Bit Digital, Inc 6-K, filed Jun 30, 2022
Bit Digital, Inc (BTBT)
About this 6-K
Bit Digital, Inc filed this 6-K on June 30, 2022.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For the month of June 2022
Commission File Number: 001-38421
BIT DIGITAL, INC.
(Translation of registrant’s name into English)
33 Irving Place, New York, NY 10003
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F
Form 20-F ☒ Form 40-F ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ☐
Indicate by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ☐
Explanatory Paragraph
Copies of the Bit Digital, Inc. Notice of Annual General Meeting; Proxy Statement for Annual General Meeting; Amended and Restated Memorandum of Association; and Amended and Restated Articles of Association are being furnished as Exhibits 99.1, 99.2, 99.3 and 99.4, respectively, with this Report on Form 6-K. As a Foreign Private Issuer, Bit Digital, Inc. is not subject to the Proxy Rules under the Securities Exchange Act of 1934.
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Exhibit Index
| Exhibit 99.1 | Notice of Annual General Meeting | |
| Exhibit 99.2 | Proxy Statement for Annual General Meeting | |
| Exhibit 99.3 | Amended and Restated Memorandum of Association | |
| Exhibit 99.4 | Amended and Restated Articles of Association |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Bit Digital, Inc. | ||
| (Registrant) | ||
| By: |
/s/ Bryan Bullett | |
| Name: | Bryan Bullett | |
| Title: | Chief Executive Officer | |
Date: June 30, 2022
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Exhibit 99.1
BIT DIGITAL, INC.
33 Irving Place
New York, N.Y., 10003
NOTICE OF ANNUAL MEETING OF SHAREHOLDERS
To be held on July 29, 2022
To the Shareholders of Bit Digital, Inc.:
Notice is hereby given that the 2021 Annual General Meeting of the Shareholders (the “Annual Meeting”) of Bit Digital, Inc. (the “Company”) will be held on July 29, 2022 at 9:00 a.m. at the Company’s principal executive offices, at 33 Irving Place, New York, NY 10003. You will be able to attend, vote your shares, and submit questions during the Annual Meeting via a live webcast available at http://www.transhare.com for the purpose of considering and, if thought fit, passing, with or without amendment, the following resolutions of the Company:
| 1. | To elect our five (5) existing directors for one-year terms concluding at the 2022 Annual Meeting of Shareholders or until each successor is duly elected and qualified. |
| 2. | To authorize the Board of Directors to effect a reverse stock split at its discretion in the range of 1 for 3 ordinary shares to 1 for 6 ordinary shares and to increase the Company's authorised share capital thereafter. |
| 3. | Subject to approval by the Shareholders of Proposal 2 above and entirely conditional upon the approval of the Board of Directors in its discretion, with effect as of the date the Board of Directors may determine, to approve and adopt amended and restated memorandum and articles of association, in substitution for and to the exclusion of, the existing memorandum and articles of association of the Company, as described in the Proxy Statement. |
| 4. | To transact any other business that is properly brought before the Annual Meeting or any adjournment or postponement thereof. |
The close of business on June 7, 2022 has been fixed as the record date for the purpose of determining the shareholders entitled to notice of, and to vote at, the Annual Meeting. The register of members of the Company will not be closed. The date on which this Proxy Statement and the accompanying form of proxy card will first be mailed or given to the Company’s shareholders is on or about on June 30, 2022.
| By Order of the Board of Directors, | ||
| /s/ Erke Huang | ||
| Mr. Erke Huang (Secretary) | ||
| Dated: | June 30, 2022 | |
Proxies
Your vote is important. Accordingly, you are urged to sign and return the accompanying proxy card whether or not you plan to attend the Annual Meeting. If you do attend the Annual Meeting and are a record holder of Ordinary Shares of our Company, you may vote by ballot at the Annual Meeting, and your proxy will be deemed to be revoked. If you hold your shares in street name and wish to vote your shares at the Annual Meeting, you should contact your broker about getting a proxy appointing you to vote your shares.
A blank proxy form is attached. Please consider carefully the conditions attaching to appointment of a proxy. You may otherwise vote by any of the following options:
VOTE BY INTERNET
Use the Internet to transmit your voting instructions at www.transhare.com/bitdigital. Click Vote My Proxy and then click on the Company’s name and follow the on-screen instructions.
VOTE BY EMAIL
Mark, sign and date your proxy card and return it via email to akotlova@bizsolaconsulting.com. Include your control ID in your email.
VOTE BY FAX
Mark, sign and date your proxy card and return it via fax to 1-727-269-5616.
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Transhare Corporation, Bayside Center 1, 17755 North U.S. Highway 19, Suite 140, Clearwater, Florida 33764.
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Bit Digital, Inc.
Registered Company No 319983
(Company)
Proxy form
| I/We1 | _______________________________________________ |
| of | _______________________________________________ |
being a member/members of the Company and the holder/holders of _______________________________________________(number and class of shares) appoint as my/our proxy 2 | |
| _______________________________________________ | |
| of | _______________________________________________ |
| or in his/her absence 3 | |
| _______________________________________________ | |
| of | _______________________________________________ |
at the general meeting of the Company to be held at 33 Irving Place, New York, New York 10003 on July 29, 2022 at 9:00 a.m. (local time) and by telephone conferencing and at any adjournment of that meeting.
If the Secretary is appointed as proxy, the following is a statement of the Secretary's voting intentions in relation to undirected proxies:
The Secretary intends to vote in favour of both resolutions.
Please indicate with a tick mark in the spaces opposite to each resolution how you wish the proxy to vote on your behalf. In the absence of any such indication, the proxy may vote for or against the resolutions or may abstain at his/her discretion. Your proxy will also be entitled to vote at his/her discretion on any resolution properly put to the meeting pursuant to the other items of business referred to in the notice convening the meeting.
| 1 | Full name(s) and address(es) (as appearing in the Company's register of members) to be typed or inserted in block letters. In the case of joint holdings, the names of all holders (as appearing in the Company's register of members) must be inserted. |
| 2 | Insert name and address of the desired proxy in the spaces provided. If you wish to appoint the chairperson, write "The chairperson" without inserting an address. |
| 3 | If desired, insert name and address of an alternate proxy, should the initial appointee be unable to attend the meeting. |
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The Board of Directors recommends that you vote “FOR” each proposal.
Resolutions
| 1. | Election of Directors |
| ☐ | FOR ALL NOMINEES |
| ☐ | WITHHOLDING AUTHORITY |
| FOR ALL NOMINEES | |
| ☐ | FOR ALL EXCEPT |
| (SEE INSTRUCTIONS BELOW) |
| Zhaohui Deng ☐ | Erke Huang ☐ | Ichi Shih ☐ |
| Yan Xiong ☐ | Brock Pierce ☐ |
INSTRUCTION: To withhold authority to vote for any individual nominee(s), mark “FOR ALL EXCEPT” and fill in the circle next to each nominee you which to withhold, as shown here: •
| 2. | To authorize the Board of Directors to effect a reverse stock split at its discretion in the range of 1 for 3 ordinary shares to 1 for 6 ordinary shares and to increase the Company's authorised share capital thereafter. |
| ☐ FOR | ☐ AGAINST | ☐ ABSTAIN |
| 3. | Subject to approval by the Shareholders of Proposal 2 above and entirely conditional upon the approval of the Board of Directors in its discretion, with effect as of the date the Board of Directors may determine, to approve and adopt amended and restated memorandum and articles of association of the Company, in substitution for and to the exclusion of, the existing memorandum and articles of association of the Company, as described in the Proxy Statement. |
| ☐ FOR | ☐ AGAINST | ☐ ABSTAIN |
To transact any other business that is properly brought before the Annual Meeting or any adjournment or postponement thereof.
Note: Please sign exactly as your name or names appear on this Proxy. If Shares are held jointly, each holder should sign. When signing as executor, administrator, attorney, trustee or guardian, please give full title as such. If the signer is a corporation, please sign full corporate name by duly authorized officer, giving full title as such. If signer is a partnership, please sign in partnership name by authorized person.
Dated: July ____, 2022
[If the member or each member is an individual, sign immediately below.]
| ………………………............... | ……………………………….. |
| Signature of shareholder | Signature of joint-shareholder, if any |
[or]
[If the member is a company, complete the following]
Executed by ________________________________ [Name of member] acting through an authorised
Signatory
_______________________________________________
Signature of authorised signatory
_______________________________________________
Print name
_______________________________________________
Title
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Proxy instructions
What happens if you do not follow these instructions?
| 1 | If you do not follow these instructions, any instrument you make appointing a proxy will be invalid. |
Eligible members
| 2 | If you are a member entitled to attend and vote at this meeting of the Company, you may appoint a proxy to vote on your behalf. |
| 3 | A proxy need not be a member of the Company. |
If you complete a proxy form, can you still attend and vote at the meeting?
| 4 | Completion of the proxy form does not preclude a member from subsequently attending and voting at the meeting in person if he or she so wishes. |
Joint shareholders
| 5 | In the case of jointly held shares, if more than one joint holder purports to appoint a proxy, only the appointment submitted by the most senior holder will be accepted. For this purpose, seniority will be determined by the order in which the names of the joint holders appear in the register of members (the first-named being the most senior). |
How to appoint a proxy
| 6 | If you are an eligible member and a natural person, the appointment of your proxy must be in writing and signed by you or your authorised attorney. |
| 7 | If you are an eligible member and a corporation, the appointment of your proxy must be in writing and executed in any of the following ways: (i) under the corporation's common seal; (ii) not under the corporation's common seal but otherwise in accordance with its articles of association; or (iii) under the hand of the corporation's authorised attorney. |
| 8 | Despite paragraphs 6 and 7, the Company will accept an electronic record of your proxy if: |
| (a) | the original is in writing and signed one of the ways referred to those paragraphs; and |
| (b) | the Company permits receipt of electronic records by giving an electronic address for that purpose. |
Delivery of proxy form to Company
| 9 | For an appointment of a proxy to be effective, the proxy form must be received by the Company at any time before the time for the holding of the meeting or adjourned meeting at which the proxy proposes to vote: |
| 10 | The proxy form may be delivered in either of the following ways: |
| (a) | In the case of hard-copy documents - they must leave at or send by post to the Company's registered office or the other place, if any, specified by the Company for the purpose of the meeting. |
| (b) | In the case of documents comprised in an electronic record - they must be sent to an address specified by the Company for the purpose of receiving electronic records. |
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Exhibit 99.2
BIT DIGITAL, INC.
TABLE OF CONTENTS
i
BIT DIGITAL, INC.
33 Irving Place,
New York, NY 10003
(347) 328-3680
ANNUAL MEETING OF SHAREHOLDERS
This Proxy Statement is furnished in connection with the solicitation of proxies by the Board of Directors (the “Board”) of Bit Digital, Inc. (the “Company,” “BTBT,” “we,” “us,” or “our”) for the 2021 Annual General Meeting of Shareholders (the “Annual Meeting”) to be held at the Company’s principal executive office, at 33 Irving Place, New York, NY 10003 on July 29, 2022 at 9:00 a.m. and for any adjournment or adjournments thereof, for the purposes set forth in the accompanying Notice of Annual Meeting of Shareholders. The Company will bear the costs of this solicitation.
If the enclosed proxy is properly executed and returned, the Ordinary Shares of our Company (the “Ordinary Shares”) represented thereby will be voted in accordance with the directions thereon and otherwise in accordance with the judgment of the persons designated as proxies. Any proxy card on which no instruction is specified will be voted in favor of the actions described in this Proxy Statement and for the election of the nominees set forth under the caption “Election of Directors.” Any shareholder appointing such a proxy has the power to revoke it at any time before it is voted. If you are a holder of record, written notice of such revocation should be forwarded to TranShare Securities Transfer with Registrar, Bayside Center 1, 17755 North U.S. Highway 19, Suite 140, Clearwater, Florida 33764. If you hold your Ordinary Shares in street name, you should contact your broker about revoking your proxy.
The Company will bear the cost of preparing, printing, assembling and mailing the proxy card, Proxy Statement and other material which may be sent to shareholders in connection with this solicitation. It is contemplated that brokerage houses will forward the proxy materials to beneficial owners at our request. In addition to the solicitation of proxies by use of the mails, officers and regular employees of the Company may solicit proxies without additional compensation, by telephone or telegraph. We may reimburse brokers or other persons holding Shares in their names or the names of their nominees for the expenses of forwarding soliciting material to their principals and obtaining their proxies.
Only holders of our Ordinary Shares and Preference Shares (collectively, the “Shares”) of record at the close of business on June 7, 2022 (the “Record Date”) are entitled to vote at the Annual Meeting. On the Record Date, the Company had 82,426,279 Ordinary Shares outstanding and entitled to vote at the Annual Meeting. For purposes of voting at the Annual Meeting, each Ordinary Share is entitled to one vote upon all matters to be acted upon at the Annual Meeting. Each of 1,000,000 Preference Shares, $.01 par value, has fifty (50) votes. No business may be transacted at any meeting of shareholders unless a quorum is present at the commencement of business. The presence of one or more shareholders entitled to vote and present in person or by proxy representing not less than one third of the total issued voting Shares of the Company throughout the Annual Meeting shall constitute a quorum.
Election of directors must be approved by the affirmative vote of a simple majority of the votes of the Shares entitled to vote thereon which were present at the Annual Meeting and were voted. The affirmative vote of a simple majority of the votes cast in person or by proxy at the Annual Meeting and entitled to vote (a “majority vote”) is required to elect the directors of the Company. An ordinary resolution to be passed at an Annual Meeting by the shareholders requires the affirmative vote of a simple majority of the votes cast by, or on behalf of, the shareholders entitled to vote at an Annual Meeting (the "Ordinary Resolution"), while a special resolution requires the affirmative vote of a majority of at least two-thirds of such shareholders as, being entitled to do so, vote in person or by proxy of which notice specifying the intention to propose the resolution as a special resolution has been duly given (the “Special Resolution”). A Special Resolution will be required for important matters such as a change of name or making changes to our articles or memorandum and articles of association.
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An Ordinary Resolution of the voters entitled to vote is required to authorize the Board to effect a reverse stock split and increase the Company's authorised share capital, in its discretion, and a Special Resolution of the voters entitled to vote is required to approve and adopt an amended and restated Memorandum and Articles of Association of the Company and is needed for the approval of Proposal 3 described below.
Only Shares that are voted are taken into account in determining the proportion of votes cast for the election of directors. Any Shares not voted (whether by abstention, broker non-vote or otherwise) will therefore only impact the election of directors to the extent that the failure to vote for any individual may result in another individual’s receiving a larger proportion of votes cast. Similarly, any Shares not voted (whether by abstention, broker non-vote or otherwise) will only impact the percentage of votes cast for or against the other matters. Except for determining the presence or absence of a quorum for the transaction of business, broker non-votes are not counted for any purpose in determining whether a matter has been approved.
The Annual Meeting will be postponed if a quorum is not present at the Annual Meeting within half an hour from the time appointed for the meeting. For purposes of determining the presence of a quorum, abstentions and broker non-votes will be counted as present. A broker non-vote occurs when a broker or nominee holding Ordinary Shares for a beneficial owner signs and returns a proxy but does not vote on a particular proposal because the broker or nominee does not have discretionary voting power and has not received instructions from the beneficial owner. If a quorum is not present, the Annual Meeting shall stand adjourned to the same time and place seven days hence (unless the Annual Meeting was requisitioned by the shareholders, in which case such meeting shall be cancelled if a quorum is not present). If a quorum is present, the meeting may be adjourned by the chairman of the meeting by the consent of shareholders who are represented constituting a quorum. The meeting may be rescheduled at the time of the adjournment with no further notice of the rescheduled time (except such notice provided at the meeting at which the adjournment decision was made) if the meeting is adjourned for seven clear days or less. Should a meeting be adjourned for ten days or more, whether because of a lack of quorum or otherwise, shareholders shall be given at least seven days’ notice of the date, time and place of the adjourned meeting and the general nature of the business to be transacted. An adjournment will have no effect on the business to be conducted.
Our Memorandum and Articles of Association do not contain any provisions that allow cumulative voting for elections of directors.
The Company is soliciting your vote through the use of the mail and will bear the cost of this solicitation. The Company does not intend to employ third party solicitors, but our directors, officers, employees, and consultants may solicit proxies by mail, telephone, personal contact, or through online methods; to the extent they do so, the Company will reimburse their expenses for doing this. The Company will also reimburse brokers, fiduciaries, and custodians for their costs in forwarding proxy materials to beneficial owners of the Company’s stock. Other proxy solicitation expenses include those for preparation, mailing, returning, and tabulating the proxies.
The Board is not proposing any action for which the applicable rules and laws provide a right of a shareholder to obtain appraisal of or payment for such shareholder’s Ordinary Shares.
Copies of the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2021 as filed with the Securities and Exchange Commission are being sent to all shareholders along with this proxy statement. Additional copies will be furnished without charge to shareholders upon written request. Exhibits to the Annual Report will be provided upon written request. All written requests should be directed to the Company at its main office at 33 Irving Place, New York, NY 10003. The Company is subject to certain disclosure requirements of the Securities Exchange Act of 1934, as amended. The SEC maintains a website that contains various filings and reports regarding companies that file electronically with the SEC. The SEC’s website address is www.sec.gov. In addition, our Ordinary Shares are listed on the Nasdaq Capital Market. Accordingly, our reports, statements and other information may be inspected at the offices of Nasdaq, One Liberty Plaza, 165 Broadway, New York, New York 10006.
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If you are a shareholder of record, you may vote in person at the Annual Meeting.
We will give you a ballot sheet when you arrive. If you do not wish to vote in person or you will not be attending the Annual Meeting, you may vote by proxy. If you have received a printed copy of these proxy materials by mail, you may vote by proxy using the enclosed proxy card. To vote by proxy using the enclosed proxy card (only if you have received a printed copy of these proxy materials by mail), complete, sign and date your proxy card and return it promptly in the envelope provided. If you intend to vote by proxy, your vote must be received by 5:30 p.m., local time on July 28, 2022 to be counted.
If your Ordinary Shares are registered in your name, you are a shareholder of record with respect to those Ordinary Shares. On the other hand, if your Ordinary Shares are registered in the name of your broker or bank, your Ordinary Shares are held in street name and you are considered the “beneficial owner” of the Ordinary Shares. As the beneficial owner of those Ordinary Shares, you have the right to direct your broker or bank how to vote your Ordinary Shares, and you will receive separate instructions from your broker or bank describing how to vote your Ordinary Shares.
If you give a proxy, you may revoke it at any time before it is exercised. You may revoke your proxy in three ways:
| 1. | You may send in another proxy with a later date. |
| 2. | You may notify us in writing (or if the Shareholder is a corporation, under its corporate seal, by an officer or attorney of the corporation) at our principal executive offices before the Annual Meeting that you are revoking your proxy. |
| 3. | You may vote in person at the Annual Meeting. |
PROPOSAL 1
The Nominating and Corporate Governance Committee of the Board has recommended that the Board nominate, and the Board has nominated Zhaohui Deng, Erke Huang, Ichi Shih, Yan Xiong and Brock Pierce each to serve until the next Annual Meeting of Shareholders or until each successor is duly elected and qualified. It is intended that the proxy appointed by the accompanying proxy card will vote for the election, as directors, of the persons named below, unless the proxy card contains contrary instructions.
The Company has no reason to believe that any of the nominees will not be a candidate or will be unable to serve as director. However, in the event that any of the nominees should become unable or unwilling to serve as a director, the persons named in the proxy have advised that they will vote for the election of such person or persons as shall be designated by the directors, unless the proxy card contains contrary instructions.
| Name | Age | Position | ||
| Zhaohui Deng (1)(2)(3) | 53 | Chairman of the Board of Directors | ||
| Erke Huang | 33 | Chief Financial Officer and Director | ||
| Ichi Shih (1)(2)(3) | 51 | Independent Director | ||
| Yan Xiong (1)(2)(3) | 57 | Independent Director | ||
| Brock Pierce (1)(2)(3) | 41 | Independent Director |
| (1) | Member of the Compensation Committee with Yan Xiong as Chairman. |
| (2) | Member of the Nominating and Corporate Governance Committee with Zhaohui Deng as Chairman. |
| (3) | Member of the Audit Committee with Ichi Shih as Chairwoman and Audit Committee Financial Expert. |
The following pages set forth the names of director nominees, their respective principal occupations, positions with the Company, and brief employment history of the past five years, including the names of other publicly-held companies of which each serves or has served as a director during the past five years:
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Zhaohui Deng
Mr. Deng was elected to serve as a director of the Company at the September 4, 2020 Annual General Meeting and was elected Chairman of the Board on January 19, 2021. He was born in January 1969. From 1995 to 2010, he worked as the board secretary and Vice President of Hunan Jinguo Industrial Co., Ltd. From 2011 until now, he has been working as a private investor and serves as private counsel for several listed companies in the PRC. He holds a bachelor’s degree in Accounting from Hengyang Industrial College China.
Erke Huang
Mr. Huang has served as Chief Financial Officer of the Company from October 18, 2019, as a Director since October 30, 2019 and as Interim Chief Executive Officer from February 2, 2021 until March 31, 2021. Prior thereto, Mr. Huang served as the Co-Founder and Advisor of Long Soar Technology Limited from August 2019 and as the Founder/CEO of Bitotem Investment Management Limited from May 2018. From June 2016 to May 2018, Mr. Huang served as the Investment Manager of Guojin Capital. From August 2015 to May 2016, Mr. Huang served as an Analyst for Zhengshi Capital. Mr. Huang served as a Program Officer of Southwest Jiaotong University from February 2015 to August 2015. From March 2013 to November 2014, Mr. Huang served as the Engineering Analyst Team Leader of Crowncastle International. Mr. Huang received his bachelor’s degree in Environmental Engineering from Southwest Jiaotong University in 2011 and received his master’s degree in Civil & Environmental Engineering from Carnegie Mellon University in 2012.
Ichi Shih
Ms. Ichi Shih was elected to serve as a director of the Company at the September 4, 2020 Annual General Meeting. She has over 15 years of experience building and advising corporations through internal financial management, M&A transactions, and capital market transaction across several global regions. From 1995 to 1998, Ms. Ichi Shih worked as an Equity Lending Assistant of Societe Generale in New York. From 1998 to 2000, She worked as Financial Analyst of Goldman Sachs & Co. in New York. From 2003 to 2007, she worked as Senior Associate of Westminster Securities in New York. From 2007 to 2009, she worked as Vice President of Brean Murray in New York. From 2009 to 2011, she worked as CFO of China Valves Technologies in both Hongkong and U.S. From 2012 to 2014, she worked as Senior Vice President of Glory Sky Group in Hong Kong. In 2015, she worked as Listing Advisor of Nasdaq Dubai in Dubai and Shanghai. From 2016 to 2017, she worked as CFO of Cubetech Global Asset in Beijing. From 2017 to 2018, she worked as CFO of ProMed Clinical Research Organization Inc. in Beijing. From 2018 until now, she has worked as a Partner of Cathay Securities Inc. in Beijing and New York. Ms. Ichi Shih received her Bachelor’s degree in Accounting and International Business from Stern School of Business at New York University in 1995 and Master’s degree in International Finance and Business from School of International and Public Affairs at Columbia University in 2002. Ms. Ichi Shih holds a CPA Certificate from American Institute of Certified Public Accountants.
Yan Xiong
Mr. Yan Xiong has been serving as a director of the Company since April 19, 2020. Mr. Xiong has worked as chairman of the board of directors at Guangzhou Kangsheng Pharmaceutical Technology Limited from 2014 to the present. From 2001 to October 2013, Mr. Xiong worked as chairman of the board of directors at Guangzhou Kangsheng Bio-tech Limited. From 1997 to December 2000, Mr. Xiong worked as the General Manager at Zhuhai Dajiaweikang Wujin Mineral Import and Outport Company. He holds a bachelor’s degree in Industrial Accounting from Hunan University Business School, China.
Brock Pierce
Mr. Brock Pierce has been serving as a director of the Company since October 31, 2021. He is an entrepreneur, artist, venture capitalist, and philanthropist with an extensive track record of founding, advising and investing in disruptive business. He’s credited with pioneering the market for digital assets and has raised more than $5B for companies he has founded. Pierce is Chairman of Bitcoin Foundation and the co-founder of EOS Alliance, Block.One, Blockchain Capital, Tether, and Mastercoin. Pierced has been involved in bitcoin mining since its genesis days, acquiring a significant portion of the first batch of Avalons and ran KNC’s China operation, one of the world’s first large scale mining operations. He was also a seed investor in BitFury through Blockchain Capital. He also established the largest Bitcoin mining operation in Washington State in the industry’s early days. Pierce has lectured at some of the nation’s most prestigious institutions, the Milken Institute Global Conference, International World Congress, and has been featured by the New York Times, Wall Street Journal and Fortune. Pierce was on the first-ever Forbes List for the “Richest People in Cryptocurrency” and was an Independent Party candidate for President of the United States in 2020.
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THE BOARD AND BOARD COMMITTEES
During the 2021 fiscal year, the Board met via teleconference for a total of 19 times. All of the directors of the Board at the time attended 75% of the aggregate of meetings of the Board and meetings of any committee which such director is a member. Each director nominated above is expected to participate, either in person or via teleconference, in meetings of our Board and meetings of committees of our Board in which each director is a member, and to spend the time necessary to properly discharge such director’s respective duties and responsibilities. We do not have a written policy with regard to directors’ attendance at annual meetings of shareholders; however, all directors are encouraged to attend the annual meeting.
Composition of Board; Risk Oversight
Our Board of Directors presently consists of five directors. Pursuant to our memorandum and articles of association, our officers will be elected by and serve at the discretion of the Board. Our directors may be appointed by Ordinary Resolution or by the directors and shall retire at the next annual general meeting after such appointment. At each annual general meeting of the Company, each director elected at such meeting shall be elected to hold office for a one-year term and until the election of their respective successors in office or removal pursuant to our memorandum and articles of association. A director will be removed from office automatically if, among other things, the director becomes bankrupt or makes any arrangement or composition with his creditors or is found to be or becomes of unsound mind. There are no family relationships between any of our executive officers and directors. Officers are elected by, and serve at the discretion of, the Board. Our Board holds meetings on at least a quarterly basis. There are no other arrangements or understandings pursuant to which our directors are selected or nominated.
There is no formal requirement under the Company’s memorandum and articles of association mandating that we hold an annual meeting of our shareholders.
There are no family relationships between any of our executive officers and directors. Officers are elected by, and serve at the discretion of, the board of directors. Our Board holds meetings on at least a quarterly basis. As a smaller reporting company under the Nasdaq rules we are required to maintain a board of directors comprised of at least a majority of independent directors, and an audit committee of at least two members, comprised solely of independent directors who also meet the requirements of Rule 10A-3 under the Securities Exchange Act of 1934. Further, there are no share ownership qualifications for directors unless so fixed by us in a general meeting.
Our Board plays a significant role in our risk oversight and makes all relevant Company decisions. As such, it is important for us to have our Chief Executive Officer serve on the Board as he plays key roles in the risk oversight or the Company. As a smaller reporting company with a small Board, we believe it is appropriate to have the involvement and input of all of our directors in risk oversight matters.
Director Independence
Our Board has reviewed the independence of our directors, applying the Nasdaq independence standards. Based on this review, the Board determined that each Zhaohui Deng, Ichi Shih, Yan Xiong and Brock Pierce are “independent” within the meaning of the Nasdaq rules. In making this determination, our Board considered the relationships that each of these non-employee directors has with us and all other facts and circumstances our board deemed relevant in determining their independence.
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Duties of Directors
Under Cayman Islands law, our directors have a duty of loyalty to act honestly in good faith with a view to our best interests. Our directors also have a duty to exercise the skill they actually possess and such care and diligence that a reasonably prudent person would exercise in comparable circumstances. In fulfilling their duty of care to us, our directors must ensure compliance with our memorandum and articles of association as amended and restated from time to time, and the class rights vested thereunder in the holders of the shares. Our board of directors has all the powers necessary for managing, and for directing and supervising, our business affairs. The functions and powers of our board of directors include, among others:
| ● | convening shareholders’ annual and extraordinary general meetings; |
| ● | declaring dividends and distributions; | |
| ● | appointing officers and determining the term of the officers; | |
| ● | exercising the borrowing powers of our company and mortgaging the property of our company; and | |
| ● | approving the transfer of shares in our company, including the registration of such shares in our share register. |
Our company has the right to seek damages if a duty owed by our directors is breached. A shareholder may in certain limited exceptional circumstances have the right to seek damages in our name if a duty owed by our directors is breached. You should refer to “Description of Share Capital—Differences in Corporate Law” for additional information on our standard of corporate governance under Cayman Islands law.
Terms of Directors and Officers
Our officers are elected by and serve at the discretion of the Board and the shareholders voting by ordinary resolution. Our directors are not subject to a set term of office and hold office until the next general meeting called for the election of directors and until their successor is duly elected or such time as they die, resign or are removed from office by a shareholders’ ordinary resolution or the unanimous written resolution of all shareholders. A director will be removed from office automatically if, among other things, the director becomes bankrupt or makes any arrangement or composition with his creditors generally or is found to be or becomes of unsound mind.
Board Committees
Currently, three committees have been established under the board: the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee. Each of the committees of the Board has the composition and responsibilities described below.
The Audit Committee is responsible for overseeing the accounting and financial reporting processes of our company and audits of the financial statements of our company, including the appointment, compensation and oversight of the work of our independent auditors. The Compensation Committee reviews and makes recommendations to the board regarding our compensation policies for our officers and all forms of compensation, and also administers our incentive compensation plans and equity-based plans (but our board retains the authority to interpret those plans). The Nominating Committee is responsible for the assessment of the performance of the board, considering and making recommendations to the board with respect to the nominations or elections of directors and other governance issues. The Nominating Committee considers diversity of opinion and experience when nominating directors.
Audit Committee
The Audit Committee is responsible for, among other matters:
| ● | appointing, compensating, retaining, evaluating, terminating, and overseeing our independent registered public accounting firm; |
| ● | discussing with our independent registered public accounting firm the independence of its members from its management; |
| ● | reviewing with our independent registered public accounting firm the scope and results of their audit; |
| ● | approving all audit and permissible non-audit services to be performed by our independent registered public accounting firm; |
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| ● | overseeing the financial reporting process and discussing with management and our independent registered public accounting firm the interim and annual financial statements that we file with the SEC; |
| ● | reviewing and monitoring our accounting principles, accounting policies, financial and accounting controls, and compliance with legal and regulatory requirements; |
| ● | coordinating the oversight by our board of directors of our code of business conduct and our disclosure controls and procedures |
| ● | establishing procedures for the confidential and/or anonymous submission of concerns regarding accounting, internal controls or auditing matters; and |
| ● | reviewing and approving related-party transactions. |
Our Audit Committee is comprised of Ms. Ichi Shih serving as Chair of the Audit Committee and includes, as members, Yan Xiong, Brock Pierce and Zhaohui Deng. Our board has affirmatively determined that each of the members of the Audit Committee meets the definition of “independent director” for purposes of serving on an Audit Committee under Rule 10A-3 of the Exchange Act and Nasdaq rules. In addition, our board has determined that Ms. Ichi Shih qualifies as an “audit committee financial expert” as such term is currently defined in Item 407(d)(5) of Regulation S-K and meets the financial sophistication requirements of the Nasdaq Capital Market rules.
The Company’s management is responsible for preparing the Company’s financial statements, implementing and maintaining systems of internal control, and the independent auditors are responsible for auditing those financial statements and expressing its opinion as to whether the financial statements present fairly, in all material respects, the financial position, results of operations and cash flows of the Company in conformity with generally accepted accounting principles in the United States of America. The Audit Committee is responsible for overseeing the conduct of these activities by the Company’s management and the independent auditors. In fulfilling its responsibilities, the Board appointed Audit Alliance, LLP, an independent registered public accounting firm, as the Company’s independent auditors for the 2021 fiscal year. During the 2021 fiscal year, the Audit Committee reviewed and discussed with the independent auditors the overall scope and specific plans for their audit.
In connection with the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2021, the Audit Committee reviewed and discussed with the independent auditors and with management the Company’s audited consolidated financial statements and the adequacy of its internal control over financial reporting. The Audit Committee met with the independent auditors, without management present, to discuss the results of the independent auditors’ audit and the overall quality of the Company’s financial reporting. The meeting was also designed to facilitate any desired private communication between the Audit Committee and the independent auditors.
The Audit Committee discussed with the independent auditors the matters required to be discussed by the Statement on Auditing Standards No. 61 (AICPA, Professional Standards, Vol. 1. AU section 380), as adopted by the Public Company Accounting Oversight Board, or PCAOB, in Rule 3200T. The Audit Committee received the written disclosures and the letter from the independent auditors required by applicable requirements of the PCAOB regarding the independent accountants’ communications with the Audit Committee concerning independence and has discussed with the independent auditors the independent auditors’ independence.
Based on the review and discussions referred to above, the Audit Committee recommended to the Board of Directors that the audited consolidated financial statements be included in the Company’s Annual Report on Form 20-F for the fiscal year ended December 31, 2021, as filed with the Securities and Exchange Commission.
| Submitted by the Audit Committee. | |
| /s/ Ichi Shih |
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Compensation Committee
The Compensation Committee is responsible for, among other matters:
| ● | reviewing and approving, or recommending to the board of directors to approve the compensation of our CEO and other executive officers and directors; |
| ● | reviewing key employee compensation goals, policies, plans and programs; |
| ● | administering incentive and equity-based compensation; |
| ● | reviewing and approving employment agreements and other similar arrangements between us and our executive officers; and |
| ● | appointing and overseeing any compensation consultants or advisors. |
Our Compensation Committee is comprised of Yan Xiong, Zhaohui Deng, Ichi Shih and Brock Pierce, with Yan Xiong serving as chair of the Compensation Committee.
Nominating and Corporate Governance Committee
The Nominating Committee is responsible for, among other matters:
| ● | selecting or recommending for selection candidates for directorships; |
| ● | evaluating the independence of directors and director nominees; |
| ● | reviewing and making recommendations regarding the structure and composition of our board and the board committees; |
| ● | developing and recommending to the board corporate governance principles and practices; |
| ● | reviewing and monitoring the Company’s Code of Business Conduct and Ethics; and |
| ● | overseeing the evaluation of the Company’s management. |
Our Nominating Committee is comprised of Zhaohui Deng, Yan Xiong, Ichi Shih and Brock Pierce, with Zhaohui Deng serving as chair of the Nominating Committee.
The Nominating and Corporate Governance Committee will consider director candidates recommended by shareholders. Shareholders who wish to recommend to the Nominating and Corporate Governance Committee a candidate for election to the Board should send their letters to Carol Wang, Carol.wang@Bit-Digital.com. The corporate secretary will promptly forward all such letters to the members of the Nominating Committee.
Board Member Attendance at Annual Meetings
Our Board members are generally expected to attend our Annual Meetings in person or by telephone unless personal circumstances make the Board member’s attendance impracticable or inappropriate.
Shareholder Communications with Directors
We have no formal written policy regarding communication with the members of the Board. Persons wishing to write to the Board or to a specified director or committee of the Board should send correspondence to the Secretary at our main office. Electronic submissions of shareholder correspondence will not be accepted. The Secretary will forward to the directors all communications that, in his judgment, are appropriate for consideration by the directors. Any correspondence received that is addressed generically to the Board will be forwarded to the Chairman of the Board, with a copy will be sent to the Chairman of the Audit Committee.
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Interested Transactions
A director may vote, attend a board meeting or sign a document on our behalf with respect to any contract or transaction in which he or she is interested. A director must promptly disclose the interest to all other directors after becoming aware of the fact that he or she is interested in a transaction we have entered into or are to enter into. A general notice or disclosure to the board or otherwise contained in the minutes of a meeting or a written resolution of the board or any committee of the board that a director is a shareholder, director, officer or trustee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company will be sufficient disclosure, and, after such general notice, it will not be necessary to give special notice relating to any particular transaction.
Remuneration and Borrowing
The directors may receive such remuneration as our board of directors may determine from time to time. Each director is entitled to be repaid or prepaid for all traveling, hotel and incidental expenses reasonably incurred or expected to be incurred in attending meetings of our board of directors or committees of our board of directors or shareholder meetings or otherwise in connection with the discharge of his or her duties as a director. The compensation committee will assist the directors in reviewing and approving the compensation structure for the directors. Our board of directors may exercise all the powers of the company to borrow money and to mortgage or charge our undertakings and property or any part thereof, to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the company or of any third party.
Qualification
A director is not required to hold Ordinary Shares as a qualification to office.
For the fiscal years ended December 31, 2021, 2020, and 2019, we paid an aggregate of approximately $2,505,542, $80,000, and $75,785, respectively, in cash to our executive officers, and $4,000, $16,000, and $9,852, respectively, to our non-executive directors.
Summary Compensation Table
The following table sets forth the cash and non-cash compensation for awarded to or earned by (i) each individual serving as our principal executive officer and principal financial officer during the fiscal years ended December 31, 2021 and 2020, and (ii) the three (3) most highly compensated individuals; and who received in excess of $100,000 in the form of salary and bonus during such fiscal year (collectively, the “named executive officers”).
| Name and Principal Position | Year | Salary | Cash Bonus | Stock Awards | Stock Based Comp (5) | Non-Equity Incentive Plan Comp | Paid Deferred Comp Earnings | All Other Comp | Total | |||||||||||||||||||||||||||
| Bryan Bullett, CEO(1) | 2021 | $ | 93,750 | $ | 567,021 | 160,765 | (2) | $ | 2,132,290 | $ | - | $ | - | $ | - | $ | 2,793,061 | |||||||||||||||||||
| Erke Huang, CFO and | 2021 | $ | 64,000 | $ | 1,120,000 | 440,000 | $ | 3,502,400 | $ | - | $ | - | $ | - | $ | 4,686,400 | ||||||||||||||||||||
| Director(3) | 2020 | $ | 80,000 | $ | - | - | $ | - | $ | - | $ | - | $ | - | $ | 80,000 | ||||||||||||||||||||
| Sam Tabar, CSO(4) | 2021 | $ | 93,750 | $ | 567,021 | 160,765 | (2) | $ | 2,132,290 | - | - | - | $ | 2,793,061 | ||||||||||||||||||||||
| (1) | Mr. Bullett has served as CEO since March 31, 2021. |
| (2) | Messrs. Bullett and Tabar were awarded 120,765 restricted stock units (RSUs) pursuant to employment agreements dated March 31, 2021, which shares will be vested over 24 months commencing in February 2021. In July 2021, Messrs. Bullett and Tabar were award 40,000 RSUs as a bonus. The RSUs awarded to Messrs. Bullett and Tabar were granted under the Company’s 2021 Omnibus Equity Incentive Plan. |
| (3) | Mr. Huang has served as CFO since October 18, 2019 and as Interim CEO from February 2, 2021 until March 31, 2021. |
| (4) | Mr. Tabar has served as CSO since March 31, 2021. |
| (5) | The “Stock Based Comp” column represents the aggregate grant date fair value for restricted stock units granted under the Company’s 2021 Omnibus Equity Incentive Plan during fiscal years 2021, computed in accordance with Financial Accounting Standards Board (“FASB”) ASC Topic 718 (“ASC 718”). See Note 2 to our consolidated financial statements for the year ended December 31, 2021, for details on the assumptions used to determine the grant date fair value of the restricted stock units. As of December 31, 2021, fair value of the vested and issued RSUs, based on the closing price on the vesting date, for Messrs. Bullett, Huang and Tabar is $897,230, $3,502,400 and $897,230 respectively. |
We have not set aside or accrued any amount to provide pension, retirement or other similar benefits to our executive officers and directors.
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Employment Agreements
Erke Huang
On October 28, 2019, the Company and Erke Huang entered into an employment agreement pursuant to which the Company will pay Mr. Huang US$ 60,000 per annum for serving as Chief Financial Officer of the Company. The agreement is for a term of two (2) years and was renewed automatically for one-year terms when not terminated by either party. Mr. Huang is eligible for bonuses as determined by the Board and eligible to participate in equity incentive plans of the Company. The Company shall also reimburse Mr. Huang for reasonable and approved expenses incurred by him in connection with the performance of his duties under his employment agreement. Mr. Huang is subject to a one-year non-competition and non-solicitation covenant from the date of termination of employment for any reason. The Company and Mr. Huang also entered into a director agreement on October 30, 2019, pursuant to which the Company agrees to pay Mr. Huang one thousand (US$1,000) dollars per quarter for serving on the Board. The Company shall also reimburse Mr. Huang for reasonable and approved expenses incurred by him in connection with the performance of his duties under his director agreement. Mr. Huang has no family relationship with any of the executive officers of the Company.
Bryan Bullett
Mr. Bullett is employed under a two-year Employment Agreement with an automatic renewal for successive one-year periods, unless terminated by either party on at least ninety (90) days prior written notice. He was compensated at the rate of $125,000 per annum during 2021. Pursuant to an amendment dated January 1, 2022, Mr. Bullett’s base salary was increased to $500,000 commencing January 1, 2022 through the end of the two-year term. He is eligible for a discretionary yearly cash bonus based on targets and performance criteria to be established by the Board. Mr. Bullett was awarded 120,765 restricted stock units (“RSUs”) under his Employment Agreement. The RSUs were awarded under the 2021 Omnibus Equity Incentive Plan approved by the Company’s shareholders at its April 2021 Annual General Meeting.
In the event Mr. Bullett’s employment is terminated by the Company without Cause (as defined in the Employment Agreement) or by Mr. Bullett with Good Reason (as defined in the Employment Agreement), Mr. Bullett shall receive, in addition to all Accrued Obligations (as defined in the Employment Agreement), a lump sum severance payment of twenty-four (24) months base salary and all RSUs accrued shall be fully vested.
Sam Tabar
Mr. Tabar is employed under a two-year Employment Agreement on substantially the same terms as the Employment Agreement described above for Mr. Bullett. He too was compensated at a base salary of $125,000 per annum during 2021. Pursuant to an amendment dated January 1, 2022, Mr. Tabar’s base salary was increased to $500,000 commencing January 1, 2022 through the end of the two-year term. He was awarded 120,765 RSUs under his Employment Agreement pursuant to the terms and conditions of the 2021 Omnibus Equity Incentive Plan.
Each executive officer has agreed to hold, both during and after the termination or expiry of his or her employment agreement, in strict confidence and not to use, except as required in the performance of his or her duties in connection with the employment or pursuant to applicable law, any of our confidential information or trade secrets, any confidential information or trade secrets of our clients or prospective clients, or the confidential or proprietary information of any third party received by us and for which we have confidential obligations. The executive officers have also agreed to assign all right, title and interest (including but not limited to patents and trademarks) in all inventions and designs which they conceive, develop or reduce to practice during the executive officer’s employment with the Company and 2 years thereafter.
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In addition, each executive officer has agreed to be bound by non-competition and non-solicitation restrictions during the term of his or her employment. Specifically, each executive officer has agreed not to (i) approach our suppliers, clients, customers or contacts or other persons or entities introduced to the executive officer in his or her capacity as a representative of us for the purpose of doing business with such persons or entities that will harm our business relationships with these persons or entities; or (ii) seek directly or indirectly, to solicit the services of any of our employees who is employed by us on or after the date of the executive officer’s termination, or in the year preceding such termination, without our express consent.
Director Compensation
The Company and each of its independent directors, Ms. Ichi Shih, Yan Xiong and Zhaohui Deng, entered into director agreements pursuant to which the Company agreed to pay each director one thousand (US$1,000) dollars per quarter for serving on the Board for a one-year period, subject to a one-year renewal. In 2021, the Board also authorized one-time 10,000 RSUs award with immediate vesting to Ichi Shih for her services pursuant to the Company’s 2021 Omnibus Equity Incentive Plan. The Company shall also reimburse each director for reasonable and approved expenses incurred by him or her in connection with the performance of their duties under the director agreements.
As an independent director, Mr. Pierce, through an entity for which he serves on the Company’s Board, was awarded 20,000 RSUs with immediate vesting pursuant to the Company’s 2021 Omnibus Equity Incentive Plan. He is eligible for additional compensation, from time to time, at the discretion of the Board. His term is one year subject to a one-year renewal year re-election by a majority of the shareholders of the Company. He will be provided with additional compensation for any renewal of at least the initial 20,000 RSUs award.
There have been no transactions in the past two years to which the Company or any of its subsidiaries was or is to be a party, in which each director had, or will have, a direct or indirect material interest.
Code of Ethics
We have adopted a code of ethics that applies to all of our executive officers, directors and employees. The code of ethics codifies the business and ethical principles that govern all aspects of our business.
Family Relationships
There is no family relationship among any of our directors or executive officers.
The following table sets forth certain information regarding beneficial ownership of our Ordinary Shares by each person who is known by us to beneficially own more than 5% of our Ordinary Shares. The table also identifies the share ownership of each of our directors, each of our named executive officers, and all directors and officers as a group. Except as otherwise indicated, the shareholders listed in the table have sole voting and investment powers with respect to the Ordinary Shares indicated. Our principal shareholders do not have different voting rights than any other holder of our Ordinary Shares.
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We have determined beneficial ownership in accordance with the rules of the SEC. Under such rules, beneficial ownership includes any Ordinary Shares over which the individual has sole or shared voting power or investment power as well as any Ordinary Shares that the individual has the right to subscribe for within 60 days of June 7, 2022 through the exercise of any warrants or other rights. Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the persons and entities named in the table below have sole voting and investment power or the power to receive the economic benefit with respect to all Ordinary Shares that they beneficially own, subject to applicable community property laws. None of the Shareholders listed in the table are a broker-dealer or an affiliate of a broker-dealer. Percentage ownership of our Ordinary Shares in the following table is based on 82,426,279 Ordinary Shares outstanding on June 7, 2022. Unless otherwise indicated, the address of each of the individuals and entities named below is c/o Bit Digital, Inc., 33 Irving Place, New York, NY, 10003.
| Ordinary Shares Beneficially Owned(2) | ||||||||
| Name of Beneficial Owners(1) | Number | Voting Securities % | ||||||
| Directors and Officers: | ||||||||
| Erke Huang | 740,000 | (3) | 15.7 | %(4) | ||||
| Zhaohui Deng | 700,000 | (3) | 29.8 | %(4) | ||||
| Yan Xiong | — | — | ||||||
| Ichi Shih | 10,000 | (5) | * | |||||
| Brock Pierce | 20,000 | (6) | * | |||||
| Bryan Bullett | 175,765 | (7) | * | |||||
| Sam Tabar | 175,765 | (7) | * | |||||
| All directors and officers as a group (seven individuals) | 1,821,530 | 37.9 | % | |||||
| 5% shareholders: | ||||||||
| Wise Gain Investment Industries Limited(8) Coastal Building, Wickham’s Cay II, P.O. Box 2221, Road Town, Tortola B.V.I. | 6,276,700 | 7.6 | % | |||||
| Armistice Capital, LLC(9), 510 Madison Avenue, 7th Floor, New York, NY 10022 | 4,215,852 | 5.1 | % | |||||
| * | Less than 1% of issued and outstanding shares. |
| (1) | Unless otherwise noted, the business address of each of the following entities or individuals is c/o Bit Digital, Inc., 33 Irving Place, New York, New York 10003. |
| (2) | Applicable percentage of voting securities prior to the date of this report is based on 82,426,279 ordinary shares outstanding and one million preference shares, each preference share with fifty (50) votes, or an aggregate of 132,426,279 voting securities as of June 7, 2022, together with securities exercisable or convertible into ordinary shares within sixty (60) days as of such date for each shareholder. |
| (3) |
Erke Huang and Zhaohui Deng are the beneficial owners of 300,000 and 700,000 Ordinary Shares, respectively, issuable upon the conversion of 1,000,000 Preference Shares owned by Geney Development Limited (“GDI”), a BVI entity, located at 4th Floor Waters Edge Building, Meridian Plaza, Road Town, Tortola VG1110, British Virgin Islands. The Company’s Amended and Restated Articles of Association (the “AOA”) provides that (i) all Preference Shares are convertible into Ordinary Shares on a one-for-one basis and (ii) for all Company matters requiring the vote of Members by a poll or by proxy, each Preference Share shall carry the equivalent number of votes as 50 Ordinary Shares, or an aggregate of 50,000,000 votes, which are equal to approximately 60.6% of the 82,426,279 issued and outstanding shares as of June 7, 2022 or approximately 37.8% of the Voting Securities, including the Preference Shares. |
| (4) | The 300,000 preference shares beneficially owned by Mr. Huang carry 15 million votes and the 700,000 preference shares owned by Mr. Deng carry 35 million votes. |
| (5) | Represents 10,000 ordinary shares issuable under restricted stock units (“RSUs”) granted and vested in October 2021. |
| (6) | Represents 20,000 ordinary shares issuable under RSUs granted and vested pursuant to the Director Agreement under which Mr. Pierce is serving. |
| (7) | Of these shares, 15,000 are issuable to each of Mr. Bullett and Mr. Tabar upon exercise of RSUs awarded under a Consulting Services Agreement dated February 1, 2021 with Wellington Park Inc.; 120,765 are issuable to each of Mr. Bullett and Mr. Tabar upon exchange of RSUs awarded under their respective employment agreements entered into, each effective as of March 31, 2021 and the remaining 40,000 shares were issued upon exchange of RSUs awarded pursuant to Board of Directors’ resolutions adopted on July 29, 2021. The RSUs were awarded under the Company’s 2021 Omnibus Equity Incentive Plan approved by the Company’s shareholders at the 2020 AGM. The initial 135,765 shares issued to both Mr. Bullett and Mr. Tabar vest in twenty-four (24) equal monthly installments commencing in February 2021. The most recent 40,000 RSUs (as exchanged for Ordinary Shares) issued to each of Messrs. Bullett and Tabar were fully vested upon award. |
| (8) | Pursuant to a Schedule 13G filed with the SEC on June 22, 2021, Mr. Kenneth Vin Zorro has voting and disposition power over the shares held by such entity. |
| (9) | Pursuant to a Schedule 13G filed with the SEC on February 14, 2022, Armistice Capital, LLC (“Armistice Capital”) is the investment manager of Armistice Capital Master Fund Ltd. (the “Master Fund”), the direct holder of the shares, and pursuant to an Investment Management Agreement, Armistice Capital exercises voting and investing power over the securities of the Company held by the Master Fund and thus may be deemed to beneficially own the securities of the Company held by the Master Fund. Mr. Boyd, as the managing member of Armistice Capital, may be deemed to beneficially own the securities of the Company held by the Master Fund. The Master Fund specifically disclaims beneficial ownership of the securities of the Company directly held by it by virtue of its inability to vote or dispose of such securities as a result of its Investment Management Agreement with Armistice Capital. |
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On March 21, 2022, the Company and an officer of the Company entered into a Confidential Settlement, General Release and Separation Agreement (the “Agreement”) with a former employee (the “Employee”). The Employee asserted various disputes, which the Company settled for a sum of $500,000. The parties entered into a non-disclosure agreement and agreed to mutual non-disparagement. The Board of Directors of the Company has retained counsel to review the matter and will make recommendations if necessary on policies and procedures.
On May 26, 2021, the Company entered into a Share Exchange Agreement (the “SEA”) with Geney Development Limited (“Geney”), a corporation formed under the laws of the British Virgin Islands. Geney is owned seventy (70%) percent by Zhaohui Deng, Chairman of the Board of the Company, and thirty (30%) percent owned by Erke Huang, the Company’s Chief Financial Officer and a director of the Company. Under the SEA, Geney exchanged 1,000,000 ordinary shares for 1,000,000 Preference Shares. Each Preference Share provides for: (i) an eight (8%) percent annual dividend when declared by the Board; (ii) a liquidation preference of $10 per share (an aggregate of $10 million) senior to ordinary shares; (iii) converts on a one-for-one basis, subject to a 4.99% blocker; and (iv) fifty (50) votes per Preference Share in order for management to carry out its intended business plan. See “Executive Compensation” above for information concerning employment agreements entered into with each of the Company’s executive officers: Bryan Bullett, Chief Executive Officer, Erke Huang, Chief Financial Officer, and Sam Tabar, Chief Strategy Officer.
During the year ended December 31, 2020, the Company borrowed funds of $329,722 from the Company’s interim Chief Executive Officer and Chief Financial officer, Erke Huang as working capital to support the Company’s digital asset mining when needed. As of the date of this report, the outstanding balance due to Erke Huang was $nil. Such borrowings were non-interest bearing and due on demand.
During the year ended December 31, 2019, the Company borrowed funds from the Company’s former senior management as working capital to support the Golden Bull Limited’s peer-to-peer lending business which was disposed in September 2020.
Vote Required and Board Recommendation
The director nominees for directors who receive the affirmative vote of a majority of votes cast at the Annual Meeting and were voted will be elected. The Board recommends a vote FOR election of the director nominees.
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PROPOSAL 2
AUTHORIZATION OF THE BOARD
OF DIRECTORS
TO EFFECT A REVERSE STOCK SPLIT AND INCREASE
IN AUTHORISED SHARE CAPITAL THEREAFTER
The following is a summary of the principal terms of the proposed Reverse Stock Split and subsequent increase to the Company's authorised share capital. This summary does not contain all information that may be important to you. We encourage you to carefully read this proxy statement, including the exhibits and the documents we have incorporated by reference into this information statement, in their entirety.
As of June 7, 2022, the Board of Directors unanimously approved a resolution to authorize our Board of Directors (the “Board”) to (i) effect a Reverse Stock Split using at its discretion, and on a whole number ratio basis, by issuing one (1) Ordinary Share in exchange for a range of 1 for 3 to 1 for 6 Ordinary Shares and issuing one (2) Preference Share in exchange for a range of 1 for 3 to 1 for 6 Preference Shares; (ii) to increase the Company's authorised share capital; and (iii) amend our amended and restated memorandum and articles of association (the “MAA”) (all subject to receipt of the necessary shareholder approval).
The exact ratio to be chosen by the Board will be determined as to what is in the best interests of the Company, as the Board expects that it will increase the share price of our Ordinary Shares. The Reverse Stock Split is intended to ensure the Company’s ability to maintain a minimum closing bid price of $1.00 per Ordinary Share for at least thirty (30) consecutive trading days, as required by the Nasdaq Capital Market. The Board believes that if we are successful in maintaining a higher price per share of our Ordinary Shares, we will be able to generate greater interest among investors and institutions. If we are successful in generating such interest, we anticipate that our Ordinary Shares would have greater liquidity and a stronger investor base.
The Reverse Stock Split would reduce the number of (i) authorised Ordinary Shares from 340,000,000 Ordinary Shares with a par value of US$0.01 per share to 56,666,667 Ordinary Shares with a par value of US$.06 per share and (ii) Ordinary Shares issued and outstanding from approximately 82,426,279 shares as of June 7, 2022, to approximately 13,737,713 shares with a par value of US$.06 per share based on the maximum 1-for-6 Reverse Stock Split Shares, or (i) authorised Ordinary Shares from 340,000,000 Ordinary Shares with a par value of US$0.01 per share to 113,333,333 Ordinary Shares with a par value of US$.03 per share and (ii) to approximately 27,475,426 shares with a par value of US$.03 per share based on the minimum 1-for-3 Reverse Stock Split Shares.
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The Reverse Stock Split would reduce the number of (i) authorised Preference Shares from 10,000,000 Preference Shares with a par value of US$0.01 per share to 1,666,667 Preference Shares with a par value of US$.06 per share and (ii) Preference Shares issued and outstanding from 1,000,000 shares as of June 7, 2022, to approximately 166,667 Preference Shares with a par value of US$.06 per share based on the maximum 1-for-6 Reverse Stock Split Shares or (i) authorised Preference Shares from 10,000,000 Preference Shares with a par value of US$0.01 per share to 3,333,333 Preference Shares with a par value of US$.03 per share or (ii) Preference Shares issued and outstanding from 1,000,000 shares as of June 7, 2022, to approximately 333,333 Preference Shares with a par value of US$.03 per share based on the minimum 1-for-3 Reverse Stock Split Shares.
Following the Reverse Stock Split, there will be a reduction in the number of issued and outstanding Ordinary Shares and Preference Shares. Following the proposed increased in the Company's authorised share capital contemplated below, additional Ordinary Shares and Preference Shares will be available for issuance.
The following table reflects the maximum and minimum number of Ordinary Shares that would be outstanding as a result of the proposed Reverse Stock Split, and the approximate maximum and minimum percentage reduction in the number of outstanding shares, based on 82,426,279 Ordinary Shares outstanding as of the record date, as well as the maximum and minimum number of Ordinary Shares that would be available for issuance after each proposed Reverse Stock Split and following the increase in the Company's authorised share capital:
| Proposed Reverse Stock Split Ratio | Ordinary Shares Outstanding | Percentage Reductions | Ordinary Shares Available for Issuance | Ordinary Shares Authorized | ||||||||||||
| Current | 82,426,279 | N/A | 257,573,721 | 340,000,000 | ||||||||||||
| 1 for 3 | 27,475,426 | 66.7 | % | 85,857,907 | 113,333,333 | |||||||||||
| Increase in authorised ordinary shares to 240,000,000 | 27,475,426 | - | 212,524,574 | 240,000,000 | ||||||||||||
| 1 for 6 | 13,737,713 | 83.3 | % | 42,928,954 | 56,666,667 | |||||||||||
| Increase in authorised ordinary shares to 240,000,000 | 13,737,713 | - | 226,262,287 | 240,000,000 | ||||||||||||
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The following table reflects the maximum and minimum number of Preference Shares that would be outstanding as a result of the proposed Reverse Stock Split, and the approximate maximum and minimum percentage reduction in the number of outstanding shares, based on 1,000,000 Preference Shares outstanding as of the record date, as well as the number of maximum and minimum Preference Shares that would be available for issuance after each proposed Reverse Stock Split and following the proposed increase in the Company's authorised share capital:
| Proposed Reverse Stock Split Ratio | Preference Shares Outstanding | Percentage Reductions | Preference Shares Available for Issuance | Preference Shares Authorized | ||||||||||||
| Current | 1,000,000 | N/A | 9,000,000 | 10,000,000 | ||||||||||||
| 1 for 3 | 333,333 | 66.7 | % | 3,000,000 | 3,333,333 | |||||||||||
| Increase in authorised preference shares to 10,000,000 | 333,333 | - | 9,666,667 | 10,000,000 | ||||||||||||
| 1 for 6 | 166,667 | 83.3 | % | 1,500,000 | 1,666,667 | |||||||||||
| Increase in authorised preference shares to 10,000,000 | 166,667 | - | 9,833,333 | 10,000,000 | ||||||||||||
The Board of Directors will cause an amendment to the Company’s MAA to be filed with the General Registry of the Cayman Islands and effect the Reverse Stock Split and the increase in the Company's authorised share capital only if the Board of Directors determines thereafter that the Reverse Stock Split and the increase in the Company's authorised share capital would be in the best interests of the Company and its Shareholders at the time. The Board of Directors may determine in its discretion a whole-number ratio in the range of 1 for 3 to 1 for 6 at which to effect the Reverse Stock Split. The Board of Directors also may determine in its discretion not to effect any Reverse Stock Split and the increase in the Company's authorised share capital and not to file the corresponding amendment to the Company’s MAA. No further action on the part of Shareholders will be required to either effect or abandon the Reverse Stock Split or the increase in the Company's authorised share capital.
The ordinary resolution shareholders will be asked to approve is as follows:
BE IT RESOLVED AS AN ORDINARY RESOLUTION THAT:
| 1. | conditional upon the approval of the Board of Directors of the Company in its sole discretion, with effect as of the date the Board of Directors of the Company may determine: |
| a. | the authorised, issued and outstanding Ordinary Shares and Preference Shares of the Company (collectively, the "Shares") be consolidated by changing each 6 Shares of the Company, or such lesser whole share amount as the board of directors of the Company may determine in its sole discretion, such amount not to be less than 3, into 1 Share of the Company (the "Reverse Stock Split"); |
| b. | no fractional Shares shall be issued in connection with the Reverse Stock Split and, in the event that a Shareholder would otherwise be entitled to receive a fractional share upon the Reverse Stock Split, the number of Shares to be received by such Shareholder shall be rounded up to the next highest whole number of Shares; and |
| c. | following the Reverse Stock Split, the authorised share capital of the Company be increased to within the range of US$9,900,000 to US$15,000,000 consisting of 240,000,000 Ordinary Shares of a par value within the range of US$0.03 to US$0.06 each and 10,000,000 Preference Shares with a par value within the range of US$ US$0.03 to US$0.06 each, such authorised share capital to be finalized upon determination by the Board of Directors of the Company, in its sole discretion, of the whole-number ratio of the Reverse Stock Split (the "Share Capital Increase"); and |
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| 2. | any one director or officer of the Company be and is hereby authorized, for and on behalf of the Company, to do all such other acts or things necessary or desirable to implement, carry out and give effect to the Reverse Stock Split and Share Capital Increase, if and when deemed advisable by the Board of Directors of the Company in its sole discretion. |
Purpose of the Reverse Stock Split and increase in the Company's authorised share capital
The Board of Directors believes that it is in the best interests of the Company and its Shareholders to seek the requisite approvals to reduce the number of issued and outstanding Ordinary Shares through a Reverse Stock Split. Immediately following the completion of a Reverse Stock Split, the number of Ordinary Shares and Preference Shares issued and outstanding would be reduced proportionately based on the Reverse Stock Split ratio determined by the Board of Directors, which must be within the range set forth in this Proposal.
The Board of Directors believes that effecting a Reverse Stock Split is likely to increase the market price for the Ordinary Shares, as fewer shares will be outstanding. The Board of Directors believes that approval of several options for the ratio of the Reverse Stock Split provides it with flexibility to pursue financing from investors and issuing Ordinary Shares in exchange for such financing, meeting business needs as they arise, taking advantage of favorable opportunities, and responding to a changing corporate environment. In particular, under the Company’s effective registration statement on Form F-3 (No. 333-257934), the Company is authorized to sell up to $500 million of the Ordinary Shares at the market price. Therefore, the Reverse Stock Split is intended to ensure the Company’s ability to maintain a minimum closing bid price of $1.00 per Ordinary Share for at least thirty (30) consecutive trading days, as required by the Nasdaq Capital Market.
Except as set forth in the Company’s effective registration statements filed with the SEC, the Company currently does not have any plans, arrangements or understandings, written or oral, to issue any of the authorised but unissued Ordinary Shares or Preference Shares that would become available as a result of the Reverse Stock Split and increase in the Company's authorised share capital.
Board Discretion to Effect the Reverse Stock Split
No further action on the part of Shareholders will be required to either effect or abandon the Reverse Stock Split or the increase in the Company's authorised share capital. If the Board of Directors determines to effect the Reverse Stock Split, the Company would communicate to the public, prior to the effective time of the Reverse Stock Split, additional details regarding the Reverse Stock Split (including the final Reverse Stock Split ratio, as determined by the Board of Directors). The Board of Directors reserves the right to elect not to proceed with the Reverse Stock Split or the increase in the Company's authorised share capital if it determines, in its discretion, that the Reverse Stock Split or the increase in the Company's authorised share capital is not in the best interests of the Company and its Shareholders.
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Certain Risks Associated with the Reverse Stock Split
There can be no assurance that following the Reverse Stock Split the market price of the Ordinary Shares will increase in proportion to the reduction in the number of Ordinary Shares issued and outstanding before the proposed Reverse Stock Split. Other factors, such as the Company’s financial results, market conditions, the market perception of the Company’s business, and general economic conditions may adversely affect the market price of the Ordinary Shares. As a result, there can be no assurance that the Reverse Stock Split, if completed, will result in the intended benefits, including as described herein, that the market price of the Ordinary Shares will increase following the Reverse Stock Split or that the market price of the Ordinary Shares will not decrease in the future. Additionally, we cannot assure you that the market price per share of the Ordinary Shares after a Reverse Stock Split will increase in proportion to the reduction in the number of the Ordinary Shares outstanding before the Reverse Stock Split. Accordingly, the total market capitalization of the Company, based on the outstanding Ordinary Shares after the Reverse Stock Split, may be lower than the total market capitalization before the Reverse Stock Split. Moreover, the number of authorised Ordinary Shares will not be proportionately reduced by the Reverse Stock Split following the increase in the Company's authorised share capital. This will allow for more shares to be available for issuance. Accordingly, the Reverse Stock Split and the increase in the Company's authorised share capital will have the effect of increasing the authorized, but unissued Ordinary Shares as a percentage of total authorised shares. Following the Reverse Stock Split and increase in the Company's authorised share capital, if effected, the Board of Directors will have the authority, subject to applicable corporate and securities laws, to issue all authorised and unissued shares without further Shareholder approval, upon such terms and conditions as the Board of Directors deems appropriate.
Impact of the Proposed Reverse Stock Split If Effected
The Reverse Stock Split would affect all of the Company’s Shareholders uniformly and would not affect any Shareholder’s ownership percentage or proportionate voting power (subject to the treatment of fractional shares). The principal effects of the Reverse Stock Split will be that:
| ● | the number of issued and outstanding Ordinary Shares and Preference Shares will be reduced proportionately based on the final Reverse Stock Split ratio as determined by the Board of Directors; |
| ● | the number of shares reserved for issuance, any maximum number of shares with respect to which equity awards may be granted to any participant and the number of shares and any exercise price subject to awards outstanding under the Company’s equity-based compensation plans will be adjusted proportionately based on the final Reverse Stock Split ratio such that prior to the proposed increase in the Company's authorised share capital, the number of shares reserved for issuance and the number of shares subject to such limits shall be reduced and any applicable exercise price shall be increased; and |
| ● | the Reverse Stock Split will likely increase the number of Shareholders who own odd lots (less than 100 shares). Shareholders who hold odd lots may experience an increase in the cost of selling their shares and may have greater difficulty in executing sales. |
Although the number of outstanding Ordinary Shares would decrease following the proposed Reverse Stock Split, the Board of Directors does not intend for the Reverse Stock Split to be the first step in a “going private transaction” within the meaning of Rule 13e-3 of the Securities Exchange Act of 1934.
No Fractional Shares
Shareholders will not receive fractional post-Reverse Stock Split shares in connection with the Reverse Stock Split. Instead, resulting fractional shares will be rounded up to the next whole share.
Effect on Registered and Beneficial Shareholders
Upon the Reverse Stock Split, we intend to treat Shareholders holding Ordinary Shares in “street name” (that is, held through a brokerage firm, bank, broker-dealer, or other similar organization) in the same manner as registered Shareholders whose Ordinary Shares are registered in their names. Brokerage firms, banks, broker-dealers, and other similar organizations will be instructed to effect the Reverse Stock Split for their beneficial holders holding Ordinary Shares in “street name;” however, these organizations may apply their own specific procedures for processing the Reverse Stock Split. If you hold your Ordinary Shares in “street name,” and if you have any questions in this regard, we encourage you to contact your nominee.
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Effect on Registered “Book-Entry” Shareholders
The Company’s registered Shareholders may hold some or all of their shares electronically in book-entry form. These Shareholders will not have stock certificates evidencing their ownership of Ordinary Shares. They are, however, provided with a statement reflecting the number of Ordinary Shares registered in their accounts.
| ● | If you hold registered Ordinary Shares in book-entry form, you do not need to take any action to receive your post-Reverse Stock Split Ordinary Shares in registered book-entry form. |
| ● | If you are entitled to post-Reverse Stock Split Ordinary Shares, a transaction statement will automatically be sent to your address of record as soon as practicable after the effective time of the Reverse Stock Split indicating the number of Ordinary Shares you hold. |
Effect on Registered Certificated Shares
Some registered Shareholders hold their Ordinary Shares in certificate form or a combination of certificate and book-entry forms. If any of your Ordinary Shares are held in certificate form, you will receive a transmittal letter from the Company’s transfer agent as soon as practicable after the effective time of the Reverse Stock Split. The transmittal letter will be accompanied by instructions specifying how you can exchange your certificate representing the pre-Reverse Stock Split Ordinary Shares for a statement of holding. When you submit your certificate representing the pre-Reverse Stock Split Ordinary Shares, your post-Reverse Stock Split Ordinary Shares will be held electronically in book-entry form. This means that, instead of receiving a new stock certificate, you will receive a statement of holding that indicates the number of post-Reverse Stock Split Ordinary Shares you own in book-entry form. The Company will no longer issue physical stock certificates unless you make a specific request for a share certificate representing your post-Reverse Stock Split ownership interest.
Beginning at the effective time of the Reverse Stock Split, each certificate representing pre-Reverse Stock Split shares will be deemed for all corporate purposes to evidence ownership of post-Reverse Stock Split shares.
Accounting Consequences
The par value per share of the Ordinary Shares will be increased proportionately after the Reverse Stock Split. The Reverse Stock Split will not result in a change to the aggregate paid up share capital amount of the Company relating to the Ordinary Shares. After the Reverse Stock Split, net income or loss per share, and other per share amounts, will be increased because there will be fewer Ordinary Shares outstanding. In future financial statements, net income or loss per share and other per share amounts for periods ending before the Reverse Stock Split would be recast to give retroactive effect to the Reverse Stock Split.
As described above under “Impact of the Proposed Reverse Stock Split If Effected,” the exercise price of outstanding options and warrants will be proportionately adjusted based on the final Reverse Stock Split. The Company does not anticipate that any other accounting consequences would arise as a result of the Reverse Stock Split.
No Appraisal Rights
Shareholders will not have dissenters’ or appraisal rights under Cayman Islands corporate law or under the Company’s Memorandum and Articles of Association in connection with the proposed Reverse Stock Split and increase in the Company's authorised share capital.
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Procedure for Effecting Reverse Stock Split
If the Board of Directors effects the Reverse Stock Split and the increase in the Company's authorised share capital, the Reverse Stock Split and the increase in the Company's authorised share capital will become effective at such time as is specified in the Company's board resolutions, which is referred to as the effective time of the Reverse Stock Split and the increase in the Company's authorised share capital. Beginning at the effective time of the Reverse Stock Split, each certificate representing pre-Reverse Stock Split Ordinary Shares will be deemed for all corporate purposes to evidence ownership of post-Reverse Stock Split Ordinary Shares.
Certain U.S. Federal Income Tax Consequences of the Reverse Stock Split
The following discussion is a general summary of certain United States of America (“U.S.”) federal income tax consequences of the Reverse Stock Split that may be relevant to holders of Ordinary Shares that hold such stock as a capital asset for federal income tax purposes. This summary is based upon the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), Treasury regulations promulgated thereunder, administrative rulings and judicial decisions as of the date hereof, all of which may change, possibly with retroactive effect, resulting in U.S. federal income tax consequences that may differ from those discussed below. This discussion does not address all aspects of federal income taxation that may be relevant to such holders in light of their particular circumstances or to holders that may be subject to special tax rules, including, without limitation: (i) holders subject to the alternative minimum tax; (ii) banks, insurance companies, or other financial institutions; (iii) tax-exempt organizations; (iv) dealers in securities or commodities; (v) regulated investment companies or real estate investment trusts; (vi) partnerships (or other flow-through entities for U.S. federal income tax purposes and their partners or members); (vii) traders in securities that elect to use a mark-to-market method of accounting for their securities holdings; (viii) U.S. Holders (as defined below) whose “functional currency” is not the U.S. dollar; (ix) persons holding Ordinary Shares as a position in a hedging transaction, “straddle,” “conversion transaction” or other risk reduction transaction; (x) persons who acquire Ordinary Shares in connection with employment or other performance of services; and (xi) U.S. expatriates. In addition, this summary does not address the tax consequences arising under the laws of any foreign, state or local jurisdiction and U.S. federal tax consequences other than federal income taxation. If a partnership (including any entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds Ordinary Shares, the tax treatment of a holder that is a partner in the partnership generally will depend upon the status of the partner and the activities of the partnership.
We have not sought, and will not seek, an opinion of counsel or a ruling from the Internal Revenue Service (“IRS”) regarding the U.S. federal income tax consequences of the Reverse Stock Split, and there can be no assurance the IRS will not challenge the statements and conclusions set forth below or that a court would not sustain any such challenge. EACH HOLDER OF ORDINARY SHARES SHOULD CONSULT SUCH HOLDER’S TAX ADVISOR WITH RESPECT TO THE PARTICULAR TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT TO SUCH HOLDER.
For purposes of the discussion below, a “U.S. Holder” is a beneficial owner of Ordinary Shares that for U.S. federal income tax purposes is: (1) an individual citizen or resident of the U.S.; (2) a corporation (including any entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the U.S., any state thereof or the District of Columbia; (3) an estate the income of which is subject to U.S. federal income taxation regardless of its source; or (4) a trust, the administration of which is subject to the primary supervision of a U.S. court and as to which one or more U.S. persons have the authority to control all substantial decisions of the trust, or that has a valid election in effect to be treated as a U.S. person. A “Non-U.S. Holder” is a beneficial owner (other than a partnership) of Ordinary Shares who is not a U.S. Holder.
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U.S. Holders
A U.S. Holder generally should not recognize gain or loss upon such holder’s exchange of pre-split Ordinary Shares for post-split Ordinary Shares pursuant to the Reverse Stock Split. A U.S. Holder’s aggregate tax basis in the Ordinary Shares received pursuant to the Reverse Stock Split should equal the aggregate tax basis of the Ordinary Shares surrendered, and such U.S. Holder’s holding period in the Ordinary Shares received should include the holding period in the Ordinary Shares surrendered.
Treasury regulations promulgated under the Code provide detailed rules for allocating the tax basis and holding period of the Ordinary Shares surrendered to the Ordinary Shares received pursuant to the Reverse Stock Split. Holders of Ordinary Shares acquired on different dates and at different prices should consult their tax advisors regarding the allocation of the tax basis and holding period of such shares.
Non-U.S. Holders
Non-U.S. Holders who exchange Ordinary Shares pursuant to the Reverse Stock Split generally should be subject to tax in the manner described above under “U.S. Holders.”
SHAREHOLDERS SHOULD NOT DESTROY ANY SHARE CERTIFICATE(S) AND SHOULD NOT SUBMIT ANY CERTIFICATE(S) UNTIL REQUESTED TO DO SO.
Vote Required and Board Recommendation
As this action requires approval by way of Ordinary Resolution, the affirmative vote of a simple majority of the votes cast by, or on behalf of, the shareholders entitled to vote at the Annual Meeting is required for approval of this Proposal. The Board recommends a vote FOR this Proposal (to be passed as an Ordinary Resolution).
PROPOSAL 3
APPROVAL OF PROPOSED AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
Subject to Shareholder approval of Proposal 2 above, and entirely conditional upon and with effect from the date of approval of the Board of Directors in accordance with Proposal 2, it is proposed that the Company adopt amended and restated memorandum and articles of association in substantially the forms provided as Annexes A and B, respectively, with this Proxy Statement (the "Amended and Restated MAA"), as the memorandum and articles of the Company in place of the present memorandum and articles.
At the Company’s extraordinary general meeting held on September 8, 2021, Shareholders approved an ordinary resolution to increase the Company’s authorised share capital from US$1,500,000 consisting of 140,000,000 Ordinary Shares of US$0.01 each and 10,000,000 Preference Shares of US$0.01 each to US$3,500,000 consisting of 340,00,000 Ordinary Shares of US$0.01 each and 10,000,000 Preference Shares of US$0.01 each.
The amendments contained in the Amended and Restated MAA will reflect:
| 1. | the consequential changes to the Company's share capital resulting from the Reverse Stock Split and Share Capital Increase; |
| 1. | the right to dividends in respect of the Preference Shares shall not be cumulative; |
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| 2. | on a liquidation of the Company, the holder of any Preference Shares shall have the right to receive in preference to the holders of Ordinary Shares, the greater of (a) the original purchase price of that Preference Share (adjusted for any Recapitalization Events, as that term is defined in the Amended and Restated MAA) plus any declared but unpaid dividends thereon, but with no right to share in the distribution of any surplus assets of the Company, or (B) that amount that such Preference Share would have received had it been converted into an Ordinary Share pursuant to Article 117(d) of the Amended and Restated MAA on the day immediately prior to the date on which the Company entered liquidation (in which case the Company shall be deemed to have received a Conversion Notice (as that term is defined in the Amended and Restated MAA) in respect of such Preference Share on the day immediately prior to the date on which the Company entered liquidation); and |
| 3. | upon conversion, the holders of the Preference Shares shall receive any declared but unpaid dividends. |
Following the Reverse Stock Split and Share Capital Increase as described in this Proxy Statement under Proposal 2 above, the existing 340,000,000 authorised Ordinary Shares will be reduced to 240,000,000 and any fractional shares will be rounded up. The number of existing authorised Preference Shares will remain unchanged at 10,000,000.
The Special Resolution shareholders will be asked to approve is as follows:
BE IT RESOLVED AS A SPECIAL RESOLUTION THAT:
| 1. | subject to Shareholder approval of Proposal 2 and entirely conditional upon the approval of the Board of Directors of the Company in its sole discretion of the Reverse Stock Split and the Share Capital Increase, with effect as of the date the Board of Directors may determine, the adoption of amended and restated memorandum and articles of association of the Company be and is hereby authorized; and |
| 2. | any one director or officer of the Company be and is hereby authorized, for and on behalf of the Company, to execute and deliver, or cause to be delivered, an amendment to the memorandum and articles of association of the Company, as required pursuant to the Companies Act (Revised) of the Cayman Islands, if and when deemed advisable by the Board of Directors of the Company in its sole discretion. |
Vote Required and Board Recommendation
As this action requires approval by way of Special Resolution, the affirmative vote of the holders of two-thirds of the votes cast by, or on behalf of, the shareholders entitled to vote at the Annual Meeting is required for approval of this Proposal. The Board recommends a vote FOR this Proposal (to be passed as a Special Resolution).
We are not aware of any matters other than those stated in this Proxy Statement that are to be presented for action at the Annual Meeting. If any other matters should properly come before the Annual Meeting, it is intended that proxies in the accompanying form will be voted on any such other matters in accordance with the judgment of the persons voting such proxies. Discretionary authority to vote on such matters is conferred by such proxies upon the persons voting them.
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COMMUNICATIONS WITH THE BOARD OF DIRECTORS
Shareholders wishing to communicate with the Board or any individual director may write to the Board or the individual director to the Board, Bit Digital, Inc., 33 Irving Place, New York, NY, 10003; (212) 463-5121. Any such communication must state the number of Shares beneficially owned by the shareholder making the communication. All such communications will be forwarded to the full Board or to any individual director or directors to whom the communication is directed unless the communication is clearly of a marketing nature or is unduly hostile, threatening, illegal, or similarly inappropriate, in which case the Company has the authority to discard the communication or take appropriate legal action regarding the communication.
WHERE YOU CAN FIND MORE INFORMATION
The Company files annual and current reports and other documents with the SEC under the Exchange Act. The Company’s SEC filings made electronically through the SEC’s EDGAR system are available to the public at the SEC’s website at http://www.sec.gov. You may read and copy any document the Company files at the website of the SEC referred to above. The Company’s file number with the SEC is 001-38421.
| June 30, 2022 | By Order of the Board of Directors |
| /s/ Erke Huang | |
|
Name: Erke Huang Title: Chief Financial Officer |
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Exhibit 99.3
ANNEX A
The Companies Act
(Revised)
Company Limited by Shares
Amended and Restated
Memorandum of Association
of
Bit Digital, Inc.
(Adopted by Special Resolution passed on [29] July 2022 and then made effective on [●] 2022)
| 1. | The name of the Company is Bit Digital, Inc. |
| 2. | The registered office will be situated at the offices of Corporate Filing Services Ltd., P.O. Box 613, Harbour Centre, George Town, Grand Cayman KY1-1107, Cayman Islands or at such other place in the Cayman Islands as the Directors may from time to time decide. |
| 3. | The objects for which the Company is established are unrestricted and the Company shall have full power to carry out any object not prohibited by any law as provided by Section 7 (4) of the Companies Act (Revised). |
| 4. | Except as prohibited or limited by the laws of the Cayman Islands, the Company shall have full power and authority to carry out any object and shall have and be capable of from time to time and at all times exercising any and all of the powers at any time or from time to time exercisable by a natural person or body corporate in any part of the world whether as principal, agent, contractor or otherwise. |
| 5. | The Company shall not be permitted to carry on any business where a licence is required under the laws of the Cayman Islands to carry on such a business until such time as the relevant licence has been obtained. |
| 6. | If the Company is an exempted company, its operations will be carried on subject to the provisions of Section 174 of the Companies Act (Revised). |
| 7. | The liability of each Member is limited to the amount from time to time unpaid on such Member’s share. |
| 8. | The authorised share capital of the Company is US$[9,900,000][10,000,000][12,500,000][15,000,000] consisting of 240,000,000 Ordinary Shares of US$[0.03][0.04][0.05][0.06] each and 10,000,000 Preference Shares of US$[0.03][0.04][0.05][0.06] each, with the power for the Company to increase or reduce the said capital and to issue any part of its capital, original or increased, with or without any preference, priority or special privilege or subject to any postponement of rights or to any conditions or restrictions; and so that, unless the condition of issue shall otherwise expressly declare, every issue of shares, whether declared to be preference or otherwise, shall be subject to the power hereinbefore contained. |
| 9. | The Financial Year End for the Company shall be 31 December unless the directors otherwise prescribe. |
Exhibit 99.4
ANNEX B
The Companies Act
(Revised)
Company Limited by Shares
Amended and Restated
Articles of Association
of
Bit Digital, Inc
(Adopted by Special Resolution passed on [29] July 2022 and then made effective on [●] 2022)
| 1. | The Regulations contained or incorporated in Table A of the First Schedule of the Law (as defined below) shall not apply to this Company. |
INTERPRETATION
| 2. | (a) | In these Articles the following terms shall have the meanings set opposite unless the context otherwise requires:- |
| Articles | these Articles of Association as from time to time amended by Special Resolution |
| Auditors | the Auditors for the time being of the Company, if any |
| Company | Bit Digital, Inc. |
| Directors | the directors of the Company for the time being or, as the case may be, the directors assembled as a board |
| EIP Share | any Ordinary Share which has been, or will be, issued to a Member pursuant to the Company's employee incentive plan (as such plan may be amended or varied from time to time) |
| the Law | the Companies Act (Revised) of the Cayman Islands and any amendment or other statutory modification thereof and where in these Articles any provision of the Law is referred to, the reference is to that provision as modified by law for the time being in force |
| Member | a person who is registered in the Register of Members as the holder of any Share in the Company |
| Month | a calendar month |
| Ordinary Resolution | a resolution of a general meeting passed by a majority of the Members entitled to vote thereat present at the meeting or a written resolution signed by all Members entitled to vote |
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| Ordinary Share | an ordinary share of US$[0.03][0.04][0.05][0.06] par value in the capital of the Company having the rights set out in these Articles |
| Original Purchase Price | with respect to any Share, the amount credited for the issuance of that Share |
| Preference Share | a preference share of US$[0.03][0.04][0.05][0.06] par value in the capital of the Company having the rights set out in these Articles |
| Registered Office | the registered office of the Company as provided in Section 50 of the Law |
| Register of Law | the register of Members to be kept pursuant to section 40 of Members the |
| Secretary | any person appointed by the Directors to perform any of the duties of the secretary of the Company and including any assistant secretary |
| Seal | the common seal of the Company or any facsimile for official seal for use outside of the Cayman Islands |
| Share | a share in the capital of the Company (and includes an Ordinary Share or a Preference Share) |
| Special Resolution | a resolution of a general meeting passed by a two-thirds majority of the Members entitled to vote thereat present at the meeting or a written resolution signed by all Members entitled to vote and otherwise in accordance with Section 60 of the Law |
| (b) | Unless the context otherwise requires, expressions defined in the Law and used herein shall have the meanings so defined. |
| (c) | In these Articles unless the context otherwise requires:- |
| (i) | words importing the singular number shall include the plural number and vice-versa; |
| (ii) | words importing the masculine gender only shall include the feminine gender; and |
| (iii) | words importing persons only shall include companies or associations or bodies of persons whether incorporated or not. |
| (d) | The headings herein are for convenience only and shall not affect the construction of these Articles. |
| 3. | (a) | Subject to the provisions, if any, in that behalf in the Memorandum of Association or in these Articles, and without prejudice to any special rights previously conferred on the holders of existing Shares, any Share may be issued with such preferred, deferred, or other special rights, or such restrictions, whether in regard to dividend, voting, return of Share capital or otherwise, as the Company may from time to time by Special Resolution determine, and subject to the provisions of section 37 of the Law, any Share may, with the sanction of a Special Resolution, be issued on the terms that it is, or at the option of the Company or the holder is liable, to be redeemed. For the avoidance of doubt, the issuance of EIP Shares will not require any additional approvals of the Members. |
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| (b) | If at any time the share capital is divided into different classes of Shares, the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that class) may be varied with the consent in writing of the holders of three-fourths of the issued Shares of that class or with the sanction of a resolution passed by not less than three-fourths of such holders of the Shares of that class as may be present in person or by proxy at a separate general meeting of the holders of the Shares of that class. To every such separate general meeting, the provisions of these Articles relating to general meetings shall mutatis mutandis apply, but so that the necessary quorum shall be any one or more persons holding or representing by proxy not less than one-third of the issued Shares of the class and that any holder of Shares of the class present in person or by proxy may demand a poll. |
| 4. | (a) | Every person whose name is entered as a Member in the Register of Members shall, without payment, be entitled to a certificate under the seal of the Company specifying the Share or Shares held by him and the amount paid up thereon, provided that in respect of a Share or Shares held jointly by several persons, the Company shall not be bound to issue more than one certificate, and delivery of a certificate for a Share to one of several joint holders shall be sufficient delivery to all. |
| (b) | If a Share certificate is defaced, lost or destroyed it may be renewed on payment of such fee, if any, and on such terms, if any, as to evidence and indemnity, as the Directors think fit. |
| 5. | Except as required by law, no person shall be recognised by the Company as holding any Share upon any trust, and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future or actual interest in any Share (except only as by these Articles or by law otherwise provided or under an order of a court of competent jurisdiction) or any other rights in respect of any Share except an absolute right to the entirety thereof in the registered holder, but the Company may in accordance with the Law issue fractions of Shares. |
| 6. | The Shares shall be at the disposal of the Directors, and they may (subject to the provisions of the Law) allot, grant options over, or otherwise dispose of them to such persons, on such terms and conditions, and at such times as they think fit, but so that no Share shall be issued at a discount, except in accordance with the provisions of the Law. |
LIEN
| 7. | The Company shall have a first and paramount lien on every Share (not being a fully paid Share) for all moneys (whether presently payable or not) called or payable at a fixed time in respect of that Share, and the Company shall also have a lien on all Shares (other than fully paid-up Shares) standing registered in the name of a single person for all moneys presently payable by him or his estate to the Company; but the Directors may at any time declare any Share to be wholly or in part exempt from the provision of this Article. The Company's lien, if any, on a Share shall extend to all dividends payable thereon. |
| 8. | The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, but no sale shall be made unless some sum in respect of which the lien exists is presently payable nor until the expiration of fourteen days after a notice in writing, stating and demanding payment of such part of the amount in respect of which the lien exists as is presently payable, has been given to the registered holder for the time being of the Share, or the persons entitled thereto by reason of his death or bankruptcy. |
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| 9. | For giving effect to any such sale, the Directors may authorise some person to transfer the Shares sold to the purchaser thereof. The purchaser shall be registered as the holder of the Shares comprised in any such transfer and he shall not be bound to see to the application of the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity in the proceedings in reference to the sale. |
| 10. | The proceeds of the sale shall be received by the Company and applied in payment of such part of the amount in respect of which the lien exists as is presently payable, and the residue shall (subject to a like lien for sums not presently payable as existed upon the Shares prior to the sale) be paid to the person entitled to the Shares at the date of the sale. |
CALLS ON SHARES
| 11. | The Directors may from time to time make calls upon the Members in respect of any moneys unpaid on their Shares provided that no call shall be payable earlier than one month from the last call; and each Member shall (subject to receiving at least fourteen days, notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on his Shares. |
| 12. | The joint holders of a Share shall be jointly and severally liable to pay calls in respect thereof. |
| 13. | If a sum called in respect of a Share is not paid before or on the day appointed for payment thereof, the person from whom the sum is due shall pay interest upon the sum at the rate of six per cent per annum from the day appointed for the payment thereof to the time of the actual payment, but the Directors shall be at liberty to waive payment of that interest wholly or in part. |
| 14. | The provisions of these Articles as to the liability of joint holders and as to payment of interest shall apply in the case of non-payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the amount of the Share, or by way of premium, as if the same had become payable by virtue of a call duly made and notified. |
| 15. | The Directors may make arrangements on the issue of Shares for a difference between the holders in the amount of calls to be paid and in the times of payment. |
| 16. | The Directors may, if they think fit, receive from any Member willing to advance the same all or any part of the moneys uncalled and unpaid upon any Shares held by him; and upon all or any of the moneys so advanced may (until the same would, but for such advance, become presently payable) pay interest at such rate (not exceeding without the sanction at the Company in general meeting six per cent per annum) as may be agreed upon between the Member paying the sum in advance and the Directors. |
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FORFEITURE OF SHARES
| 17. | If a Member fails to pay any call or installment of a call on the day appointed for payment thereof, the Directors may, at any time thereafter during such time as any part of such call or installment remains unpaid, serve a notice on him requiring payment of so much of the call or installment as is unpaid, together with any interest which may have accrued. |
| 18. | The notice shall name a further day (not earlier than the expiration of fourteen days from the date of the notice) on or before which the payment required by the notice is to be made, and shall state that in the event of non-payment at or before the time appointed, the Shares in respect of which the call was made will be liable to be forfeited. |
| 19. | If the requirements of any such notice as aforesaid are not complied with, any Share in respect of which the notice has been given may at any time thereafter, before the payment required by the notice has been made, be forfeited by a resolution of the Directors to that effect. |
| 20. | A forfeited Share may be sold or otherwise disposed of on such terms and in such manner as the Directors think fit, and at any time before a sale or disposition, the forfeiture may be cancelled on such terms as the Directors think fit. |
| 21. | A person whose Shares have been forfeited shall cease to be a Member in respect of the forfeited Shares, but shall, notwithstanding, remain liable to pay to the Company all moneys which at the date of forfeiture were payable by him to the Company in respect of the Shares, but his liability shall cease if and when the Company receives payment in full of the amount due on the Shares. |
| 22. | A statutory declaration in writing that the declarant is a Director of the Company, and that a Share in the Company has been duly forfeited on a date stated in the declaration, shall be conclusive evidence of the facts therein stated as against all persons claiming to be entitled to the Share. The Company may receive the consideration, if any, given for the Share on any sale or disposition thereof and may execute a transfer of the Share in favour of the person to whom the Share is sold or disposed of and he shall thereupon be registered as the holder of the Share, and shall not be bound to see to the application of the purchase money, if any, nor shall his title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share. |
| 23. | 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 amount of the Share, or by way of premium, as if the same had been made payable by virtue of a call duly made and notified. |
TRANSFER AND TRANSMISSION OF SHARES
| 24. | The instrument of transfer of any Share shall be executed by or on behalf of the transferor (but need not be executed by or on behalf of the transferee unless the Share has been issued nil paid), and the transferor shall be deemed to remain a holder of the Share until the name of the transferee is entered in the Register of Members in respect thereof. |
| 25. | Shares shall be transferred in the following form, or in any usual or common form approved by the Directors: |
I, _____________ of ____________ in consideration of the sum of $____ paid to me by _____________ of ______________ (hereinafter called “the Transferee”) do hereby transfer to the Transferee the __ Share (or Shares) numbered __ in the Company called [ ], to hold the same unto the Transferee, subject to the several conditions on which I hold the same.
As witness our hands on the ______ day of __________ 20____.
______________________________
Transferor
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| 26. | The Directors may, in their absolute discretion and without assigning any reason therefore decline to register any transfer of Shares to a person of whom they do not approve. The Directors may also suspend the registration of transfers at such times and for such periods (not exceeding thirty days in aggregate in each year) as the Directors may from time to time determine. The Directors may decline to recognise any instrument of transfer unless (a) a fee not exceeding one dollar is paid to the Company in respect thereof, and (b) the instrument of transfer is accompanied by the certificate of the Shares to which it relates, and such other evidence as the Directors may reasonably require to show the right of the transferor to make the transfer. |
If the Directors refuse to register a transfer of Shares, they shall within one month after the date on which the transfer was lodged with the Company, send to the transferee notice of the refusal.
| 27. | The legal personal representative of a deceased sole holder of a Share shall be the only person recognised by the Company as having any title to the Share. In case of a Share registered in the names of two or more holders, the survivors or survivor, or the legal personal representatives of the deceased survivor, shall be the only persons recognised by the Company as having any title to the Share. |
| 28. | Any person becoming entitled to a Share in consequence of the death or bankruptcy of a Member shall upon such evidence being produced as may from time to time be properly required by the Directors, have the right either to be registered as a Member in respect of the Share or, instead of being registered himself, to make such transfer of the Share as the deceased or bankrupt person could have made; but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the deceased or bankrupt person before the death or bankruptcy. |
| 29. | A person becoming entitled to a Share by reason of the death or bankruptcy of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the Share, except that he shall not, before being registered as a Member in respect of the Share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the Company. |
CONVERSION OF SHARES INTO STOCK
| 30. | The Company may by ordinary Resolution convert any paid-up Shares into stock, and reconvert any stock into paid-up Shares of any denomination. |
| 31. | The holders of stock may transfer the same, or any part thereof in the same manner and subject to the same regulations as and subject to which the Shares from which the stock arose might prior to conversion have been transferred, or as near thereto as circumstances admit; but the Directors may from time to time fix the minimum amount of stock transferable, and restrict or forbid the transfer of fractions of that minimum, but the minimum shall not exceed the nominal amount of the Shares from which the stock arose. |
| 32. | The holders of stock shall, according to the amount of the stock held by them, have the same rights, privileges and advantages as regards dividends, voting at meetings of the Company and other matters as if they held the Shares from which the stock arose, but no such privilege or advantage (except participation in the dividends and profits of the Company) shall be conferred by any such aliquot part of stock as would not, if existing as Shares, have conferred that privilege or advantage. |
| 33. | Such of the Articles of the Company as are applicable to paid-up Shares shall apply to stock, and the words "Share" and "Member" herein shall include "stock" and "stock-holder". |
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ALTERATION OF CAPITAL
| 34. | The Company may from time to time by Ordinary Resolution increase the share capital by such sum, to be divided into Shares of such amount, as the resolution shall prescribe. |
| 35. | Subject to any direction to the contrary that may be given by the Company in general meeting, all new Shares shall be at the disposal of the Directors in accordance with Article 6. |
| 36. | The new Shares shall be subject to the same provisions with reference to the payment of calls, lien, transfer, transmission, forfeiture and otherwise as the Shares in the original share capital. |
| 37. | The Company may by Ordinary Resolution: |
| (a) | consolidate and divide all or any of its Share capital into Shares of larger amount than its existing Shares; |
| (b) | sub-divide its existing Shares, or any of them, into Shares of smaller amount than is fixed by the Memorandum of Association, subject nevertheless to the provisions of section 13 of the Law; and |
| (c) | cancel any Shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person. |
| 38. | Subject to the provisions of the Law and the Memorandum of Association, the Company may purchase its own Shares, including any redeemable Shares, provided that the manner of purchase has first been authorised by Ordinary Resolution and may make payment therefor or for any redemption of Shares in any manner authorised by the Law, including out of capital. |
STATUTORY MEETINGS
| 39. | If required by the Law the Directors shall hold at least one Directors’ meeting in the Cayman Islands in each calendar year. |
GENERAL MEETINGS
| 40. | The Directors may whenever they think fit, convene a general meeting. If at any time there are not sufficient Directors capable of acting to form a quorum, any Director or any one or more Members holding in the aggregate not less than one-third of the total issued share capital of the Company entitled to vote may convene a general meeting in the same manner as nearly as possible as that in which meetings may be convened by the Directors. The Directors shall, upon the requisition in writing of one or more Members holding in the aggregate not less than one-tenth of such paid-up capital of the Company as at the date of the requisition carries the right of voting at general meetings, convene a general meeting. Any such requisition shall express the object of the meeting proposed to be called, and shall be left at the Registered Office of the Company. If the Directors do not proceed to convene a general meeting within twenty-one days from the date of such requisition being left as aforesaid, the requisitionists or any or either of them or any other Member or Members holding in the aggregate not less than one-tenth of such paid-up capital of the Company as at the date of the requisition carries the right of voting at general meetings, may convene a general meeting to be held at the Registered Office of the Company or at some convenient place within the Cayman Islands at such time, subject to the Company’s Articles as to notice, as the persons convening the meeting fix. |
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| 41. | Not less than seven days’ notice (exclusive of the day on which the notice is served or deemed to be served, but inclusive of the day for which the notice is given) specifying the place, the day and the hour of meeting and, in the case of special business, the general nature of that business shall be given in manner hereinafter provided, or in such other manner (if any) as may be prescribed by the Company in general meeting, to such persons as are entitled to vote or may otherwise be entitled under the Articles of the Company to receive such notices from the Company; but with the consent of all the Members entitled to receive notice of some particular meeting, that meeting may be convened by such shorter notice or without notice and in such manner as those Members may think fit. |
| 42. | The accidental omission to give notice of a meeting to, or the non-receipt of a notice of a meeting by, any Member entitled to receive notice shall not invalidate the proceedings at any meeting. |
| 43. | (a) | No business shall be transacted at any general meeting unless a quorum of Members is present at the time that the meeting proceeds to business; save as herein otherwise provided, one or more Members holding in the aggregate not less than one-third of the total issued share capital of the Company present in person or by proxy and entitled to vote shall be a quorum. |
| (b) | An Ordinary Resolution or a Special Resolution (subject to the provisions of the Law) in writing signed by all the Members for the time being entitled to receive notice of and to attend and vote at general meetings, (or being corporations by their duly authorised representatives) including a resolution signed in counterpart by or on behalf of such Members or by way of signed telefax transmission, shall be as valid and effective as if the same had been passed at a general meeting of the Company duly convened and held. |
| 44. | If within half an hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of Members, shall be dissolved. In any other case it shall stand adjourned to the same day in the next week, at the same time and place, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting, the Members present shall be a quorum. |
| 45. | The chairman, if any, of the Board of Directors shall preside as chairman at every general meeting of the Company. |
| 46. | If there is no such chairman, or if at any meeting he is not present within fifteen minutes after the time appointed for holding the meeting or is unwilling to act as chairman, the Members present shall choose one of their number to be chairman. |
| 47. | The chairman may with the consent of any 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. When a meeting is adjourned for ten days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Save as aforesaid it shall not be necessary to give any notice of an adjournment or of the business to be transacted at an adjourned meeting. |
| 48. | At any general meeting a resolution put to the vote of the meeting shall be decided on a show of hands, unless a poll is (before or on the declaration of the result of the show of hands) demanded by one or more Members present in person or by a proxy who together hold not less than fifteen per cent of the paid up capital of the Company entitled to vote, and, unless a poll is so demanded, a declaration by the chairman that a resolution has, on a show of hands, been carried or carried unanimously, or by a particular majority, or lost and an entry to that effect in the minutes of the proceedings of the Company, shall be conclusive evidence of the fact, without proof of the number or proportion of the votes recorded in favour of, or against, that resolution. |
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| 49. | If a poll is duly demanded it shall be taken in such manner as the chairman directs, and the result of the poll shall be deemed to be the resolution of the meeting at which the poll was demanded. |
| 50. | In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place or at which the poll is demanded, shall be entitled to a second or casting vote. |
| 51. | A poll demanded on the election of a chairman or on a question of adjournment shall be taken forthwith. A poll demanded on any other question shall be taken at such time as the chairman of the meeting directs. |
VOTES OF MEMBERS
| 52. | Subject to Article 117, on a show of hands every Member present in person or by proxy and entitled to vote shall have one vote and on a poll every Member entitled to vote shall have one vote for each Share of which he is the holder. |
| 53. | In the case of joint holders the vote of the senior who tenders a vote whether in person or by proxy, shall be accepted to the exclusion of the votes of the other joint holders; and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members. |
| 54. | A Member of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy, may vote, whether on a show of hands or on a poll, by his committee or other person in the nature of a committee appointed by that court, and any such committee or other person may vote by proxy. |
| 55. | No Member shall be entitled to vote at any general meeting, unless all calls or other sums presently payable by him in respect of Shares in the Company have been paid. |
| 56. | On a poll votes may be given either personally or by proxy. |
| 57. | The instrument appointing a proxy shall be in writing under the hand of the Member or, if the Member is a corporation, either under seal or under the hand of a director or officer or attorney duly authorised. A proxy need not be a Member of the Company. |
| 58. | The instrument appointing a proxy shall be deposited at the Registered Office of the Company or at such other place as is specified for that purpose in the notice convening the meeting no later than the time for holding the meeting or adjourned meeting at which the person named in the instrument proposes to vote, and in default the instrument of proxy shall not be treated as valid PROVIDED THAT the chairman of the meeting may in his discretion accept an instrument of proxy sent by telex or telefax upon receipt of telex or telefax confirmation that the signed original thereof has been sent. |
| 59. | An instrument appointing a proxy may be in the following form or any other form approved by the Directors: |
[ ]
“I, __________________________, of _______________________, hereby appoint __________________________ of _______________________ as my proxy, to vote for me and on my behalf at the general meeting of the Company to be held on the ______ day of ________________, 20___.
Signed this ______ day of ________________________, 20___.
| 60. | The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll. |
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CORPORATIONS ACTING BY REPRESENTATIVES AT MEETING
| 61. | Any corporation which is a Member of the Company may by resolution of its Directors or any committee of the Directors authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class of Members of the Company, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual Member of the Company. |
DIRECTORS AND OFFICERS
| 62. | (a) | The names of the first Directors shall be determined in writing by the subscribers of the Memorandum of Association. |
| (b) | Notwithstanding any provision in these Articles to the contrary, a sole Director shall be entitled to exercise all of the powers and functions of the Directors which may be conferred on them by Law or by these Articles. |
| 63. | The remuneration of the Directors shall from time to time be determined by the Company in general meeting. The Directors shall also be entitled to be paid their travelling, hotel and other expenses properly incurred by them in going to, attending and returning from meetings of the Directors, or any committee of the Directors, or general meetings of the Company, or otherwise in connection with the business of the Company, or to receive a fixed allowance in respect thereof as may be determined by the Directors from time to time, or a combination partly of one such method and partly the other. |
| 64. | No shareholding qualification shall be required for Directors unless otherwise required by the Company by Ordinary Resolution. |
| 65. | Any Director may in writing appoint another person who is approved by the majority of the Directors to be his alternate to act in his place at any meeting of the Directors at which he is unable to be present. Every such alternate shall be entitled to notice of meetings of the Directors and to attend and vote thereat as a Director when the person appointing him is not personally present, and where he is a Director, to have a separate vote on behalf of the Director he is representing in addition to his own vote. A Director may at any time, in writing, revoke the appointment of an alternate appointed by him and such appointment shall be revoked automatically if the appointor of the alternate ceases to be a Director at any time. Every such alternate shall be an officer of the Company and shall not be deemed to be the agent of the Director appointing him. The remuneration of such alternate shall be payable out of the remuneration of the Director appointing him and the proportion thereof shall be agreed between them. |
| 66. | The Directors may by resolution, appoint one of their number to be President upon such terms as to duration of office, remuneration and otherwise as they may think fit. |
| 67. | The Directors may also by resolution appoint a Secretary and such other officers as may from time to time be required upon such terms as to duration of office, remuneration and otherwise as they may think fit. Such Secretary or other officers need not be Directors and in the case of the other officers may be ascribed such titles as the Directors may decide. |
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POWERS AND DUTIES OF DIRECTORS
| 68. | The business of the Company shall be managed by the Directors, who may pay all expenses incurred in setting up and registering the Company and may exercise all such powers of the Company as are not, by the Law or these Articles, required to be exercised by the Company in general meeting, subject, nevertheless, to any clause of these Articles, to the provisions of the Law, and to such regulations, being not inconsistent with the aforesaid clauses or provisions, as may be prescribed by the Company in general meeting but no regulation made by the Company in general meeting shall invalidate any prior act of the Directors which would have been valid if that regulation had not been made. |
| 69. | The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof, to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the Company or of any third party. |
| 70. | (a) | The Directors may from time to time and at any time by power of attorney appoint any company, firm or person or body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and 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 may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Directors may think fit and may also authorise any such attorney to delegate all or any of the powers, authorities and discretions vested in him. |
| (b) | The Directors may delegate any of the powers exercisable by them to a Managing Director or any other person or persons acting individually or jointly as they may from time to time by resolution appoint upon such terms and conditions (including without limitation as to duration of office and remuneration) and with such restrictions as they may think fit, and may from time to time by resolution revoke, withdraw, alter or vary all or any such powers. |
| (c) | All cheques promissory notes, drafts, bills of exchange and other negotiable instruments, and all receipts for moneys paid to the Company shall be signed, drawn, accepted, endorsed, or otherwise executed, as the case may be, in such manner as the Directors shall from time to time by resolution determine. |
| 71. | The Directors shall cause minutes to be prepared:- |
| (a) | of all appointments of officers made by the Directors; |
| (b) | of the names of the Directors present at each meeting of the Directors and of any committee of the Directors; |
| (c) | of all resolutions and proceedings at all meetings of the Members of the Company and of the Directors and of committees of Directors; and the chairman of all such meetings or of any meeting confirming the minutes thereof shall sign the same. |
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DISQUALIFICATION AND CHANGES OF DIRECTORS
| 72. | The office of Director shall be vacated if the Director:- |
| (a) | becomes bankrupt or makes any arrangement or composition with his creditors generally; or |
| (b) | is found to be or becomes of unsound mind; or |
| (c) | resigns his office by notice in writing to the Company. |
| 73. | The number of Directors shall be not less than one, nor unless the Company in general meeting may otherwise determine, more than ten. |
| 74. | Any casual vacancy occurring in the Board of Directors may be filled by the Directors. |
| 75. | The Directors shall have the power at any time, and from time to time, to appoint a person as an additional Director or persons as additional Directors. |
| 76. | The Company may by Ordinary Resolution remove a Director before the expiration of his period of office, and may by Ordinary Resolution appoint another person in his stead. |
PROCEEDINGS OF DIRECTORS
| 77. | The Directors may meet together (either within or without the Cayman Islands) for the dispatch of business, adjourn, and otherwise regulate their meetings and proceedings, as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In case of an equality of votes the chairman shall have a second or casting vote. |
| 78. | A Director or alternate Director may, and the Secretary on the requisition of a Director or alternate Director shall, at any time, summon a meeting of Directors by at least five days’ notice in writing to every Director and alternate Director which notice shall set forth the general nature of the business to be considered PROVIDED HOWEVER that notice may be waived by all the Directors (or their alternates) either at, before or after the meeting is held PROVIDED FURTHER that notice or waiver thereof may be given by telex or telefax. |
| 79. | The quorum necessary for the transaction of the business of the Directors, may be fixed by the Directors and unless so fixed by the Directors, shall be two Directors save where the subscriber of the Memorandum of Association or the Members in general meeting have appointed a sole Director when such Director acting alone shall constitute a quorum. For the purpose of this Article, an alternate appointed by a Director shall be counted in a quorum at a meeting at which the Director appointing him is not present. |
| 80. | The continuing Directors may act notwithstanding any vacancy in their body, but, if and so long as their number is reduced below the number fixed by or pursuant to the Articles of the Company as the necessary quorum of Directors, the continuing Directors may act for the purpose of increasing the number of Directors to that number, or of summoning a general meeting of the Company, but for no other purpose. |
| 81. | Any Director or officer may act by himself or his firm in a professional capacity for the Company, and he or his firm shall be entitled to remuneration for professional services as if he were not a Director or officer PROVIDED THAT nothing herein contained shall authorise a Director or officer or his firm to act as Auditor of the Company. |
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| 82. | No person shall be disqualified from the office of Director or alternate 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 or alternate Director shall be in any way interested be or be liable to be avoided, nor shall any Director or alternate Director so contracting or being so interested be liable to account to the Company for any profit realised by any such contract or transaction by reason of such Director or alternate Director holding office or of the fiduciary relation thereby established. A Director (or his alternate Director in his absence) shall be at liberty to vote in respect of any contract or transaction in which he is so interested as aforesaid PROVIDED HOWEVER that the nature of the interest of any Director or alternate Director in any such contract or transaction shall be disclosed by him or the alternate Director appointed by him at or prior to its consideration and any vote thereon and a general notice that a Director or alternate Director is a shareholder of any specified firm or company and/or is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure hereunder and after such general notice it shall not be necessary to give special notice relating to any particular transaction. |
| 83. | The Directors may elect a chairman of their meetings and determine the period for which he is to hold office; but if no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for holding the same, the Directors present may choose one of their number to be chairman of the meeting. |
| 84. | The Directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit; any committee so formed shall, in the exercise of the powers so delegated, conform to any regulations that may be imposed on it by the Directors. |
| 85. | A committee may elect a chairman of its meetings; if no such chairman is elected, or if at any meeting the chairman is not present within five minutes after the time appointed for holding the same, the members present may choose one of their number to be chairman of the meeting. |
| 86. | A committee may meet and adjourn as it thinks proper. Questions arising at any meeting shall be determined by a majority of votes of the members present and in case of an equality of votes the chairman shall not have a second or casting vote. |
| 87. | All acts done by any meeting of the Directors or of a committee of Directors, or by any person acting as a Director shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director. |
| 88. | Upon the Directors (being in number at least a quorum) signing the minutes of a meeting of the Directors the same shall be deemed to have been duly held notwithstanding that the Directors have not actually come together or that there may have been a technical defect in the proceedings. A resolution signed by all such Directors, including a resolution signed in counterpart by the Directors or by way of signed telefax transmission, shall be as valid and effectual as if it had been passed at a meeting of the Directors duly called and constituted. To the extent permitted by law, the Directors may also meet by telephone conference call where all Directors are capable of speaking to and hearing the other Directors at the same time. |
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SEALS AND DEEDS
| 89. | (a) | If the Directors determine that the Company shall have a common Seal, the Directors shall provide for the safe custody of the common Seal and the common Seal of the Company shall not be affixed to any instrument except by the authority of a resolution of the Directors, and in the presence of a Director and of the Secretary or, in place of the Secretary, by such other person as the Directors may appoint for the purpose; and that Director and the Secretary or other person as aforesaid shall sign every instrument to which the common Seal of the Company is so affixed in their presence. Notwithstanding the provisions hereof, annual returns and notices filed under the Law may be executed either as a deed in accordance with the Law or by the common Seal being affixed thereto in either case without the authority of a resolution of the Directors by one Director or the Secretary. |
| (b) | The Company may maintain a facsimile of any common Seal in such countries or places as the Directors shall appoint and such facsimile Seal shall not be affixed to any instrument except by the authority of the Directors and in the presence of such person or persons as the Directors shall for this purpose appoint and such person or persons as aforesaid shall sign every instrument to which the facsimile Seal of the Company is so affixed in their presence and such affixing of the facsimile Seal and signing as aforesaid shall have the same meaning and effect as if the common Seal had been affixed in the presence of and the instrument signed by a Director and the Secretary or such other person as the Directors may appoint for the purpose. |
| (c) | In accordance with the Law, the Company may execute any deed or other instrument which would otherwise be required to be executed under Seal by the signature of such deed or instrument as a deed by two Directors of the Company or where there is a Sole Director of the Company, by such Sole Director, or by a Director and the Secretary of the Company or, in place of the Secretary, by such other person as the Directors may appoint or by any other person or attorney on behalf of the Company appointed by a deed or other instrument executed as a deed by two Directors of the Company, or a Sole Director or by a Director and the Secretary or such other person as aforesaid. |
DIVIDENDS AND RESERVE
| 90. | Subject to Article 117, the Company may by Ordinary Resolution declare dividends, but no dividend shall exceed the amount recommended by the Directors. |
| 91. | The Directors may from time to time pay to the Members interim dividends. |
| 92. | No dividend shall be paid otherwise than out of profits or out of monies otherwise available for dividend in accordance with the Law. |
| 93. | Subject to the rights of persons, if any, entitled to Shares with special rights as to dividends, all dividends on any class of Shares not fully paid shall be declared and paid according to the amounts paid on the Shares of that class, but if and so long as nothing is paid up on any of the Shares in the Company, dividends may be declared and paid according to the number of Shares. No amount paid on a Share in advance of calls shall, while carrying interest, be treated for the purposes of this article as paid on the Share. |
| 94. | The Directors may, before recommending any dividend, set aside out of the profits of the Company such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for meeting contingencies, or for equalising dividends, or for any other purpose to which the profits of the Company may be properly applied, and pending such application may, at their like discretion, either be employed in the business of the Company or be invested in such investments as the Directors may from time to time think fit. |
| 95. | If several persons are registered as joint holders of any Share, any of them may give effectual receipts for any dividend or other monies payable on or in respect of the Share. |
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| 96. | Any dividend may be paid by cheque or warrant sent through the post to the registered address of the Member or person entitled thereto or in the case of joint holders to any one of such joint holders at his registered address or to such person at such address as the Member or person entitled or such joint holders, as the case may be, may direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent or to the order of such other person as the Member or person entitled or such joint holders, as the case may be, may direct. |
| 97. | The Directors may declare that any dividend is paid wholly or partly by the distribution of specific assets and in particular of paid-up shares, debentures or debenture stock of any other company or in any one or more of such ways, and the Directors shall give effect to such resolution, and where any difficulty arises with regard to such distribution, the Directors may settle the same as they, think expedient, and in particular may issue fractional certificates and 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 footing of the value so fixed in order to adjust the rights of all parties, and may vest any such specific assets in trustees as may seem expedient to the Directors. |
| 98. | No dividend shall bear interest against the Company. |
CAPITALISATION OF PROFITS
| 99. | The Company may upon the recommendation of the Directors by Ordinary Resolution authorise the Directors to capitalise any sum standing to the credit of any of the Company’s reserve accounts (including 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 (and not required for paying any preferential dividends on Shares) and to appropriate such sums to Members in the proportions in which such sum would have been divisible amongst them had the same been a distribution of profits by way of dividend and to apply such sum on their behalf in paying up in full unissued Shares for allotment and distribution credited as fully paid up to and amongst them in the proportion aforesaid. In such event the Directors shall do all action and things required to give effect to such capitalisation, with full power to the Directors to make such provision as they think fit for the case of Shares becoming distributable in fractions (including provision whereby the benefit of fractional entitlements accrue to the Company rather than to the Members concerned). The Directors may authorise any person to enter on behalf of all the Members interested into an agreement with the Company providing for such capitalisation and matters incidental thereto and any agreement made under such authority shall be effective and binding on all concerned. |
ACCOUNTS
| 100. | The books of account relating to the Company’s affairs shall be kept in such manner as may be determined from time to time by the Company by Ordinary Resolution or failing such determination by the Directors of the Company. |
| 101. | The Company may by Ordinary Resolution from time to time determine or, failing such determination, the Directors may from time to time determine that Auditors shall be appointed and that the accounts relating to the Company’s affairs shall be audited in such manner as the Company by Ordinary Resolution or the Directors (as the case may be) shall determine PROVIDED THAT nothing contained in this Article shall require Auditors to be appointed or the accounts relating to the Company’s affairs to be audited. |
WINDING UP
| 102. | If the Company shall be wound up, the liquidator may, subject to these Articles and with the sanction of a Special Resolution of the Company and any other sanction required by the Law, divide amongst the Members in specie or kind the whole or any part of the assets of the Company (whether they shall consist of property of the same kind or not) and may for such purpose set such value as he deems fair upon any property to be divided as aforesaid and may determine how such division shall be carried out as between the Members or different classes of Members. The liquidator may with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the contributors as the liquidator, with the like sanction, shall think fit, but so that no Member shall be compelled to accept any Shares or other securities upon which there is any liability. This Article is to be without prejudice to the rights of the holders of Shares issued upon special terms and conditions. |
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| 103. | If the Company shall be wound up and the assets available for distribution amongst the Members as such shall be insufficient to repay the whole of the paid up 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 capital paid up, or which ought to have been paid up, at the commencement of the winding up, on the Shares held by them respectively. And if in a winding up the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the capital paid up at the commencement of the winding up, the excess shall be distributed amongst the Members in proportion to the capital paid up at the commencement of the winding up on the Shares held by them respectively. This Article is to be without prejudice to the rights of the holders of Shares issued upon special terms and conditions. |
NOTICES
| 104. | (a) | A notice may be given by the Company to any Member either personally or by sending it by post, telex or telefax to him to his registered address, or (if he has no registered address) to the address, if any, supplied by him to the Company for the giving of notices to him. |
| (b) | Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the notice (by airmail if the address is outside the Cayman Islands) and to have been effected, in the case of a notice of a meeting at the expiration of three days after the time at which the letter would be delivered in the ordinary course of post. |
| (c) | Where a notice is sent by telex or telefax, service of the notice shall be deemed to be effected by properly addressing and sending such notice through the appropriate transmitting medium and to have been effected on the day the same is sent. |
| 105. | If a Member has no registered address and has not supplied to the Company an address for the giving of notice to him, a notice addressed to him and advertised in a newspaper circulating in the Cayman Islands shall be deemed to be duly given to him at noon on the day following the day on which the newspaper is circulated and the advertisement appeared therein. |
| 106. | A notice may be given by the Company to the joint holders of a Share by giving the notice to the joint holder named first in the Register of Members in respect of the Share. |
| 107. | A notice may be given by the Company to the person entitled to a Share in consequence of the death or bankruptcy of a Member by sending it through the post in a prepaid letter 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, if any supplied for the purpose by the persons claiming to be so entitled or (until such an address has been so supplied) by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred. |
| 108. | Notice of every general meeting shall be given in the same manner hereinbefore authorised to: |
| (a) | every Member entitled to vote, except those Members entitled to vote who (having no registered address) have not supplied to the Company an address for the giving of notices to them; and |
| (b) | every person entitled to a Share in consequence of the death or bankruptcy of a Member, who, but for his death or bankruptcy would be entitled to receive notice of the meeting. |
No other persons shall be entitled to receive notices of general meetings.
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RECORD DATE
| 109. | The Directors may fix in advance a date as the record date for any determination of Members entitled to notice of or to vote at a meeting of the Members and, for the purpose of determining the Members entitled to receive payment of any dividend, the Directors may, at or within 90 days prior to the date of the declaration of such dividend, fix a subsequent date as the record date for such determination. |
AMENDMENT OF MEMORANDUM AND ARTICLES
| 110. | Subject to and insofar as permitted by the provisions of the Law, the Company may from time to time by Special Resolution alter or amend its Memorandum of Association or these Articles in whole or in part provided however that no such amendment shall effect the rights attaching to any class of shares without the consent or sanction provided for in Article 3 (b). |
ORGANISATION EXPENSES
| 111. | The preliminary and organisation expenses incurred in forming the Company shall be paid by the Company and may be amortised in such manner and over such period of time and at such rate as the Directors shall determine and the amount so paid shall in the accounts of the Company, be charged against income and/or capital. |
OFFICES OF THE COMPANY
| 112. | Subject to the provisions of the Statute, the Company may by resolution of the Directors change the location of its Registered Office. The Company, in addition to its Registered Office, may establish and maintain an office in the Cayman Islands or elsewhere as the Directors may from time to time determine. |
INDEMNITY
| 113. | Every Director and officer for the time being of the Company or any trustee for the time being acting in relation to the affairs of the Company and their respective heirs, executors, administrators, personal representatives or successors or assigns shall, in the absence of willful neglect or default, be indemnified by the Company against, and it shall be the duty of the Directors out of the funds and other assets of the Company to pay, all costs, losses, damages and expenses, including travelling expenses, which any such Director, officer or trustee may incur or become liable in respect of by reason of any contract entered into, or act or thing done by him as such Director, officer or trustee or in any way in or about the execution of his duties and the amount for which such indemnity is provided shall immediately attach as a lien on the property of the Company and have priority as between the Members over all other claims. No such Director, officer or trustee shall be liable or answerable for the acts, receipts, neglects or defaults of any other Director, officer or trustee or for joining in any receipt or other act for conformity or for any loss or expense happening to the Company through the insufficiency or deficiency of any security in or upon which any of the monies of the Company shall be invested or for any loss of the monies of the Company which shall be invested or for any loss or damage arising from the bankruptcy, insolvency or tortious act of any person with whom any monies, securities or effects shall be deposited, or for any other loss, damage or misfortune whatsoever which shall happen in or about the execution of the duties of his respective office or trust or in relation thereto unless the same happens through his own willful neglect or default. |
TRANSFER BY WAY OF CONTINUATION
| 114. | The Company shall, subject to the provisions of the Statute and, with the approval of a Special Resolution, have the power to register by way of continuation as a body corporate under the laws of any jurisdiction outside the Cayman Islands and the Directors may cause an application to be made to the Registrar of Companies to deregister the Company. |
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FINANCIAL YEAR
| 115. | The financial year end for the Company shall be 31 December unless the Directors otherwise prescribe. |
RIGHTS ATTACHING TO PREFERENCE SHARES
| 116. | The different classes of Shares confer upon the holders the same rights and rank pari passu in all respects, except as otherwise provided in these Articles or as may be determined by the directors pursuant to the powers conferred upon them by these Articles. |
| 117. | Each Preference Share in the Company confers the following rights upon the Member: |
Dividends
| a. | The holders of the then outstanding Preference Shares shall be entitled to receive, when, if and as paid or declared by the Directors, out of assets legally available therefor, prior and in preference to any declaration or payment of any dividend on the Ordinary Shares, dividends at the annual rate of eight percent (8%) of the Original Purchase Price per Preference Share, as adjusted for any share combinations or subdivisions, bonus issues and similar recapitalization events (Recapitalization Events). The right to dividends on Preference Shares shall not be cumulative, and no right shall accrue to holders of Preference Shares by reason of the fact that dividends on said Shares are not declared in any period, nor shall any undeclared or unpaid dividend bear or accrue interest. |
Liquidation/Insolvency Preference
| b. | On a liquidation of the Company, the holder of any Preference Shares shall have the right to receive in preference to the holders of the Ordinary Shares, the greater of (A) the Original Purchase Price of that Preference Share (adjusted for any Recapitalization Events) plus any declared but unpaid dividends thereon, but with no right to share in the distribution of any surplus assets of the Company, or (B) that amount that such Preference Share would have received had it been converted into an Ordinary Share pursuant to Article 117(d) below on the day immediately prior to the date on which the Company entered liquidation (in which case the Company shall be deemed to have received a Conversion Notice in respect of such Preference Share on the day immediately prior to the date on which the Company entered liquidation). |
| c. | On an insolvency, liquidation or winding up of the Company, the Members holding Preference shares shall be repaid in priority to the Members holding Ordinary Shares |
Conversion
| d. | Subject to the limitations set out below, the holder of any Preference Share may convert any Preference Shares held by them into Ordinary Shares of the Company on a one-for-one basis. |
| e. | A conversion of a Preference Share pursuant to Article 117(d) above may be effected at any time by the holder thereof serving notice (a Conversion Notice) on the Company. Such notice may be given by personal service or by internationally recognised courier service to the Company at its registered office, or by internationally recognised courier service to the registered agent of the Company. |
| f. | The holder of any Preference Shares shall not be permitted to convert its Preference Shares into Ordinary Shares if such conversion would result in such holder being the registered owner of more than 4.99% of the issued ordinary shares of the Company. |
| g. | Any declared but unpaid dividends on any Preference Shares to be converted pursuant to Article 117(d) shall remain due and payable, notwithstanding the conversion of such Preference Shares. |
Enhanced Voting Rights
| h. | For all matters relating to the Company requiring the votes of Members by a poll or by proxy, each Preference Share shall carry the equivalent number of votes as 50 Ordinary Shares. |
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