Members consists of at least one (1) Member, present in person or by proxy or if a corporation or other non- natural person by its duly authorised representative or proxy, and entitled to vote, holding in aggregate not less than one-third (1/3) of the voting power of the Shares in issue carrying a right to vote at such meeting. Only business set out in the applicable notice may be transacted at such general meeting. |
| 25.2 | A person may participate at a general meeting by conference telephone, other communications equipment or any other Electronic Facility. Participation by a person in a general meeting in this manner is treated as presence in person at that meeting. |
| 25.3 | A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by or on behalf of all of the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or, being corporations or other non-natural persons, signed by their duly authorised representatives) shall be as valid and effective as if the resolution had been passed at a general meeting of the Company duly convened and held. |
| 25.4 | If a quorum is not present within half an hour from the time appointed for the meeting to commence, the meeting shall stand adjourned to the same day in the next week at the same time and/or place or to such other day, time and/or place as the Board may determine, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting to commence, the Members present shall be a quorum. |
| 25.5 | The Board may, at any time prior to the time appointed for the meeting to commence, appoint any person to act as chairperson of a general meeting of the Company or, if the Board does not make any such appointment, the chairperson, if any, of the Board shall preside as chairperson at such general meeting. If there is no such chairperson, or if he or she shall not be present within fifteen (15) minutes after the time appointed for the meeting to commence, or is unwilling to act, the Directors present shall elect one (1) of their number to be chairperson of the meeting. |
| 25.6 | If no Director is willing to act as chairperson or if no Director is present within fifteen (15) minutes after the time appointed for the meeting to commence, the Members present shall choose one (1) of their number to be chairperson of the meeting. |
| 25.7 | The chairperson may, with or without the consent of a meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. |
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| 25.8 | When a general meeting is adjourned for thirty (30) days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of an adjourned meeting or of the business to be transacted at an adjourned general meeting. If a notice is issued in respect of a general meeting and the Board, in its 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 Board 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. |
| 25.9 | When a general meeting is postponed for thirty (30) 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 Board may postpone a general meeting which has already been postponed. |
| 25.10 | A resolution put to the vote of the meeting shall be decided on a poll. |
| 25.11 | A poll shall be taken as the chairperson directs, and the result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. |
| 25.12 | A poll demanded on the election of a chairperson or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such date, in such manner and at such time and place, not being more than ten (10) calendar days from the date of the meeting or adjourned meeting at which the vote was taken, as the chairperson directs. No notice need be given of a poll not taken immediately. The result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded. Any other business other than that upon which a poll is to be taken or is contingent thereon may be proceeded with pending the taking of the poll. |
| 26 | Votes of Members |
| 26.1 | Subject to any rights or restrictions attached to any Class or Classes of Shares, every Member of record present in person or by proxy, or, if a corporation or other non-natural person, by its duly authorised representative or by proxy, shall have the voting power as set forth in Article 4.1. |
| 26.2 | In the case of joint holders the vote of the senior holder who tenders a vote, whether in person or by proxy (or, in the case of a corporation or other non-natural person, by its duly authorised representative or proxy), shall be accepted to the exclusion of the votes of the other joint holders, and for this purpose seniority shall be determined by the order in which the names of the holders stand in the Register of Members. |
| 26.3 | A Member of unsound mind, or in respect of whom an order has been made by any court, having jurisdiction in lunacy, may vote by such Member’s committee, receiver, curator bonis, or other person in the nature of a committee, receiver or curator bonis appointed by that court, and any such committee, receiver, curator bonis or other person may vote by proxy. |
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| 26.4 | No person shall be entitled to vote at any general meeting unless such person is registered as a Member on the record date for such meeting nor unless all calls or other monies then payable by such person in respect of Shares have been paid. |
| 26.5 | No objection shall be raised as to the qualification of any voter except at the general meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at the meeting shall be valid for all purposes. Any objection made in due time in accordance with this Article 26 shall be referred to the chairperson whose decision shall be final and conclusive. |
| 26.6 | Votes may be cast either personally or by proxy (or in the case of a corporation or other non-natural person by its duly authorised representative or proxy). A Member may appoint more than one (1) proxy or the same proxy under one (1) or more instruments to attend and vote at a meeting. Where a Member appoints more than one (1) proxy the instrument of proxy shall specify the number of Shares in respect of which each proxy is entitled to exercise the related votes. |
| 26.7 | A Member holding more than one (1) Share need not cast the votes in respect of his or her Shares in the same way on any resolution and therefore may vote a Share or some or all such Shares either for or against a resolution and/or abstain from voting a Share or some or all of the Shares and, subject to the terms of the instrument appointing him, a proxy appointed under one (1) or more instruments may vote a Share or some or all of the Shares in respect of which he or she is appointed either for or against a resolution and/or abstain from voting a Share or some or all of the Shares in respect of which he or she is appointed. |
| 27 | Proxies |
| 27.1 | The rules and procedures relating to the form or a proxy, the depositing or filing of proxies and voting pursuant to a proxy and any other matter incidental thereto shall be approved by the Board, subject to such rules and procedures as required by Applicable Law or the relevant code, rules and regulations applicable to the listing of the Shares on the Designated Stock Exchange and as provided in the following Articles under this Article 27. |
| 27.2 | The instrument appointing a proxy shall be in writing and shall be executed under the hand of the appointor or of such person’s attorney duly authorised in writing, or, if the appointor is a corporation or other non-natural person, under the hand of an officer or attorney duly authorised in that behalf provided however, that a Member may also authorise the casting of a vote by proxy pursuant to telephonic or electronically transmitted instructions (including, without limitation, instructions transmitted over the internet) obtained pursuant to procedures approved by the Board which are reasonably designed to verify that such instructions have been authorised by such Member. A proxy need not be a Member of the Company. |
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| 27.3 | No instrument appointing a proxy shall be valid after the expiration of twelve (12) months from the date named in it as the date of its execution, except at an adjourned meeting or on a poll demanded at a meeting or an adjourned meeting in cases where the meeting was originally held within twelve (12) months from such date. |
| 27.4 | The Board may, in the notice convening any meeting or adjourned meeting, or in an instrument of proxy sent out by the Company, specify the manner by which the instrument appointing a proxy shall be deposited and the place and the time (being not later than the time appointed for the commencement of the meeting or adjourned meeting to which the proxy relates) at which the instrument appointing a proxy shall be deposited. In the absence of any such direction from the Board in the notice convening any meeting or adjourned meeting or in an instrument of proxy sent out by the Company, the instrument appointing a proxy shall be deposited physically at the Registered Office not less than forty-eight (48) hours before the time appointed for the meeting or adjourned meeting to commence at which the person named in the instrument proposes to vote. |
| 27.5 | The chairperson may in any event at his or her discretion declare that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner permitted, or which has not been declared to have been duly deposited by the chairperson, shall be invalid. |
| 27.6 | The instrument appointing a proxy may be in any usual or common form (or such other form as the Board may approve) and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument appointing a proxy shall be deemed to include the power to demand or join or concur in demanding a poll. |
| 27.7 | Votes given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the proxy or of the authority under which the proxy was executed, or the transfer of the Share in respect of which the proxy is given unless notice in writing of such death, insanity, revocation or transfer was received by the Company at the Registered Office before the commencement of the general meeting, or adjourned meeting at which it is sought to use the proxy. |
| 27.8 | If both a Member who has appointed a proxy pursuant to a voting agreement and the proxy appointed by that Member attend a general meeting and the proxy casts a vote, the vote cast by the proxy, rather than any vote cast by the Member personally, shall be counted to the exclusion of any vote purportedly cast by the Member. |
| 28 | Corporate Members |
| 28.1 | Any corporation or other non-natural person which is a Member may in accordance with its constitutional documents, or in the absence of such provision by resolution of its directors or other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any Class of Members, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which such person represents as the corporation could exercise if it were an individual Member. |
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| 28.2 | If a Clearing House (or its nominee(s)), being a corporation, is a Member, it may authorise such persons as it sees fit to act as its representative at any meeting of the Company or at any meeting of any Class of Members provided that the authorisation shall specify the number and Class of Shares in respect of which each such representative is so authorised. Each person so authorised under the provisions of this Article 28 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)). |
| 29 | Shares that May Not be Voted |
| 29.1 | Shares in the Company that are beneficially owned by the Company shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding Shares at any given time. |
| 30 | Directors |
| 30.1 | There shall be a Board consisting of not less than three (3) nor more than twelve (12) persons; provided, however, that the Company may by Ordinary Resolution or by a resolution of the Board increase or reduce the upper and lower limits on the number of Directors and provided that so long as Shares of the Company are listed on a Designated Stock Exchange, the Board shall include such number of Independent Directors as the relevant code, rules or regulations applicable to the listing of any Shares on the Designated Stock Exchange require. |
| 30.2 | The Board shall be and is divided into three (3) classes, designated as Class I, Class II and Class III. Each class will consist, as nearly as possible, of a number of Directors equal to one-third (1/3) of the total number of members of the Board authorised as provided in Article 30.1. The Board is authorised to assign members of the Board already in office to such classes at the time the classification of the Board becomes effective pursuant to this Article 30.2. At the 2022 annual general meeting, all Class I Director terms shall expire and the Class I Directors shall be eligible for re-election. At 2023 annual general meeting after the adoption of these Articles, all Class II Director terms shall expire and the Class II Directors shall be eligible for re-election. At 2024 general meeting after the adoption of these Articles, all Class III Director terms shall expire, and the Class III Directors shall be eligible for re-election. At each annual general meeting, the successors of that class of Directors whose term expires at that meeting will be elected to hold office in accordance with this Article 30.2 for a term expiring at the annual general meeting held in the third (3rd) year following the year of their election. The Directors of each class will hold office until the expiration of the term of such class and until their respective successors are elected and qualified or until such Director’s earlier death, resignation or removal. |
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| 30.3 | Except as the Statute or other Applicable Law may otherwise require, and subject to the rights of any Preference Shares or other contractual rights with Members that provide for the appointment of Directors, in the interim between annual general meetings or extraordinary general meetings called for the appointment of Directors and/or the removal of one (1) or more Directors and the filling of any vacancy in connection therewith, or any vacancies in the Board, or appointment of any additional Directors may be filled by the vote of a majority of the remaining Directors then in office, although less than a quorum (as defined in these Articles), or by the sole remaining Director. All Directors shall hold office until the expiration of their respective terms of office and until their successors shall have been appointed and qualified. A Director appointed to fill a vacancy resulting from the death, resignation or removal of a Director shall serve for the remainder of the full term of the Director whose death, resignation or removal shall have created such vacancy and until his or her successor shall have been appointed and qualified. No decrease in the number of Directors constituting the Board shall shorten the terms of any incumbent Director. |
| 30.4 | In any vote of Members to appoint Directors, each person nominated for appointment as a Director in an uncontested election shall be appointed if the number of votes cast for the person’s appointment exceeds the number of votes cast against the person’s appointment. In all votes to appoint Directors other than uncontested elections, the persons receiving the largest number of votes cast for appointment, up to the number of Directors to be appointed in such vote, shall be deemed appointed. |
| 30.5 | A Director may be removed from office only for cause by Special Resolution of the Company. |
| 31 | Powers and Duties of Directors |
| 31.1 | Subject to the provisions of the Statute, the Memorandum and these Articles and to any directions given by Special Resolution, the business of the Company shall be managed by the Board which may exercise all the powers of the Company. No alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Board which would have been valid if that alteration had not been made or that direction had not been given. A duly convened meeting of the Board at which a quorum is present may exercise all powers exercisable by the Board. |
| 31.2 | All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be in such manner as the Board shall determine by resolution. |
| 31.3 | The Board on behalf of the Company may pay a gratuity or pension or allowance on retirement to any Director who has held any other salaried office or place of profit with the Company or to such Director’s widow, widower or dependants and may make contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance. |
| 31.4 | The Board may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock, mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of any third party. |
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| 31.5 | The Board may, from time to time, and except as required by Applicable Law or the Designated Stock Exchange Rules, adopt, institute, amend, modify or revoke the corporate governance policies or initiatives of the Company, which shall be intended to set forth the guiding principles and policies of the Company and the Board on various corporate governance related matters as the Board shall determine by resolution from time to time. |
| 32 | Vacation of Office of Director |
The office of a Director shall be vacated if:
| (a) | the Director gives notice in writing to the Company that such Director resigns the office of Director; |
| (b) | the Director absents himself or herself (for the avoidance of doubt, without being represented by proxy) from three (3) consecutive meetings of the Board without special leave of absence from the Board, and the Board passes a resolution that the Director has by reason of such absence vacated office; |
| (c) | the Director dies, becomes bankrupt or makes any arrangement or composition with such Director’s creditors generally; |
| (d) | the Director is found to be or becomes of unsound mind; or |
| (e) | the Director is prohibited by any Applicable Law or relevant code applicable to the listing of the Shares on the Designated Stock Exchange, from being a Director. |
| 33 | Proceedings of Directors |
| 33.1 | The quorum necessary for the transaction of the business of the Board may be fixed by the Board, and unless so fixed shall be a majority of the Directors then in office. In no event shall the Board fix a quorum that is less than one-third (1/3) of the total number of Directors, provided always that if there shall at any time be only a sole Director the quorum shall be one (1). |
| 33.2 | Subject to the provisions of these Articles, the Board shall meet together for the dispatch of business, convening, adjourning and otherwise regulating their meetings and procedures as they think fit. Questions arising at any meeting shall be decided by a majority of votes of the Directors present at a meeting at which there is a quorum. In the case of an equality of votes, the chairperson shall not have a second or casting vote. |
| 33.3 | A person may participate in a meeting of the Board or any committee of the Board by conference telephone, other communications equipment or any other Electronic Facility. Participation by a person in a meeting in this manner is treated as presence in person at that meeting. Unless otherwise determined by the Board, the meeting shall be deemed to be held at the place where the chairperson is located at the start of the meeting. |
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| 33.4 | A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Board or, in the case of a resolution in writing relating to the removal of any Director or the vacation of office by any Director, all of the Directors other than the Director who is the subject of such resolution shall be as valid and effectual as if it had been passed at a meeting of the Board, or committee of the Board as the case may be, duly convened and held. |
| 33.5 | Regular meetings of the Board may be held at such times and places as may be provided for in resolutions adopted by the Board. No additional notice of a regularly scheduled meeting of the Board shall be required. |
| 33.6 | A Director may, or other Officer on the direction of a Director shall, call a meeting of the Board by at least two (2) days’ notice in writing to every Director which notice shall set forth the general nature of the business to be considered unless notice is waived by all the Directors either at, before or after the meeting is held and provided further if notice is given in person, by telephone, cable, telex, telecopy or email the same shall be deemed to have been given on the day it is delivered to the Board or transmitting organisation as the case may be. If the Director attends the meeting, the Director’s attendance constitutes a waiver of notice of the meeting, unless the Director attends for the sole purpose of objecting to the notice. To any such notice of a meeting of the Board all the provisions of these Articles relating to the giving of notices by the Company to the Members shall apply mutatis mutandis. The accidental omission to give notice of a meeting of the Board to, or the non-receipt of notice of a meeting by any person entitled to receive notice shall not invalidate the proceedings of that meeting. |
| 33.7 | The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to these Articles as the necessary quorum of Directors the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to such fixed number, or of summoning a general meeting of the Company, but for no other purpose. |
| 33.8 | The Directors may elect a chairperson of their board and determine the period for which the chairperson so elected is to hold office; but if no such chairperson is elected, or if at any meeting the chairperson is not present within five (5) minutes after the time appointed for the meeting to commence, the Directors present may choose one of their number to be chairperson of the meeting. |
| 33.9 | All acts done by any meeting of the Board or of a committee of the Board shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director, and/or that they or any of them were disqualified, and/or had vacated their office and/or were not entitled to vote, be as valid as if every such person had been duly appointed and/or not disqualified to be a Director and/or had not vacated their office and/or had been entitled to vote, as the case may be. |
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| 34 | Presumption of Assent |
| 34.1 | A Director who is present at a meeting of the Board at which action on any Company matter is taken shall be presumed to have assented to the action taken unless his or her dissent shall be entered in the minutes of the meeting or unless he or she shall file his or her written dissent from such action with the person acting as the chairperson or Secretary of the meeting before the adjournment thereof or shall forward such dissent by registered post to such person immediately after the adjournment of the meeting. Such right to dissent shall not apply to a Director who voted in favour of such action. |
| 35 | Directors’ Interests |
| 35.1 | A Director may hold any other office or place of profit under the Company (other than the office of Auditor) in conjunction with his or her office of Director for such period and on such terms as to remuneration and otherwise as the Board may determine. |
| 35.2 | A Director may act by himself or herself or by, through or on behalf of his or her firm in a professional capacity for the Company and he or she or his or her firm shall be entitled to remuneration for professional services as if he or she were not a Director. |
| 35.3 | A Director may be or become a director, managing director, joint managing director, deputy managing director, executive director, manager or other officer or member of any other company or otherwise interested in any company promoted by the Company or in which the Company may be interested as a Member, a contracting party or otherwise, and no such Director shall be accountable to the Company for any remuneration or other benefits received by him or her as a director, managing director, joint managing director, deputy managing director, executive director, manager or other officer or member of, or from his or her interest in, such other company. |
| 35.4 | No person shall be disqualified from the office of Director or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by or on behalf of the Company in which any Director shall be in any way interested be or be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realized by or arising in connection with any such contract or transaction by reason of such Director holding office or of the fiduciary relationship thereby established. A Director shall be at liberty to vote in respect of any contract or transaction in which such Director is interested provided that the nature of the interest of any Director in any such contract or transaction shall be disclosed by him or her at or prior to its consideration and any vote thereon. |
| 35.5 | A general notice that a Director is a Member, director, officer or employee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure for the purposes of voting on a resolution in respect of a contract or transaction in which he or she has an interest, and after such general notice it shall not be necessary to give special notice relating to any particular transaction. |
| 36 | Minutes |
| 36.1 | The Board shall cause minutes to be made in books kept for the purpose of recording all appointments of Officers made by the Board, all proceedings at meetings of the Company or the holders of any Class of Shares and of the Board, and of committees of the Board, including the names of the Directors present at each meeting. |
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| 37 | Delegation of Directors’ Powers |
| 37.1 | The Board may delegate any of its powers, authorities and discretions, including the power to sub- delegate, to any committee consisting of one or more Directors. The Board may designate an Audit Committee, a Compensation Committee and a Nominating Committee. The Board may also delegate to any Director such of their powers, authorities and discretions as they consider desirable to be exercised by him. Any such delegation may be made subject to any conditions the Board may impose and either collaterally with or to the exclusion of their own powers and any such delegation may be revoked or altered by the Board. Subject to any such conditions, the proceedings of a committee of the Board shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. |
| 37.2 | The Board may establish any committees, local boards or agencies or appoint any person to be a manager or agent for managing the affairs of the Company and may appoint any person to be a member of such committees, local boards or agencies. Any such appointment may be made subject to any conditions the Board may impose, and either collaterally with or to the exclusion of their own powers and any such appointment may be revoked or altered by the Board. Subject to any such conditions, the proceedings of any such committee, local board or agency shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying. |
| 37.3 | The Board may adopt formal written charters for any committee. Each of these committees shall be empowered to do all things necessary to exercise the rights of such committee set forth in these Articles and shall have such powers as the Board may delegate pursuant to these Articles and as required by the applicable rules and regulations of the Designated Stock Exchange, the U.S. Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law. Each of the Audit Committee, the Compensation Committee and the Nominating Committee shall consist of such number of Directors as the Board shall from time to time determine (or such minimum number as may be required from time to time by the applicable rules and regulations of the Designated Stock Exchange, the U.S. Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law). |
| 37.4 | The Board may by power of attorney or otherwise appoint any person to be the agent of the Company on such conditions as the Board may determine, provided that the delegation is not to the exclusion of their own powers and may be revoked by the Board at any time. |
| 37.5 | The Board may by power of attorney or otherwise appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Board, to be the attorney or authorised signatory of the Company for such purpose and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under these Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or other appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories as the Board may think fit and may also authorise any such attorney or authorised signatory to delegate all or any of the powers, authorities and discretions vested in him. |
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| 37.6 | The Board may appoint such Officers as they consider necessary in the management of the business of the Company and as it may decide for such period as the Board thinks fit and on such terms, at such remuneration and to perform such duties, and subject to such provisions as to disqualification and removal as the Board may think fit. Such Officers need not also be a Director. Unless otherwise specified in the terms of appointment, an Officer may be removed by resolution of the Board or Members. An Officer may vacate his or her office at any time if he or she gives notice in writing to the Company that he or she resigns his office. |
| 37.7 | Every Director appointed to an office under the above Article 37.6 shall, without prejudice to any claim for damages that such Director may have against the Company or the Company may have against such Director for any breach of any contract of service between him and the Company, be liable to be dismissed or removed from such executive office by the Board. A Director appointed to an office under the above Article 37.6 shall ipso facto and immediately cease to hold such executive office if such Director shall cease to hold the office of Director for any cause. |
| 38 | No Minimum Shareholding |
| 38.1 | The Company in general meeting may fix a minimum shareholding required to be held by a Director, but unless and until such a shareholding qualification is fixed a Director is not required to hold Shares. |
| 39 | Remuneration of Directors |
| 39.1 | The remuneration to be paid to the Directors, if any, shall be such remuneration as the Board shall determine, provided that no cash remuneration shall be paid to any Director by the Company prior to Closing Date. The Directors shall also, whether prior to or after the Closing Date, be entitled to be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at meetings of the Board or committees of the Board, or general meetings of the Company, or separate meetings of the holders of any Class of Shares or debentures of the Company, or otherwise in connection with the business of the Company or the discharge of their duties as a Director, or to receive a fixed allowance in respect thereof as may be determined by the Board, or a combination partly of one such method and partly the other. |
| 39.2 | The Board may by resolution approve additional remuneration to any Director for any services which in the opinion of the Board goes beyond such Director’s ordinary routine work as a Director. Any fees paid to a Director who is also counsel, attorney or solicitor to the Company, or otherwise serves it in a professional capacity shall be in addition to remuneration as a Director. |
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| 40 | Seal |
| 40.1 | The Company may, if the Board so determines, have a Seal. The Seal shall only be used by the authority of the Board or of a committee of the Board authorised by the Board. Every instrument to which the Seal has been affixed shall be signed by at least one (1) person who shall be either a Director or some Officer or other person appointed by the Board for the purpose. |
| 40.2 | The Company may have for use in any place or places outside the Cayman Islands a duplicate Seal or Seals each of which shall be a facsimile of the common Seal of the Company and, if the Board so determines, with the addition on its face of the name of every place where it is to be used. |
| 40.3 | A Director or Officer, representative or attorney of the Company may without further authority of the Board affix the Seal over his or her signature alone to any document of the Company required to be authenticated by him under seal or to be filed with the Registrar of Companies in the Cayman Islands or elsewhere wheresoever. |
| 41 | Dividends, Distributions and Reserve |
| 41.1 | Subject to the Statute and this Article 41 and except as otherwise provided by the rights attached to any Shares, the Board may from time to time declare or resolve to pay Dividends (including interim dividends) or other distributions on Shares in issue and authorise payment of the Dividends or other distributions out of the funds of the Company lawfully available therefor. A Dividend shall be deemed to be an interim Dividend unless the terms of the resolution pursuant to which the Board resolves to pay such Dividend specifically state that such Dividend shall be a final Dividend. No Dividend or other distribution shall be paid except out of the realized or unrealized profits of the Company, out of the Share Premium Account or as otherwise permitted by Applicable Law. |
| 41.2 | Except as otherwise provided by the rights attached to any Shares, all Dividends and other distributions shall be paid according to the par value of the Shares that a Member holds. If any Share is issued on terms providing that it shall rank for Dividend as from a particular date, that Share shall rank for Dividend accordingly. |
| 41.3 | The Board may deduct from any Dividend or other distribution payable to any Member all sums of money (if any) then payable by him to the Company on account of calls or otherwise. |
| 41.4 | The Board may resolve that any Dividend or other distribution be paid wholly or partly by the distribution of specific assets and in particular (but without limitation) by the distribution of shares, debentures, or securities of any other company or in any one or more of such ways and where any difficulty arises in regard to such distribution, the Board may settle the same as they think expedient and in particular may issue fractional Shares and may fix the value for distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the basis of the value so fixed in order to adjust the rights of all Members and may vest any such specific assets in trustees in such manner as may seem expedient to the Board. |
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| 41.5 | Except as otherwise provided by the rights attached to any Shares, Dividends and other distributions may be paid in any currency. The Board may determine the basis of conversion for any currency conversions that may be required and how any costs involved are to be met. |
| 41.6 | The Board may, before resolving to pay any Dividend or other distribution, set aside such sums as they think proper as a reserve or reserves which shall, at the discretion of the Board, be applicable for any purpose of the Company and pending such application may, at the discretion of the Board, be employed in the business of the Company. |
| 41.7 | Any Dividend, other distribution, interest or other monies payable in cash in respect of Shares may be paid by wire transfer to the holder or by cheque or warrant sent through the post directed to the registered address of the holder or, in the case of joint holders, to the registered address of the holder who is first named on the Register of Members or to such person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant or electronic or other payment shall be made payable to the order of the person to whom it is sent. Any one of two |
(2) or more joint holders may give effectual receipts for any Dividends, other distributions, bonuses, or other monies payable in respect of the Share held by them as joint holders.
| 41.8 | No Dividend or other distribution shall bear interest against the Company. |
| 41.9 | Any Dividend or other distribution which cannot be paid to a Member and/or which remains unclaimed after six (6) months from the date on which such Dividend or other distribution becomes payable may, in the discretion of the Board, be paid into a separate account in the Company’s name, provided that the Company shall not be constituted as a trustee in respect of that account and the Dividend or other distribution shall remain as a debt due to the Member. Any Dividend or other distribution which remains unclaimed after a period of six (6) years from the date of declaration of such Dividend or other distribution shall be forfeited and shall revert to the Company. |
| 42 | Capitalisation |
| 42.1 | The Board may at any time capitalise any sum standing to the credit of any of the Company’s reserve accounts or funds (including the Share Premium Account and capital redemption reserve fund) or any sum standing to the credit of the profit and loss account or otherwise available for distribution; appropriate such sum to Members in the proportions in which such sum would have been divisible amongst such Members had the same been a distribution of profits by way of Dividend or other distribution; and apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid-up to and amongst them in the proportion aforesaid. In such event the Board shall do all acts and things required to give effect to such capitalisation, with full power given to the Board to make such provisions as they think fit in the case of Shares becoming distributable in fractions (including provisions whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Board may authorise any person to enter on behalf of all of the Members interested into an agreement with the Company providing for such capitalisation and matters incidental or relating thereto and any agreement made under such authority shall be effective and binding on all such Members and the Company. |
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| 43 | Share Premium Account |
| 43.1 | The Board shall in accordance with the Statute establish a Share Premium Account and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any Share. |
| 43.2 | There shall be debited to any Share Premium Account on the redemption or purchase of a Share the difference between the nominal value of such Share and the redemption or purchase price provided always that at the discretion of the Board such sum may be paid out of the profits of the Company or, if permitted by the Statute, out of capital. |
| 44 | Books of Account |
| 44.1 | The Board shall cause proper books of account (including, where applicable, material underlying documentation including contracts and invoices) to be kept with respect to all sums of money received and expended by the Company and the matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company. Such books of account must be retained for a minimum period of five (5) years from the date on which they are prepared. Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company’s affairs and to explain its transactions. |
| 44.2 | The Board shall determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members not being Directors and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by Statute or authorised by the Board or by the Company in general meeting. |
| 44.3 | The Board may cause to be prepared and to be laid before the Company in general meeting profit and loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by Applicable Law. |
| 45 | Audit |
| 45.1 | Notwithstanding any other provision in Article 37, for so long as any Class of Shares is listed on a Designated Stock Exchange, the Board shall establish and maintain an Audit Committee as a committee of the Board, the composition and responsibilities of which shall comply with the applicable rules and regulations of the Designated Stock Exchange and the U.S. Securities and Exchange Commission. |
| 45.2 | The appointment of and provisions relating to Auditors shall be in accordance with Applicable Law and the relevant code, rules and regulations applicable to the listing of the Shares on the Designated Stock Exchange. |
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| 45.3 | In the event that no such code, rules and regulations referred to in Article 45.1, apply, the appointment of and provisions relating to Auditors shall be in accordance with the following provisions: |
| (a) | The Audit Committee may appoint an Auditor who shall hold office until removed from office by the Audit Committee, on such terms as the Audit Committee determines and the Audit Committee may fix their remuneration. |
| (b) | Every Auditor shall have a right of access at all times to the books and accounts and vouchers of the Company and shall be entitled to require from the Directors and Officers of the Company such information and explanation as may be necessary for the performance of the duties of the Auditor. |
| (c) | Auditors shall make a report on the accounts of the Company during their tenure of office at the next annual general meeting following their appointment and at any other time during their term of office, upon request of the Board or Audit Committee. |
| 46 | Notices |
| 46.1 | Notices shall be in writing and may be given by the Company to any Member either personally or by sending it by courier, post, cable, telex, fax or e-mail to such Member or to such Member’s address as shown in the Register of Members (or where the notice is given by e-mail by sending it to the e-mail address provided by such Member). Any notice, if posted from one country to another, is to be sent airmail. Notice may also be served by Electronic Communication in accordance with the rules and regulations of the Designated Stock Exchange, the U.S. Securities and Exchange Commission and/or any other competent regulatory authority or by placing it on the Company’s Website. |
| 46.2 | Where a notice is sent by: |
| (a) | courier; service of the notice shall be deemed to be effected by delivery of the notice to a courier company, and shall be deemed to have been received on the third (3rd) day (not including Saturdays or Sundays or public holidays) following the day on which the notice was delivered to the courier; |
| (b) | post; service of the notice shall be deemed to be effected by properly addressing, prepaying and posting a letter containing the notice, and shall be deemed to have been received on the fifth (5th) day (not including Saturdays or Sundays or public holidays in the Cayman Islands) following the day on which the notice was posted; |
| (c) | cable, telex or fax; service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received on the same day that it was transmitted; |
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| (d) | e-mail or other Electronic Communication; service of the notice shall be deemed to be effected by transmitting the e-mail to the e-mail address provided by the intended recipient and shall be deemed to have been received on the same day that it was sent, and it shall not be necessary for the receipt of the e-mail to be acknowledged by the recipient; and |
| (e) | placing it on the Company’s Website; service of the notice shall be deemed to have been effected one hour after the notice or document was placed on the Company’s Website. |
| 46.3 | A notice may be given by the Company to the person or persons which the Company has been advised are entitled to a Share or Shares in consequence of the death or bankruptcy of a Member in the same manner as other notices which are required to be given under these Articles and shall be addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the persons claiming to be so entitled, or at the option of the Company by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred. |
| 46.4 | Notice of every general meeting shall be given in any manner authorised by these Articles to every holder of Shares carrying an entitlement to receive such notice on the record date for such meeting except that in the case of joint holders the notice shall be sufficient if given to the joint holder first named in the Register of Members and every person upon whom the ownership of a Share devolves by reason of being a legal personal representative or a trustee in bankruptcy of a Member where the Member but for such Member’s death or bankruptcy would be entitled to receive notice of the meeting, and no other person shall be entitled to receive notices of general meetings. |
| 47 | Winding Up |
| 47.1 | If the Company shall be wound up, the liquidator shall apply the assets of the Company in satisfaction of creditors’ claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any Shares, in a winding up: |
| (a) | if the assets available for distribution amongst the Members shall be insufficient to repay the whole of the Company’s issued share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the par value of the Shares held by them; or |
| (b) | if the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the Company’s issued share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value of the Shares held by them at the commencement of the winding up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls or otherwise. |
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| 47.2 | If the Company shall be wound up the liquidator may, subject to the rights attaching to any Shares and with the approval of a Special Resolution of the Company and any other approval required by the Statute, divide amongst the Members in kind the whole or any part of the assets of the Company (whether such assets shall consist of property of the same kind or not) and may for that purpose value any assets and determine how the division shall be carried out as between the Members or different Classes of Members. The liquidator may, with the like approval, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator, with the like approval, shall think fit, but so that no Member shall be compelled to accept any asset upon which there is a liability. |
| 47.3 | This Article 47 is without prejudice to the rights of the holders of Shares issued upon special terms and conditions. |
| 48 | Indemnity and Insurance |
| 48.1 | To the fullest extent permitted by law, no Director, Officer or trustee acting in relation to any of the affairs of the Company shall be personally liable to the Company or its Members for any loss arising or liability attaching to such Director, Officer or trustee by virtue of any rule of law in respect of any negligence, default, breach of duty or breach of trust of which such Director, Officer or trustee may be guilty in relation to the Company; provided, however, that this provision shall not apply to liability arising from any actual fraud, wilful default or wilful neglect of such Director, Officer or trustee. No person shall be found to have committed actual fraud, wilful default or wilful neglect under this Article 48.1 unless or until a court of competent jurisdiction shall have made a final non-appealable finding to that effect. This Article 48.1 shall not extend to any matter that would render it void pursuant to the Statute or Applicable Law or to any person holding the office of Auditor in relation to the Company. |
| 48.2 | To the fullest extent permitted by law, the Company shall indemnify any current or former Director or Officer or any person who is serving or has served at the request of the Company as a Director or Officer and any trustee acting in relation to any of the affairs of the Company and their respective heirs, executors, administrators and personal representatives (each individually, a “Covered Person”), against any expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending, or completed action, suit, demand or proceeding, whether civil, criminal, administrative or investigative (other than a proceeding by, or in the name or on behalf of, the Company, addressed in Article 48.3), to which he or she was, is, or is threatened to be made, a party or in which he or she is otherwise involved, (a “proceeding”) by reason of the fact that he or she is or was a Covered Person; provided, however, that this provision shall not indemnify any Covered Person against any liability arising out of any actual fraud, wilful default or wilful neglect of such Covered Person. No Person shall be found to have committed actual fraud, wilful default or wilful neglect under this Article 48.2 unless or until a court of competent jurisdiction shall have made a final non-appealable finding to that effect. This Article 48.2 shall not extend to any matter which would render it void pursuant to the Statute, Applicable Law or to any person holding the office of Auditor in relation to the Company. |
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| 48.3 | In the case of any threatened, pending or completed proceeding by, or in the name or on behalf of, the Company, to the fullest extent permitted by law, the Company shall indemnify each Covered Person against reasonable and documented expenses, including attorneys’ fees actually and reasonably incurred by him or her in connection with the defence or settlement thereof, except that no indemnification for expenses shall be made in respect of any claim, issue or matter as to which such Covered Person shall have been finally adjudged to be liable for actual fraud, wilful default or wilful neglect in the performance of his or her duty to the Company, unless and only to the extent that the Grand Court in the Cayman Islands or the court in which such proceeding was brought shall determine upon application that such Covered Person is entitled to indemnity for such expenses as the court shall deem proper. Notwithstanding the preceding sentence, this Article 48.3 shall not extend to any matter that would render it void pursuant to the Statute or to any person holding the office of Auditor in relation to the Company. |
| 48.4 | To the fullest extent permitted by law, reasonable and documented expenses, including attorneys’ fees, incurred by a Covered Person in defending any proceeding for which indemnification is permitted pursuant to these Articles shall be paid by the Company in advance of the final disposition of such proceeding upon receipt by the Board of an undertaking by or on behalf of such Covered Person to repay such amount (without interest) if it shall be determined in a final non-appealable order of a court of competent jurisdiction that he or she is not entitled to be indemnified by the Company pursuant to these Articles. |
| 48.5 | It being the policy of the Company that indemnification of the persons specified in these Articles shall be made to the fullest extent permitted by law, the indemnification and advancement of expenses provided for by these Articles shall not be deemed exclusive (a) of any other rights to which those seeking indemnification or advancement of expenses may be entitled under these Articles, any agreement, any insurance purchased by the Company, vote of Members or disinterested Directors, or pursuant to the direction (however embodied) of any court of competent jurisdiction, or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, or (b) of the power of the Company to indemnify any person who is or was an employee or agent of the Company or of another corporation, joint venture, trust or other enterprise which he or she is serving or has served at the request of the Company, to the same extent and in the same situations and subject to the same determinations as are hereinabove set forth with respect to a Covered Person. |
| 48.6 | The Board may, notwithstanding any interest of the Board in such action, authorise the Company to purchase and maintain insurance for the benefit of any Director or Officer against any liability asserted against him and incurred by him in any such capacity, or arising out of his or her status as such, whether or not the Company would have the power to indemnify him against such liability under the provisions of these Articles. As used in this Article 48, references to the “Company” include all constituent corporations in an amalgamation, consolidation or merger or similar arrangement in which the Company or a predecessor to the Company by amalgamation, consolidation or merger or similar arrangement was involved. |
| 49 | Financial Year |
| 49.1 | Unless the Board otherwise prescribes, the financial year of the Company shall end on 31st December in each year and, following the year of incorporation, shall begin on 1st January in each year. |
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| 50 | Transfer by Way of Continuation |
| 50.1 | If the Company is exempted as defined in the Statute, it shall, subject to the provisions of the Statute and with the approval of a Special Resolution, have the power to register by way of continuation as a body corporate under the Applicable Laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands. |
| 51 | Mergers and Consolidations |
| 51.1 | The Company shall have the power to merge or consolidate with one (1) or more other constituent companies (as defined in the Statute) upon such terms as the Board may determine and (to the extent required by the Statute) with the approval of a Special Resolution. |
| 52 | Business Opportunities |
| 52.1 | To the fullest extent permitted by Applicable Law, (i) no individual serving as a Director, nor any Member of the Company, or any Affiliate of such Member, in each case, other than, an Officer (including any Officer that is also a Director, or a Member or an affiliate of such Member, as the case may be) (collectively, the “Relevant Persons”) shall have any fiduciary duty to refrain from engaging directly or indirectly in other business ventures of every type and description, including those engaged in the same or similar business activities or lines of business as the Company or its subsidiaries or deemed to be competing with the Company or any of its subsidiaries, on its own account, or in partnership with, or as an employee, officer, director or Member of any other person, with no obligation to offer to the Company or any of its subsidiaries the right to participate therein and (ii) any Relevant Person may invest in, or provide services to, any person that directly or indirectly competes with the Company or any of its subsidiaries. To the fullest extent permitted by Applicable Law, the Company renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for any Relevant Person, on the one hand, and the Company or any of its subsidiaries, on the other. To the fullest extent permitted by Applicable Law, the Relevant Persons shall have no fiduciary duty to communicate or offer any such corporate opportunity to the Company or any of its subsidiaries and shall not be liable to the Company or any of its subsidiaries or Members for breach of any fiduciary duty as a Member, Director or Officer, as applicable, solely by reason of the fact that such Relevant Person, directly or indirectly, pursues or acquires such corporate opportunity for itself, himself or herself, directs such corporate opportunity to another person, or does not communicate information regarding such corporate opportunity to the Company or any of its subsidiaries. |
| 52.2 | The Company hereby renounces any interest or expectancy of the Company or any of its subsidiaries in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity of any Relevant Person. |
| 52.3 | To the extent a court might hold that the conduct of any activity related to a corporate opportunity that is renounced in this Article 52 to be a breach of fiduciary duty to the Company (including any of its subsidiaries) or its Members, the Company, on behalf of itself and each of its subsidiaries, hereby waives, to the fullest extent permitted by Applicable Law, any and all claims and causes of action that the Company or any of its subsidiaries may have for such activities. To the fullest extent permitted by Applicable Law, the provisions of this Article 52 apply equally to activities conducted in the future and that have been conducted in the past. |
| 53 | Disclosure |
| 53.1 | The Board, or any service providers (including the Officers, the Secretary and the registered office agent of the Company) specifically authorised by the Board, shall be entitled to disclose to any regulatory or judicial authority any information regarding the affairs of the Company including without limitation information contained in the Register of Members and books of the Company. |
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Exhibit 2.4
ASSIGNMENT, ASSUMPTION AND AMENDMENT AGREEMENT
(WARRANT AGREEMENT)
This Assignment, Assumption and Amendment Agreement (this “Agreement”) is made as of February 3, 2022, by and among Vistas Media Acquisition Company Inc., a Delaware corporation (the “Company”), Anghami Inc., a Cayman Islands exempted company (“Pubco”), and Continental Stock Transfer & Trust Company, a New York corporation (the “Warrant Agent”).
WHEREAS, the Company and the Warrant Agent are parties to that certain Warrant Agreement, dated as of August 6, 2020 and filed by the Company with the United States Securities and Exchange Commission on August 12, 2020 (the “Existing Warrant Agreement”);
WHEREAS, the terms of the Warrants (as defined in the Existing Warrant Agreement) are governed by the Existing Warrant Agreement and capitalized terms used herein, but not otherwise defined, shall have the meanings given to such terms in the Existing Warrant Agreement;
WHEREAS, the Company entered into a Business Combination Agreement, dated as of March 3, 2021, as may be amended, (the “Business Combination Agreement”), by and among the Company, Anghami, a Cayman Islands exempted company (“Anghami”), Pubco, Anghami Vista 1, a Cayman Islands exempted company and wholly-owned subsidiary of Pubco (“Vistas Merger Sub”), and Anghami Vista 2, a Cayman Islands exempted company and wholly-owned subsidiary of Pubco (“Anghami Merger Sub”);
WHEREAS, pursuant to the Business Combination Agreement, among other things: (A) the Company will merge with and into Vistas Merger Sub, with the Company continuing as the surviving company (the “Vistas Merger”), as a result of which Vistas Merger Sub will cease to exist; (B) Anghami will merge with and into Anghami Merger Sub, with Anghami continuing as the surviving company (the “Anghami Merger”) as a result of which Anghami Merger Sub will cease to exist; (C) each outstanding share of the Company’s Class A Common Stock, par value $0.0001 per share (“Company Class A Common Stock”), and Class B Common Stock, par value $0.0001 per share (“Company Class B Common Stock” and together with the Company Class Common Stock, the “Company Common Stock”) will be exchanged for one ordinary share, par value $0.0001, of Pubco (“Pubco Ordinary Shares”) and the Anghami ordinary shares will be converted into a right to receive cash and Pubco Ordinary Shares, in each case, in the amounts and pursuant to the terms of the Business Combination Agreement; (D) each issued and outstanding warrant of the Company will cease to represent a right to acquire shares of the Company Common Class A Common Stock and will instead represent the right to acquire the same number of Pubco Ordinary Shares, at the same exercise price and on the same terms as in effect immediately prior to the Closing; and (E) following the consummation of the transactions contemplated by the Business Combination Agreement, including the Vistas Merger and the Anghami Merger, each of the Company and Anghami is a direct wholly-owned subsidiary of Pubco (the “Business Combination”);
WHEREAS, upon consummation of the Vistas Merger, as provided in Section 4.4 of the Existing Warrant Agreement, the Warrants will no longer be exercisable for shares of Company Class A Common Stock, but instead will be exercisable (subject to the terms and conditions of the Existing Warrant Agreement as amended hereby) for a like number of Pubco Ordinary Shares;
WHEREAS, the consummation of the transactions contemplated by the Business Combination Agreement will constitute a Business Combination (as defined in the Existing Warrant Agreement);
WHEREAS, in connection with the Vistas Merger, the Company desires to assign all of its right, title and interest in the Existing Warrant Agreement to Pubco; and
WHEREAS, Section 9.8 of the Existing Warrant Agreement provides that the Company and the Warrant Agent may amend the Existing Warrant Agreement without the consent of any Registered Holders (as defined in the Existing Warrant Agreement) (i) for the purpose, among other things, of adding or changing any other provisions with respect to matters or questions arising under the Existing Warrant Agreement as the Company and the Warrant Agent may deem necessary or desirable and that the Company and the Warrant Agent deem shall not adversely affect the interest of the registered holders under the Existing Warrant Agreement; and (ii) to provide for the delivery of Alternative Issuance (as defined in the Existing Warrant Agreement) pursuant to Section 4.4 of the Existing Warrant Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows.
1. Assignment and Assumption; Consent.
1.1 Assignment and Assumption. The Company hereby assigns to Pubco all of the Company’s right, title and interest in and to the Existing Warrant Agreement (as amended hereby) as of the Vistas Merger Effective Time (as defined in the Business Combination Agreement). Pubco hereby assumes, and agrees to pay, perform, satisfy and discharge in full, as the same become due, all of the Company’s liabilities and obligations under the Existing Warrant Agreement (as amended hereby) arising from and after the Vistas Merger Effective Time.
1.2 Consent. The Warrant Agent hereby consents to the assignment of the Existing Warrant Agreement by the Company to Pubco pursuant to Section 1.1 hereof effective as of the Vistas Merger Effective Time, and the assumption of the Existing Warrant Agreement by Pubco from the Company pursuant to Section 1.1 hereof effective as of the Vistas Merger Effective Time, and to the continuation of the Existing Warrant Agreement in full force and effect from and after the Vistas Merger Effective Time, subject at all times tothe Existing Warrant Agreement (as amended hereby) and to all of the provisions, covenants, agreements, terms and conditions of the Existing Warrant Agreement and this Agreement.
2. Amendment of Existing Warrant Agreement. The Company and the Warrant Agent hereby amend the Existing Warrant Agreement as provided in this Section 2, effective as of the Vistas Merger Effective Time, and acknowledge and agree that the amendments to the Existing Warrant Agreement set forth in this Section 2 (i) are necessary or desirable and that such amendments do not adversely affect the interests of the registered holders under the Existing Warrant Agreement, and (ii) are to provide for the delivery of Alternative Issuance pursuant to Section 4.4 of the Existing Warrant Agreement (in connection with the Vistas Merger and the transactions contemplated by the Business Combination Agreement):
2.1 Preamble; References to the “Company”. The preamble on page one of the Existing Warrant Agreement is hereby amended by deleting “Vistas Media Acquisition Company Inc., a Delaware corporation” and replacing it with “Anghami Inc., a Cayman Islands exempted company” As a result thereof, all references to the “Company” in the Existing Warrant Agreement shall be references to Anghami Inc. rather than Vistas Media Acquisition Company Inc.
2.2 References to “Common Stock”. All references to “Common Stock” in the Existing Warrant Agreement (including all Exhibits thereto) shall be references to Pubco Ordinary Shares.
2.3 References to “Business Combination”. All references to the “Business Combination” in the Existing Warrant Agreement (including all Exhibits thereto) shall be references to the transactions contemplated by the Business Combination Agreement, and references to “the closing of the Business Combination” and all variations thereof in the Existing Warrant Agreement (including all Exhibits thereto) shall be references to the Vistas Merger Effective Time.
2.4 Notices. Section 9.2 of the Existing Warrant Agreement is hereby deleted and replaced with the following:
“Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
Anghami Inc.
16th Floor, Al-Khatem Tower, WeWork Hub71 Abu
Dhabi Global Market Square
Al Maryah Island, Abu Dhabi
United Arab Emirates
Email:
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Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
One State Street, 30th Floor
New York, NY 10004
Attention: Compliance Department
in each case, with copies to:
Winston & Strawn LLP
200 Park Avenue,
New York, New York 10166
Attn: David A. Sakowitz
Email: DSakowitz@winston.com
and
Norton Rose Fulbright
1301 McKinney, Suite 5100
Houston, Texas 77010
Attn: Brian Fenske and Ayse Yuksel Mahfoud
Email: brian.fenske@nortonrosefulbright.com; and
ayse.yuksel@nortonrosefulbright.com
2.5 Applicable Law. Section 9.3 of the Existing Warrant Agreement is hereby amended by adding the following after the last sentence:
“The foregoing provisions of this Section 9.3 will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal district courts of the United States of America are the sole and exclusive forum. Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder.”
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3. Miscellaneous Provisions.
3.1 Effectiveness. Each of the parties hereto acknowledges and agrees that the effectiveness of this Agreement shall be expressly subject to the occurrence of the Vistas Merger and shall automatically be terminated and shall be null and void if the Business Combination Agreement shall be terminated for any reason.
3.2 Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their permitted respective successors and assigns.
3.3 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
3.4 Applicable Law. The validity, interpretation and performance of this Agreement shall be governed in all respects by the laws of the State of New York, without giving effect to conflict of laws. The parties hereby agree that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum.
3.5 Counterparts. This Agreement may be executed in any number of counterparts, and by facsimile or portable document format (pdf) transmission, and each of such counterparts shall for all purposes be deemed to be an original and all such counterparts shall together constitute but one and the same instrument.
3.6 Effect of Headings; Interpretation. The Section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof. All references to “dollars” or “$” refer to currency of the United States of America.
3.7 Entire Agreement. The Existing Warrant Agreement, as modified by this Agreement, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed as of the date first above
written.
| VISTAS MEDIA ACQUISITION COMPANY INC. | ||
| By: | /s/ F. Jacob Cherian | |
| Name: | F. Jacob Cherian | |
| Title: | Chief Executive Officer | |
| ANGHAMI INC. | ||
| By: | /s/ Edgard Maroun | |
| Name: | Edgard Maroun | |
| Title: | Chief Executive Officer | |
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
| By: | /s/ Steven Vacante | |
| Name: | Steven Vacante | |
| Title: | Vice Preseident | |
[Signature Page to Assignment, Assumption and Amendment Agreement]
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Exhibit 4.15
THE ANGHAMI INC. LONG-TERM INCENTIVE PLAN
THE ANGHAMI INC. LONG-TERM INCENTIVE PLAN
Contents
| Page No | |
| Part A: Making Awards | 2 |
| Part B: Impact of Leaving | 6 |
| Part C: General Provisions | 7 |
| Part D: Additional Provisions for US Participants | 15 |
| Part E: Definitions, Interpretation and Administration | 21 |
THE ANGHAMI INC. LONG-TERM INCENTIVE PLAN
| 1. | ELIGIBILITY |
| 1.1 | An Award may only be granted to a Participant. |
| 2. | grant process |
| 2.1 | An Award shall be granted by the Company executing a deed. |
| 2.2 | No monetary consideration shall be payable for the grant of an Award. |
| 3. | FORM OF AWARDS |
| 3.1 | The Committee shall specify on or before the Award Date whether an Award is a Performance Share Award, a Restricted Stock Award or a Market Value Stock Option. |
| 3.2 | A Performance Share Award and/or a Restricted Stock Award may take the form of: |
| 3.2.1 | a Nil-Cost Option Award; and/or |
| 3.2.2 | a Contingent Share Award. |
| 3.3 | The Committee shall specify the form which any Performance Share Award and/or Restricted Stock Award shall take but, if it fails to do so, the default position shall be that each relevant Award shall be a Contingent Share Award. |
| 3.4 | An Award may, alternatively, be granted on the basis that it will be settled in accordance with Rule 4 of Part C. |
| 4. | GRANT OF AWARDS |
| 4.1 | The Committee may, in its absolute discretion, determine which Participants (if any) will be selected for the grant of an Award. The Committee may consider recommendations made by the executive directors of the Company as to which Participants should be selected. Awards may then be granted to selected Participants at any time. |
| 4.2 | No Award may be made in breach of any Dealing Restriction. |
| 4.3 | No Award may be made after February 3, 2032. |
| 5. | Performance Targets |
| 5.1 | When an Award is made, the Committee shall determine whether, subject to Rule 5.2 of this Part A, the Vesting of all or part of the Award shall be subject to a Performance Target. |
| 5.2 | All Performance Share Awards must be granted subject to a Performance Target. |
| 5.3 | The terms of the Performance Target applying to any Award shall be set out in the deed of grant. |
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| 5.4 | The Committee reserves the discretion to reduce the number of Award Shares which would otherwise Vest as a result of the formulaic outcome of any Performance Target. Notwithstanding the extent to which any Performance Target is satisfied, the number of Vested Award Shares may be reduced by the Committee to ensure that the number of Vested Award Shares is reflective of the underlying business performance of the Group, a Subsidiary or division(s) and/or wider circumstances. Where the Committee exercises its discretion under this Rule 5.4 of Part A no individual shall have any right of appeal or cause of action in relation to the exercise of that discretion. |
| 5.5 | The Committee may amend a Performance Target if an event occurs which causes the Committee to consider it appropriate to do so. The amended Performance Target shall not be materially more or less demanding to satisfy than the original Performance Target was when first set and must be a fairer measure of performance than the original Performance Target. |
| 5.6 | If, before the end of the Performance Period, the Award Vests pursuant to any of Rules 3.1, 3.2 or 3.6 of Part C, the Committee shall determine whether and to what extent any Performance Target shall then be deemed to be satisfied. |
| 5.7 | If an Award Vests before the Normal Vesting Date because the Awardholder Leaves the Committee shall determine whether and to what extent a Performance Target shall then be deemed to be satisfied. |
| 6. | dividend equivalents |
| 6.1 | The Committee shall determine on or before the Award Date whether a Dividend Equivalent shall apply to any Award. |
| 6.2 | If a Dividend Equivalent applies then, subject to Rule 6.3 of this Part A, the Awardholder shall be entitled to receive a number of Shares calculated in accordance with Rule 6.4 of this Part A when the relevant Award is settled. |
| 6.3 | The Committee may decide that the Dividend Equivalent shall be delivered as a cash payment. |
| 6.4 | Subject to Rule 6.5 of this Part A, the number of Shares referred to in Rule 6.2 of this Part A or the cash payment referred to in Rule 6.3 of this Part A (as applicable) shall have a value equal to the aggregate dividends on or after the Award Date and prior to: |
| 6.4.1 | the date of Vesting; or |
| 6.4.2 | if the Award is a Nil-Cost Option Award or Market Value Stock Option in respect of which a Post-Vesting Holding Period applies, the earlier of: |
| (i) | the expiry of the Post-Vesting Holding Period; and |
| (ii) | the date of the exercise of the Nil-Cost Option Award or Market Value Stock Option (as appropriate) |
on the number of Shares in respect of which the relevant Award Vests. If the Dividend Equivalent is to be provided in Shares the calculation of the number of Shares to be so received by the Awardholder may assume the re-investment of dividends. In no circumstances shall any compensation of any form be awarded in respect of any dividends with a record date which occurred prior to the Award Date or after the relevant date for the purposes of Rule 6.4.1 or Rule 6.4.2 of this Part A (as applicable).
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| 6.5 | The Committee may determine that the value of any special dividend (or the amount of any other dividend) shall be excluded from any Dividend Equivalent. |
| 6.6 | The settlement of a Dividend Equivalent shall be subject to Rule 5 of Part C. |
| 7. | DILUTION LIMITS |
| 7.1 | The aggregate number of Shares which may be issued or transferred pursuant to Awards under the Plan shall be equal to 1,288,000 Shares, which is approximately equal to 5% of the total issued share capital of the Company in issue on the date of adoption of the Plan. |
| 7.2 | If any Shares subject to an Award are forfeited or expire, are converted to shares of another person in connection with a recapitalisation, reorganisation, merger, consolidation, split-up, spin-off, combination, exchange of shares or other similar event, or such Award is settled for cash (in whole or in part), the Shares subject to such Award shall, to the extent of such forfeiture, expiration, conversion or cash settlement, again be available for future grants of Awards under the Plan. The payment of Dividend Equivalents in cash in conjunction with any outstanding Awards shall not be counted against the Shares available for issuance under the Plan. |
| 7.3 | The Committee may make such adjustments as it sees fit to how it assesses compliance with Rule 7.1 of this Part A in the event of any variation in the share capital of the Company. |
| 7.4 | If an Award is purported to be granted in breach of the limit in Rule 7.1 of this Part A it shall be limited and will take effect in such manner as the Committee may determine to be consistent with the relevant Rule (which, for the avoidance of doubt, may involve the Committee reducing the number of Shares under the Award (including to nil)). |
| 8. | POST-VESTING HOLDING PERIODS |
| 8.1 | On or before the grant of an Award, the Committee shall determine whether the Award shall be subject to a Post-Vesting Holding Period. If so, and to the extent that the Committee considers it appropriate, the Committee shall also determine the basis upon which the Post-Vesting Holding Period will operate. Notwithstanding any other provision of this Plan, the Committee may, unless doing so would cause an Award to a US Participant to be in violation of Section 409A, make the Vesting and/or exercise of an Award subject to the Awardholder complying with any requirements the Committee may impose in order to give effect to the imposition, operation and/or intention of the Post-Vesting Holding Period. |
| 8.2 | If an Award is subject to a Post-Vesting Holding Period the Committee shall, subject to Rule 7 of Part C, be empowered consistent with Rule 3 of Part E to interpret the Rules and/or make regulations etc. to give effect to the imposition, operation and/or intention of the Post-Vesting Holding Period. |
| 9. | INDIVIDUAL LIMIT |
The aggregate market value (as determined by the Committee at or prior to the Award Date) of Shares in respect of which Awards are made to a Participant in any Financial Year shall not be greater than 200 per cent of the Participant ’s annual base salary at the Award Date.
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| 10. | COMMUNICATION of DETAILS OF AWARDS |
| 10.1 | As soon as practicable after an Award has been made the Company shall provide to the Awardholder (in hard copy, by e-mail or in such other electronic format as it sees fit) the following details: |
| 10.1.1 | the type of Award; |
| 10.1.2 | the Award Date; |
| 10.1.3 | the number of Award Shares; |
| 10.1.4 | the Option Price (if any); |
| 10.1.5 | the applicable Performance Target (if any); |
| 10.1.6 | the Normal Vesting Date(s); |
| 10.1.7 | whether a Dividend Equivalent will apply; |
| 10.1.8 | whether a Post-Vesting Holding Period applies and, if so, such details (if any) as to the terms of the Post-Vesting Holding Period as the Committee sees fit; |
| 10.1.9 | that it is a condition of the Award that the Awardholder indemnifies the Company and (if different) the Awardholder’s Employer in respect of any Award Tax Liability; and |
| 10.1.10 | in the case of a Nil-Cost Option Award or Market Value Stock Option, the last date on which it may be exercised. |
| 11. | Acceptance of aN Award |
The Committee may require the Awardholder to accept the grant of an Award on such basis as it sees fit. For the avoidance of doubt, this means that the Committee may provide for the lapse of an Award if the Awardholder fails to accept the grant of the Award on any terms so specified by the Committee.
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THE ANGHAMI INC. LONG-TERM INCENTIVE PLAN
| 1. | IMPACT OF LEAVING |
| 1.1 | Subject to Rules 1.2 to 1.5 of this Part B (inclusive), and the additional Rules set forth in Part D with respect to US Participants, if an Awardholder Leaves for any reason then any Award held by him shall lapse when he Leaves. |
| 1.2 | If an Awardholder Leaves by reason of: |
| 1.2.1 | death; |
| 1.2.2 | ill-health, injury or disability evidenced to the satisfaction of the Committee; |
| 1.2.3 | redundancy within the meaning of the Employment Rights Act 1996 or overseas equivalent; |
| 1.2.4 | his office, employment or service being with either a company which ceases to be a member of the Group or relating to a business or part of a business which is transferred to a person who is not a member of the Group; |
| 1.2.5 | retirement with the agreement of the Awardholder’s Employer; or |
| 1.2.6 | for any other reason, if the Committee so decides, |
then, subject to Rule 1.3 of this Part B and Rules 1.3, 3 and 5 of Part C, his Award shall Vest on the Normal Vesting Date subject to, unless the Committee determines otherwise, a Time Pro-Rata Reduction and, if it has been granted as a Nil-Cost Option Award or Market Value Stock Option, it may be exercised within 12 months of Vesting and it shall lapse at the end of that period to the extent that it has not been exercised.
| 1.3 | If an Awardholder Leaves by reason of any of the circumstances set out in Rules 1.2.1 to 1.2.6 of this Part B (inclusive) the Committee may determine that, subject to Rules 1.3, 3 and 5 of Part C, his Award shall Vest when he Leaves or on such other date after the date of Leaving but before the Normal Vesting Date as the Committee may determine in accordance with Rule 1.4 of this Part B. If the Award has been granted as a Nil-Cost Option Award or Market Value Stock Option it may be exercised within 12 months of Vesting and it shall lapse at the end of that period to the extent that it has not been exercised. |
| 1.4 | If an Award Vests in accordance with Rule 1.3 of this Part B the number of Vested Award Shares shall be calculated taking into account Rule 5.7 of Part A and, unless the Committee determines otherwise, subject to a Time Pro-Rata Reduction. |
| 1.5 | If an Awardholder Leaves by reason of any of the circumstances set out in Rules 1.2.1 to 1.2.6 of this Part B (inclusive) after the Vesting of an Award granted as a Nil-Cost Option Award or Market Value Stock Option, and that Nil-Cost Option Award or Market Value Stock Option has not been exercised on the date he Leaves, it may be exercised at any time within 12 months of Leaving (subject always to Rules 1.2, 1.3, 3 and 5 of Part C and, with respect to US Participants, the additional Rules of Part D) and it shall lapse at the end of that period to the extent that it has not been exercised. |
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THE ANGHAMI INC. LONG-TERM INCENTIVE PLAN
| 1. | VESTING AND EXERCISE OF AWARDS |
| 1.1 | Subject to Rule 1.3 of this Part C, an Award will Vest (in whole or in part) on the Normal Vesting Date except where earlier Vesting occurs pursuant to Rule 1.3 of Part B, Rule 3 of this Part C, or Rule 3.1 of Part D. |
| 1.2 | An Award granted as a Nil-Cost Option Award or Market Value Stock Option may, subject to Rules 1.3 and 5 of this Part C, be exercised on or after the date of Vesting up to and including the day before the tenth anniversary of the Award Date (or such earlier date as the Committee may specify on grant) subject to it lapsing earlier under any other Rule of this Plan. |
| 1.3 | An Award may not Vest or be exercised, nor may any Vested Award Shares be issued or transferred to or to the order of the Awardholder following the Vesting or exercise of an Award, if such Vesting, exercise, issue or transfer is prevented by a Dealing Restriction. If any Vesting, exercise, issue or transfer is prevented by any Dealing Restriction the relevant event will be delayed until the Dealing Restriction no longer applies. |
| 1.4 | Subject to Rules 1.3 and 5 of this Part C, the Company shall issue, transfer, or procure the issue or transfer, to (or to the order of) the Awardholder the Vested Award Shares in respect of which a Nil-Cost Option Award or Market Value Stock Option is exercised or in respect of which a Contingent Share Award Vests within 30 days of the date of exercise or Vesting (as applicable), except to the extent that the Committee determines that Shares will be issued or transferred to the Awardholder following the Post-Vesting Holding Period. Notwithstanding the foregoing, for United States tax purposes, the Awardholder’s income inclusion event upon the exercise of a Nonqualified Stock Option will be the date on which such Awardholder exercises such option and nothing in this Rule 1.4 of Part C is intended to alter that treatment for United States tax purposes. |
| 1.5 | To exercise a Nil-Cost Option Award or Market Value Stock Option, the Awardholder shall serve a notice on the Company which: |
| 1.5.1 | specifies the number of Award Shares over which the Award is exercised on that occasion, which shall not exceed the number of Vested Award Shares; |
| 1.5.2 | is accompanied by the payment of the Option Price (if any) or, if the Committee so permits (and, with respect to a US Awardholder, without violating Section 409A), an undertaking to pay that amount; and |
| 1.5.3 | is otherwise in such form as the Committee may from time to time determine and notify to the Awardholder. |
For the avoidance of doubt, any notice so provided by an Awardholder may be submitted in an electronic format.
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| 1.6 | As soon as reasonably practicable after the issue or transfer of any Shares upon the exercise or Vesting of an Award the Company shall procure: |
| 1.6.1 | the issue of a definitive share certificate or such acknowledgement of shareholding as is prescribed from time to time for the Shares issued or transferred to the Awardholder; and |
| 1.6.2 | if Shares are to be issued and, on the date of issue, Shares of the same class are listed on the official list of the SEC, that any Shares so issued are admitted thereto. |
| 1.7 | If any Award Shares do not become Vested Award Shares in consequence of a Performance Target not being satisfied in full the Award shall lapse in respect of such unvested Award Shares. |
| 1.8 | Subject to the operation of any Post-Vesting Holding Period and Rule 5 of this Part C, if the Awardholder requests, some or all of the Shares he acquires pursuant to an Award may be issued or transferred to a nominee of the Awardholder, provided that beneficial ownership of the Shares vests in the Awardholder. |
| 2. | RECOVERY AND WITHHOLDING PROVISIONS |
| 2.1 | Notwithstanding any other Rule of the Plan, if circumstances occur which in the reasonable opinion of the Committee justify such determination, the Committee may, prior to the second anniversary of the date on which an Award Vests or, if later, the fifth anniversary of the Date of Grant, determine (acting fairly and reasonably having taken into account the scale of loss or damage to the Company or the extent of the risk taken by the Company) to take one or more of the following actions in relation to any one or more Awardholders: |
| 2.1.1 | reduce (including to nil) the number of Shares in respect of which any future Award is granted to an Awardholder; |
| 2.1.2 | reduce (including to nil) the number of Shares and/or Dividend Equivalents under an unvested Award or under a Vested but unexercised Nil-Cost Option or Market Value Stock Option held by an Awardholder, by such number as the Committee considers appropriate in the circumstances; or |
| 2.1.3 | in relation to a Vested Award or exercised Nil-Cost Option or Market Value Stock Option require an Awardholder to pay to the Company or such other person as the Company may direct within 30 days of a written demand from the Company such number of Shares or such monetary amount with a value to be determined in the Committee’s absolute discretion provided such value on the date of demand is no greater than the value of the Vested Award Shares and Dividend Equivalents under the Award at the Vesting Date, less any amount paid by or in respect of the Awardholder in respect of an Award Tax Liability incurred as a result of the Vesting of the relevant Award (except to the extent the Awardholder is able to recover amounts paid in respect of such Award Tax Liability). |
| 2.2 | The circumstances in which the Committee may consider that it is appropriate to exercise its discretion under Rule 2.1 of Part C may, without limitation, include the following: |
| 2.2.1 | a material financial misstatement of the Company’s audited financial accounts (other than as a result of a change in accounting practice); |
| 2.2.2 | the Misconduct of an Awardholder; |
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| 2.2.3 | conduct or behaviour by the Awardholder that, following an investigation, is reasonably considered by the Committee to constitute a breach of the Company’s values as stipulated by the Company’s code of conduct in force from time to time; |
| 2.2.4 | the member of the Group that employs or employed (or appointed or engaged, as applicable) the Awardholder, or for which the Awardholder is responsible, having suffered a material corporate failure or a failure of risk management; and |
| 2.2.5 | evidence that an Award was granted or Vested based on erroneous or misleading data. |
| 2.3 | If the Committee exercises its discretion under this Rule 2 of Part C, it will confirm this in writing to each affected Awardholder. |
| 2.4 | For the purposes of these Rules, if the Committee exercises its discretion under Rule 2.1.2 of Part C before an Award vests: |
| 2.4.1 | the Award will be deemed to have been granted with respect to the reduced number of Shares; and |
| 2.4.2 | any subsequent Vesting of the Award will be determined by reference to this reduced number of Shares, save that if the number of Shares is reduced to nil, the Award will be treated as if it had never been granted and such Awardholder (including an Awardholder Leaves the Company before the Vesting Date) will have no rights to any cash amount, Dividend Equivalents or Shares. |
| 2.5 | By accepting an Award, an Awardholder will be bound by this Rule 2 of Part C notwithstanding that it may only be applicable after the issue or transfer of Shares under these Rules. |
| 3. | corporate events |
| 3.1 | Subject to Rules 3.5 and 3.6 of this Part C, all Awards will Vest on a Takeover to the extent set out in Rule 3.3 of this Part C. |
| 3.2 | If the Company is or may be affected by a demerger, delisting, special dividend or other event which, in the opinion of the Committee, would affect the market price of a Share to a material extent, the Committee may allow Awards to Vest at such time as it sees fit to the extent set out in Rule 3.3 of this Part C or, alternatively, determine that Rule 3.5 of this Part C shall apply. |
| 3.3 | If an Award Vests in accordance with any of Rules 3.1, 3.2 or 3.6 of this Part C then the number of Vested Award Shares shall be calculated taking into account Rule 5.6 of Part A and subject, unless the Committee determines otherwise, to a Time Pro-Rata Reduction. |
| 3.4 | An Award granted as a Nil-Cost Option Award or Market Value Stock Option may be exercised in respect of Vested Award Shares within one month of Vesting in accordance with either of Rules 3.1 or 3.2 of this Part C or during such period as the Committee may determine under Rule 3.6 of this Part C and shall (regardless of any other provision of this Plan) lapse at the end of that period to the extent it has not been exercised or, if earlier, its natural expiration date. |
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| 3.5 | If there is an Internal Reorganisation, a Takeover or an event falling within Rule 3.2 of this Part C and Awardholders are invited to accept an Exchange of Awards, or the Committee determines that there will be an automatic Exchange of Awards, Awards shall not Vest as a result of the Internal Reorganisation, Takeover or other event and at the end of the period in which Awardholders may accept such an invitation or upon an automatic Exchange of Awards (as applicable) the Awards shall lapse in full. |
| 3.6 | If, in the reasonable opinion of the Committee, a Takeover is likely to occur, then the Committee may determine that any Award(s) will Vest to the extent set out in Rule 3.3 of this Part C on such date shortly before the Takeover as it sees fit and, in the case of a Nil-Cost Option Award or Market Value Stock Option, the Committee shall also determine the period during which such Awards may be exercised if it determines that such earlier Vesting would be advantageous to the Awardholder or any member of the Group. |
| 4. | cash awards |
| 4.1 | The Committee may, if it sees fit, settle any Award by making a cash payment to the Awardholder equal to the market value (as determined by the Committee) of the Shares in respect of which it Vests (in the case of a Contingent Share Award) or is exercised (in case of a Nil-Cost Option Award or Market Value Stock Option), less the amount of any Option Price. |
| 4.2 | The Company may settle any right to a cash payment under this Rule 4 of Part C by issuing or transferring, or procuring the issue or transfer of, Shares to the Awardholder of an equivalent value. |
| 4.3 | The Rules of this Plan will apply to any Award subject to this Rule 4 of Part C and the Committee shall interpret the Rules accordingly. |
| 4.4 | This Rule 4 of Part C shall not apply to an Award if its application would cause any adverse issues for any member of the Group or an Awardholder. Such adverse issues may relate, but shall not be limited to, securities law, exchange control, tax or social security. |
| 5. | Recovery of Award Tax Liability AND RELATED MATTERS |
| 5.1 | It shall be a condition of every Award that the Awardholder indemnifies the Company and (if different) the Awardholder’s Employer against any Award Tax Liability and that, if required by the Committee, he shall enter into such tax election as the Committee may reasonably determine. |
| 5.2 | The Awardholder authorises the Company to sell or procure the sale of sufficient Shares on or following the Vesting or exercise of any Award on his behalf to ensure that the Awardholder’s Employer receives the amount required to discharge the Award Tax Liability which arises on Vesting or exercise of the relevant Award, except to the extent that the Committee decides that all or part of the Award Tax Liability shall be funded in a different manner. |
| 5.3 | If, on any occasion, an Award Tax Liability arises in relation to a payment of cash pursuant to an Award the Awardholder authorises the Company to withhold from that payment an amount not exceeding the Award Tax Liability (or to procure the withholding of such amount). |
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| 6. | Variation of Share Capital |
The number of Award Shares subject to an Award and the Option Price (if any) may be adjusted in such manner as the Committee sees fit in the event of a demerger or payment of a special dividend or similar event that would otherwise materially affect the value of an Award, or if there is any variation in the share capital of the Company.
| 7. | Alteration of the Plan |
| 7.1 | Subject to Rule 7.2 and Rule 7.3 of this Part C, the Committee may alter or amend any of the provisions of the Plan in any respect. |
| 7.2 | No alteration or amendment may be made to any of the provisions of the Plan if it would adversely affect the rights of an existing Awardholder, except where the alteration or amendment has been approved by the Awardholder who would be adversely affected by the alteration or amendment. |
| 7.3 | All alterations and amendments to the Plan are subject to any approvals required pursuant to the rules of the applicable stock exchange or any listing, regulatory or governmental authority and taking into account any exemptions provided by such rules. |
| 8. | Service of Documents |
| 8.1 | Except as otherwise provided in this Plan, any notice or document to be given by, or on behalf of, the Company or any administrator of this Plan to any Participant or Awardholder in accordance or in connection with this Plan may be given in such electronic format as the Company decides and communicates to the Participant or Awardholder or by hand or sent by pre-paid first class post (airmail if overseas), facsimile transmission or email to the Participant’s or Awardholder’s home or work address, facsimile number or email address last known to the Company to be the Participant or Awardholder’s address, facsimile number or email address. Subject to Rule 8.4 of this Part C, any notice or document given in accordance with this Rule 8.1 of Part C shall be deemed to have been given: |
| 8.1.1 | if delivered in electronic format (other than email), at such time as the Committee determines; |
| 8.1.2 | upon delivery, if delivered by hand; |
| 8.1.3 | after 24 hours, if sent by post; |
| 8.1.4 | after 4 hours, if sent by facsimile transmission; and |
| 8.1.5 | at the time of transmission, if sent by email SAVE THAT a notice or document shall not be duly given by email unless that person is known by his employer to have personal access during his normal business hours to information sent to him by email. |
| 8.2 | Any notice or document so sent to a Participant or Awardholder shall be deemed to have been duly given notwithstanding that such person is then deceased (and whether or not the Company or any administrator of the Plan (as applicable) has notice of his death) except where his Personal Representatives have supplied the Company or any administrator of the Plan (as applicable) an alternative address to which documents are to be sent. |
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| 8.3 | Any notice or document to be submitted or given to the Company or any administrator of this Plan in accordance or in connection with this Plan may be given in such electronic format as the Company or administrator (as applicable) allows, by hand or sent by pre-paid first class post (airmail if overseas), facsimile transmission or email but shall not in any event be duly given unless it is actually received by such individual as may from time to time be nominated by the Company or administrator (as applicable) and whose name and address, facsimile number, email address or other relevant contact details are notified to the Participant or Awardholder (as applicable). |
| 8.4 | For the purposes of this Plan, an email shall be treated as not having been duly sent or received if the recipient of such email notifies the sender that it has not been opened because it contains, or is accompanied by a warning or caution that it could contain or be subject to, a virus or other computer programme which could alter, damage or interfere with any computer software or email. |
| 8.5 | By participating in this Plan, the Awardholder agrees that the Company and any administrator of the Plan may treat the electronic submission of any document, instruction or other communication as being equivalent to having received a signed hard copy of the relevant document, instruction or other communication from him, including in relation to (without limitation) the Vesting or exercise of an Award or the sale of some or all of the Vested Award Shares acquired on the Vesting or exercise of an Award. |
| 8.6 | For the avoidance of doubt, notices and documents may be treated as given in electronic format if submitted via any website operated by the Company or any administrator of the Plan for the purposes of communicating and administering the Plan. |
| 9. | Third Party Rights |
| 9.1 | Except as otherwise expressly stated to the contrary, neither this Plan nor the making of any Award shall have the effect of giving any third party any rights under this Plan pursuant to the Contracts (Rights of Third Parties) Act 1999 and that Act shall not apply to this Plan or to the terms of any Award under it. |
| 10. | Rights Attaching to Shares |
| 10.1 | The issue or transfer of any Shares under this Plan shall be subject to the Company’s articles of association and to any necessary consents of any governmental or other authorities (whether in the United Kingdom or otherwise) under any enactments or regulations from time to time in force. |
| 10.2 | The Awardholder shall comply with any requirements to be fulfilled in order to obtain or obviate the necessity of any such consent. |
| 10.3 | All Shares issued or transferred under this Plan shall rank equally in all respects with the Shares then in issue, except for any rights attaching to such Shares by reference to a record date prior to the date of such allotment or transfer. |
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| 11. | Relationship with Contract of Employment OR SERVICE |
| 11.1 | The making of an Award shall not form part of the Awardholder’s entitlement to remuneration or benefits pursuant to his contract of employment or service and benefits under this Plan shall not be pensionable. |
| 11.2 | The rights and obligations of an Awardholder under the terms of his contract of employment or service with the Company or any present or past Subsidiary shall not be affected by the making of an Award or his participation in this Plan. |
| 11.3 | The existence of a contract of employment or service between the Awardholder and the Company or any present or past Subsidiary does not give the Awardholder any right or entitlement to have an Award made to him at any time in respect of any number of Shares or cash amount, nor any expectation that an Award might be made to him, whether subject to any conditions or at all. |
| 11.4 | Neither the existence of this Plan nor the fact that an individual has on any occasion been granted an Award shall give such individual any right, entitlement or expectation that he has or will in future have any such right, entitlement or expectation to participate in this Plan by being made an Award on any other occasion. |
| 11.5 | The rights or opportunity granted to an Awardholder on the making of an Award shall not give the Awardholder any rights or additional rights to compensation or damages in consequence of either: |
| 11.5.1 | the Awardholder giving or receiving notice of termination of his office, employment or service; or |
| 11.5.2 | the loss or termination of his office, employment or service with the Company or any present or past Subsidiary for any reason whatsoever |
whether or not the termination (and/or giving of notice) is ultimately held to be wrongful or unfair.
| 11.6 | An Awardholder shall not be entitled to any compensation or damages for any loss or potential loss which he may suffer by reason of being unable to acquire or retain Shares, or any interest in Shares, or to receive any cash amount pursuant to an Award in consequence of: |
| 11.6.1 | the Awardholder giving or receiving notice of termination of his office, employment or service (whether or not the termination (and/or giving of notice) is ultimately held to be wrongful or unfair); |
| 11.6.2 | the loss or termination of his office, employment or service with the Company or any present or past Subsidiary for any reason whatsoever (whether or not the termination is ultimately held to be wrongful or unfair); |
| 11.6.3 | the exercise by the Committee of, or any failure by the Committee to exercise, any discretion in accordance with any Rule of this Plan, |
or for any other reason.
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| 12. | Non-Transferability of Awards |
| 12.1 | An Award is personal to an Awardholder and may not be transferred during his lifetime. |
| 12.2 | If an Awardholder: |
| 12.2.1 | transfers, assigns, mortgages, charges or otherwise disposes of an Award or of any interest in or right to acquire any Shares or to receive any cash amount (other than to his Personal Representatives); |
| 12.2.2 | is adjudged bankrupt or an interim order is made because he intends to propose a voluntary arrangement to his creditors under the Insolvency Act 1986 (or equivalent provisions of any overseas jurisdiction); |
| 12.2.3 | makes or proposes a voluntary arrangement under the Insolvency Act 1986 (or equivalent provisions of any overseas jurisdiction), or any other scheme or arrangement, in relation to his debts, with his creditors or any section of them; or |
| 12.2.4 | is not, or ceases for any other reason (except on death) to be, the legal or beneficial owner of an Award or of any interest in or right to acquire any Shares or to receive any cash amount |
the Award shall lapse and the Awardholder shall not have any right or entitlement to any Shares or any cash amount.
| 13. | Jurisdiction |
| 13.1 | This Plan and any Award shall be governed by and construed in all respects in accordance with the laws of England and Wales. |
| 13.2 | The courts of England shall have exclusive jurisdiction in relation to any claim, dispute or difference concerning an Award and any matter arising from or in relation to this Plan. |
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THE ANGHAMI INC. LONG-TERM INCENTIVE PLAN
PART D: ADDITIONAL PROVISIONS FOR US PARTICIPANTS
| 1. | APPLICATION TO US PARTICIPANTS |
| 1.1 | This Part D supplements, and shall be read in conjunction with, the other Parts of this Plan, provided that, to the extent that the terms and conditions of the other Parts of this Plan differ from or conflict with the terms or conditions of this Part D (as determined by the Committee), the terms and conditions of this Part D shall prevail with respect to any Award granted to a US Participant. |
| 2. | FORM OF AWARDS |
| 2.1 | The Committee may grant Contingent Share Awards and Market Value Stock Options to Participants that it knows to be US Participants. However, the Committee shall not grant a Nil-Cost Option Award to a Participant that it knows to be a US Participant unless such Award is structured to be exempt from or to comply with the requirements of Section 409A. |
| 3. | RESTRICTED STOCK AWARDS |
| 3.1 | If a US Awardholder Leaves by reason of any of the circumstances set out in Rules 1.2.1, 1.2.2, 1.2.3, 1.2.4, or 1.2.6 of Part B, then the US Awardholder’s Restricted Stock Award shall Vest when he Leaves, subject to, unless the Committee determines otherwise, a Time Pro-Rata Reduction, provided that none of the circumstances set out in Rules 1.2.1, 1.2.2, 1.2.3, 1.2.4, and 1.2.6 of Part B will result in the US Awardholder Vesting in his Restricted Stock Award if such circumstance does not constitute a “substantial risk of forfeiture” for purposes of Section 409A and Section 457A. A US Awardholder who Leaves by reason of the circumstances set out in Rule 1.2.5 of Part B shall not Vest in his Restricted Stock Award as a result of such Leaving. |
| 3.2 | Settlement of Restricted Stock Awards granted to a US Participant that Vest will be made within 30 days following the date of Vesting. |
| 3.3 | Rule 3.5 of Part C will not be applied to prevent the Vesting of a US Awardholder’s Restricted Stock Award to the extent applying such Rule would result in a violation of the requirements of Section 409A. |
| 4. | MARKET VALUE STOCK OPTIONS |
| 4.1 | Market Value Stock Options granted to a US Participant shall specify whether such Market Value Stock Option is an Incentive Stock Option or a Nonqualified Stock Option. If no such specification is made, then the Market Value Stock Option will be (i) an Incentive Stock Option if all of the requirements under the Code are satisfied with respect to such grant, or (ii) in all other cases, a Nonqualified Stock Option. |
| 4.2 | The Option Price for Market Value Stock Options granted to a US Participant will not be less than 100% of the Market Value of a Share on the Grant Date of the applicable option. If the Shares are not readily tradeable on an established securities market on the Grant Date, then the Market Value will be determined by the Committee by the reasonable application of a reasonable valuation method, as contemplated under Section 409A, taking into consideration factors relevant to such valuation in accordance with Section 409A. Notwithstanding the foregoing, Market Value Stock Options may be granted to US Participants with an Option Price of less than 100% of the Market Value of a Share on the Grant Date pursuant to a transaction described in, and in a manner consistent with, Section 424(a) of the Code. |
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| 4.3 | Market Value Stock Options granted to a US Participant will terminate and no longer be exercisable no later than ten years after the Grant Date of such option, subject to such option lapsing earlier under any other Rule of this Plan (including, without limitation, Rule 1 of Part B and Rule 3 of Part C). |
| 4.4 | Market Value Stock Options granted to a US Participant may not, upon exercise, be settled in cash. |
| 4.5 | Dividend Equivalents shall not apply to Market Value Stock Options granted to a US Participant. |
| 4.6 | A US Participant may only be granted a Market Value Stock Option to the extent that the Shares underlying the option qualify as “service recipient stock” (as defined under Section 409A) with respect to such US Participant. |
| 5. | INCENTIVE STOCK OPTIONS |
| 5.1 | In addition to the other Rules of this Part D (and notwithstanding any other provision of this Part D to the contrary), the limitations and requirements of this Rule 5 of Part D will apply to an Incentive Stock Option. This Rule 5 of Part D shall be effective upon the approval of the stockholders of the Company, which approval must be obtained within twelve months before or after this Plan is approved and adopted by the board of directors of the Company. If a Market Value Stock Option that is intended to be an Incentive Stock Option is issued hereunder and stockholder approval is not obtained as set forth in this Rule 5.1 of Part D, then the Market Value Stock Option shall not be treated as an Incentive Stock Option and shall instead be treated as a Nonqualified Stock Option. |
| 5.2 | The maximum number of Shares reserved for issuance upon the exercise of Incentive Stock Options awarded under this Part D is 1,288,000 Shares. |
| 5.3 | An Incentive Stock Option may be granted only to a US Participant who is an employee (including a director or officer who is also an employee) of the Company or any Subsidiary. For this purpose, the term “employee” shall mean a person who is an employee for purposes of Section 422 of the Code. |
| 5.4 | To the extent that the aggregate fair market value of the Shares with respect to which Incentive Stock Options are exercisable for the first time by any US Participant during any calendar year (under this Plan and all other plans of the Company and of any Parent Company or Subsidiary Company) exceeds US$100,000 or any limitation subsequently set forth in Section 422(d) of the Code, such excess shall be considered to be Nonqualified Stock Options. For this purpose, the “fair market value” of the Shares subject to options shall be determined as of the Grant Date of the options. In reducing the number of options treated as Incentive Stock Options to meet the US$100,000 limit, the most recently granted options shall be reduced first. To the extent that a reduction of simultaneously granted options is necessary to meet the US$100,000 limit, the Committee may, in the manner and to the extent permitted by law, designate which Shares are to be treated as shares acquired pursuant to the exercise of an Incentive Stock Option. |
| 5.5 | The Option Price of an Incentive Stock Option will not be less than 100% of the fair market value of a Share on the Grant Date of such Incentive Stock Option, provided that, in the case of the grant of an Incentive Stock Option to a US Participant who, at the time such Incentive Stock Option is granted, is a 10% Shareholder, such Option Price will not be less than 110% of the fair market value of a Share on the Grant Date of such Incentive Stock Option. |
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| 5.6 | Notwithstanding Rule 4.3 of this Part D, in the case of an Incentive Stock Option granted to a US Participant who, at the time such Incentive Stock Option is granted, is a 10% Shareholder, such Incentive Stock Option will terminate and no longer be exercisable no later than five years after the Grant Date of such Incentive Stock Option, subject to such option lapsing earlier under any other Rule of this Plan. |
| 5.7 | The following Rules apply to the exercise of Incentive Stock Options, in addition to any other Rules of this Plan that apply with respect to the exercise of Market Value Stock Options: |
| 5.7.1 | Without in any way limiting the Rules of this Plan or any specific provision of any related Award documentation that would require exercise of a Market Value Stock Option by an earlier date, (i) in the event that the holder of an Incentive Stock Option has a termination of employment for any reason other than due to death or permanent and total disability (within the meaning of Section 22(e)(3) of the Code), the Market Value Stock Option shall not be treated as an Incentive Stock Option if it is exercised following the period ending on the day that is three months after such termination of employment, and (ii) in the event that the holder of an Incentive Stock Option has a termination of employment due to permanent and total disability (as defined above), the Market Value Stock Option shall not be treated as an Incentive Stock Option if it is exercised following the period ending on the day that is one year after such termination of employment; and |
| 5.7.2 | In the case of a US Awardholder’s death, the Market Value Stock Option may be exercised by the US Awardholder’s estate or by a person who acquires the right to exercise the option by bequest or inheritance. |
| 5.8 | An Incentive Stock Option granted to a US Participant may be exercised during such US Participant’s lifetime only by such US Participant. |
| 5.9 | An Incentive Stock Option granted to a US Participant may not be transferred, assigned, or pledged by such US Participant, except by will or by the laws of descent and distribution. |
| 5.10 | No Incentive Stock Option may be granted under this Plan on or after the date that is ten years after the earlier of the date that this Plan is adopted by the board of directors of the Company or the date that this Plan is approved by the shareholders of the Company. |
| 5.11 | If any US Participant shall make any disposition of Shares issued to such US Participant pursuant to the exercise of an Incentive Stock Option under the circumstances described in Section 421(b) of the Code (relating to certain disqualifying dispositions), then such US Participant shall notify the Company of such disposition within ten days thereof. |
| 5.12 | No member of the Group shall have any liability to a US Participant or to any other person if a Market Value Stock Option (or any part thereof) that is intended to be an Incentive Stock Option is not an Incentive Stock Option, or for any action taken by the Company (or its authorized designee or representative) to amend, modify, or terminate this Plan or any Market Value Stock Option, including, without limitation, the conversion of an Incentive Stock Option to a Nonqualified Stock Option. |
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| 6. | OTHER PROVISIONS |
| 6.1 | Any adjustment to an outstanding Award granted to a US Participant (including, but not limited to, an Exchange of Awards or any adjustment contemplated under Rule 7.3 of Part A or Rule 6 of Part C) will be made so as to not create any adverse tax consequences under Section 409A or Section 457A, and any such adjustment to a Market Value Stock Option shall be effected so as to comply with Section 424(a) of the Code and to not constitute a modification within the meaning of Section 424(h) of the Code or Section 409A, as applicable. |
| 6.2 | Any Post-Vesting Holding Period in respect of an Award to a US Participant will be limited to clause (a) of the definition of “Post-Vesting Holding Period” set forth in Part E. For the avoidance of doubt, clauses (b) and (c) of such definition will not be applicable to Awards granted to US Participants. |
| 6.3 | If a Performance Share Award is granted to a US Participant, such Performance Share Award shall be settled in accordance with the timing set forth in Rule 3.2 of this Part D or as soon as practicable thereafter once the Committee has determined whether or not the Performance Target (s) has been satisfied, but in no event later than the latest date on which settlement of such Performance Share Award may be made without violating the requirements of Section 409A. |
| 6.4 | Any member of the Group will have the power and the right to deduct or withhold, or to require a US Participant to remit to the member of the Group, an amount sufficient to satisfy federal, state, local, foreign, or other taxes (including any United States FICA obligations under the Code) required to be withheld with respect to an Award (whether such liability arises upon the grant, vesting, or exercise of the Award or upon the sale or transfer of the Shares underlying the Award). Regardless of any action taken by any member of the Group, the ultimate liability for all income tax, social insurance, payroll tax, fringe benefits tax, or other tax-related items related to the US Participant’s participation in this Plan is and remains the US Participant’s responsibility and may exceed the amount actually withheld. |
| 7. | SECTION 409A |
| 7.1 | Awards granted to US Participants are intended to be exempt from or compliant with the requirements of Section 409A. To the extent that any Award is subject to the requirements of Section 409A, then, with respect to such Award, (i) this Plan and any related Award documentation will be interpreted to the maximum extent possible in a manner to comply with the requirements of Section 409A, and (ii) the settlement of such Award may only be made upon an event and in a manner that complies with Section 409A. If an Award to a US Participant is subject to, and not exempt from, the requirements of Section 409A, then: |
| 7.1.1 | The Committee will not have the discretion to accelerate the settlement of such Award under any Rule of this Plan (including accelerating the Vesting of such Award that also has the effect of accelerating the settlement of such Award) unless such acceleration would not be in violation of Section 409A; |
| 7.1.2 | If the occurrence of a Takeover is a settlement event for such Award, then such Takeover shall not be a “Takeover” for purposes of such Award unless such Takeover also constitutes a “change in control event” as defined in United States Treasury Regulation Section 1.409A-3(i)(5)(i); |
| 7.1.3 | If the US Participant’s incurrence of a disability is a settlement event for such Award, then such disability shall not be a settlement event for purposes of such Award unless such disability also constitutes a “disability” as defined in United States Treasury Regulation Section 1.409A-3(i)(4); and |
| 7.1.4 | If the US Participant’s Leaving is a settlement event for such Award, then such Leaving shall not be a “Leaving” for purposes of such Award unless such Leaving also constitutes a “separation from service” as defined in United States Treasury Regulation Section 1.409A-1(h). |
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| 7.2 | The settlement of any Award granted to a US Participant that is subject to the requirements of Section 409A and which settlement is as a result of a “separation from service” (as defined under Section 409A) during the six-month period immediately following a US Participant’s separation from service will not be made during that six-month period immediately following such separation from service if the US Participant is then deemed to be a “specified employee” (as defined under and determined in accordance with Section 409A) of a service provider whose stock is publicly traded on an established securities market or otherwise. Such settlement will instead be made on the first day of the seventh month immediately following such separation from service. This Rule 7.2 of Part D and the six-month delay contained herein will cease to be applicable in the event of and following the US Participant’s death. |
| 7.3 | Each payment made under an Award to a US Participant will be designated as a “separate payment” within the meaning of and for purposes of Section 409A. |
| 7.4 | Notwithstanding anything in this Plan or any related Award documentation to the contrary, no member of the Group makes any representation to any Participant or any other person about the effect of Section 409A on the provisions of this Plan or any Award, and no member of the Group will have any liability to any Participant or any other person in the event that such Participant or person becomes subject to taxation (including taxes, penalties, and interest) under Section 409A (other than any reporting and/or withholding obligations that the member of the Group may have under applicable tax law) or in the event that any Participant or other person incurs other expenses on account of non-compliance or alleged non-compliance with Section 409A. |
| 8. | SECTION 457A |
| 8.1 | To the maximum extent permitted under applicable law, Awards granted to US Participants will be interpreted to be exempt from the rules of Section 457A (whether because the relevant member of the Group is not a “nonqualified entity” under Section 457A, the Award is a “short-term deferral” under Section 457A, or otherwise). |
| 8.2 | Notwithstanding anything in this Plan or any related Award documentation to the contrary, no member of the Group makes any representation to any Participant or any other person about the effect of Section 457A on the provisions of this Plan or any Award, and no member of the Group will have any liability to any Participant or any other person in the event that such Participant or person becomes subject to taxation (including taxes, penalties, and interest) under Section 457A (other than any reporting and/or withholding obligations that the member of the Group may have under applicable tax law) or in the event that any Participant or other person incurs other expenses on account of the applicability or alleged applicability of Section 457A. |
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THE ANGHAMI INC. LONG-TERM INCENTIVE PLAN
PART E: DEFINITIONS, INTERPRETATION AND ADMINISTRATION
| 1. | Definitions |
In this Plan:
|
“10% Shareholder” |
means a US Participant who, at the time the Market Value Stock Option is granted, owns, taking into account the constructive ownership rules set forth in Section 424(d) of the Code, more than 10% of the total combined voting power of all classes of stock of the Company (or any Parent Company or Subsidiary Company)
|
| “Acquiring Company” | means a company which has acquired Control of the Company |
| “Award” |
means:
(a) a Performance Share Award;
(b) a Restricted Stock Award; and/or
(c) a Market Value Stock Option
(as the context requires)
|
| “Award Date” | means the date on which an Award is made, is to be made or was made (as the context requires) |
| “Awardholder” | means a person to whom an Award has been or was made (as the context requires) or, if that person has died, his Personal Representatives |
| “Awardholder’s Employer” | means such member of the Group as is an Awardholder’s employer or, if he has ceased to be employed within the Group, was his employer or (where relevant) such other member of the Group, or other person, as may be obliged under any statutory or regulatory enactment to account for any Award Tax Liability |
| “Award Shares” | means the Shares over which an Award subsists |
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| “Award Tax Liability” |
means any amount of, or representing, income tax or employee social security contributions or any equivalent charge in the nature of tax or social security or similar contributions (whether in the US, United Kingdom or otherwise) which may arise on or in connection with:
(a) the grant, Vesting, exercise, deemed exercise or release of, or the acquisition of Shares or of any interest in Shares pursuant to, an Award or any cash payment made under this Plan; or
(b) the expiry of any statutory time period in relation to an Award
|
| “Code” | means the United States Internal Revenue Code, as amended from time to time |
| “Committee” | means the remuneration committee of the Directors or, following a change of Control of the Company, those persons who comprised the remuneration committee of the Directors immediately before such change of Control (or in either case any duly authorised person(s)) |
| “Company” | means Anghami Inc., an exempted company registered in the Cayman Islands with registration number 372207, whose registered office is at PO Box 309, Ugland House, Grand Cayman KY1-1104, Cayman Islands |
| “Contingent Share Award” | means a contingent right to acquire Shares granted under this Plan |
| “Control” | has the meaning given in section 995 of the Income Tax Act 2007 |
| “Dealing Day” | means a day on which Nasdaq is open for business |
| “Dealing Restriction” | means a restriction imposed by any law, order, regulation or directive, the Share Dealing Code, the rules applying to any listing of the Company and/or any other code adopted by the Company regulating dealings in Shares |
| “Directors” | means the board of directors of the Company or a duly authorised committee of the board of directors of the Company |
| “Dividend Equivalent” | means a right to a cash payment or a number of Shares calculated in accordance with Rule 6 of Part A |
| “Exchange Company” |
means a company which is or has Control of:
(a) an Acquiring Company;
(b) a member of a consortium owning an Acquiring Company; or
(c) a member of a consortium owning a company which has Control of an Acquiring Company |
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| “Exchange of Awards” | means the grant to the Awardholder, in consideration of the release of an Award, of rights to acquire shares in an Exchange Company, being rights which are, in the opinion of the Committee, substantially equivalent in value to the value of the Award so released and otherwise on terms approved by the Committee |
| “Financial Year” | means a financial year (within the meaning of section 390 of the Companies Act 2006) of the Company |
| “Grant Date” | means, with respect to Nonqualified Stock Options, the date specified in United States Treasury Regulation Section 1.409A-1(b)(5)(vi)(B), and, with respect to Incentive Stock Options, the date specified in United States Treasury Regulation Section 1.421-1(c) |
| “Group” | means the Company and any company which is for the time being a Subsidiary and “member of the Group” shall be construed accordingly |
| “Incentive Stock Option” | means an incentive stock option as defined in Section 422 of the Code |
| “Internal Reorganisation” | means any transaction(s) which result in a change of Control of the Company but where immediately after such change of Control all or substantially all of the shares in the Acquiring Company are held by persons who were shareholders in the Company immediately prior to the change of Control of the Company |
| “Leaves” | means ceases to hold any office, employment or service with any member of the Group and “Leaving” shall be construed accordingly |
| “Market Value” | means as of any given date, the closing sales price for a Share as quoted on Nasdaq for such date or, if there is no closing sales price for a Share on the date in question, the closing sales price for a Share on the last preceding date for which such quotation exists, as reported in The Wall Street Journal or such other source as the Committee deems reliable or, if the Committee determines it appropriate in any case, and, with respect to a US Participant, to the extent that it would not cause a violation of Section 409A, the average of the closing sales price over a period of up to 30 days before or after any such given date |
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| “Market Value Stock Option” | means an option to acquire Shares at Market Value |
| “Misconduct” |
means any of:
(a) material misconduct in the course of an Awardholder’s employment, service, appointment or engagement;
(b) conduct in which the Awardholder has participated or was responsible for which has resulted or could result in material financial loss or reputational harm to any member of the Group; and
(c) any other misconduct as determined by the Committee in its discretion
|
| “Nasdaq” | means the Nasdaq Stock Market or any successor body thereto |
| “Nil-Cost Option Award” | means a right to acquire Shares granted under this Plan in the form of an option |
| “Nonqualified Stock Option” | means an option granted to a US Participant that is not an Incentive Stock Option |
| “Normal Vesting Date” |
means:
(a) in respect of any Performance Share Award, the third anniversary of the Award Date or, if later, and other than with respect to a Performance Share Award to a US Participant, the date on which the Committee determines whether or not the Performance Target(s) has been satisfied; and
(b) in respect of any Restricted Stock Award or Market Value Stock Option, such date(s) as the Committee may determine on or before the Award Date and specify in the relevant deed of grant
subject to the operation of any Post-Vesting Holding Period
|
| “Option Price” |
means the amount, if any, payable per Share on the exercise of
(a) a Nil-Cost Option Award which shall not exceed the par value of a Share; and
(b) a Market Value Stock Option which shall be at Market Value |
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| “Parent Company” | means any parent, as defined in Section 424(e) of the Code, of the Company |
| “Participant” | means a person who is an employee (including an executive director), non-executive director or consultant of any member of the Group |
| “Performance Period” | means the period determined by the Committee over which a Performance Target is to be measured |
| “Performance Share Award” | means a Contingent Share Award or a Nil-Cost Option Award designated by the Committee under Rule 3.1 of Part A to be a Performance Share Award |
| “Performance Target” | means any performance-related condition(s) relating to the performance of any one or more of the Company, a Subsidiary, a division and/or the Awardholder measured over the Performance Period specified for the relevant Award |
| “Personal Representatives” |
means the personal representatives of an Awardholder being either:
(a) the executors of his will; or
(b) if he dies intestate, the duly appointed administrator(s) of his estate; or
(c) the relevant overseas equivalents
who, in each case, have produced to the Company evidence of their appointment as such
|
| “Plan” | means the Anghami Inc. Long-Term Incentive Plan as set out in these Rules and amended from time to time |
| “Post-Vesting Holding Period” |
means either:
(a) a requirement imposed on the Awardholder to retain some or all (as determined by the Committee) of the net (i.e. after tax) number of Shares received on the Vesting of a Contingent Share Award or the exercise of a Nil-Cost Option Award or Market Value Stock Option;
(b) the deferral of the Normal Vesting Date; or
(c) the deferral of the issue or transfer of Shares following the Vesting of a Contingent Share Award
in any case to a date which is no later than the fifth anniversary of the Award Date |
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| “Restricted Stock Award” | means a Contingent Share Award or Nil-Cost Option Award designated by the Committee under Rule 3.1 of Part A to be a Restricted Stock Award |
| “SEC” | means the Securities and Exchange Commission of the United States or any successor to that body |
| “Section 409A” | means Section 409A of the Code |
| “Section 457A” | means Section 457A of the Code |
| “Shares” | means ordinary shares in the capital of the Company |
| “Subsidiary” | means any company which is for the time being a subsidiary (as defined in section 1159 of the Companies Act 2006) of the Company |
| “Subsidiary Company” | means any subsidiary, as defined in Section 424(f) of the Code, of the Company |
| “Takeover” |
means:
(a) any person obtaining Control of the Company as a result of making a general offer to acquire Shares;
(b) any person who has obtained Control of the Company making a general offer to acquire Shares;
(c) any person obtaining Control of the Company in pursuance of a compromise or arrangement sanctioned by a court under applicable law;
(d) the Company passing a resolution for its voluntary winding up; or
(e) an order being made for the compulsory winding up of the Company
|
| “Time Pro-Rata Reduction” | means a reduction in the number of Shares which would otherwise be Vested Award Shares determined based on the period between the Award Date and the date of Leaving, the date of the Takeover or the date of Vesting under Rule 3.2 of Part C (as applicable) relative to the length of the period commencing on the Award Date and ending with the Normal Vesting Date (except that, for these purposes, the Normal Vesting Date of a Performance Share Award shall always be the third anniversary of the Award Date) |
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| “US Awardholder” | means an Awardholder who is a US Participant |
| “US Participant” | means a Participant who is or becomes a United States citizen or tax resident or subject to the income tax provisions of the Code |
| “Vest” |
means:
(a) in the case of a Nil-Cost Option Award, or Market Value Stock Option, it becoming exercisable; or
(b) in the case of a Contingent Share Award, the Awardholder becoming entitled to have Shares transferred to him subject (if applicable) to the operation of the Post-Vesting Holding Period
in each case subject to the Rules and any Performance Target and “Vested” and “Vesting” shall be construed accordingly
|
| “Vested Award Shares” | means the number of Shares in respect of which an Award Vests |
| 2. | Interpretation |
| 2.1 | Any reference to any enactment includes a reference to that enactment as from time to time modified, extended or re-enacted. |
| 2.2 | Words denoting the masculine gender shall include the feminine. |
| 2.3 | Words denoting the singular shall include the plural and vice versa. |
| 2.4 | References to “Rules” are to the rules of this Plan and no account should be taken of the Rule headings, which have been inserted for ease of reference only. |
| 2.5 | References to Shares in respect of which an Award subsists at any time are to be read and construed as references to the Shares over which the Award is then held (and in respect of which it has not then lapsed). |
| 2.6 | No Award shall confer any beneficial interest in any Vested Award Shares prior to the Awardholder (or his Personal Representatives) or his (or their) nominee being registered as the holder of such Vested Award Shares and, for the avoidance of doubt, no Awardholder (nor his Personal Representatives) shall be entitled to any dividends paid or any other distribution made, or to exercise or direct the exercise of any votes or any other rights, in respect of any such Vested Award Shares by reference to a record date before he (or they) or his (or their) nominee is registered as the holder of the Shares. |
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| 3. | Administration |
| 3.1 | The Plan shall be administered by the Committee. The Committee shall have full authority, consistent with the Rules of this Plan, to administer the Plan, including authority to interpret and construe any provision of the Plan. The Committee may also make and vary such rules and regulations not inconsistent with the Rules of this Plan and establish such procedures for its administration and implementation as it thinks fit. Decisions of the Committee shall be final and binding on all parties. |
| 3.2 | If any question, dispute or disagreement arises as to the interpretation of this Plan or of any rules, regulations or procedures relating to it or as to any question or right arising from or related to this Plan, the decision of the Committee shall be final and binding upon all persons. |
| 3.3 | The exercise of, or failure to exercise, any discretion by the Committee shall not be open to question by any person and an Awardholder or former Awardholder shall have no rights in relation to such exercise or omission to exercise any such discretion. |
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Exhibit 4.16
FORM OF INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this “Agreement”) is made to be effective as of ___________, 2022, by and between Anghami Inc., a Cayman Islands exempted company (the “Company”), and (“Indemnitee”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to serve publicly-held corporations as directors, officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of such corporations;
WHEREAS, the board of directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries, if any, from certain liabilities;
WHEREAS, directors, officers and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself;
WHEREAS, the amended and restated memorandum and articles of association of the Company (the “Charter”) require indemnification of the officers and directors of the Company, Indemnitee may also be entitled to indemnification pursuant to applicable Cayman Islands law and the Charter provides that the indemnification provisions set forth therein are not exclusive, and thereby contemplates that contracts may be entered into between the Company and members of the Board, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, hold harmless, exonerate and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so protected against liabilities;
WHEREAS, this Agreement is a supplement to and in furtherance of the Charter and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee may not be willing to serve as an officer or director, advisor or in another capacity, without adequate protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that he or she be so indemnified;
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
TERMS AND CONDITIONS
1. SERVICES TO THE COMPANY. Indemnitee will serve or continue to serve as an officer, director, advisor, key employee or in any other capacity of the Company, as applicable, for so long as Indemnitee is duly elected, appointed or retained or until Indemnitee tenders his or her resignation or until Indemnitee is removed. The foregoing notwithstanding, this Agreement shall continue in full force and effect after Indemnitee has ceased to serve as a director, officer, advisor, key employee or in any other capacity of the Company, in each case, as provided in Section 17. This Agreement, however, shall not impose any obligation on Indemnitee or the Company to continue Indemnitee’s service to the Company beyond any period otherwise required by law or by other agreements or commitments of the parties, if any.
2. DEFINITIONS. As used in this Agreement:
(a) The term “agent” shall mean any person who is or was a director, officer or employee of the Company or a subsidiary of the Company or other person authorized by the Company to act for the Company, to include such person serving in such capacity as a director, officer, employee, fiduciary or other official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of the Company or a subsidiary of the Company.
(b) The terms “Beneficial Owner” and “Beneficial Ownership” shall have the meanings set forth in Rule 13d-3 promulgated under the Exchange Act (as defined below) as in effect on the date hereof.
(c) The term “Cayman Court” shall mean the courts of the Cayman Islands.
(d) The term “Change in Control” shall mean the occurrence of the earliest to occur after the date of this Agreement of any of the following events:
(i) Acquisition of Shares by Third Party. Any Person (as defined below) is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors, unless (1) the change in the relative Beneficial Ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares entitled to vote generally in the election of directors, or (2) such acquisition was approved in advance by the Continuing Directors (as defined below) and such acquisition would not constitute a Change in Control under part (iii) of this definition;
(ii) Change in Board of Directors. Individuals who, as of the date hereof, constitute the Board, and any new director whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two thirds of the directors then still in office who were directors on the date hereof or whose election for nomination for election was previously so approved (collectively, the “Continuing Directors”), cease for any reason to constitute at least a majority of the members of the Board;
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(iii) Corporate Transactions. The effective date of a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination involving the Company and one or more businesses (a “Business Combination”), in each case, unless, following such Business Combination: (1) all or substantially all of the individuals and entities who were the Beneficial Owners of securities entitled to vote generally in the election of directors immediately prior to such Business Combination beneficially own, directly or indirectly, more than 51% of the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more Subsidiaries (as defined below)) in substantially the same proportions as their ownership immediately prior to such Business Combination, of the securities entitled to vote generally in the election of directors; (2) no Person (excluding any corporation resulting from such Business Combination) is the Beneficial Owner, directly or indirectly, of fifteen percent (15%) or more of the combined voting power of the then outstanding securities entitled to vote generally in the election of directors of the surviving corporation except to the extent that such ownership existed prior to the Business Combination; and (3) at least a majority of the Board of Directors of the corporation resulting from such Business Combination were Continuing Directors at the time of the execution of the initial agreement, or of the action of the Board of Directors, providing for such Business Combination; provided, however, that for the avoidance of doubt, the Business Combination contemplated by that certain Business Combination Agreement, dated May 3, 2021, by and among Vistas Media Acquisition Company Inc., the Company, Anghami, Anghami Vista 1 and Anghami Vista 2 shall not constitute a Change in Control for purposes of this Agreement;
(iv) Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement or series of agreements for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than factoring the Company’s current receivables or escrows due (or, if such approval is not required, the decision by the Board to proceed with such a liquidation, sale, or disposition in one transaction or a series of related transactions); or
(v) Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or any successor rule) (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act (as defined below), whether or not the Company is then subject to such reporting requirement.
(e) The term “Companies Act” shall mean the Companies Act (2021 Revision) of the Cayman Islands, as amended from time to time.
(f) The term “Corporate Status” describes the status of a person who is or was a director, officer, trustee, general partner, managing member, fiduciary, employee or agent of the Company or of any other Enterprise (as defined below) which such person is or was serving at the request of the Company.
(g) The term “Disinterested Director” shall mean a director of the Company who is not and was not a party to the Proceeding (as defined below) in respect of which indemnification is sought by Indemnitee.
(h) The term “Enterprise” shall mean the Company and any other corporation, constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger to which the Company (or any of its wholly owned subsidiaries) is a party, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, trustee, general partner, managing member, fiduciary, employee or agent.
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(i) The term “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
(j) The term “Expenses” shall include all direct and indirect costs, fees and expenses of any type or nature whatsoever, including, without limitation, all reasonable attorneys’ fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, fees of private investigators and professional advisors, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, fax transmission charges, secretarial services and all other disbursements, obligations or expenses in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settlement or appeal of, or otherwise participating in, a Proceeding (as defined below), including reasonable compensation for time spent by Indemnitee for which he or she is not otherwise compensated by the Company or any third party. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding (as defined below), including without limitation the principal, premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(k) The term “Independent Counsel” shall mean a law firm or a member of a law firm with significant experience in matters of corporate law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements); or (ii) any other party to the Proceeding (as defined below) giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
(l) The term “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act as in effect on the date hereof; provided, however, that “Person” shall exclude: (i) the Company; (ii) any Subsidiaries (as defined below) of the Company; (iii) any employment benefit plan of the Company or of a Subsidiary (as defined below) of the Company or of any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company; and (iv) any trustee or other fiduciary holding securities under an employee benefit plan of the Company or of a Subsidiary (as defined below) of the Company or of a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company.
(m) The term “Proceeding” shall include any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative or investigative or related nature, in which Indemnitee was, is, will or might be involved as a party or otherwise by reason of the fact that Indemnitee is or was a director or officer of the Company, by reason of any action (or failure to act) taken by him or her or of any action (or failure to act) on his or her part while acting as a director or officer of the Company, or by reason of the fact that he or she is or was serving at the request of the Company as a director, officer, trustee, general partner, managing member, fiduciary, employee or agent of any other Enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement, or advancement of expenses can be provided under this Agreement.
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(n) The term “Serving at the request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement.
(o) The term “Subsidiary,” with respect to any Person, shall mean any corporation, limited liability company, partnership, joint venture, trust or other entity of which a majority of the voting power of the voting equity securities or equity interest is owned, directly or indirectly, by that Person.
3. INDEMNITY IN THIRD-PARTY PROCEEDINGS. To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 3 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness, deponent or otherwise) in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitee’s Corporate Status. Pursuant to this Section 3, Indemnitee shall be indemnified, held harmless and exonerated against all Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually, and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that his or her conduct was unlawful.
4. INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 4 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness, deponent or otherwise) in any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitee’s Corporate Status. Pursuant to this Section 4, Indemnitee shall be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by Indemnitee on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. No indemnification, hold harmless or exoneration for Expenses shall be made under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by a court to be liable to the Company, unless and only to the extent that any court in which the Proceeding was brought or the Cayman Court shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, to be held harmless or to exoneration.
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5. INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL. Notwithstanding any other provisions of this Agreement, to the extent that Indemnitee was or is, by reason of Indemnitee’s Corporate Status, a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by him or her in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection with each successfully resolved claim, issue or matter. If Indemnitee is not wholly successful in such Proceeding, the Company also shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses reasonably incurred in connection with a claim, issue or matter related to any claim, issue, or matter on which Indemnitee was successful. For purposes of this Section and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
6. INDEMNIFICATION FOR EXPENSES OF A WITNESS. Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness or deponent in any Proceeding to which Indemnitee is not a party, he or she shall, to the fullest extent permitted by applicable law, be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection therewith.
7. ADDITIONAL INDEMNIFICATION, HOLD HARMLESS AND EXONERATION RIGHTS. Notwithstanding any limitation in Sections 3, 4, or 5, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) involving or relating to his or her Corporate Status or any action taken or omitted to be taken in such capacity against all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with the Proceeding. No indemnification, hold harmless or exoneration rights shall be available under this Section 7 on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of loyalty to the Company or its shareholders or is an act or omission not in good faith or which involves intentional misconduct or a knowing violation of the law.
8. CONTRIBUTION IN THE EVENT OF JOINT LIABILITY.
(a) To the fullest extent permissible under applicable law, if the indemnification, hold harmless and/or exoneration rights provided for in this Agreement are unavailable to Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu of indemnifying, holding harmless or exonerating Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for judgments, liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee.
(b) The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee.
(c) The Company hereby agrees to fully indemnify, hold harmless and exonerate Indemnitee from any claims for contribution which may be brought by officers, directors or employees of the Company other than Indemnitee who may be jointly liable with Indemnitee.
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9. EXCLUSIONS. Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnification, advance expenses, hold harmless or exoneration payment in connection with any claim made against Indemnitee:
(a) for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity or advancement provision or otherwise, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity or advancement provision or otherwise;
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any successor rule) or similar provisions of state statutory law or common law; or
(c) except as otherwise provided in Sections 14(e)-(f) hereof, prior to a Change in Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, hold harmless or exoneration payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law. Indemnitee shall seek payments or advances from the Company only to the extent that such payments or advances are unavailable from any insurance policy of the Company covering Indemnitee.
10. ADVANCES OF EXPENSES; DEFENSE OF CLAIM.
(a) Notwithstanding any provision of this Agreement to the contrary, and to the fullest extent not prohibited by applicable law, the Company shall pay the Expenses incurred by Indemnitee (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) in connection with any Proceeding within ten (10) days after the receipt by the Company of a statement or statements requesting such advances from time to time, prior to the final disposition of any Proceeding. Advances shall, to the fullest extent permitted by law, be unsecured and interest free. Advances shall, to the fullest extent permitted by law, be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to be indemnified, held harmless or exonerated under the other provisions of this Agreement. Advances shall include any and all reasonable Expenses incurred pursuing a Proceeding to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. To the fullest extent required by applicable law, such payments of Expenses in advance of the final disposition of the Proceeding shall be made only upon the Company’s receipt of an undertaking, by or on behalf of Indemnitee, to repay the advanced amounts to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified, held harmless or exonerated by the Company under the provisions of this Agreement, the Charter, applicable law or otherwise. This Section 10(a) shall not apply to any claim made by Indemnitee for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 9.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
(c) The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, fine, penalty or limitation on Indemnitee without Indemnitee’s prior written consent.
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11. PROCEDURE FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.
(a) Indemnitee agrees to notify promptly the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification, hold harmless or exoneration rights, or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement, or otherwise.
(b) Indemnitee may deliver to the Company a written application to indemnify, hold harmless or exonerate Indemnitee in accordance with this Agreement. Such application(s) may be delivered from time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion. Following such a written application for indemnification by Indemnitee, Indemnitee’s entitlement to indemnification shall be determined according to Section 12(a) of this Agreement.
12. PROCEDURE UPON APPLICATION FOR INDEMNIFICATION.
(a) A determination, if required by applicable law, with respect to Indemnitee’s entitlement to indemnification shall be made in the specific case by one of the following methods: (i) if no Change in Control has occurred, (x) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (y) by a committee of Disinterested Directors, even though less than a quorum of the Board, or (z) if there are no Disinterested Directors, or if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee; or (ii) if a Change in Control has occurred, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(b) In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 11(a) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Cayman Court for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Cayman Court, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
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(c) The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to fully indemnify and hold harmless such Independent Counsel against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto.
13. PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 11(b) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the Disinterested Directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(b) If the person, persons or entity empowered or selected under Section 12 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.
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(d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, trustees, general partners, managers or managing members of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member of the Enterprise, or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member of the Enterprise, by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member. The provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement.
(e) The knowledge and/or actions, or failure to act, of any other director, officer, trustee, partner, manager, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.
14. REMEDIES OF INDEMNITEE.
(a) In the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses, to the fullest extent permitted by applicable law, is not timely made pursuant to Section 10 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 12(a) of this Agreement within thirty (30) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Section 5, 6, 7 or the last sentence of Section 12(a) of this Agreement within ten (10) days after receipt by the Company of a written request therefor, (v) a contribution payment is not made in a timely manner pursuant to Section 8 of this Agreement, (vi) payment of indemnification pursuant to Section 3 or 4 of this Agreement is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (vii) payment to Indemnitee pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made within ten (10) days after receipt by the Company of a written request therefor, Indemnitee shall be entitled to an adjudication by the Cayman Court to such indemnification, hold harmless, exoneration, contribution or advancement rights. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. Except as set forth herein, the provisions of Cayman Islands law (without regard to its conflict of laws rules) shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) In the event that a determination shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 14, Indemnitee shall be presumed to be entitled to be indemnified, held harmless, exonerated to receive advances of Expenses under this Agreement and the Company shall have the burden of proving Indemnitee is not entitled to be indemnified, held harmless, exonerated and to receive advances of Expenses, as the case may be, and the Company may not refer to or introduce into evidence any determination pursuant to Section 12(a) of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 14, Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 10 until a final determination is made with respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted or lapsed).
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(c) If a determination shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.
(e) The Company shall indemnify and hold harmless Indemnitee to the fullest extent permitted by law against all Expenses and, if requested by Indemnitee, shall (within ten (10) days after the Company’s receipt of such written request) pay to Indemnitee, to the fullest extent permitted by applicable law, such Expenses which are incurred by Indemnitee in connection with any judicial proceeding or arbitration brought by Indemnitee (i) to enforce his or her rights under, or to recover damages for breach of, this Agreement or any other indemnification, hold harmless, exoneration, advancement or contribution agreement or provision of the Charter now or hereafter in effect; or (ii) for recovery or advances under any insurance policy maintained by any person for the benefit of Indemnitee, regardless of the outcome and whether Indemnitee ultimately is determined to be entitled to such indemnification, hold harmless or exoneration right, advancement, contribution or insurance recovery, as the case may be (unless such judicial proceeding or arbitration was not brought by Indemnitee in good faith).
(f) Interest shall be paid by the Company to Indemnitee at the legal rate under New York law for amounts which the Company indemnifies, holds harmless or exonerates, or is obliged to indemnify, hold harmless or exonerate for the period commencing with the date on which Indemnitee requests indemnification, to be held harmless, exonerated, contribution, reimbursement or advancement of any Expenses and ending with the date on which such payment is made to Indemnitee by the Company.
15. SECURITY. Notwithstanding anything herein to the contrary, to the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of Indemnitee.
16. NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The rights of Indemnitee as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Charter, any agreement, a vote of shareholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any Proceeding (regardless of when such Proceeding is first threatened, commenced or completed) arising out of, or related to, any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in applicable law, whether by statute or judicial decision, permits greater indemnification, hold harmless or exoneration rights or advancement of Expenses than would be afforded currently under the Charter or this Agreement, then this Agreement (without any further action by the parties hereto) shall automatically be deemed to be amended to require that the Company indemnify Indemnitee to the fullest extent permitted by law. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy.
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(b) The Companies Act and the Charter permit the Company to purchase and maintain insurance or furnish similar protection or make other arrangements including, but not limited to, providing a trust fund, letter of credit, or surety bond (“Indemnification Arrangements”) on behalf of Indemnitee against any liability asserted against him or her or incurred by or on behalf of him or her or in such capacity as a director, officer, employee or agent of the Company, or arising out of his or her status as such, whether or not the Company would have the power to indemnify him or her against such liability under the provisions of this Agreement or under the Companies Act, as it may then be in effect. The purchase, establishment, and maintenance of any such Indemnification Arrangement shall not in any way limit or affect the rights and obligations of the Company or of Indemnitee under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement by the Company and Indemnitee shall not in any way limit or affect the rights and obligations of the Company or the other party or parties thereto under any such Indemnification Arrangement.
(c) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, trustees, partners, managing members, fiduciaries, employees, or agents of the Company or of any other Enterprise which such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, trustee, partner, managing member, fiduciary, employee or agent under such policy or policies. If, at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a party or a participant (as a witness or otherwise), the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies.
(d) In the event of any payment under this Agreement, the Company, to the fullest extent permitted by law, shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
(e) The Company’s obligation to indemnify, hold harmless, exonerate or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, trustee, partner, managing member, fiduciary, employee or agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification, hold harmless or exoneration payments or advancement of expenses from such Enterprise. Notwithstanding any other provision of this Agreement to the contrary, (i) Indemnitee shall have no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple parties possessing such duties to Indemnitee prior to the Company’s satisfaction and performance of all its obligations under this Agreement, and (ii) the Company shall perform fully its obligations under this Agreement without regard to whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than the Company.
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(f) The Company hereby acknowledges that Indemnitee may have rights to indemnification or advancement of expenses or insurance provided by one or more Persons other than the Company with whom or which the Indemnitee may be associated (collectively, the “Third Party Indemnitors”). The Company hereby agrees that, notwithstanding the fact that Indemnitee may have rights or indemnification, advancement of expenses or insurance against Third Party Indemnitors, (i) the Company is an indemnitor of first resort as to all matters arising from or relating to the Indemnitee’s Corporate Status and that the obligations of the Company to Indemnitee in respect of such matters are primary and (ii) the Indemnitee’s right to indemnification under this Agreement, including the right to advancement of expenses, indemnification, and contribution, shall not be diminished, modified, qualified or otherwise affected by any right of Indemnitee against any Third Party Indemnitor.
17. DURATION OF AGREEMENT. All agreements and obligations of the Company contained herein shall continue during the period Indemnitee serves as a director or officer of the Company or as a director, officer, trustee, partner, managing member, fiduciary, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other Enterprise which Indemnitee serves at the request of the Company and shall continue thereafter so long as Indemnitee shall be subject to any possible Proceeding (including any rights of appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement) by reason of his or her Corporate Status, whether or not he is acting in any such capacity at the time any liability or expense is incurred for which indemnification or advancement can be provided under this Agreement.
18. SEVERABILITY. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
19. ENFORCEMENT AND BINDING EFFECT.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director, officer or key employee of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director, officer or key employee of the Company.
(b) Without limiting any of the rights of Indemnitee under the Charter as they may be amended from time to time, this Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof.
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(c) The indemnification, hold harmless, exoneration and advancement of expenses rights provided by or granted pursuant to this Agreement shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or director or officer of any other Enterprise at the Company’s request, and shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.
(d) The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place.
(e) The Company and Indemnitee agree herein that a monetary remedy for breach of this Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree that Indemnitee may, to the fullest extent permitted by law, enforce this Agreement by seeking, among other things, injunctive relief and/or specific performance hereof, without any necessity of showing actual damage or irreparable harm and that by seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from seeking or obtaining any other relief to which he may be entitled. The Company and Indemnitee further agree that Indemnitee shall, to the fullest extent permitted by law, be entitled to such specific performance and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds or other undertaking in connection therewith. The Company acknowledges that in the absence of a waiver, a bond or undertaking may be required of Indemnitee by a court of competent jurisdiction, and the Company hereby waives any such requirement of such a bond or undertaking to the fullest extent permitted by law.
20. MODIFICATION AND WAIVER. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver.
21. NOTICES. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (i) if delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or (ii) mailed by certified or registered mail with postage prepaid, on the third (3rd) business day after the date on which it is so mailed:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide in writing to the Company.
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(b) If to the Company, to:
Anghami Inc.
16th Floor, Al-Khatem Tower, WeWork Hub71
Abu Dhabi Global Market Square, Al Maryah Island
Abu Dhabi, United Arab Emirates
Attn: Legal Department
With a copy, which shall not constitute notice, to
Norton Rose Fulbright US LLP
1301 Avenue of the Americas
New York, New York 10019-6022
Attn: Ayse Yuksel Mahfoud
or to any other address as may have been furnished to Indemnitee in writing by the Company.
22. APPLICABLE LAW AND CONSENT TO JURISDICTION. This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, to the fullest extent permitted by law, the Company and Indemnitee hereby irrevocably and unconditionally: (a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Cayman Court and not in any state or federal court in the United States of America or any court in any other country; (b) consent to submit to the exclusive jurisdiction of the Cayman Court for purposes of any action or proceeding arising out of or in connection with this Agreement; (c) waive any objection to the laying of venue of any such action or proceeding in the Cayman Court; and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Cayman Court has been brought in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial.
23. IDENTICAL COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement. In the event that any signature is delivered in pdf format via electronic mail, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
24. MISCELLANEOUS. Use of the masculine pronoun shall be deemed to include usage of the feminine pronoun where appropriate. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
25. PERIOD OF LIMITATIONS. No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
26. ADDITIONAL ACTS. If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be effected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement.
27. MAINTENANCE OF INSURANCE. The Company shall use commercially reasonable efforts to obtain and maintain in effect during the entire period for which the Company is obligated to indemnify the Indemnitee under this Agreement, one or more policies of insurance with reputable insurance companies to provide the officers/directors of the Company with coverage for losses from wrongful acts and omissions and to ensure the Company’s performance of its indemnification obligations under this Agreement. The Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director or officer under such policy or policies. In all such insurance policies, the Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee with the same rights and benefits as are accorded to the most favorably insured of the Company’s directors and officers.
[Signature Page Follows]
15
IN WITNESS WHEREOF, the parties hereto have caused this Indemnity Agreement to be signed as of the day and year first above written.
| ANGHAMI INC. | ||
| By: | ||
| Name: | ||
| Address: | ||
| INDEMNITEE | ||
| By: | ||
| Name: | ||
| Address: | ||
[Signature Page to Indemnity Agreement]
Exhibit 15.1
UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
Introduction
The following unaudited pro forma combined financial information is being provided for illustrative purposes only and should not be considered an indication of the results of operations or financial position of the Anghami Inc. (referred to herein as “Anghami Inc.” or “Pubco”) following the Transactions. The following has been prepared in accordance with Article 11 of Regulation S-X.
The unaudited pro forma combined statement of financial position as of June 30, 2021 combines the historical balance sheet of VMAC and statement of financial position of Anghami on a pro forma basis as if the Transactions, summarized below, had been consummated as of that date. The unaudited pro forma combined statement of comprehensive income for the six months ended June 30, 2021 combines the historical statement of comprehensive income of Anghami for the six months ended June 30, 2021 and statement of operations of VMAC for the six months ended June 30, 2021, giving effect to the transactions as if they had occurred as of the January 1, 2020.
The unaudited pro forma combined statement of comprehensive income for the year ended December 31, 2020 combines the historical statement of comprehensive income of Anghami for the year ended December 31, 2020 and statement of operations of VMAC for the period from March 27, 2020 (inception) through December 31, 2020, giving effect to the transactions as if they had occurred as of January 1, 2020.
This information should be read together with the VMAC’s unaudited financial statements and related notes thereto, VMAC’s audited financial statements and related notes thereto, Anghami’s unaudited financial statements and related notes thereto, and Anghami’s audited financial statements and related notes thereto, the sections entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and other financial information included elsewhere in this prospectus.
The unaudited pro forma combined statement of financial position as of June 30, 2021 has been prepared using the following:
• Anghami’s unaudited statement of financial position as of June 30, 2021, as included elsewhere in this prospectus; and
• VMAC’s unaudited historical balance sheet as of June 30, 2021, as included elsewhere in this prospectus.
The unaudited pro forma combined statement of comprehensive income for the six months ended June 30, 2021 has been prepared using the following:
• Anghami’s unaudited statement of comprehensive income for the six months ended June 30, 2021, as included elsewhere in this prospectus; and
• VMAC’s unaudited statement of operations for the six months ended June 30, 2021, as included elsewhere in this prospectus.
The unaudited pro forma combined statement of comprehensive income for the period ended December 31, 2020 has been prepared using the following:
• Anghami’s audited statement of comprehensive income for the year ended December 31, 2020, as included elsewhere in this prospectus; and
• VMAC’s audited statement of operations for the period from March 27, 2020 (inception) through December 31, 2020, as included elsewhere in this prospectus.
The unaudited pro forma combined financial information has been presented for informational purposes only and is not necessarily indicative of what Anghami Inc.’s actual financial position or results of operations would have been had the Transactions been completed as of the dates indicated. In addition, the unaudited pro forma combined financial information does not purport to project the future financial position or operating results of Anghami Inc.
| 1 |
The unaudited pro forma adjustments are based on information currently available. The assumptions and estimates underlying the unaudited pro forma adjustments are described in the accompanying notes. Actual results may differ materially from the assumptions used to present the unaudited pro forma combined financial information. As the unaudited pro forma combined financial information has been prepared based on preliminary estimates, the final amounts recorded may differ materially from the information presented. As a result, this unaudited pro forma combined financial information should be read in conjunction with the historical financial information included elsewhere in the prospectus.
Description of the Transactions
On February 3, 2022, the parties closed the previously announced transactions pursuant to the terms of the Business Combination Agreement, dated March 3, 2021 (the “Business Combination Agreement”), by and among Vistas Media Acquisition Company, Inc. (“VMAC”), Anghami, a Cayman Islands exempted company (“Anghami”), Anghami Inc., a Cayman Islands exempted company and wholly-owned subsidiary of Anghami (“Anghami Inc.” or “Pubco”), Anghami Vista 1, a Cayman Islands exempted company and wholly-owned subsidiary of Pubco (“Vistas Merger Sub”), and Anghami Vista 2, a Cayman Islands exempted company and wholly-owned subsidiary of Pubco (“Anghami Merger Sub”). The Business Combination Agreement, which contains customary representations and warranties, covenants, closing conditions, termination fee provisions and other terms relating to the mergers and the other transactions contemplated thereby. At the closing of the transactions contemplated by the Business Combination Agreement, the following transactions occurred: (i) VMAC closed the private placement in which it issued and sold 4,056,000 shares (the “PIPE”), (ii) VMAC merged with and into Vistas Merger Sub, with VMAC surviving the merger and continuing as a subsidiary of Anghami Inc., with each outstanding share of VMAC converted into the right to receive one common ordinary shares, par value of $0.0001 per share, of Pubco (“Pubco ordinary shares”) and each outstanding warrant of VMAC converted into warrants to purchase Pubco ordinary shares on the same terms, and (ii) Anghami merged with and into Anghami Merger Sub, with Anghami surviving the merger and continuing as a subsidiary of Anghami Inc. and Anghami’s shareholders receiving Pubco ordinary shares (together the “Transactions”). Upon consummation of the Transactions, shareholders of VMAC and Anghami became shareholder of Anghami Inc.
Accounting for the Transactions
The exchange of Anghami’s shares for Anghami Inc.’s shares will be accounted for as a transaction under common control in accordance with IFRS. The exchange of VMAC’s shares for Anghami Inc.’s shares will be accounted for as a “reverse acquisition” in accordance with IFRS. Under this method of accounting, VMAC will be treated as the “acquired” company for financial reporting purposes.
This determination was based on the guidance provided in IFRS 3 (Business Combinations) and IFRS 10 (Consolidated Financial Statements) and was primarily based on the assumptions that Anghami’s operations will substantially comprise the ongoing operations of the Combined Company, Anghami’s designees are expected to comprise a majority of the governing body of the Combined Company, Anghami’s senior management will comprise the senior management of the Combined Company, and Anghami’s existing shareholders will be the largest group of shareholders of the Combined Company following the consummation of the Business Combination (Anghami’s existing shareholders are expected to represent between 69.85% of the Combined Company).
Accordingly, for accounting purposes, the exchange of VMAC’s shares for Anghami Inc. shares will be treated as the equivalent of Anghami Inc. issuing shares for the net assets of VMAC, accompanied by a recapitalization. It has been determined that VMAC is not a business under IFRS, hence the transaction is accounted for within the scope of IFRS 2 (“share-based payment”).
In accordance with IFRS 2, the difference in the fair value of Anghami Inc.’s equity instruments deemed issued to VMAC shareholders over the fair value of identifiable net assets of VMAC represents a service for listing, and is accounted for as a share-based payment which is expensed as incurred. The net assets of the Combined Company will be stated at historical cost, with no goodwill or other intangible assets recorded. Operations prior to the exchange of VMAC’s shares for Anghami Inc.’s shares will be deemed to be those of Anghami Inc.
| 2 |
Basis of Pro Forma Presentation
The adjustments presented in the unaudited pro forma combined financial information have been identified and presented to provide an understanding of the Combined Company upon consummation of the Transactions for illustrative purposes.
The following unaudited pro forma combined financial information has been prepared in accordance with Article 11 of Regulation S-X as amended by the final rule, Release No. 33-10786 “Amendments to Financial Disclosures about Acquired and Disposed Businesses.” Release No. 33-10786 replaces the existing pro forma adjustment criteria with simplified requirements to depict the accounting for the transaction (“Transaction Accounting Adjustments”) and present the reasonably estimable synergies and other transaction effects that have occurred or are reasonably expected to occur (“Management’s Adjustments”). Anghami has elected not to present Management’s Adjustments and will only be presenting Transaction Accounting Adjustments in the following unaudited pro forma combined financial information.
The unaudited pro forma combined financial information is for illustrative purposes only. The financial results may have been different had the companies always been combined. The unaudited pro forma combined financial information should not be relied upon as being indicative of the historical results that would have been achieved had the companies always been combined or the future results that the Combined Company will experience. Anghami and VMAC have not had any historical relationship prior to the Transactions. Accordingly, no pro forma adjustments were required to eliminate activities between the companies.
The historical financial information of VMAC has been adjusted to give effect to the differences between U.S. GAAP and IFRS for the purposes of the unaudited pro forma combined financial information. No adjustments were required to convert VMAC financial statements from U.S. GAAP to IFRS except to reclassify VMAC change in fair value of warrants liability to finance income/cost to align with IFRS presentation. This did not impact net loss.
The unaudited pro forma combined financial information has been prepared assuming the actual redemption scenario using the actual number of VMAC Class A Common Stock that have been redeemed.
Included in the shares outstanding and weighted average shares outstanding as presented in the unaudited pro forma combined financial information are an aggregate of 18,000,000 Pubco ordinary shares issued to Anghami’s shareholders. Pursuant to the Business Combination Agreement, Anghami Shareholders were entitled to receive cash consideration only if the available cash exceeded $50,000,000. No cash consideration was paid to Anghami’s shareholders because the available cash did not exceed $50,000,000.
The following table summarizes the pro forma number of Pubco ordinary shares outstanding after the closing of the Transaction, by source (without giving effect to (i) Anghami Warrants that will remain outstanding immediately following the Transactions and may be exercised thereafter or (ii) any options that will be outstanding upon completion of the Transactions under the Pubco incentive plan, but including the VMAC Class B Common Stock, which at the Closing was converted into 2,500,000 Pubco ordinary shares):
| June 30, 2021 | Number of Shares(1) | % of Shares | ||||||
| VMAC’s Public Stockholders(2) | 242,967 | 0.94 | % | |||||
| VMAC’s Initial Stockholders | 2,830,000 | 10.98 | % | |||||
| PIPE investors(3) | 4,056,000 | 15.74 | % | |||||
| Anghami Shareholders(4) | 18,000,000 | 69.85 | % | |||||
| Share based payments(5) | 640,000 | 2.48 | % | |||||
| Total | 25,768,967 | 100.0 | % | |||||
| ____________ |
| (1) | Excludes (a) Pubco ordinary shares issuable upon the exercise of 11,447,800 Pubco warrants to be outstanding upon completion of the Transactions and (b) Pubco ordinary shares issuable pursuant to the Pubco incentive plan. |
| (2) | Reflects shares remaining after actual redemptions. |
| (3) | Includes 4,056,000 Pubco ordinary shares held by VMAC PIPE investors. |
| (4) | Based on estimated price of $10.00 per share. |
| (5) | Relates to transaction costs settled in shares issued. |
All numbers given below are in US dollars except as indicated otherwise. Certain amounts that appear in this section may not sum due to rounding.
| 3 |
Unaudited Pro Forma Combined Statement of
Financial Position as of June 30, 2021
(in U.S. dollars)
| Unaudited Pro Forma Combined Statement of Financial Position As of June 30, 2021 | Historical Anghami |
Historical VMAC |
Notes | Pro forma adjustments |
Pro forma Combined | ||||||||
| $ | $ | $ | $ | ||||||||||
| Assets | |||||||||||||
| Non-Current | |||||||||||||
| Property and equipment | 248,782 | — | — | 248,782 | |||||||||
| Intangible assets | 1,837,033 | — | — | 1,837,033 | |||||||||
| Right-of-use assets | 212,214 | — | — | 212,214 | |||||||||
| Cash held in Trust Account | — | 100,065,067 | (A) | (100,065,067 | ) | — | |||||||
| Non-current Assets | 2,298,029 | 100,065,067 | 2,298,029 | ||||||||||
| Current | |||||||||||||
| Trade and other receivables | 5,141,055 | — | — | 5,141,055 | |||||||||
| Amount due from related parties | 733,476 | — | — | 733,476 | |||||||||
| Contract assets | 1,647,486 | — | — | 1,647,486 | |||||||||
| Cash and bank balances | 806,739 | 249,095 | (A) | 100,065,067 | 32,284,746 | ||||||||
| (B) | 40,560,000 | ||||||||||||
| (D) | (132,000 | ) | |||||||||||
| (G) | (97,570,330 | ) | |||||||||||
| (I) | (11,693,825) | ||||||||||||
| Current Assets | 8,328,756 | 249,095 | 39,806,763 | ||||||||||
| Total Assets | 10,626,785 | 100,314,162 | 42,104,792 | ||||||||||
| Liabilities | |||||||||||||
| Non-Current | |||||||||||||
| Provision for employees’ end-of-service benefits |
136,844 | — | — | 136,844 | |||||||||
| Convertible notes | 5,933,642 | — | (C) | (5,933,642 | ) | — | |||||||
| Derivative warrant liabilities | — | 12,826,420 | (K) | 174,696 | 13,001,116 | ||||||||
| Lease liabilities | 207,868 | — | — | 207,868 | |||||||||
| Deferred tax liabilities | 17,898 | — | — | 17,898 | |||||||||
| Non-current Liabilities | 6,296,252 | 12,826,420 | 13,363,726 | ||||||||||
| Current | |||||||||||||
| Trade and other payables | 15,657,478 | 132,000 | (D) | (132,000 | ) | 15,657,478 | |||||||
| Contract liabilities | 1,830,073 | — | — | 1,830,073 | |||||||||
| Convertible notes | 8,145,967 | — | (C) | (8,145,967 | ) | — | |||||||
| Amount due to related parties | 1,701,933 | — | — | 1,701,933 | |||||||||
| Income tax payables | 486,174 | — | — | 486,174 | |||||||||
| Bank overdrafts | 17 | — | — | 17 | |||||||||
| Lease liabilities | 71,938 | — | — | 71,938 | |||||||||
| Current Liabilities | 27,893,580 | 132,000 | 19,747,613 | ||||||||||
| Total Liabilities | 34,189,832 | 12,958,420 | 33,111,339 | ||||||||||
| Commitments and Contingencies | |||||||||||||
| Common stock subject to possible redemption |
— | 100,000,000 | (G) | (100,000,000 | ) | — | |||||||
| Shareholders Equity | |||||||||||||
| Anghami | |||||||||||||
| Share capital | 22,093 | — | (C) | 870 | — | ||||||||
| (E) | (22,963 | ) | |||||||||||
| Share premium | 25,050,823 | — | (C) | 14,078,739 | — | ||||||||
| (E) | (39,129,562 | ) | |||||||||||
| Share-based payment reserves | 3,126,804 | — | (E) | (3,126,804 | ) | — | |||||||
| Other reserves | (269,033 | ) | — | (E) | 269,033 | — | |||||||
| Accumulated losses | (50,543,306 | ) | — | (E) | 50,543,306 | — | |||||||
| Non-controlling interest | (950,428 | ) | — | (E) | 950,428 | — | |||||||
| VMAC | |||||||||||||
| Class A share capital | 33 | (E) | (33 | ) | — | ||||||||
| Class B share capital | 250 | (F) | (250 | ) | — | ||||||||
| Accumulated earnings | (12,644,541 | ) | (E) | 12,644,541 | — | ||||||||
| 4 |
Unaudited Pro Forma Combined Statement of
Financial Position as of June 30, 2021
(in U.S. dollars) — (Continued)
| Unaudited Pro Forma Combined Statement of Financial Position As of June 30, 2021 | Historical Anghami |
Historical VMAC |
Notes | Pro forma adjustments |
Pro forma Combined | |||||||||
| $ | $ | $ | $ | |||||||||||
| Pubco | ||||||||||||||
| Ordinary share capital | — | — | (B) | 406 | 2,577 | |||||||||
| (E) | 1,800 | |||||||||||||
| (E) | 33 | |||||||||||||
| (G) | 24 | |||||||||||||
| (F) | 250 | |||||||||||||
| (J) | 64 | |||||||||||||
| Share premium reserve | — | — | (B) | 40,559,594 | 111,215,638 | |||||||||
| (E) | 22,963 | |||||||||||||
| (E) | 39,129,562 | |||||||||||||
| (E) | 40,942,458 | |||||||||||||
| (G) | 2,429,646 | |||||||||||||
| (I) | (11,693,825) | |||||||||||||
| (J) | (64 | ) | ||||||||||||
| (K) | (174,696 | ) | ||||||||||||
| Share-based payment reserves | — | — | (E) | 3,126,804 | 3,126,804 | |||||||||
| Other reserves | — | — | (E) | (269,033 | ) | (269,033 | ) | |||||||
| Accumulated losses | — | — | (E) | (50,543,306 | ) | (104,132,105 | ) | |||||||
| (E) | (40,944,258 | ) | ||||||||||||
| (E) | (12,644,541 | ) | ||||||||||||
| Non-controlling interest | — | — | (E) | (950,428 | ) | (950,428 | ) | |||||||
| Total shareholders equity | (23,563,047 | ) | (12,644,258 | ) | 8,993,453 | |||||||||
| Total Liabilities and Shareholders’ Equity | 10,626,785 | 100,314,162 | 42,104,792 | |||||||||||
| 5 |
Unaudited Pro Forma Combined Statement of
Comprehensive Income for the six months ended
June 30, 2021 (in U.S. dollars, except share data)
| Unaudited Pro Forma Combined Statement of Comprehensive Income For the six months period ended June 30, 2021 | Historical Anghami |
Historical VMAC |
Notes | IFRS conversion and presentation alignment | Notes | Actual Redemptions | |||||||||||||
| Pro forma adjustments | Pro forma Combined | ||||||||||||||||||
| $ | $ | $ | $ | ||||||||||||||||
| Revenue from contracts with customers |
16,350,957 | — | — | — | 16,350,957 | ||||||||||||||
| Cost of revenue | (12,326,985 | ) | — | — | — | (12,326,985 | ) | ||||||||||||
| Gross Profit | 4,023,972 | — | 4,023,972 | ||||||||||||||||
| Selling and marketing expenses |
(3,237,386 | ) | — | — | — | (3,237,386 | ) | ||||||||||||
| General and administrative expenses |
(5,646,952 | ) | (437,784 | ) | — | — | (6,084,736 | ) | |||||||||||
| Operating Loss | (4,860,366 | ) | (437,784 | ) | (5,298,150 | ) | |||||||||||||
| Finance costs | (1,412,426 | ) | — | — | — | (1,412,426 | ) | ||||||||||||
| Finance income | 105,710 | 15,465 | (1) | (2,547,970 | ) | (H) | (15,465 | ) | (2,442,260 | ) | |||||||||
| Other income | 40,085 | — | — | — | 40,085 | ||||||||||||||
| Foreign exchange loss, net | (147,075 | ) | — | — | — | (147,075 | ) | ||||||||||||
| Change in fair value of warrant liabilities | — | (2,547,970 | ) | (1) | 2,547,970 | — | — | ||||||||||||
| (Loss)/income before tax | (6,274,072 | ) | (2,970,289 | ) | (9,259,826 | ) | |||||||||||||
| Income tax expense | (133,812 | ) | — | — | — | (133,812 | ) | ||||||||||||
| Total comprehensive (loss)/income for the period | (6,407,884 | ) | (2,970,289 | ) | (9,393,638 | ) | |||||||||||||
| Attributable to: | |||||||||||||||||||
| Equity holders of the parent | (6,314,776 | ) | (2,970,289 | ) | — | (15,465 | ) | (9,300,530 | ) | ||||||||||
| Non-controlling interests | (93,108 | ) | — | — | — | (93,108 | ) | ||||||||||||
| Total comprehensive (loss)/income for the period | (6,407,884 | ) | (2,970,289 | ) | (9,393,638 | ) | |||||||||||||
| Weighted average share outstanding – basic and diluted | 82,527 | 2,830,000 | 25,768,967 | ||||||||||||||||
| Basic and diluted net income/(loss) per share |
(76.52 | ) | (1.05 | ) | (0.36 | ) | |||||||||||||
| 6 |
Unaudited Pro Forma Combined Statement of
Comprehensive Income for the year ended
December 31, 2020 (in U.S. dollars, except share data)
| Unaudited Pro Forma Combined Statement of Comprehensive Income For the year ended December 31, 2020 |
Historical Anghami |
Historical VMAC |
Notes | IFRS conversion and presentation alignment | Notes | Actual Redemptions | |||||||||||||
| Pro forma adjustments | Pro forma Combined | ||||||||||||||||||
| $ | $ | $ | $ | ||||||||||||||||
| Revenue from contracts with customers | 30,518,356 | — | — | — | 30,518,356 | ||||||||||||||
| Cost of revenue | (22,346,521 | ) | — | — | — | (22,346,521 | ) | ||||||||||||
| Gross Profit | 8,171,835 | — | 8,171,835 | ||||||||||||||||
| Selling and marketing expenses |
(5,284,152 | ) | — | — | — | (5,284,152 | ) | ||||||||||||
| General and administrative expenses | (5,435,996 | ) | (576,316 | ) | — | (E) | (40,944,258 | ) | (46,956,570 | ) | |||||||||
| Operating Loss | (2,548,313 | ) | (576,316 | ) | (44,068,887 | ) | |||||||||||||
| Finance costs | (1,764,682 | ) | — | — | — | (1,764,682 | ) | ||||||||||||
| Finance income | 137,397 | 49,603 | (1) | 1,468,350 | (H) | (49,603 | ) | 1,605,747 | |||||||||||
| Other income | 60,497 | — | — | — | 60,497 | ||||||||||||||
| Foreign exchange loss, net | (1,126,851 | ) | — | — | — | (1,126,851 | ) | ||||||||||||
| Change in fair value of warrant liabilities | — | 1,468,350 | (1) | (1,468,350 | ) | — | — | ||||||||||||
| (Loss)/income before tax | (5,241,952 | ) | 941,637 | (45,294,176 | ) | ||||||||||||||
| Income tax expense | (501,238 | ) | — | — | — | (501,238 | ) | ||||||||||||
| Total comprehensive (loss)/income for the period | (5,743,190 | ) | 941,637 | (45,795,414 | ) | ||||||||||||||
| Attributable to: | |||||||||||||||||||
| Equity holders of the parent | (5,585,948 | ) | 941,637 | — | (40,993,861 | ) | (45,638,172 | ) | |||||||||||
| Non-controlling interests | (157,242 | ) | — | — | — | (157,242 | ) | ||||||||||||
| Total comprehensive (loss)/income for the period | (5,743,190 | ) | 941,637 | (45,795,414 | ) | ||||||||||||||
| Weighted average share outstanding – basic and diluted | 81,823 | 2,669,140 | 25,768,967 | ||||||||||||||||
| Basic and diluted net income/(loss) per share | (68.27 | ) | 0.35 | (1.77 | ) | ||||||||||||||
IFRS Adjustments and Reclassifications
The historical financial information of VMAC for the six months ended June 30, 2021 and for the period ended December 31, 2020 were prepared in accordance with U.S. GAAP, and have been adjusted to give effect to the differences between U.S. GAAP and IFRS.
The IFRS adjustments and reclassifications included in the unaudited pro forma combined statement of comprehensive income for the six months ended June 30, 2021 and for the period ended December 31, 2020 are as follows:
(1) Reflects the reclassification adjustments to align VMAC historical financial statements balances with the presentation of Anghami’s historical financial statements. This reclassification has no impact on net income.
| 7 |
Transaction Accounting Adjustments to unaudited pro forma combined financial information
| (A) | Reflects the reclassification of $100,065,067 of cash and marketable securities held in the Trust Account that becomes available to fund the Transactions. |
| (B) | Reflects the proceeds received from the PIPE with the corresponding issuance of 4,056,000 ordinary shares, with a nominal value of $0.0001 per share, assuming stock price of $10.00 per share. The unaudited pro forma combined statement of financial position reflects this payment as an increase of cash and bank balances of $40,560,000 with a corresponding increase to ordinary share capital of $406 and increase to share premium reserve of $40,559,594. |
| (C) | Represents the conversion of Anghami’s convertible notes into ordinary shares in Anghami. immediately prior to Closing. $14,079,609 converted to 8,703 shares reflected as an increase in $870 share capital and $14,078,739 share premium. |
| (D) | Reflects the payment of $132,000 deferred fees, which results in a decrease in Cash and bank balances with a corresponding decrease in trade and other payables. |
| (E) | To reflect the recapitalization of Anghami through: |
| (i) | The contribution of all the aggregate share capital, share premium, share-based payment reserves, other reserves, accumulated losses and non-controlling interest (post considering the conversion of Anghami’s convertible notes into ordinary shares) in Anghami to Pubco of $22,963, $39,129,562, $3,126,804, $(269,033), $(50,543,306), and $(950,428). |
| (ii) | The issuance of 18,000,000 Pubco ordinary shares to Anghami Shareholders is recorded as an increase in Pubco ordinary share capital of $1,800, and an increase in Pubco share premium reserve of $40,942,458. |
| (iii) | The elimination of the historical VMAC Class A share capital of $33 and accumulated losses of $12,644,541. |
| (iv) | The fair value of the share consideration and the excess of the fair value of the shares issued over the value of the net monetary assets acquired in the Transactions, where the fair value of share consideration of $71,289,670 and a $40,944,258 excess over the value of the net monetary assets acquired. |
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Under IFRS 2, this excess amount is recognized as a loss on the unaudited pro forma combined statement of comprehensive income.
| (F) | Reflects the net adjustment in respect of VMAC Class B Common Stock in relation to the reorganization between VMAC and Pubco and the Transactions. Upon completion of the reorganization between VMAC and Pubco, all VMAC Class B Common Stock will be surrendered in exchange for the same number of Pubco ordinary shares. The unaudited pro forma combined statement of financial position reflects these adjustments as a reduction to VMAC Class B share capital of $250 with a corresponding increase to Pubco ordinary share capital of $250. |
| (G) | Reflects the actual redemption of 9,757,033 VMAC Class A Common Stock for aggregate redemption payments of $97,570,330. The unaudited pro forma combined statement of financial position reflects this payment as a reduction to cash and bank balances of $97,570,330 with a corresponding decrease in Common stock subject to possible redemption of $100,000,000, an increase in Pubco ordinary share capital of $24, and an increase in Pubco share premium reserve of $2,429,646. |
| (H) | Reflects the elimination of interest income related to the marketable securities held in the Trust Account. |
| (I) | Represents transaction costs incurred by Anghami and VMAC of $11,693,825, inclusive of advisory, banking, printing, legal, and accounting fees that are incurred as a part of the Business Combination and equity issuance costs that are specifically incremental costs directly attributable to the Business Combination that are capitalized into Share premium. The unaudited pro forma condensed combined statement of financial position reflects these costs as a reduction of cash and bank balances of $11,693,825 with a corresponding offset of $11,693,825to additional share premium reserve. |
| (J) | Represents transaction costs incurred by Anghami and VMAC of $6,400,000 settled through the issuance of shares. This transaction cost relates to advisory and banking fees that are incurred as a part of the Business Combination and equity issuance costs that are specifically incremental costs directly attributable to the Business Combination that are capitalized into Share premium. The unaudited pro forma condensed combined statement of financial position reflects these costs as an increase to Pubco ordinary share capital of $64 with a corresponding net offset of $64 to additional share premium reserve. |
| (K) | Represents transaction costs incurred by Anghami and VMAC of $174,696 settled through the issuance of warrants. This transaction cost relates to advisory and banking fees that are incurred as part of the Business Combination and equity issuance costs that are specifically incremental costs directly attributable to the Business Combination that are capitalized into Share premium. The unaudited pro forma condensed combined statement of financial position reflects this cost as an increase to derivative warrant liabilities of $174,696 with a corresponding offset of $174,696 to additional share premium reserve. |
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Exhibit 15.2
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Report on Form 20-F of Anghami, Inc. and to the incorporation by reference therein of our report dated October 28, 2021, with respect to the consolidated financial statements of Anghami, included in Amendment No. 4 of the Registration Statement (Form F-4 No. 333-260234) and related Prospectus of Anghami, Inc. and Proxy Statement of Vistas Media Acquisition Company Inc., dated December 10, 2021, as filed with the Securities and Exchange Commission.
/s/ Ernst & Young
Abu Dhabi, United Arab Emirates
February 9, 2022
Exhibit 15.3
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference on the form 20-F of Anghami , Inc. of our report dated April 15, 2021, except to Note 2A, as to which the date is May 24, 2021, and Note 2B as to which the date is November 22, 2021, relating to the financial statements of Vistas Media Acquisition Company, Inc. for the period from March 27, 2020 (date of inception) through December 31, 2020, and to the reference to us under the heading “Experts” in such Prospectus.
/s/ Prager Metis CPA’s LLC
Hackensack, New Jersey
February 9, 2022