As filed with the Securities and Exchange Commission
on December 3, 2021
Registration No.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
TIAN RUIXIANG Holdings Ltd
(Exact name of registrant as specified in its charter)
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Cayman Islands
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Not Applicable
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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30A Jingyuan Art Center, 3 Guangqu Road,
Chaoyang District, Beijing, People’s Republic
of China
(Address of Principal Executive Offices)
TIAN RUIXIANG Holdings Ltd 2021 Performance
Incentive Plan
(Full title of the plan)
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, NY 10168
(Name and address of agent for service)
800-221-0102
(Telephone number, including area code, of agent
for service)
Copies to:
Ying Li, Esq.
Hunter Taubman Fischer & Li, LLC
800 Third Avenue, Suite 2800
New York, NY 10022
212- 530-2206
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
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Smaller reporting company
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¨
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Emerging growth company
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x
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If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount to be
registered (1)
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Proposed
maximum
offering price
per share (2)
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Class A ordinary shares, par value $0.001 per share:
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5,000,000
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$
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2.12
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10,600,000
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$
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983
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(1)
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This registration statement on Form S-8 (this “Registration Statement”)
registers 5,000,000 Class A ordinary shares, par value of US$0.001 per share (the “Class A Ordinary Shares”), of TIAN RUIXIANG
Holdings Ltd (the “Registrant”) issuable pursuant to the TIAN RUIXIANG Holdings Ltd 2021 Performance Incentive Plan (the “2021
Plan”). In accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this
Registration Statement also covers an indeterminate number of additional securities which may be offered and issued under the Plan to
prevent dilution from stock splits, stock dividends or similar transactions as provided in the 2021 Plan.
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(2)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act, based on the average of the high and low selling prices of the Registrant’s Ordinary Shares as reported on the Nasdaq Capital Market on December 1, 2021.
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EXPLANATORY NOTE
This Registration Statement
is being filed by the Registrant in accordance with the requirements of Form S-8 under the Securities Act in order to register 5,000,000
Class A Ordinary Shares issuable pursuant to the 2021 Plan adopted by the board of directors of the Registrant.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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*
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The documents containing the information specified in this Part I of Form S-8 (Plan Information and Registration Information and Employee Plan Annual Information) will be sent or given to recipients of the grants under the 2021 Plan as specified by the U.S. Securities and Exchange Commission (the “Commission”) pursuant to Rule 428(b)(1) of the Securities Act. Such documents are not required to be and are not filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. The Registrant will provide a written statement to participants advising them of the availability without charge, upon written or oral request, of the documents incorporated by reference in Item 3 of Part II hereof and including the statement in the preceding sentence. The written statement to all participants will indicate the availability without charge, upon written or oral request, of other documents required to be delivered pursuant to Rule 428(b) of the Securities Act, and will include the address and telephone number to which the request is to be directed.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant is subject
to the informational requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and, accordingly,
files periodic reports and other information with the Commission. Reports and other information concerning the Registrant filed with the
Commission may be inspected and copies may be obtained (at prescribed rates) at the Commission’s Public Reference Section, Room
1024, 100 F Street, N.E., Room 1580, Washington, D.C. 20549. The Commission also maintains a website that contains reports, proxy and
information statements and other information regarding registrants that file electronically with the Commission, including the Registrant.
The address for the Commission’s website is “http://www.sec.gov.” The following documents are incorporated by reference
in this Registration Statement:
(a) The Registrant’s Annual Report on Form 20-F for the fiscal year ended October 31, 2020 filed with the Commission on April 26, 2021; the amendment to the Registrant’s Annual Report on Form 20-F for the fiscal year ended October 31, 2020 filed with the Commission on April 29, 2021.
(b) The Registrant’s Current Reports on
Form 6-K furnished to the Commission on November 30, 2021, August 10, 2021, June 8, 2021, April 27, 2021, February 4, 2021, and February 2, 2021, respectively; and
(c) The description of the Registrant’s Class A Ordinary Shares contained in the registration statement on Form 8-A, filed with the SEC on January 22, 2021, and any amendment or report filed for the purpose of updating such description.
Except to the extent such
information is deemed furnished and not filed pursuant to securities laws and regulations, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act and, to the extent specifically designated therein, reports on Form
6-K furnished by the Registrant to the Commission, in each case, prior to the filing of a post-effective amendment to this Registration
Statement indicating that all securities offered under this Registration Statement have been sold, or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date
of filing or furnishing of such documents.
Any statement contained herein
or in a document all or a portion of which is incorporated or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Cayman Islands law does not
limit the extent to which a company’s articles of association may provide for indemnification of officers and directors, except
to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification
against civil fraud or the consequences of committing a crime. The Registrant’s amended and restated memorandum and articles of
association provide, to the extent permitted by law, that the Registrant shall indemnify each director and officer for the time being
of the Registrant or any trustee for the time being acting in relation to the affairs of the Registrant and their respective heirs, executors,
administrators, personal representatives or successors or assigns against 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 . The Registrant’s
amended and restated memorandum and articles of association also provide that no such director officer or trustee shall be indemnified
in respect of any matter arising out of such person’s own dishonesty or fraud.
Pursuant to the indemnification
agreements, the form of which is filed as Exhibit 10.1 to the Registrant’s Registration Statement on Form F-1/A (file No. 333-235727)
filed with the Commission on January 14, 2020, the Registrant has agreed to indemnify its directors and officers against certain liabilities
and expenses that they incur in connection with claims made by reason of their being such a director or officer of the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
EXHIBIT INDEX
Item 9. Undertakings.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
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(iii)
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
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provided, however, that paragraphs (a)(1)(i),
(a)(1)(ii) and (a)(1)(iii) of this section do not apply if the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the registrant pursuant to Section
13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in
a form of prospectus filed pursuant to Rule 424(b).
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
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(4)
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That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
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(i)
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Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
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(ii)
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Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(5)
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That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
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That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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Signatures
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Beijing, China, on December 3, 2021.
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TIAN RUIXIANG Holdings Ltd
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By:
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/s/ Zhe Wang
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Zhe Wang
Chief Executive Officer,
Chairman of the Board of Directors
(Principal Executive Officer)
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POWER OF ATTORNEY
Each person whose signature
appears below hereby appoints Zhe Wang and Mingxiu Luan, and each of them severally, acting alone and without the other, his or her true
and lawful attorney-in-fact with full power of substitution or re-substitution, for such person and in such person’s name, place
and stead, in any and all capacities, to sign on such person’s behalf, individually and in each capacity stated below, any and all
amendments, including post-effective amendments to this Registration Statement, and to sign any and all additional registration statements
relating to the same offering of securities of the Registration Statement that are filed pursuant to Rule 462 of the Securities Act of
1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact, full power and authority to do and perform each and every act and thing requisite or necessary to
be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements
of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/ Zhe Wang
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Chief Executive Officer, Chairman of the Board of
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December 3, 2021
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Name: Zhe Wang
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Directors, and Director (Principal Executive Officer)
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/s/ Mingxiu Luan
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Chief Financial Officer
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December 3, 2021
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Name: Mingxiu Luan
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(Principal Accounting and Financial officer)
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/s/ Sheng Xu
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Director
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December 3, 2021
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Name: Sheng Xu
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/s/ Benjamin Andrew Cantwell
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Director
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December 3, 2021
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Name: Benjamin Andrew Cantwell
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/s/ Michael J. Hamilton
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Director
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December 3, 2021
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Name: Michael J. Hamilton
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SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE
UNITED STATES
Pursuant to the Securities Act of 1933 as amended,
the undersigned, the duly authorized representative in the United States of America of the Registrant, has signed this registration statement
thereto in New York, NY on December 3, 2021.
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Cogency Global Inc.
Authorized U.S. Representative
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By:
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/s/ Colleen A. De Vries
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Name:
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Colleen A. De Vries
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Title:
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Senior Vice President
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Exhibit 4.2
THE COMPANIES LAW (AS REVISED)
OF THE CAYMAN ISLANDS
Company Limited by Shares
Amended and Restated Memorandum of Association
of
TIAN RUIXIANG HOLDINGS LTD
(Adopted by Special Resolution dated April 21, 2020 and effective
immediately prior to the completion of the Company’s initial public offering of Class A Ordinary Shares)
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1.
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The name of the Company is TIAN RUIXIANG Holdings Ltd.
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2.
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The registered office is situated at Harneys Fiduciary (Cayman) Limited, 4th Floor, Harbour Place, 103
South Church Street, P.O. Box 10240, Grand Cayman KY1-1002, Cayman Islands or at such other place in the Cayman Islands as the Directors
may from time to time decide.
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3.
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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 Law (Revised).
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4.
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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.
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5.
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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.
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6.
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If the Company is an exempted company, its operations will be carried on subject to the provisions of
Section 174 of the Companies Law (Revised).
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7.
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The liability of each Member is limited to the amount from time to time unpaid on such Member’s
share.
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8.
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The authorised share capital of the Company is US$50,000 consisting of 50,000,000 shares comprising of
(i) 47,500,000 Class A Ordinary Shares of a par value of US$0.001 each, and
(ii) 2,500,000 Class B Ordinary Shares of a par value of US$0.001 each. Subject to the Law and the Articles, the Company shall have power
to redeem or purchase any of its Shares and to increase or reduce its authorised share capital and to sub-divide or consolidate the said
Shares or any of them and to issue all or any part of its capital whether original, redeemed, increased or reduced with or without any
preference, priority, special privilege or other rights or subject to any postponement of rights or to any conditions or restrictions
and so that, unless the condition of issue shall otherwise expressly declare, every issue of shares, whether declared to be ordinary,
preference or otherwise, shall be subject to the power on the part of the Company hereinbefore contained.
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9.
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The Company may exercise the powers contained in the Law to transfer and be registered by way of continuation
as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be de-registered in the Cayman
Islands.
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10.
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Capitalised terms used and not defined in this Memorandum of Association shall bear the same meaning as
those given in the Articles of Association of the Company.
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THE COMPANIES
LAW (AS REVISED)
OF THE CAYMAN
ISLANDS
Company Limited by Shares
Amended and Restated Articles of Association
of
TIAN RUIXIANG HOLDINGS LTD
(Adopted by Special Resolution dated April 21, 2020 and effective
immediately prior to the completion of the Company’s initial public offering of representing its Class A Ordinary Shares)
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1.
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The Regulations contained or incorporated in Table A of the First Schedule of the Law (as defined below)
shall not apply to this Company.
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INTERPRETATION
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2.
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(a)
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In these Articles the following terms shall have the
meanings set opposite unless the context otherwise requires:-
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Affiliate
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means in respect of a Person, any other Person that, directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person, and (i) in the case of a natural person, shall include, without
limitation, such person’s spouse, parents, children, siblings, mother-in-law, father-in-law, brothers-in-law and sisters-in-law,
a trust for the benefit of any of the foregoing, and a corporation, partnership or any other entity wholly or jointly owned by any of
the foregoing, and (ii) in the case of an entity, shall include a partnership, a corporation or any other entity or any natural person
which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
The term “control” shall mean the ownership, directly or indirectly, of shares possessing more than fifty per cent (50%) of
the voting power of the corporation, partnership or other entity (other than, in the case of a corporation, securities having such power
only by reason of the happening of a contingency), or having the power to control the management or elect a majority of members to the
board of directors or equivalent decision-making body of such corporation, partnership or other
entity
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Articles
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these Articles of Association as from time to time amended by Special Resolution
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Auditors
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the Auditors for the time being of the Company, if any
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Chairman
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means the chairman of the Board of Directors
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Class A Ordinary Share
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means
an Ordinary Share of a par value of US$0.001 in the capital of the Company, designated as a Class A Ordinary Shares and having the rights
provided for in these Articles
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Class B Ordinary Share
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means
an Ordinary Share of a par value of US$0.001 in the capital of the Company, designated as a Class B Ordinary Shares and having the rights
provided for in these Articles
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Commission
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means the Securities and Exchange Commission of the United States of America or any other federal agency
for the time being administering the Securities Act
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Company
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TIAN RUIXIANG Holdings Ltd
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Directors or Board or Board of Directors
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the directors of the Company for the time being or, as the case may be, the directors assembled as a board
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Electronic Transactions Law
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means the Electronic Transactions Law of the Cayman Islands
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Exchange
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any securities exchange or other system on which any Shares are listed or authorised for trading from
time to time
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Exchange Rules
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the
relevant code, rules and regulations, as amended, from time to time, applicable as a result of the original and continued listing of any
Shares on the Exchange
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Founders
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refer to Zhe Wang, Sheng Xu and Mingxiu Luan, each of whom is referred to as a “Founder”
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Founder Affiliate
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means
any entity that is ultimately controlled by any of the Founders
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Independent Director
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a director who is an independent director as defined in the Exchange Rules
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Law
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the Companies Law (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
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Member or Shareholder
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a
person who is registered in the Register of Members as the holder of any Share in the Company
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Memorandum of Association
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means the memorandum of
association of the Company, as amended or substituted from time to time
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Ordinary Resolution
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a
resolution (a) passed by a simple majority of the votes cast by such Shareholders as, being entitled to do so, vote in person or, where
proxies are allowed, by proxy or, in the case of corporations, by their duly authorised representatives, at a general meeting of the
Company held in accordance with these Articles; or (b) approved in writing by all of the Shareholders entitled to vote at a general meeting
of the Company in one or more instruments each signed by one or more of the Shareholders and the effective date of the resolution so
adopted shall be the date on which the instrument, or the last of such instruments, if more than one, is executed
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Ordinary Share
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means
a Class A Ordinary Share or a Class B Ordinary Share
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paid up
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means
paid up as to the par value in respect of the issue of any Shares and includes credited as paid up
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Person
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means any natural person, firm, company, joint venture, partnership, corporation, association or other
entity (whether or not having a separate legal personality) or any of them as the context so requires
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Registered
Office
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the
registered office of the Company as provided in Section 50 of the Law
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Register
of Members
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the register of Members to be kept pursuant to section 40 of the Law
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Secretary
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any person appointed by the Directors to perform any of the duties of the secretary of the Company and
including any assistant secretary
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Securities Act
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means the Securities Act of 1933 of the United States of America, as amended, or any similar federal statute and the rules and
regulations of the Commission thereunder, all as the same shall be in effect at the time
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Seal
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the common seal of the Company or any facsimile for official seal for use outside of the Cayman Islands
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Share
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means a share in the capital of the Company. All references to “Shares” herein shall be deemed
to be Shares of any or all Classes as the context may require. For the avoidance of doubt in these Articles the expression “Share”
shall include a fraction of a Share
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Special Resolution
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means
a special resolution of the Company passed in accordance with the Companies Law, being a resolution: (a) passed by not less than two-thirds
of the votes cast by such Shareholders as, being entitled to do so, vote in person or, where proxies are allowed, by proxy or, in the
case of corporations, by their duly authorised representatives, at a general meeting of the Company of which notice specifying the intention
to propose the resolution as a special resolution has been duly given; or (b) approved in writing by all of the Shareholders entitled
to vote at a general meeting of the Company in one or more instruments each signed by one or more of the Shareholders and the effective
date of the special resolution so adopted shall be the date on which the instrument or the last of such instruments, if more than one,
is executed
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Treasury
Share
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means a Share
held in the name of the Company as a treasury share in accordance with the Law
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United States
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means
the United States of America, its territories, its possessions and all areas subject to its jurisdiction
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(b)
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Unless the context otherwise requires, expressions defined in the Law and used herein shall have the meanings
so defined.
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(c)
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In these Articles unless the context otherwise requires:-
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(i)
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words importing the singular number shall include the plural number and vice-versa;
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(ii)
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words importing the masculine gender only shall include the feminine gender;
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(iii)
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words importing persons only shall include companies or associations or bodies of persons whether incorporated
or not;
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(iv)
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the word “may” shall be construed as permissive and the word “shall” shall be
construed as imperative;
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(v)
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reference to a dollar or dollars (or US$) and to a cent or cents is reference to dollars and cents of
the United States of America;
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(vi)
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reference to a statutory enactment shall include reference to any amendment or re-enactment thereof for
the time being in force;
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(vii)
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reference to any determination by the Directors shall be construed as a determination by the Directors
in their sole and absolute discretion and shall be applicable either generally or in any particular case;
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(viii)
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reference to “in writing” shall be construed as written or represented by any means reproducible
in writing, including any form of print, lithograph, email, facsimile, photograph or telex or represented by any other substitute or format
for storage or transmission for writing including in the form of an electronic record or partly one and partly another;
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(ix)
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any requirements as to delivery under the Articles include delivery in the form of an electronic record
or an electronic communication;
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(x)
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any requirements as to execution or signature under the Articles, including the execution of the Articles
themselves, can be satisfied in the form of an electronic signature as defined in the Electronic Transaction Law; and
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(xi)
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Sections 8 and 19(3) of the Electronic Transactions Law shall not apply.
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(d)
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The headings herein are for convenience only and shall not affect the construction of these Articles.
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3.
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(a)
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Subject to these Articles, all Shares for the time being unissued
shall be under the control of the Directors who may, in their absolute discretion and without the approval of the Members, cause the Company
to: (a) issue, allot and dispose of Shares (including, without limitation, preferred shares) (whether
in certificated form or non-certificated form) to such Persons, in such manner, on such terms and having such rights and being subject
to such restrictions as they may from
time to time determine; (b) grant rights over Shares or other securities to be issued in one or more classes or series as they deem necessary
or appropriate and determine the designations, powers, preferences, privileges and other rights attaching to such Shares or securities,
including dividend rights, voting rights, conversion rights, terms of redemption and liquidation preferences, any or all of which may
be greater than the powers, preferences, privileges and rights associated with the then issued and outstanding Shares, at such times and
on such other terms as they think proper; and (c) grant options with respect to Shares and issue warrants or similar instruments with
respect thereto.
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(b)
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The Directors may authorise the division of Shares into any number of Classes and the different Classes
shall be authorised, established and designated (or re-designated as the case may be) and the variations in the relative rights (including,
without limitation, voting, dividend and redemption rights), restrictions, preferences, privileges and payment obligations as between
the different Classes (if any) may be fixed and determined by the Directors or by an Ordinary Resolution. The Directors may issue Shares
with such preferred or other rights, all or any of which may be greater than the rights of Ordinary Shares, at such time and on such terms
as they may think appropriate. Notwithstanding Article 3(c), the Directors may issue from time to time, out of the authorised share capital
of the Company (other than the authorised but unissued Ordinary Shares), series of preferred shares in their absolute discretion and without
approval of the Members; provided, however, before any preferred shares of any such series are issued, the Directors shall by resolution
of Directors determine, with respect to any series of preferred shares, the terms and rights of that series, including:
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(i)
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the designation of such series, the number of preferred shares
to constitute such series and the subscription price thereof if different from the par value thereof;
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(ii)
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whether the preferred shares of such series shall have voting
rights, in addition to any voting rights provided by law, and, if so, the terms of such voting rights, which may be general or limited;
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(iii)
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the dividends, if any, payable on such series, whether any such
dividends shall be cumulative, and, if so, from what dates, the conditions and dates upon which such dividends shall be payable, and
the preference or relation which such dividends shall bear to the dividends payable on any shares of any other class or any other series
of shares;
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(iv)
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whether the preferred shares of such series shall be subject
to redemption by the Company, and, if so, the times, prices and other conditions of such redemption;
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(v)
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whether the preferred shares of such series shall have any rights
to receive any part of the assets available for distribution amongst the Members upon the liquidation of the Company, and, if so, the
terms of such liquidation preference, and the relation which such liquidation preference shall bear to the entitlements of the holders
of shares of any other class or any other series of shares;
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(vi)
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whether the preferred shares of such series shall be subject
to the operation of a retirement or sinking fund and, if so, the extent to and manner in which any such retirement or sinking fund shall
be applied to the purchase or redemption of the preferred shares of such series for retirement or other corporate purposes and the terms
and provisions relative to the operation thereof;
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(vii)
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whether the preferred shares of such series shall be convertible
into, or exchangeable for, shares of any other class or any other series of preferred shares or any other securities and, if so, the
price or prices or the rate or rates of conversion or exchange and the method, if any, of adjusting the same, and any other terms and
conditions of conversion or exchange;
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(viii)
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the limitations and restrictions, if any, to be effective while
any preferred shares of such series are outstanding upon the payment of dividends or the making of other distributions on, and upon the
purchase, redemption or other acquisition by the Company of, the existing shares or shares of any other class of shares or any other
series of preferred shares;
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(ix)
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the conditions or restrictions, if any, upon the creation of
indebtedness of the Company or upon the issue of any additional shares, including additional shares of such series or of any other class
of shares or any other series of preferred shares; and
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(x)
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any other powers, preferences and relative, participating, optional
and other special rights, and any qualifications, limitations and restrictions thereof;
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and, for such purposes,
the Directors may reserve an appropriate number of Shares for the time being unissued. The Company shall not issue Shares to bearer.
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(c)
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Whenever the capital of the Company is divided into different classes the rights attached to any
such class may, subject to any rights or restrictions for the time being attached to any class, only be materially adversely varied with the consent in writing of
the holders of two-thirds of the issued Shares of that class or with the sanction of a resolution passed at a separate meeting of
the holders of the Shares of that class by the holders of two-thirds of the issued Shares of that class. To every such separate meeting
all the provisions of these Articles relating to general meetings of the Company or to the proceedings thereat shall, mutatis mutandis,
apply, except that the necessary quorum shall be one or more Persons holding or representing by proxy at least one-third in nominal or
par value amount of the issued Shares of the relevant class (but so that if at any adjourned meeting of such holders a quorum as
above defined is not present, those Shareholders who are present shall form a quorum) and that, subject to any rights or restrictions
for the time being attached to the Shares of that class, every Members of that class shall on a poll have one vote for each Share
of that class held by him. For the purposes of this Article, the Directors may treat all the classes or any two or more classes as
forming one class if they consider that all such Classes would be affected in the same way by the proposals under consideration,
but in any other case shall treat them as separate classes.
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(d)
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The rights conferred upon the holders of the shares of any class shall not, unless otherwise expressly
provided by the terms of issue of the shares of that class, be deemed to be varied or abrogated by the creation or issue of further shares
ranking pari passu therewith or the creation or issue of one or more classes of shares with or without preferred, deferred or other
special rights or restrictions (including, without limitation, the creation of Shares with enhanced or weighted voting rights), whether
in regard to dividend, voting, return of capital or otherwise.
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4.
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(a)
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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.
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(b)
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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.
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(c)
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Every share certificate of the Company shall bear legends required under the applicable laws, including
the Securities Act.
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(d)
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Any two or more certificates representing Shares of any one Class held by any Member may at the
Member’s request be cancelled and a single new certificate for such Shares issued in lieu on payment (if the Directors shall so require) of one dollar (US$1.00) or
such smaller sum as the Directors shall determine.
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5.
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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.
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6.
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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.
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CLASS A ORDINARY
SHARES AND CLASS B ORDINARY SHARES
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7.
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Holders of Class A Ordinary Shares and Class B Ordinary Shares
shall at all times vote together as one class on all resolutions submitted to a vote by the Members. Each Class B Ordinary Share shall
entitle the holder thereof to eighteen (18) votes on all matters subject to vote at general meetings of the Company, and each Class A
Ordinary Share shall entitle the holder thereof to one (1) vote on all matters subject to vote at general meetings of the Company.
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8.
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Each Class B Ordinary Share is convertible into one (1) Class
A Ordinary Share at any time at the option of the holder thereof. The right to convert shall be exercisable by the holder of the Class
B Ordinary Share delivering a written notice to the Company that such holder elects to convert a specified number of Class B Ordinary
Shares into Class A Ordinary Shares. In no event shall Class A Ordinary Shares be convertible into Class B Ordinary Shares.
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9.
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Any conversion of Class B Ordinary Shares into Class A Ordinary
Shares pursuant to these Articles shall be effected by redeeming the relevant Class B Ordinary Shares and in consideration therefor issuing
fully-paid Class A Ordinary Shares in equal number. Such conversion shall become effective forthwith upon entries being made in the Register
of Members to record the conversion of the relevant Class B Ordinary Shares as Class A Ordinary Shares.
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10.
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Upon any sale, transfer, assignment or disposition of any Class
B Ordinary Share by a Member to any Person who is not a Founder or Founder Affiliate, or upon a change of ultimate beneficial ownership
of any Class B Ordinary Share to any Person who is not a Founder or Founder Affiliate, such Class B Ordinary Share shall entitle such
Person to eighteen (18) votes on all matters subject to vote at general meetings of the Company. For
the avoidance of doubt, (i) a sale, transfer, assignment or disposition shall be effective upon the Company’s registration of such
sale, transfer, assignment or disposition in its Register; and (ii) the creation of any pledge, charge, encumbrance or other third party
right of whatever description on any Class B Ordinary Shares to secure a holder’s contractual or legal obligations shall not be
deemed as a sale, transfer, assignment or disposition unless and until any such pledge, charge, encumbrance or other third party right
is enforced and results in the third party holding legal title to the relevant Class B Ordinary Shares. For purpose of this Article 10,
beneficial ownership shall have the meaning set forth in Rule 13d-3 under the United States Securities Exchange Act of 1934, as amended.
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11.
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Save and except for voting rights and conversion rights as set
out in Articles 7 to 10 (inclusive), the Class A Ordinary Shares and the Class B Ordinary Shares shall rank pari passu with one
another and shall have the same rights, preferences, privileges and restrictions.
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LIEN
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12.
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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.
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13.
|
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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14.
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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.
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15.
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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.
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CALLS ON SHARES
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16.
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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.
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17.
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The joint holders of a Share shall be jointly and severally liable
to pay calls in respect thereof.
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18.
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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.
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19.
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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.
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20.
|
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.
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21.
|
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
|
|
22.
|
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.
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23.
|
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.
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|
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24.
|
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.
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|
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25.
|
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.
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26.
|
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.
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27.
|
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.
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|
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28.
|
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
|
|
29.
|
The instrument of transfer of any Share shall be in writing and
in any usual or common form or such other form as the Directors may, in their absolute discretion, approve and be executed by or on behalf
of the transferor and if in respect of a nil or partly paid up Share, or if so required by the Directors, shall also be executed on behalf
of the transferee and shall be accompanied by the certificate (if any) of the Shares to which it relates and such other evidence as the
Directors may reasonably require to show the right of the transferor to make the transfer. The transferor shall be deemed to remain a
holder of the Share until the name of the transferee is entered in the Register of Members in respect thereof.
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|
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30.
|
The Directors may decline to register any transfer of shares
unless a fee of such maximum sum as the Exchange may determine to be payable, or such lesser sum as the Directors may from time to time
require, is paid to the Company in respect thereof.
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|
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31.
|
The registration of transfers may, on 14 days’ notice being
given by advertisement in such one or more newspapers, by electronic means or by any other means in accordance with the Exchange Rules,
be suspended and the register of Members closed at such times and for such periods as the Directors may, in their absolute discretion,
from time to time determine, provided always that such registration of transfer shall not be suspended nor the register of Members closed
for more than 30 days in any year.
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|
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32.
|
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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|
33.
|
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.
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34.
|
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.
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35.
|
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.
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36.
|
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.
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|
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37.
|
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
|
|
38.
|
The Company may by Ordinary Resolution convert any paid-up Shares
into stock, and reconvert any stock into paid-up Shares of any denomination.
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|
|
39.
|
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.
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|
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40.
|
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.
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|
|
41.
|
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".
|
REGISTRATION
OF EMPOWERING INSTRUMENTS
|
|
42.
|
The Company shall be entitled to charge a fee not exceeding one
U.S. dollar (US$1.00) on the registration of every probate, letters of administration, certificate of death or marriage, power of attorney,
notice in lieu of distringas, or other instrument.
|
ALTERATION
OF SHARE CAPITAL
|
|
43.
|
The Company may from time to time by Ordinary Resolution increase
the share capital by such sum, to be divided into Shares of such classes and amount, as the resolution shall prescribe.
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|
|
44.
|
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.
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|
|
45.
|
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.
|
|
|
46.
|
The Company may by Ordinary Resolution:
|
|
|
(a)
|
increase its share capital by new Shares of such amount as
it thinks expedient;
|
|
|
(b)
|
consolidate and divide all or any of its Share capital into
Shares of larger amount than its existing Shares;
|
|
|
(c)
|
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
|
|
|
(d)
|
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.
|
|
|
47.
|
The Company may by Special Resolution reduce its share capital
and any capital redemption reserve in any manner authorised by the Law.
|
|
|
48.
|
Subject to the provisions of the Law and the Memorandum of Association,
the Company may (a) issue Shares that are to be redeemed or are liable to be redeemed at the option of the Shareholder or the Company.
The redemption of Shares shall be effected in such manner and upon such terms as may be determined, before the issue of such Shares,
by either the Board or by the Shareholders by Special Resolution; (b) purchase its own Shares, including any redeemable Shares, provided
that the manner of purchase has first been authorised by Ordinary Resolution; and (c) make
payment therefor or for any redemption or purchase of its own Shares in any manner authorised by the Law, including out of capital.
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|
|
49.
|
In addition, the Company is authorised to purchase any share
listed on an Exchange in accordance with the following manner of purchase: The maximum number of shares that may be repurchased shall
be equal to the number of issued shares, less one share; at such time; at such price and on such other terms as determined and agreed
by the Directors in their sole discretion, provided, however, that (i) such repurchase transactions shall be in accordance with the relevant
code, rules and regulations applicable to the listing of the shares on the Exchange; and (ii) at the time of the repurchase the Company
is able to pay its debts as they fall due in the ordinary course of its business.
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|
|
50.
|
The Directors may accept the surrender for no consideration of
any fully paid Share.
|
TREASURY SHARES
|
|
51.
|
The Directors may, prior to the purchase, redemption or surrender
of any Share, determine that such Share shall be held as a Treasury Share.
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|
|
52.
|
The Directors may determine to cancel a Treasury Share or transfer
a Treasury Share on such terms as they think proper (including, without limitation, for nil consideration).
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STATUTORY MEETINGS
|
|
53.
|
If required by the Law the Directors shall hold at least one
Directors’ meeting in the Cayman Islands in each calendar year.
|
GENERAL MEETINGS
|
|
54.
|
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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|
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55.
|
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.
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|
|
56.
|
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.
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|
57.
|
(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.
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|
|
(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.
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|
|
58.
|
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.
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|
|
59.
|
The chairman, if any, of the Board of Directors shall preside
as chairman at every general meeting of the Company.
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|
|
60.
|
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.
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|
|
61.
|
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.
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|
|
62.
|
At any general meeting a resolution put to the vote of the meeting
shall be decided an 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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|
|
63.
|
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.
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|
|
64.
|
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.
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|
|
65.
|
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
|
|
66.
|
Subject to any rights and restrictions for the time being attached
to any Share, on a show of hands every Member present in person or by proxy and entitled to vote at a general meeting of the Company
shall each have one vote and on a poll every Member present in person or by proxy and entitled to vote shall have one vote for each Classs
A Ordinary Share of which he is the holder and shall have eighteen (18) votes for each Class B Ordinary Share of which he is the holder.
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|
|
67.
|
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.
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|
|
68.
|
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.
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|
|
69.
|
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.
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|
|
70.
|
On a poll votes may be given either personally or by proxy.
|
|
|
71.
|
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.
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|
|
72.
|
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.
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|
|
73.
|
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___.
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|
74.
|
The instrument appointing a proxy shall be deemed to confer authority
to demand or join in demanding a poll.
|
CORPORATIONS
ACTING BY REPRESENTATIVES AT MEETING
|
|
75.
|
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
|
76.
|
(a)
|
Unless otherwise determined by the Company in general meeting, the number of Directors shall not
be less than three (3) Directors, the exact number of Directors to be determined from time to time by the Board of Directors.
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|
|
(b)
|
The Board of Directors shall elect and appoint a Chairman by
a majority of the Directors then in office. The period for which the Chairman will hold office will also be determined by a majority
of all of the Directors then in office. The Chairman shall preside as chairman at every meeting of the Board of Directors. To the extent
the Chairman is not present at a meeting of the Board of Directors within fifteen minutes after the time appointed for holding the same,
the attending Directors may choose one of their number to be the chairman of the meeting.
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|
|
(c)
|
The Company may by Ordinary Resolution appoint any person to
be a Director.
|
|
|
(d)
|
The Board may, by the affirmative vote of a simple majority
of the remaining Directors present and voting at a Board meeting, appoint any person as a Director, to fill a casual vacancy on the Board
or as an addition to the existing Board.
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|
|
(e)
|
An appointment of a Director may be on terms that the Director
shall automatically retire from office (unless he has sooner vacated office) at the next or a subsequent annual general meeting or upon
any specified event or after any specified period in a written agreement between the Company and the Director, if any; but no such term
shall be implied in the absence of express provision. Each Director whose term of office expires shall be eligible for re-election at
a meeting of the Shareholders or re-appointment by the Board.
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|
|
(f)
|
A Director may be removed from office by Ordinary Resolution
of the Company, notwithstanding anything in these Articles or in any agreement between the Company and such Director
(but without prejudice to any claim for damages under such agreement). A vacancy on the Board created by the removal of a Director under
the previous sentence may be filled by Ordinary Resolution or by the affirmative vote of a simple majority of the remaining Directors
present and voting at a Board meeting. The notice of any meeting at which a resolution to remove a Director shall be proposed or voted
upon must contain a statement of the intention to remove that Director and such notice must be served on that Director not less than ten
(10) calendar days before the meeting. Such Director is entitled to attend the meeting and be heard on the motion for his removal.
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|
|
(g)
|
The Board may, from time to time, and except as required by
applicable law or Exchange Rules, adopt, institute, amend, modify or revoke the corporate governance policies or initiatives of the Company
and determine on various corporate governance related matters of the Company as the Board shall determine by resolution of Directors
from time to time.
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|
|
77.
|
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.
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|
|
78.
|
No shareholding qualification shall be required for Directors
unless otherwise required by the Company by Ordinary Resolution.
|
|
|
79.
|
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.
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|
|
80.
|
The Directors may by resolution, appoint any natural person or
corporation, whether or not a Director to hold such office in the Company as the Directors may think necessary for the administration
of the Company, including but not limited to, chief executive officer, one or more other executive officers, president, one or more vice-presidents,
treasurer, assistant treasurer, manager or controller, and for upon such terms as to duration of office,
remuneration and otherwise as they may think fit.
|
|
|
81.
|
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.
|
POWERS AND
DUTIES OF DIRECTORS
|
|
82.
|
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.
|
|
|
83.
|
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.
|
|
84.
|
(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.
|
|
|
85.
|
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.
|
DISQUALIFICATION
AND CHANGES OF DIRECTORS
|
|
86.
|
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.
|
|
|
87.
|
The number of Directors shall be not less than one, nor unless
the Company in general meeting may otherwise determine, more than ten. For so long as the shares are listed on an Exchange, the Directors
shall include such number of Independent Directors as applicable law, rules or regulations or the Exchange Rules require, unless the
Directors resolve to follow any available exceptions or exemptions.
|
|
|
88.
|
Any casual vacancy occurring in the Board of Directors may be
filled by the Directors.
|
|
|
89.
|
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.
|
|
|
90.
|
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
|
|
91.
|
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.
|
|
|
92.
|
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.
|
|
|
93.
|
The quorum necessary for the transaction of the business of the
Board may be fixed by the Directors, and unless so fixed, the quorum shall be a majority of Directors then in office. 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.
|
|
|
94.
|
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.
|
|
|
95.
|
A Director who is in any way, whether
directly or indirectly, interested in a contract or transaction or proposed contract or transaction with the Company shall declare the
nature of his interest at a meeting of the Directors. A general notice given to the Directors by any Director to the effect that he is
a member of any specified company or firm and is to be regarded as interested in any contract or transaction which may thereafter be
made with that company or firm shall be deemed a sufficient declaration of interest in regard to any contract so made or transaction
so consummated. A Director may vote in respect of any contract or transaction or proposed contract or transaction notwithstanding that
he may be interested therein and if he does so his vote shall be counted and he may be counted in the quorum at any meeting of the Directors
at which any such contract or transaction or proposed contract or transaction shall come before the meeting for consideration.
|
|
|
96.
|
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.
|
|
|
97.
|
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.
|
|
|
98.
|
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.
|
|
|
99.
|
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.
|
|
|
100.
|
The Directors may, from time to time, and except as required
by applicable law or the listing rules of the Exchange, adopt, institute, amend, modify or revoke the corporate governance policies or
initiatives, which shall be intended to set forth the policies of the Company and the Directors on various corporate governance related
matters as the Directors shall determine by resolution from time to time.
|
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.
|
|
101.
|
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.
|
|
|
102.
|
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.
|
|
|
103.
|
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.
|
SEALS AND DEEDS
|
104.
|
(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
|
|
105.
|
The Company may by Ordinary Resolution declare dividends, but
no dividend shall exceed the amount recommended by the Directors.
|
|
|
106.
|
The Directors may from time to time pay to the Members interim
dividends.
|
|
|
107.
|
No dividend shall be paid otherwise than out of profits or out
of monies otherwise available for dividend in accordance with the Law.
|
|
|
108.
|
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.
|
|
|
109.
|
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.
|
|
|
110.
|
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.
|
|
|
111.
|
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.
|
|
|
112.
|
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.
|
|
|
113.
|
No dividend shall bear interest against the Company.
|
CAPITALISATION
OF PROFITS
|
|
114.
|
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 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
|
|
115.
|
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.
|
|
|
116.
|
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. The appointment of and provisions relating to Auditors shall be in accordance with applicable
law and the relevant code, rules and regulations applicable to the listing of the Shares on the Exchange.
|
VOLUNTARY LIQUIDATION
|
|
117.
|
Subject to the Law, the Company may by Special Resolution be
wound up voluntarily.
|
WINDING UP
|
|
118.
|
If the Company shall be wound up, the liquidator may, 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.
|
|
|
119.
|
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
|
120.
|
(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.
|
|
|
121.
|
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.
|
|
|
122.
|
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.
|
|
|
123.
|
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.
|
|
|
124.
|
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.
RECORD DATE
|
|
125.
|
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
|
|
126.
|
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
|
|
127.
|
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
|
|
128.
|
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.
|
INFORMATION
|
|
129.
|
Subject to the relevant laws, rules and regulations applicable
to the Company, no Member shall be entitled to require discovery of any information in respect of any detail of the Company’s trading
or any information which is or may be in the nature of a trade secret or secret process which may relate to the conduct of the business
of the Company and which in the opinion of the Board would not be in the interests of the Members of the Company to communicate to the
public.
|
|
|
130.
|
Subject to due compliance with the relevant laws, rules and
regulations applicable to the Company, the Board shall be entitled to release or disclose any information in its possession, custody
or control regarding the Company or its affairs to any of its Members including, without limitation, information contained in the Register
and transfer books of the Company.
|
FINANCIAL YEAR
|
|
131.
|
Unless the Directors otherwise prescribe, the financial year
of the Company shall end on October 31st in each calendar year and shall begin on November 1st in each calendar year.
|
INDEMNITY
|
|
132.
|
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 dishonesty or fraud, 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 dishonesty or fraud.
|
TRANSFER BY WAY
OF CONTINUATION
|
|
133.
|
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.
|
DISCLOSURE
|
|
134.
|
The Directors, or any service providers (including the officers,
the Secretary and the registered office agent of the Company) specifically authorised by the Directors, shall be entitled to disclose
to any regulatory or judicial authority or to any stock exchange on which securities of the Company may from time to time be listed any
information regarding the affairs of the Company including without limitation information contained in the Register and books of the
Company.
|
Exhibit 5.1
|
Harney Westwood & Riegels
3501 The Center
99 Queen's Road Central
Hong Kong
Tel: +852 5806 7800
Fax: +852 5806 7810
|
3 December 2021
052629.0006
TIAN RUIXIANG Holdings Ltd
P. O. Box 10240
4th Floor, Harbour Place
103 South Church Street
George Town
Grand Cayman KY1-1002
Cayman Islands
Dear Sir or Madam
TIAN RUIXIANG Holdings Ltd (the Company)
We are lawyers qualified to practise in the Cayman
Islands and have acted as Cayman Islands legal advisers to the Company in connection with the Company’s registration statement on
Form S-8, including all amendments or supplements thereto (the Registration Statement), filed with the Securities and Exchange
Commission (the Commission) under the United States Securities Act of 1933, as amended (the Securities Act),
relating to the issuance by the Company of up to 5,000,000 Class A ordinary shares of par value US$0.001 per share of the Company (the
Shares) pursuant to the Company's 2021 Performance Incentive Plan.
We are furnishing this opinion as Exhibit 5.1
to the Registration Statement.
For the purposes of giving this opinion, we have
examined the Documents (as defined in Schedule 1) and the Registration Statement. We have not examined any other documents, official or
corporate records or external or internal registers and have not undertaken or been instructed to undertake any further enquiry or due
diligence in relation to the transaction which is the subject of this opinion.
In giving this opinion we have relied upon the
assumptions set out in Schedule 2 which we have not verified.
Resident Partners: M Chu | JP Engwirda | A Johnstone
P Kay | MW Kwok | IN Mann | R Ng | ATC Ridgers | PJ Sephton
Bermuda legal services provided through an association with Zuill & Co.
|
Anguilla | Bermuda | British Virgin Islands | Cayman Islands
Cyprus | Hong Kong | London | Luxembourg | Montevideo
São Paulo | Shanghai | Singapore | Vancouver
harneys.com
|
Based solely upon the foregoing examinations and
assumptions and having regard to legal considerations which we deem relevant, and subject to the qualifications set out in Schedule 3,
we are of the opinion that under the laws of the Cayman Islands:
|
|
1
|
Existence and Good Standing. The Company is an exempted company duly
incorporated with limited liability, and is validly existing and in good standing under the laws of the Cayman Islands.
|
|
|
2
|
Valid Issuance of Shares. The issue and allotment of the Shares as contemplated
by the Registration Statement have been duly authorised and, when allotted, issued and fully paid for in accordance with the Registration
Statement, and when name of the shareholder is entered in the register of members of the Company, the Shares will be validly issued, allotted
and fully paid and there will be no further obligation on the holder of any of the Shares to make any further payment to the Company in
respect of such Shares.
|
This opinion is confined to the matters expressly
opined on herein and given on the basis of the laws of the Cayman Islands as they are in force and applied by the Cayman Islands courts
at the date of this opinion. We have made no investigation of, and express no opinion on, the laws of any other jurisdiction. We express
no opinion as to matters of fact.
In connection with the above opinion, we hereby
consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that
we come within the category of persons whose consent is required under Section 7 of the Securities Act, as amended, or the Rules and
Regulations of the Commission thereunder.
This opinion is limited to the matters referred
to herein and shall not be construed as extending to any other matter or document not referred to herein.
This opinion shall be construed in accordance
with the laws of the Cayman Islands.
Yours faithfully
Harney Westwood & Riegels
Schedule
1
List of Documents and Records Examined
|
|
1
|
The certificate of incorporation of the Company dated 5 March 2019;
|
|
|
2
|
The amended and restated memorandum and articles of association of the Company as adopted by a special
resolution passed on 21 April 2020 and effective immediately upon the completion of the Company’s initial public offering (the M&A);
|
|
|
3
|
The register of members of the Company provided to us on 17 November 2021 and the register of directors
of the Company provided to us on 25 November 2021;
|
|
|
4
|
A certificate of good standing dated 24 November 2021 in respect of the Company, issued by the Registrar
of Companies in the Cayman Islands (the Certificate of Good Standing);
|
|
|
5
|
A copy of executed written resolutions of the members of the Company dated 21 April 2020 and a copy of
executed written resolutions of the sole director of the Company dated 21 April 2020;
|
|
|
6
|
A copy of executed written resolutions of the directors of the Company dated 2 December 2021 (together
with 5 above, the Resolutions);
|
|
|
7
|
A copy of the 2021 Plan; and
|
|
|
8
|
The Registration Statement.
|
(1 to 4 above are the Corporate
Documents, together with 5 to 7, the Documents)
Schedule
2
Assumptions
|
|
1
|
Authenticity of Documents. Copy documents or drafts of documents provided to us are true and complete
copies of, or in the final forms of, the originals. All original Corporate Documents are authentic, all signatures, initials and seals
are genuine, all copies of the Registration Statement are true and correct copies and the Registration Statement conform in every material
respect to the latest drafts of the same produced to us and, where the Registration Statement has been provided to us in successive drafts
marked-up to indicate changes to such documents, all such changes have been so indicated.
|
|
|
2
|
Corporate Documents. All matters required by law to be recorded in the Corporate Documents are
so recorded, and all corporate minutes, resolutions, certificates, documents and records which we have reviewed are accurate and complete,
and all facts expressed in or implied thereby are accurate and complete.
|
|
|
3
|
Constitutional Documents. The M&A remain in full force and effect and are otherwise unamended.
|
|
|
4
|
Conversion. The conversion of any shares in the capital of the Company will be effected via legally
available means under Cayman law.
|
|
|
5
|
No Steps to Wind-up. The directors and shareholders of the Company have not taken any steps to
have the Company struck off or placed in liquidation, no steps have been taken to wind up the Company and no receiver has been appointed
over any of the property or assets of the Company.
|
|
|
6
|
Resolutions. The Resolutions have been duly executed (and where by a corporate entity such execution
has been duly authorised if so required) by or on behalf of each director, or by or on behalf of each shareholder in respect of the shareholder
resolutions, and the signatures and initials thereon are those of a person or persons in whose name the Resolutions have been expressed
to be signed. The Resolutions remain in full force and effect.
|
|
|
7
|
Unseen Documents. Save for the Corporate Documents provided to us there are no resolutions, agreements,
documents or arrangements which materially affect, amend or vary the transactions envisaged in the Registration Statement. There is no
contractual prohibition (other than as arising under Cayman Islands law) binding on the Company prohibiting it from issuing and allotting
the Shares.
|
Schedule
3
Qualifications
|
|
1
|
We express no opinion in relation to provisions making reference to foreign statutes in the Registration
Statement.
|
|
|
2
|
Except as specifically stated herein, we make no comment with respect to any representations and warranties
which may be made by or with respect to the Company in any of the documents or instruments cited in this opinion or otherwise with respect
to the commercial terms of the transactions the subject of this opinion.
|
|
|
3
|
The Company shall be deemed to be in good standing at any time if all fees (including annual filing fees)
and penalties under the Companies Act (as amended) of the Cayman Islands (the Companies Act) have been paid and the Registrar
of Companies has no knowledge that the Company is in default under the Companies Act.
|
|
|
4
|
We have undertaken no enquiry and express no view as to the compliance of the Company with the International
Tax Co-operation (Economic Substance) Act (2020 Revision).
|
Exhibit 10.1
TIAN
RUIXIANG Holdings Ltd
2021 PERFORMANCE INCENTIVE PLAN
1.
PURPOSE OF PLAN
The purpose of this
2021 Performance Incentive Plan (this “Plan”) of TIAN RUIXIANG Holdings Ltd, an exempted company organized under the
Companies Act (As Revised) of the Cayman Islands, and its successors (the “Company”), is to promote the success of
the Company and to increase shareholder value by providing an additional means through the grant of awards to attract, motivate, retain
and reward selected employees and other eligible persons and to enhance the alignment of the interests of the selected participants with
the interests of the Company’s shareholders.
2.
ELIGIBILITY
The Administrator
(as such term is defined in Section 3.1) may grant awards under this Plan only to those persons that the Administrator determines to be
Eligible Persons. An “Eligible Person” is any person who is either: (a) an officer (whether or not a director) or employee
of the Company or one of its Subsidiaries; (b) a director of the Company or one of its Subsidiaries; or (c) an individual consultant or
advisor who renders or has rendered bona fide services (other than services in connection with the offering or sale of securities of the
Company or one of its Subsidiaries in a capital-raising transaction or as a market maker or promoter of securities of the Company or one
of its Subsidiaries) to the Company or one of its Subsidiaries and who is selected to participate in this Plan by the Administrator; provided,
however, that a person who is otherwise an Eligible Person under clause (c) above may participate in this Plan only if such participation
would not adversely affect either the Company’s eligibility to use Form S-8 to register under the Securities Act of 1933, as amended
(the “Securities Act”), the offering and sale of shares issuable under this Plan by the Company or the Company’s
compliance with any applicable laws. An Eligible Person who has been granted an award (a “participant”) may, if otherwise
eligible, be granted additional awards if the Administrator shall so determine. As used herein, “Subsidiary” means
any corporation or other entity a majority of whose outstanding voting shares or voting power is beneficially owned directly or indirectly
by the Company; and “Board” means the board of directors of the Company.
3.
PLAN ADMINISTRATION
|
|
3.1
|
The
Administrator. This Plan shall be administered by and all awards under this Plan
shall be authorized by the Administrator. The “Administrator” means the
Board or one or more committees (or subcommittees, as the case may be) appointed by the Board
or another committee (within its delegated authority) to administer all or certain aspects
of this Plan. Any such committee shall be comprised solely of one or more directors or such
number of directors as may be required under applicable law. A committee may delegate some
or all of its authority to another committee so constituted. The Board or a committee comprised
solely of directors may also delegate, to the extent permitted by applicable law, to one
or more officers of the Company, its authority under this Plan. The Board may delegate different
levels of authority to different committees with administrative and grant authority under
this Plan. Unless otherwise provided in the organizing documents of the Company or applicable
charter of any Administrator: (a) a majority of the members of the acting Administrator shall
constitute a quorum, and (b) the vote of a majority of the members present, assuming the
presence of a quorum or the unanimous written consent of the members of the Administrator,
shall constitute action by the acting Administrator.
|
Award grants, and transactions
in or involving awards, intended to be exempt under Rule 16b-3 under the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), must be duly and timely authorized by the Board or a committee consisting solely of two or more non-employee directors
(as this requirement is applied under Rule 16b-3 promulgated under the Exchange Act). To the extent required by any applicable listing
agency, this Plan shall be administered by a committee composed entirely of independent directors (within the meaning of the applicable
listing agency).
|
|
3.2
|
Powers of the Administrator. Subject to the express provisions of this Plan, the Administrator
is authorized and empowered to do all things necessary or desirable in connection with the authorization of awards and the administration
of this Plan (in the case of a committee or delegation to one or more officers, within any express limits on the authority delegated to
that committee or person(s)), including, without limitation, the authority to:
|
|
|
(a)
|
determine eligibility and, from among those persons determined to be eligible, determine the particular
Eligible Persons who will receive an award under this Plan;
|
|
|
(b)
|
grant awards to Eligible Persons, determine
the price (if any) at which securities will be offered or awarded and the number of securities
to be offered or awarded to any of such persons (in the case of securities-based awards),
determine the other specific terms and conditions of awards consistent with the express limits
of this Plan, establish the installment(s) (if any) in which such awards shall become exercisable
or shall vest (which may include, without limitation, performance and/or time-based schedules),
or determine that no delayed exercisability or vesting is required, establish any applicable
performance-based exercisability or vesting requirements, determine the circumstances in
which any performance-based goals (or the applicable measure of performance) will be adjusted
and the nature and impact of any such adjustment, determine the extent (if any) to which
any applicable exercise and vesting requirements have been satisfied, establish the events
(if any) on which exercisability or vesting may accelerate (which may include, without limitation,
retirement and other specified terminations of employment or services, or other circumstances),
and establish the events (if any) of termination, expiration or reversion of such awards;
|
|
|
(c)
|
approve the forms of any award agreements (which need not be identical either as to type of award or among
participants);
|
|
|
(d)
|
construe and interpret this Plan and any agreements defining the rights and obligations of the Company,
its Subsidiaries, and participants under this Plan, make any and all determinations under this Plan and any such agreements, further define
the terms used in this Plan, and prescribe, amend and rescind rules and regulations relating to the administration of this Plan or the
awards granted under this Plan;
|
|
|
(e)
|
cancel, modify, or waive the Company’s rights with respect to, or modify, discontinue, suspend,
or terminate any or all outstanding awards, subject to any required consent under Section 8.6.5;
|
|
|
(f)
|
accelerate, waive or extend the vesting or exercisability, or modify or extend the term of any or all
such outstanding awards (in the case of options or share appreciation rights, within the maximum ten-year term of such awards) in such
circumstances as the Administrator may deem appropriate (including, without limitation, in connection with a retirement or other termination
of employment or services, or other circumstances) subject to any required consent under Section 8.6.5;
|
|
|
(g)
|
adjust the number of Ordinary Shares (as defined below) subject to any award, adjust the price of any
or all outstanding awards or otherwise waive or change previously imposed terms and conditions, in such circumstances as the Administrator
may deem appropriate, in each case subject to Sections 4 and 8.6;
|
|
|
(h)
|
determine the date of grant of an award, which may be a designated
date after but not before the date of the Administrator’s action to approve the award (unless otherwise designated by the Administrator,
the date of grant of an award shall be the date upon which the Administrator took the action approving the award);
|
|
|
(i)
|
determine whether, and the extent to which, adjustments are required pursuant to Section 7.1 hereof and
take any other actions contemplated by Section 7 in connection with the occurrence of an event of the type described in Section 7;
|
|
|
(j)
|
acquire or settle (subject to Sections 7 and 8.6) rights under awards in cash, shares of equivalent value,
or other consideration;
|
|
|
(k)
|
determine the fair market value of the Ordinary Shares (as defined below) or awards under this Plan from
time to time and/or the manner in which such value will be determined; and
|
|
|
(l)
|
implement any procedures, steps or additional or different requirements as may be necessary to comply
with any laws of the People’s Republic of China (the “PRC”) that may be applicable to this Plan, any Option or
any related documents, including, but not limited to, foreign exchange laws, tax laws and securities laws of the PRC.
|
|
|
3.3
|
Binding Determinations. Any determination or other action taken by, or inaction of, the
Company, any Subsidiary, or the Administrator relating or pursuant to this Plan (or any award made under this Plan) and within its authority
hereunder or under applicable law shall be within the absolute discretion of that entity or body and shall be conclusive and binding upon
all persons. Neither the Board nor any Board committee, nor any member thereof or person acting at the direction thereof, shall be liable
for any act, omission, interpretation, construction or determination made in good faith in connection with this Plan (or any award made
under this Plan), and all such persons shall be entitled to indemnification and reimbursement by the Company in respect of any claim,
loss, damage or expense (including, without limitation, attorneys’ fees) arising or resulting therefrom to the fullest extent permitted
by law and/or under any directors and officers liability insurance coverage that may be in effect from time to time.
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3.4
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Reliance on Experts. In making any determination or in taking or not taking any action under
this Plan, the Administrator may obtain and may rely upon the advice of experts, including employees and professional advisors to the
Company. No director, officer or agent of the Company or any of its Subsidiaries shall be liable for any such action or determination
taken or made or omitted in good faith.
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3.5
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Delegation. The Administrator may delegate ministerial, non-discretionary functions to individuals
who are officers or employees of the Company or of any of its Subsidiaries or to third parties.
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3.6
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Option and SAR (“Share Appreciation Rights”) Repricing. Subject to Section 4
and Section 8.6.5, the Administrator, from time to time and in its sole discretion, may provide for (1) the amendment of any outstanding
share option, or SAR, to reduce the exercise price or base price of the award, (2) the cancellation, exchange, or surrender of an outstanding
share option or SAR in exchange for cash or other awards (for the purpose of repricing the award or otherwise), or (3) the cancellation,
exchange, or surrender of an outstanding share option or SAR in exchange for an option or SAR with an exercise or base price that is less
than the exercise or base price of the original award. For avoidance of doubt, the Administrator may take any or all of the foregoing
actions under this Section 3.6 without shareholder approval.
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4.
ORDINARY SHARES SUBJECT TO THE PLAN; SHARE LIMITS
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4.1
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Shares
Available. Subject to the provisions of Section 7.1, the shares that may be delivered
under this Plan shall be shares of the Company’s authorized but unissued Ordinary Shares
and any Ordinary Shares held as treasury shares. For purposes of this Plan, “Ordinary
Shares” shall mean the Class A Ordinary Shares, par value US$0.001 per share, of
the Company, and such other securities or property as may become the subject of awards under
this Plan, or may become subject to such awards, pursuant to an adjustment made under Section
7.1.
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4.2
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Share Limits. The maximum number of Ordinary Shares that may be delivered pursuant to awards
granted to each Eligible Persons under this Plan (the “Share Limit”) is equal to 1,000,000 Ordinary Shares.
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The following limits also apply
with respect to awards granted under this Plan
The maximum number
of Ordinary Shares that may be delivered under this Plan is 5,000,000 Ordinary Shares.
Each of the foregoing
numerical limits is subject to adjustment as contemplated by Section 4.3, Section 7.1, and Section 8.10.
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4.3
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Awards Settled in Cash, Reissue of Awards and Shares. To the extent that an award granted
under this Plan is settled in cash or a form other than Ordinary Shares, the shares that would have been delivered had there been no such
cash or other settlement shall not be counted against the shares available for issuance under this Plan. In the event that Ordinary Shares
are delivered in respect of a dividend equivalent right granted under this Plan, the number of shares delivered with respect to the award
shall be counted against the share limits of this Plan (including, for purposes of clarity, the limits of Section 4.2 of this Plan). (For
purposes of clarity, if 1,000 dividend equivalent rights are granted and outstanding when the Company pays a dividend, and 50 shares are
delivered in payment of those rights with respect to that dividend, 50 shares shall be counted against the share limits of this Plan).
Shares that are subject to or underlie awards granted under this Plan which expire or for any reason are cancelled or terminated, are
forfeited, fail to vest, or for any other reason are not paid or delivered under this Plan, shall not be counted against the share limit
and shall be available for subsequent awards under this Plan. Shares that are exchanged by a participant or withheld by the Company as
full or partial payment in connection with any award under this Plan, as well as any shares exchanged by a participant or withheld by
the Company or one of its Subsidiaries to satisfy the tax withholding obligations related to any award, shall not be available for subsequent
awards under this Plan.
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4.4
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Reservation
of Shares; No Fractional Shares; Minimum Issue. Unless otherwise expressly provided
by the Administrator, no fractional shares shall be delivered under this Plan. The Administrator
may pay cash in lieu of any fractional shares in settlements of awards under this Plan. The
Administrator may from time to time impose a limit (of not greater than 100 shares) on the
minimum number of shares that may be purchased or exercised as to awards (or any particular
award) granted under this Plan unless (as to any particular award) the total number purchased
or exercised is the total number at the time available for purchase or exercise under the
award.
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5.
AWARDS
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5.1
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Type and Form of Awards. The Administrator shall determine the type or types of award(s)
to be made to each selected Eligible Person. Awards may be granted individually, in combination or in tandem. Awards also may be made
in combination or in tandem with, in replacement of, as alternatives to, or as the payment form for grants or rights under any other employee
or compensation plan of the Company or one of its Subsidiaries. The types of awards that may be granted under this Plan are:
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5.1.1
Share Options. A share option is the grant of a right to purchase a specified number of Ordinary Shares
during a specified period as determined by the Administrator. An option may be intended as an incentive stock option within the meaning
of Section 422 of Code (an “ISO”) or a nonqualified stock option (an option not intended to be an ISO). The agreement
evidencing the grant of an option will indicate if the option is intended as an ISO; otherwise it will be deemed to be a nonqualified
stock option. The maximum term of each option (ISO or nonqualified) shall be ten (10) years. The per share exercise price for each option
shall be determined by the Administrator and set forth in the applicable award agreement. When an option is exercised, the exercise price
for the shares to be purchased shall be paid in full in cash or such other method permitted by the Administrator consistent with Section
5.5.
5.1.2 Additional
Rules Applicable to ISOs. To the extent that the aggregate fair market value (determined at the time of grant of the
applicable option) of shares with respect to which ISOs first become exercisable by a participant in any calendar year exceeds
$100,000, taking into account both Ordinary Shares subject to ISOs under this Plan and shares subject to ISOs under all other plans
of the Company or one of its Subsidiaries (or any parent or predecessor corporation to the extent required by and within the meaning
of Section 422 of the Code and the regulations promulgated thereunder), such options shall be treated as nonqualified stock options.
In reducing the number of options treated as ISOs to meet the $100,000 limit, the most recently granted options shall be reduced
first. To the extent a reduction of simultaneously granted options is necessary to meet the $100,000 limit, the Administrator may,
in the manner and to the extent permitted by law, designate which Ordinary Shares are to be treated as shares acquired pursuant to
the exercise of an ISO. ISOs may only be granted to employees of the Company or one of its subsidiaries (for this purpose, the term
“subsidiary” is used as defined in Section 424(f) of the Code, which generally requires an unbroken chain of ownership
of at least 50% of the total combined voting power of all classes of shares of each subsidiary in the chain beginning with the
Company and ending with the subsidiary in question). There shall be imposed in any award agreement relating to ISOs such other terms
and conditions as from time to time are required in order that the option be an “incentive stock option” as that term is
defined in Section 422 of the Code. The per share exercise price for each ISO shall be not less than 100% of the fair market value
of an Ordinary Share on the date of grant of the option. Furthermore, no ISO may be granted to any person who, at the time the
option is granted, owns (or is deemed to own under Section 424(d) of the Code) outstanding Ordinary Shares possessing more than 10%
of the total combined voting power of all classes of shares of the Company, unless the exercise price of such option is at least
110% of the fair market value of the shares subject to the option and such option by its terms is not exercisable after the
expiration of five years from the date such option is granted. If an otherwise-intended ISO fails to meet the applicable
requirements of Section 422 of the Code, the option shall be a nonqualified stock option.
5.1.3
Share Appreciation Rights. A share appreciation right or “SAR” is a right to receive
a payment, in cash and/or Ordinary Shares, equal to the excess of the fair market value of a specified number of Ordinary Shares on the
date the SAR is exercised over the “base price” of the award, which base price shall be determined by the Administrator
and set forth in the applicable award agreement. The maximum term of a SAR shall be ten (10) years.
5.1.4
Other Awards. The other types of awards that may be granted under this Plan include: (a) stock bonuses,
restricted stock, performance stock, stock units, phantom stock or similar rights to purchase or acquire shares, whether at a fixed or
variable price (or no price) or fixed or variable ratio related to the Common Stock, and any of which may (but need not) be fully vested
at grant or vest upon the passage of time, the occurrence of one or more events, the satisfaction of performance criteria or other conditions,
or any combination thereof; (b) any similar securities with a value derived from the value of or related to the Ordinary Shares and/or
returns thereon; or (c) cash awards. Dividend equivalent rights may be granted as a separate award or in connection with another award
under the Plan.
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5.3
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Award Agreements. Each award shall be evidenced by a written or electronic award agreement
or notice in a form approved by the Administrator (an “award agreement”), and, in each case and if required by the Administrator,
executed or otherwise electronically accepted by the recipient of the award in such form and manner as the Administrator may require.
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5.4
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Deferrals
and Settlements. Payment of awards may be in the form of cash, Ordinary Shares, other
awards or combinations thereof as the Administrator shall determine, and with such restrictions
as it may impose. The Administrator may also require or permit participants to elect to defer
the issuance of shares or the settlement of awards in cash under such rules and procedures
as it may establish under this Plan. The Administrator may also provide that deferred settlements
include the payment or crediting of interest or other earnings on the deferral amounts, or
the payment or crediting of dividend equivalents where the deferred amounts are denominated
in shares.
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5.5
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Consideration for Ordinary Shares or Awards. The purchase
price for any award granted under this Plan or the Ordinary Shares to be delivered pursuant to an award, as applicable, may be paid by
means of any lawful consideration as determined by the Administrator, including, without limitation, one or a combination of the following
methods:
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·
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services rendered by the recipient of such award;
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·
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cash, check payable to the order of the Company, or electronic funds transfer;
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·
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notice and third party payment in such manner as may be authorized by the Administrator;
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·
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the delivery of previously owned Ordinary Shares;
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·
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by a reduction in the number of shares otherwise deliverable pursuant to the award; or
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·
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subject to such procedures as the Administrator may adopt, pursuant to a “cashless exercise”
with a third party who provides financing for the purposes of (or who otherwise facilitates) the purchase or exercise of awards.
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In no event shall any
shares newly-issued by the Company be issued for less than the minimum lawful consideration for such shares or for consideration other
than consideration permitted by applicable law. Ordinary Shares used to satisfy the exercise price of an option shall be valued at their
fair market value on the date of exercise. The Company will not be obligated to deliver any shares unless and until it receives full payment
of the exercise or purchase price therefor and any related withholding obligations under Section 8.5 and any other conditions to exercise
or purchase have been satisfied. Unless otherwise expressly provided in the applicable award agreement, the Administrator may at any time
eliminate or limit a participant’s ability to pay the purchase or exercise price of any award or shares by any method other than
cash payment to the Company. The Administrator may take all actions necessary to alter the method of Option exercise and the exchange
and transmittal of proceeds with respect to participants resident in the PRC not having permanent residence in a country other than the
PRC in order to comply with applicable PRC laws and regulations, including, without limitation, PRC foreign exchange, securities and tax
laws and regulations.
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5.6
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Definition
of Fair Market Value. For purposes of this Plan, if the Ordinary Shares are listed
and actively traded on an internationally recognized securities exchange (the “Exchange”),
then unless otherwise determined or provided by the Administrator in the circumstances, “fair
market value” shall mean the closing price (in regular trading) for an Ordinary Share
as reported on the Exchange on which the Ordinary Shares are listed for the date in question
or, if no sales of Ordinary Shares were reported on the Exchange on that date, the closing
price for an Ordinary Share as reported by the Exchange on which the Ordinary Shares are
listed for the next preceding day on which sales of Ordinary Shares were reported. The Administrator
may, however, provide with respect to one or more awards that the fair market value shall
equal the closing price (in regular trading) for an Ordinary Share as reported by the Exchange
on the last day preceding the date in question or the average of high and low trading prices
of an Ordinary Share as reported by the Exchange for the date in question or the most recent
trading day. If the Ordinary Shares are no longer listed or actively traded on the Exchange
as of the applicable date, the fair market value of the Ordinary Shares shall be the value
as reasonably determined by the Administrator for purposes of the award in the circumstances.
The Administrator also may adopt a different methodology for determining fair market value
with respect to one or more awards if a different methodology is necessary or advisable to
secure any intended favorable tax, legal or other treatment for the particular award(s) (for
example, and without limitation, the Administrator may provide that fair market value for
purposes of one or more awards will be based on an average of closing prices (or the average
of high and low daily trading prices) for a specified period preceding the relevant date).
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5.7
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Transfer Restrictions.
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5.7.1
Limitations on Exercise and Transfer. Unless otherwise expressly provided in (or pursuant to) this Section
5.7 or required by applicable law: (a) all awards are non-transferable and shall not be subject in any manner to sale, transfer, anticipation,
alienation, assignment, pledge, encumbrance or charge; (b) awards shall be exercised only by the participant; and (c) amounts payable
or shares issuable pursuant to any award shall be delivered only to (or for the account of) the participant.
5.7.2
Exceptions. The Administrator may permit awards to be exercised by and paid to, or otherwise transferred
to, other persons or entities pursuant to such conditions and procedures, including limitations on subsequent transfers, as the Administrator
may, in its sole discretion, establish in writing. Any permitted transfer shall be subject to compliance with applicable federal and state
securities laws and shall not be for value (other than nominal consideration, settlement of marital property rights, or for interests
in an entity in which more than 50% of the voting interests are held by the Eligible Person or by the Eligible Person’s family members).
5.7.3
Further Exceptions to Limits on Transfer. The exercise and transfer restrictions in Section 5.7.1 shall
not apply to:
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(a)
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transfers to the Company (for example, in connection with the expiration or termination of the award),
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(b)
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the designation of a beneficiary to receive benefits in the event of the participant’s death or,
if the participant has died, transfers to or exercise by the participant’s beneficiary, or, in the absence of a validly designated
beneficiary, transfers by will or the laws of descent and distribution,
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(c)
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subject to any applicable limitations on ISOs, transfers to a family member (or former family member)
pursuant to a domestic relations order if approved or ratified by the Administrator,
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(d)
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if the participant has suffered a disability, permitted transfers or exercises on behalf of the participant
by his or her legal representative, or
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(e)
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the authorization by the Administrator of “cashless exercise” procedures with third parties
who provide financing for the purpose of (or who otherwise facilitate) the exercise of awards consistent with applicable laws and any
limitations imposed by the Administrator.
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6.
EFFECT OF TERMINATION OF EMPLOYMENT OR SERVICE ON AWARDS
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6.1
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General. The Administrator shall establish the effect (if any) of a termination of employment
or service on the rights and benefits under each award under this Plan and in so doing may make distinctions based upon, inter alia, the
cause of termination and type of award. If the participant is not an employee of the Company or one of its Subsidiaries, is not a member
of the Board, and provides other services to the Company or one of its Subsidiaries, the Administrator shall be the sole judge for purposes
of this Plan (unless a contract or the award otherwise provides) of whether the participant continues to render services to the Company
or one of its Subsidiaries and the date, if any, upon which such services shall be deemed to have terminated.
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6.2
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Events Not Deemed Terminations of Service. Unless the express policy of the Company or one
of its Subsidiaries, or the Administrator, otherwise provides, or except as otherwise required by applicable law, the employment relationship
shall not be considered terminated in the case of (a) sick leave, (b) military leave, or (c) any other leave of absence authorized by
the Company or one of its Subsidiaries, or the Administrator; provided that, unless reemployment upon the expiration of such leave is
guaranteed by contract or law or the Administrator otherwise provides, such leave is for a period of not more than three months. In the
case of any employee of the Company or one of its Subsidiaries on an approved leave of absence, continued vesting of the award while on
leave from the employ of the Company or one of its Subsidiaries may be suspended until the employee returns to service, unless the Administrator
otherwise provides or applicable law otherwise requires. In no event shall an award be exercised after the expiration of any applicable
maximum term of the award.
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6.3
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Effect
of Change of Subsidiary Status. For purposes of this Plan and any award, if an entity
ceases to be a Subsidiary of the Company a termination of employment or service shall be
deemed to have occurred with respect to each Eligible Person in respect of such Subsidiary
who does not continue as an Eligible Person in respect of the Company or another Subsidiary
that continues as such after giving effect to the transaction or other event giving rise
to the change in status unless the Subsidiary that is sold, spun-off or otherwise divested
(or its successor or a direct or indirect parent of such Subsidiary or successor) assumes
the Eligible Person’s award(s) in connection with such transaction.
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7.
ADJUSTMENTS; ACCELERATION
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7.1
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Adjustments. Subject to Section 7.2, upon (or, as may be necessary to effect the adjustment,
immediately prior to): any reclassification, recapitalization, share split (including a share split in the form of a share dividend) or
reverse share split; any merger, combination, consolidation, conversion or other reorganization; any spin-off, split-up, or similar extraordinary
dividend distribution in respect of the Ordinary Shares; or any exchange of Ordinary Shares or other securities of the Company, or any
similar, unusual or extraordinary corporate transaction in respect of the Ordinary Shares; then the Administrator shall equitably and
proportionately adjust (1) the number and type of Ordinary Shares (or other securities) that thereafter may be made the subject of awards
(including the specific share limits, maximums and numbers of shares set forth elsewhere in this Plan), (2) the number, amount and type
of Ordinary Shares (or other securities or property) subject to any outstanding awards, (3) the grant, purchase, or exercise price (which
term includes the base price of any SAR or similar right) of any outstanding awards, and/or (4) the securities, cash or other property
deliverable upon exercise or payment of any outstanding awards, in each case to the extent necessary to preserve (but not increase) the
level of incentives intended by this Plan and the then-outstanding awards.
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Without limiting the
generality of Section 3.3, any good faith determination by the Administrator as to whether an adjustment is required in the circumstances
pursuant to this Section 7.1, and the extent and nature of any such adjustment, shall be conclusive and binding on all persons.
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7.2
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Corporate Transactions - Assumption and Termination of Awards.
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Upon any event in
which the Company does not survive, or does not survive as a public company in respect of its Ordinary Shares (including, without
limitation, a dissolution, merger, combination, consolidation, conversion, exchange of securities or other reorganization, or a sale
of all of the business, shares or assets of the Company, in any case in connection with which the Company does not survive or does
not survive as a public company in respect of its Ordinary Shares), then the Administrator may make provision for a cash payment in
settlement of, or for the termination, assumption, substitution or exchange of any or all outstanding awards or the cash, securities
or property deliverable to the holder of any or all outstanding awards, based upon, to the extent relevant under the circumstances,
the distribution or consideration payable to holders of the Ordinary Shares upon or in respect of such event. Upon the occurrence of
any event described in the preceding sentence in connection with which the Administrator has made provision for the award to be
terminated (and the Administrator has not made a provision for the substitution, assumption, exchange or other continuation or
settlement of the award): (1) unless otherwise provided in the applicable award agreement, each then-outstanding option and SAR
shall become fully vested, all restricted shares then outstanding shall fully vest free of restrictions, and each other award
granted under this Plan that is then outstanding shall become payable to the holder of such award (with any performance goals
applicable to the award in each case being deemed met, unless otherwise provided in the award agreement, at the “target”
performance level); and (2) each award shall terminate upon the related event; provided that the holder of an option or SAR shall be
given reasonable advance notice of the impending termination and a reasonable opportunity to exercise his or her outstanding vested
options and SARs (after giving effect to any accelerated vesting required in the circumstances) in accordance with their terms
before the termination of such awards (except that in no case shall more than ten days’ notice of the impending termination be
required and any acceleration of vesting and any exercise of any portion of an award that is so accelerated may be made contingent
upon the actual occurrence of the event).
Without limiting the
preceding paragraph, in connection with any event referred to in the preceding paragraph or any change in control event defined in any
applicable award agreement, the Administrator may, in its discretion, provide for the accelerated vesting of any award or awards as and
to the extent determined by the Administrator in the circumstances.
For purposes of this Section 7.2, an award
shall be deemed to have been “assumed” if (without limiting other circumstances in which an award is assumed) the award continues
after an event referred to above in this Section 7.2, and/or is assumed and continued by the surviving entity following such event (including,
without limitation, an entity that, as a result of such event, owns the Company or all or substantially all of the Company’s assets
directly or through one or more subsidiaries (a “Parent”)), and confers the right to purchase or receive, as applicable
and subject to vesting and the other terms and conditions of the award, for each Ordinary Share subject to the award immediately prior
to the event, the consideration (whether cash, shares, or other securities or property) received in the event by the shareholders of the
Company for each Ordinary Share sold or exchanged in such event (or the consideration received by a majority of the shareholders participating
in such event if the shareholders were offered a choice of consideration); provided, however, that if the consideration offered for an
Ordinary Share in the event is not solely the ordinary common stock of a successor corporation or a Parent, the Administrator may provide
for the consideration to be received upon exercise or payment of the award, for each share subject to the award, to be solely ordinary
common stock of the successor corporation or a Parent equal in fair market value to the per share consideration received by the shareholders
participating in the event.
The Administrator may adopt such valuation
methodologies for outstanding awards as it deems reasonable in the event of a cash or property settlement and, in the case of options,
SARs or similar rights, but without limitation on other methodologies, may base such settlement solely upon the excess if any of the per
share amount payable upon or in respect of such event over the exercise or base price of the award. In the case of an option, SAR or similar
right as to which the per share amount payable upon or in respect of such event is less than or equal to the exercise or base price of
the award, the Administrator may terminate such award in connection with an event referred to in this Section 7.2 without any payment
in respect of such award.
In any of the events referred to in this
Section 7.2, the Administrator may take such action contemplated by this Section 7.2 prior to such event (as opposed to on the occurrence
of such event) to the extent that the Administrator deems the action necessary to permit the participant to realize the benefits intended
to be conveyed with respect to the underlying shares. Without limiting the generality of the foregoing, the Administrator may deem an
acceleration to occur immediately prior to the applicable event and, in such circumstances, will reinstate the original terms of the award
if an event giving rise to an acceleration and/or termination does not occur.
Without limiting the generality of Section
3.3, any good faith determination by the Administrator pursuant to its authority under this Section 7.2 shall be conclusive and binding
on all persons.
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7.3
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Other Acceleration Rules. The Administrator may override the provisions of Section 7.2 by
express provision in the award agreement and may accord any Eligible Person a right to refuse any acceleration, whether pursuant to the
award agreement or otherwise, in such circumstances as the Administrator may approve. The portion of any ISO accelerated in connection
with an event referred to in Section 7.2 (or such other circumstances as may trigger accelerated vesting of the award) shall remain exercisable
as an ISO only to the extent the applicable $100,000 limitation on ISOs is not exceeded. To the extent exceeded, the accelerated portion
of the option shall be exercisable as a nonqualified stock option under the Code.
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8.
OTHER PROVISIONS
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8.1
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Compliance
with Laws. This Plan, the granting and vesting of awards under this Plan, the offer,
issuance and delivery of Ordinary Shares, and/or the payment of money under this Plan or
under awards are subject to compliance with all applicable federal, state, local and foreign
laws, rules and regulations (including but not limited to state and federal securities law
and federal margin requirements) and to such approvals by any listing, regulatory or governmental
authority as may, in the opinion of counsel for the Company, be necessary or advisable in
connection therewith. The person acquiring any securities under this Plan will, if requested
by the Company or one of its Subsidiaries, provide such assurances and representations to
the Company or one of its Subsidiaries as the Administrator may deem necessary or desirable
to assure compliance with all applicable legal and accounting requirements.
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8.2
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No Rights to Award. No person shall have any claim or rights to be granted an award (or
additional awards, as the case may be) under this Plan, subject to any express contractual rights (set forth in a document other than
this Plan) to the contrary.
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8.3
|
No Employment/Service Contract. Nothing contained in this Plan (or in any other documents
under this Plan or in any award) shall confer upon any Eligible Person or other participant any right to continue in the employ or other
service of the Company or one of its Subsidiaries, constitute any contract or agreement of employment or other service or affect an employee’s
status as an employee at will, nor shall interfere in any way with the right of the Company or one of its Subsidiaries to change a person’s
compensation or other benefits, or to terminate his or her employment or other service, with or without cause. Nothing in this Section
8.3, however, is intended to adversely affect any express independent right of such person under a separate employment or service contract
other than an award agreement.
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8.4
|
Plan Not Funded. Awards payable under this Plan shall be payable in shares or from the general
assets of the Company, and no special or separate reserve, fund or deposit shall be made to assure payment of such awards. No participant,
beneficiary or other person shall have any right, title or interest in any fund or in any specific asset (including Ordinary Shares, except
as expressly otherwise provided) of the Company or one of its Subsidiaries by reason of any award hereunder. Neither the provisions of
this Plan (or of any related documents), nor the creation or adoption of this Plan, nor any action taken pursuant to the provisions of
this Plan shall create, or be construed to create, a trust of any kind or a fiduciary relationship between the Company or one of its Subsidiaries
and any participant, beneficiary or other person. To the extent that a participant, beneficiary or other person acquires a right to receive
payment pursuant to any award hereunder, such right shall be no greater than the right of any unsecured general creditor of the Company.
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8.5
|
Tax Withholding. Upon any exercise, vesting, or payment of any award, or upon the disposition
of Ordinary Shares acquired pursuant to the exercise of an ISO prior to satisfaction of the holding period requirements of Section 422
of the Code, or upon any other tax withholding event with respect to any award, arrangements satisfactory to the Company shall be made
to provide for any taxes the Company or any of its Subsidiaries may be required to withhold with respect to such award event or payment.
Such arrangements may include (but are not limited to) any one of (or a combination of) the following:
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(a)
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The Company or one of its Subsidiaries
shall have the right to require the participant (or the participant’s personal
representative or beneficiary, as the case may be) to pay or provide for payment of at least
the minimum amount of any taxes which the Company or one of its Subsidiaries may be required
to withhold with respect to such award event or payment.
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(b)
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The Company or one of its Subsidiaries shall have the right to deduct from any amount otherwise payable
in cash (whether related to the award or otherwise) to the participant (or the participant’s personal representative or beneficiary,
as the case may be) the minimum amount of any taxes which the Company or one of its Subsidiaries may be required to withhold with respect
to such award event or payment.
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(c)
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In any case where a tax is required to be withheld in connection with the delivery of Ordinary Shares
under this Plan, the Administrator may in its sole discretion (subject to Section 8.1) require or grant (either at the time of the award
or thereafter) to the participant the right to elect, pursuant to such rules and subject to such conditions as the Administrator may establish,
that the Company reduce the number of shares to be delivered by (or otherwise reacquire) the appropriate number of shares, valued in a
consistent manner at their fair market value or at the sales price in accordance with authorized procedures for cashless exercises, necessary
to satisfy the minimum applicable withholding obligation on exercise, vesting or payment. Unless otherwise provided by the Administrator,
in no event shall the shares withheld exceed the minimum whole number of shares required for tax withholding under applicable law to the
extent the Company determines that withholding at any greater level would result in an award otherwise classified as an equity award under
ASC Topic 718 (or any successor thereto) being classified as a liability award under ASC Topic 718 (or such successor).
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8.6
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Effective Date, Termination and Suspension, Amendments.
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8.6.1
Effective Date. This Plan is effective as of December 2, 2021, the date of its approval by the Board (the
“Effective Date”). Unless earlier terminated by the Board, this Plan shall terminate at the close of business on the
day before the tenth anniversary of the Effective Date. After the termination of this Plan either upon such stated termination date or
its earlier termination by the Board, no additional awards may be granted under this Plan, but previously granted awards (and the authority
of the Administrator with respect thereto, including the authority to amend such awards) shall remain outstanding in accordance with their
applicable terms and conditions and the terms and conditions of this Plan.
8.6.2
Board Authorization. The Board may, at any time, terminate or, from time to time, amend, modify or suspend
this Plan, in whole or in part. No awards may be granted during any period that the Board suspends this Plan.
8.6.3
Shareholder Approval. To the extent then required by applicable law or deemed necessary or advisable
by the Board, any amendment to this Plan shall be subject to shareholder approval.
8.6.4
Amendments to Awards. Without limiting any other express authority of the Administrator under (but subject
to) the express limits of this Plan, the Administrator by agreement or resolution may waive conditions of or limitations on awards to
participants that the Administrator in the prior exercise of its discretion has imposed, without the consent of a participant, and (subject
to the requirements of Sections 3.2 and 8.6.5) may make other changes to the terms and conditions of awards.
8.6.5
Limitations on Amendments to Plan and Awards. No amendment, suspension or termination of this Plan or
amendment of any outstanding award agreement shall, without written consent of the participant, affect in any manner materially adverse
to the participant any rights or benefits of the participant or obligations of the Company under any award granted under this Plan prior
to the effective date of such change. Changes, settlements and other actions contemplated by Section 7 shall not be deemed to constitute
changes or amendments for purposes of this Section 8.6.
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8.7
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Privileges of Share Ownership. Except as otherwise expressly authorized by the Administrator,
a participant shall not be entitled to any privilege of share ownership as to any Ordinary Shares not actually delivered to and held of
record by the participant. Except as expressly required by Section 7.1 or otherwise expressly provided by the Administrator, no adjustment
will be made for dividends or other rights as a shareholder for which a record date is prior to such date of delivery.
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8.8
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Governing Law; Construction; Severability.
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8.8.1
Choice of Law. This Plan, the awards, all documents evidencing awards and all other related documents
shall be governed by, and construed in accordance with the laws of the Cayman Islands.
8.8.2
Severability. If a court of competent jurisdiction holds any provision invalid and unenforceable, the
remaining provisions of this Plan shall continue in effect.
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(a)
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It is the intent of the Company that the awards and transactions permitted by awards be interpreted in
a manner that, in the case of participants who are or may be subject to Section 16 of the Exchange Act, qualify, to the maximum extent
compatible with the express terms of the award, for exemption from matching liability under Rule 16b-3 promulgated under the Exchange
Act. Notwithstanding the foregoing, the Company shall have no liability to any participant for Section
16 consequences of awards or events under awards if an award or event does not so qualify.
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8.9
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Captions. Captions and headings are given to the sections and subsections of this Plan solely
as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation
of this Plan or any provision thereof.
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8.10
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Share-Based Awards in Substitution for Share Options or Awards Granted by Other Company.
Awards may be granted to Eligible Persons in substitution for or in connection with an assumption of employee share options, SARs,
restricted shares or other share-based awards granted by other entities to persons who are or who will become Eligible Persons in respect
of the Company or one of its Subsidiaries, in connection with a distribution, merger or other reorganization by or with the granting entity
or an affiliated entity, or the acquisition by the Company or one of its Subsidiaries, directly or indirectly, of all or a substantial
part of the shares or assets of the employing entity. The awards so granted need not comply with other specific terms of this Plan, provided
the awards reflect adjustments giving effect to the assumption or substitution consistent with any conversion applicable to the Ordinary
Shares (or the securities otherwise subject to the award) in the transaction and any change in the issuer of the security. Any shares
that are delivered and any awards that are granted by, or become obligations of, the Company, as a result of the assumption by the Company
of, or in substitution for, outstanding awards previously granted or assumed by an acquired company (or previously granted or assumed
by a predecessor employer (or direct or indirect parent thereof) in the case of persons that become employed by the Company or one of
its Subsidiaries in connection with a business or asset acquisition or similar transaction) shall not be counted against the Share Limit
or other limits on the number of shares available for issuance under this Plan.
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8.11
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Non-Exclusivity of Plan. Nothing in this Plan shall limit or be deemed to limit the authority
of the Board or the Administrator to grant awards or authorize any other compensation, with or without reference to the Ordinary Shares,
under any other plan or authority.
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8.12
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No Corporate Action Restriction. The existence of this Plan, the award agreements and the
awards granted hereunder shall not limit, affect or restrict in any way the right or power of the Company or any Subsidiary (or any of
their respective shareholders, boards of directors or committees thereof (or any subcommittee), as the case may be) to make or authorize:
(a) any adjustment, recapitalization, reorganization or other change in the capital structure or business of the Company or any Subsidiary,
(b) any merger, amalgamation, consolidation or change in the ownership of the Company or any Subsidiary, (c) any issue of bonds, debentures,
capital, preferred or prior preference shares ahead of or affecting the capital shares (or the rights thereof) of the Company or any Subsidiary,
(d) any dissolution or liquidation of the Company or any Subsidiary, (e) any sale or transfer of all or any part of the assets or business
of the Company or any Subsidiary, (f) any other award,
grant, or payment of incentives or other compensation under any other plan or authority (or any other action with respect to any benefit,
incentive or compensation) or (g) any other corporate act or proceeding by the Company or any Subsidiary. No participant, beneficiary
or any other person shall have any claim under any award or award agreement against any member of the Board or the Administrator, or
the Company or any employees, officers or agents of the Company or any Subsidiary, as a result of any such action. Awards need not be
structured so as to be deductible for tax purposes.
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8.13
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Other Company Benefit and Compensation Programs. Payments and other benefits received by
a participant under an award made pursuant to this Plan shall not be deemed a part of a participant’s compensation for purposes
of the determination of benefits under any other employee welfare or benefit plans or arrangements, if any, provided by the Company or
any Subsidiary, except where the Administrator expressly otherwise provides or authorizes in writing. Awards under this Plan may be made
in addition to, in combination with, as alternatives to or in payment of grants, awards or commitments under any other plans or arrangements
or authority of the Company or its Subsidiaries.
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8.14
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Clawback Policy. The awards granted under this Plan are subject to the terms of the Company’s
recoupment, clawback or similar policy as it may be in effect from time to time, as well as any similar provisions of applicable law,
any of which could in certain circumstances require repayment or forfeiture of awards or any Ordinary Shares or other cash or property
received with respect to the awards (including any value received from a disposition of the shares acquired upon payment of the awards).
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