Cayman Islands
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0001-845368
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98-1581263
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer
Identification No.)
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☐
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Title of each class
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Trading
Symbol(s)
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Name of each exchange on which registered
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Units, each consisting of one Class A ordinary share and one-half of one Redeemable Warrant
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HCMAU
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The Nasdaq Stock Market LLC
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Class A Ordinary Shares, par value $0.0001 per share
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HCMA
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The Nasdaq Stock Market LLC
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Redeemable Warrants, each whole warrant exercisable for one Class A ordinary share at a price of $11.50 per share
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HCMAW
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The Nasdaq Stock Market LLC
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●
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An Underwriting Agreement, dated January 20, 2022, by and among the Company, Cantor Fitzgerald & Co. (the “Underwriter”),
a copy of which is attached as Exhibit 1.1 hereto and incorporated herein by reference.
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A Warrant Agreement, dated January 20, 2022, by and between the Company and Continental Stock Transfer & Trust Company, as warrant agent, a copy of which is
attached as Exhibit 4.4 hereto and incorporated herein by reference.
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An Investment Management Trust Agreement, dated January 20, 2022, by and between the Company and Continental Stock Transfer & Trust Company, as trustee, a copy
of which is attached as Exhibit 10.1 hereto and incorporated herein by reference.
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A Registration Rights Agreement, dated January 20, 2022, by and among the Company, the Company’s sponsor, HCM Investor Holdings, LLC (the “Sponsor”) and the Underwriter, a copy of which is attached as Exhibit 10.2 hereto and incorporated herein by reference.
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●
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A Private Placement Warrants Purchase Agreement, dated January 20, 2022 (the “Sponsor Warrant Purchase Agreement”), by and
between the Company and the Sponsor, a copy of which is attached as Exhibit 10.3(a) hereto and incorporated herein by reference.
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A Private Placement Warrants Purchase Agreement, dated January 20, 2022 (the “Underwriter Warrant Purchase Agreement,” and
together with the Sponsor Warrant Purchase Agreement, the “Warrant Purchase Agreements”), by and between the Company and the Underwriter, a copy of which is attached as Exhibit 10.3(b) hereto and
incorporated herein by reference.
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A Letter Agreement, dated January 20, 2022, by and among the Company, its officers, its directors and the Sponsor, a copy of which is attached as Exhibit 10.7
hereto and incorporated herein by reference.
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An Administrative Support Agreement, dated January 20, 2022, by and among the Company and the Sponsor, a copy of which is attached as Exhibit 10.8 hereto and
incorporated herein by reference.
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Exhibit No.
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Description
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Underwriting Agreement, dated January 20, 2022, by and between the Company and Cantor Fitzgerald & Co.
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Amended and Restated Memorandum and Articles of Association.
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Warrant Agreement, dated January 20, 2022, by and between the Company and Continental Stock Transfer & Trust Company, as warrant agent.
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Investment Management Trust Agreement, dated January 20, 2022, by and between the Company and Continental Stock Transfer & Trust Company, as trustee.
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Registration Rights Agreement, dated January 20, 2022, by and among the Company, the Sponsor and the Underwriter.
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Private Placement Warrants Purchase Agreement, dated January 20, 2022, by and between the Company and the Sponsor.
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Private Placement Warrants Purchase Agreement, dated January 20, 2022, by and between the Company and the Underwriter.
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Letter Agreement, dated January 20, 2022, by and among the Company, its officers, its directors and the Sponsor.
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Administrative Support Agreement, dated January 20, 2022, between the Company and the Sponsor.
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Press Release, dated January 20, 2022.
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Press Release, dated January 25, 2022.
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HCM Acquisition Corp
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By:
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/s/ Shawn Matthews
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Name:
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Shawn Matthews
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Title:
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Chairman and Chief Executive Officer
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Dated: January 25, 2022
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HCM ACQUISITION CORP |
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By:
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/s/ Shawn Matthews
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Name:
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Shawn Matthews
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Title:
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Chairman and Chief Executive Officer
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CANTOR FITZGERALD & CO., as
Representative of the several underwriters
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By:
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/s/ Sage Kelly
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Name:
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Sage Kelly
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Title:
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Underwriters
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Number of Firm Units to be
Purchased
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Cantor Fitzgerald & Co.
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25,000,000
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Total
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25,000,000
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Print Name of Target Business
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Authorized Signature of Target Business
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Print Name of Vendor
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Authorized Signature of Vendor
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1 |
The name of the Company is HCM Acquisition Corp.
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2 |
The Registered Office of the Company shall be at the offices of Maples Corporate Services Limited, PO Box 309, Ugland House, Grand Cayman, KY1-1104, Cayman Islands, or at such other place within the Cayman Islands as the Directors may
decide.
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3 |
The objects for which the Company is established are unrestricted and the Company shall have full power and authority to carry out any object not prohibited by the laws of the Cayman Islands.
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4 |
The liability of each Member is limited to the amount unpaid on such Member’s shares.
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5 |
The share capital of the Company is US$55,500 divided into 500,000,000 Class A ordinary shares of a par value of US$0.0001 each, 50,000,000 Class B ordinary shares of a par value of US$0.0001 each and 5,000,000 preference shares of a par
value of US$0.0001 each.
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6 |
The Company has power to register by way of continuation as a body corporate limited by shares under the laws of any jurisdiction outside the Cayman Islands and to be deregistered in the Cayman Islands.
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7 |
Capitalised terms that are not defined in this Amended and Restated Memorandum of Association bear the respective meanings given to them in the Amended and Restated Articles of Association of the Company.
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1 |
Interpretation
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1.1 |
In the Articles Table A in the First Schedule to the Statute does not apply and, unless there is something in the subject or context inconsistent therewith:
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“Affiliate”
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in respect of a person, means any other person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person, and (a) in the case of
a natural person, shall include, without limitation, such person’s spouse, parents, children, siblings, mother-in-law and father-in-law and brothers and sisters-in-law, whether by blood, marriage or adoption or anyone residing in such
person’s home, a trust for the benefit of any of the foregoing, a company, partnership or any natural person or entity wholly or jointly owned by any of the foregoing and (b) in the case of an entity, shall include a partnership, a
corporation or any natural person or entity which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.
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“Applicable Law”
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means, with respect to any person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to
such person.
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“Articles”
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means these amended and restated articles of association of the Company.
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“Audit Committee”
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means the audit committee of the board of directors of the Company established pursuant to the Articles, or any successor committee.
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“Auditor”
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means the person for the time being performing the duties of auditor of the Company (if any).
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“Business Combination”
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means a merger, share exchange, asset acquisition, share purchase, reorganisation or similar business combination involving the Company, with one or more businesses or entities (the “target business”), which Business Combination: (a) as long as the securities of the Company are listed on the Nasdaq Capital Market, must occur with one or more target businesses that together have an aggregate fair market
value of at least 80 per cent of the assets held in the Trust Account (excluding the deferred underwriting commissions and taxes payable on the income earned on the Trust Account) at the time of the signing of the definitive agreement to
enter into such Business Combination; and (b) must not be solely effectuated with another blank cheque company or a similar company with nominal operations.
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“business day”
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means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorised or obligated by law to close in New York City.
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“Clearing House”
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means a clearing house recognised by the laws of the jurisdiction in which the Shares (or depositary receipts therefor) are listed or quoted on a stock exchange or interdealer quotation system in such
jurisdiction.
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“Class A Share”
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means a Class A ordinary share of a par value of US$0.0001 in the share capital of the Company.
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“Class B Share”
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means a Class B ordinary share of a par value of US$0.0001 in the share capital of the Company.
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“Company”
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means the above named company.
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“Company’s Website”
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means the website of the Company and/or its web-address or domain name (if any).
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“Compensation Committee”
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means the compensation committee of the board of directors of the Company established pursuant to the Articles, or any successor committee.
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“Designated Stock Exchange”
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means any United States national securities exchange on which the securities of the Company are listed for trading, including the Nasdaq Capital Market.
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“Directors”
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means the directors for the time being of the Company.
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“Dividend”
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means any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles.
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“Electronic Communication”
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means a communication sent by electronic means, including electronic posting to the Company’s Website, transmission to any number, address or internet website (including the website of the Securities and
Exchange Commission) or other electronic delivery methods as otherwise decided and approved by the Directors.
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“Electronic Record”
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has the same meaning as in the Electronic Transactions Act.
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“Electronic Transactions Act”
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means the Electronic Transactions Act (As Revised) of the Cayman Islands.
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“Equity-linked Securities”
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means any debt or equity securities that are convertible, exercisable or exchangeable for Class A Shares issued in a financing transaction in connection with a Business Combination, including but not limited to
a private placement of equity or debt.
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“Exchange Act”
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means the United States Securities Exchange Act of 1934, as amended, or any similar U.S. federal statute and the rules and regulations of the Securities and Exchange Commission thereunder, all as the same shall
be in effect at the time.
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“Founders”
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means all Members immediately prior to the consummation of the IPO.
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“Independent Director”
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has the same meaning as in the rules and regulations of the Designated Stock Exchange or in Rule 10A-3 under the Exchange Act, as the case may be.
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“IPO”
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means the Company’s initial public offering of securities.
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“Member”
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has the same meaning as in the Statute.
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“Memorandum”
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means the amended and restated memorandum of association of the Company.
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“Nominating and Corporate Governance Committee”
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means the nominating and corporate governance committee of the board of directors of the Company established pursuant to the Articles, or any successor committee.
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“Officer”
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means a person appointed to hold an office in the Company.
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“Ordinary Resolution”
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means a resolution passed by a simple majority of the Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting, and includes a unanimous written
resolution. In computing the majority when a poll is demanded regard shall be had to the number of votes to which each Member is entitled by the Articles.
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“Ordinary Share”
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means an ordinary share of a par value of US$0.0001 in the share capital of the Company.
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“Over-Allotment Option”
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means the option of the Underwriters to purchase up to an additional 15 per cent of the firm units (as described in the Articles) issued in the IPO at a price equal to US$10 per unit, less underwriting
discounts and commissions.
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“Preference Share”
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means a preference share of a par value of US$0.0001 in the share capital of the Company.
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“Public Share”
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means a Class A Share issued as part of the units (as described in the Articles) issued in the IPO.
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“Redemption Notice”
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means a notice in a form approved by the Company by which a holder of Public Shares is entitled to require the Company to redeem its Public Shares, subject to any conditions contained therein.
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“Register of Members”
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means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members.
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“Registered Office”
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means the registered office for the time being of the Company.
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“Representative”
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means a representative of the Underwriters.
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“Seal”
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means the common seal of the Company and includes every duplicate seal.
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“Securities and Exchange Commission”
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means the United States Securities and Exchange Commission.
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“Share”
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means a Class A Share, a Class B Share, or a Preference Share and includes a fraction of a share in the Company.
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“Special Resolution”
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subject to Article 29.4, has the same meaning as in the Statute, and includes a unanimous written resolution.
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“Sponsor”
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means HCM Investor Holdings, LLC, a Delaware limited liability company, and its successors or assigns.
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“Statute”
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means the Companies Act (As Revised) of the Cayman Islands.
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“Tax Filing Authorised Person”
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means such person as any Director shall designate from time to time, acting severally.
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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 Statute.
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“Trust Account”
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means the trust account established by the Company upon the consummation of the IPO and into which a certain amount of the net proceeds of the IPO, together with a certain amount of the proceeds of a private
placement of warrants simultaneously with the closing date of the IPO, will be deposited.
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“Underwriter”
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means an underwriter of the IPO from time to time and any successor underwriter.
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1.2 |
In the Articles:
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(a) |
words importing the singular number include the plural number and vice versa;
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(b) |
words importing the masculine gender include the feminine gender;
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(c) |
words importing persons include corporations as well as any other legal or natural person;
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(d) |
“written” and “in writing” include all modes of representing or reproducing words in visible form, including in the form of an Electronic Record;
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(e) |
“shall” shall be construed as imperative and “may” shall be construed as permissive;
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(f) |
references to provisions of any law or regulation shall be construed as references to those provisions as amended, modified, re-enacted or replaced;
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(g) |
any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
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(h) |
the term “and/or” is used herein to mean both “and” as well as “or.” The use of “and/or” in certain contexts in no respects qualifies or modifies the use of the terms “and” or “or” in others. The term “or” shall not be interpreted to be
exclusive and the term “and” shall not be interpreted to require the conjunctive (in each case, unless the context otherwise requires);
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(i) |
headings are inserted for reference only and shall be ignored in construing the Articles;
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(j) |
any requirements as to delivery under the Articles include delivery in the form of an Electronic Record;
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(k) |
any requirements as to execution or signature under the Articles including the execution of the Articles themselves can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Act;
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(l) |
sections 8 and 19(3) of the Electronic Transactions Act shall not apply;
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(m) |
the term “clear days” in relation to the period of a notice means that period excluding the day when the notice is received or deemed to be received and the day for which it is given or on which it is to take effect; and
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(n) |
the term “holder” in relation to a Share means a person whose name is entered in the Register of Members as the holder of such Share.
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2 |
Commencement of Business
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2.1 |
The business of the Company may be commenced as soon after incorporation of the Company as the Directors shall see fit.
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2.2 |
The Directors may pay, out of the capital or any other monies of the Company, all expenses incurred in or about the formation and establishment of the Company, including the expenses of registration.
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3 |
Issue of Shares and other Securities
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3.1 |
Subject to the provisions, if any, in the Memorandum (and to any direction that may be given by the Company in general meeting) and, where applicable, the rules and regulations of the Designated Stock Exchange, the Securities and Exchange
Commission and/or any other competent regulatory authority or otherwise under Applicable Law, and without prejudice to any rights attached to any existing Shares, the Directors may allot, issue, grant options over or otherwise dispose of
Shares (including fractions of a Share) with or without preferred, deferred or other rights or restrictions, whether in regard to Dividends or other distributions, voting, return of capital or otherwise and to such persons, at such times and
on such other terms as they think proper, and may also (subject to the Statute and the Articles) vary such rights, save that the Directors shall not allot, issue, grant options over or otherwise dispose of Shares (including fractions of a
Share) to the extent that it may affect the ability of the Company to carry out a Class B Ordinary Share Conversion set out in the Articles.
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3.2 |
The Company may issue rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders thereof to subscribe for, purchase or receive any class of Shares or other securities in the
Company on such terms as the Directors may from time to time determine.
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3.3 |
The Company may issue units of securities in the Company, which may be comprised of whole or fractional Shares, rights, options, warrants or convertible securities or securities of similar nature conferring the right upon the holders
thereof to subscribe for, purchase or receive any class of Shares or other securities in the Company, upon such terms as the Directors may from time to time determine. The securities comprising any such units which are issued pursuant to the
IPO can only be traded separately from one another on the 52nd day following the date of the prospectus relating to the IPO unless the Representative(s)
determines that an earlier date is acceptable, subject to the Company having filed a current report on Form 8-K with the Securities and Exchange Commission and a press release announcing when such separate trading will begin. Prior to such
date, the units can be traded, but the securities comprising such units cannot be traded separately from one another.
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3.4 |
The Company shall not issue Shares to bearer.
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4 |
Register of Members
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4.1 |
The Company shall maintain or cause to be maintained the Register of Members in accordance with the Statute.
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4.2 |
The Directors may determine that the Company shall maintain one or more branch registers of Members in accordance with the Statute. The Directors may also determine which register of Members shall constitute the principal register and
which shall constitute the branch register or registers, and to vary such determination from time to time.
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5 |
Closing Register of Members or Fixing Record Date
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5.1 |
For the purpose of determining Members entitled to notice of, or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any Dividend or other distribution, or in order to make a
determination of Members for any other purpose, the Directors may, after notice has been given by advertisement in an appointed newspaper or any other newspaper or by any other means in accordance with the rules and regulations of the
Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law, provide that the Register of Members shall be closed for transfers for a stated period which
shall not in any case exceed forty days.
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5.2 |
In lieu of, or apart from, closing the Register of Members, the Directors may fix in advance or arrears a date as the record date for any such determination of Members entitled to notice of, or to vote at any meeting of the Members or any
adjournment thereof, or for the purpose of determining the Members entitled to receive payment of any Dividend or other distribution, or in order to make a determination of Members for any other purpose.
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5.3 |
If the Register of Members is not so closed and no record date is fixed for the determination of Members entitled to notice of, or to vote at, a meeting of Members or Members entitled to receive payment of a Dividend or other distribution,
the date on which notice of the meeting is sent or the date on which the resolution of the Directors resolving to pay such Dividend or other distribution is passed, as the case may be, shall be the record date for such determination of
Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment thereof.
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6 |
Certificates for Shares
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6.1 |
A Member shall only be entitled to a share certificate if the Directors resolve that share certificates shall be issued. Share certificates representing Shares, if any, shall be in such form as the Directors may determine. Share
certificates shall be signed by one or more Directors or other person authorised by the Directors. The Directors may authorise certificates to be issued with the authorised signature(s) affixed by mechanical process. All certificates for
Shares shall be consecutively numbered or otherwise identified and shall specify the Shares to which they relate. All certificates surrendered to the Company for transfer shall be cancelled and, subject to the Articles, no new certificate
shall be issued until the former certificate representing a like number of relevant Shares shall have been surrendered and cancelled.
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6.2 |
The Company shall not be bound to issue more than one certificate for Shares held jointly by more than one person and delivery of a certificate to one joint holder shall be a sufficient delivery to all of them.
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6.3 |
If a share certificate is defaced, worn out, lost or destroyed, it may be renewed on such terms (if any) as to evidence and indemnity and on the payment of such expenses reasonably incurred by the Company in investigating evidence, as the
Directors may prescribe, and (in the case of defacement or wearing out) upon delivery of the old certificate.
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6.4 |
Every share certificate sent in accordance with the Articles will be sent at the risk of the Member or other person entitled to the certificate. The Company will not be responsible for any share certificate lost or delayed in the course of
delivery.
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6.5 |
Share certificates shall be issued within the relevant time limit as prescribed by the Statute, if applicable, or as the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other
competent regulatory authority or otherwise under Applicable Law may from time to time determine, whichever is shorter, after the allotment or, except in the case of a Share transfer which the Company is for the time being entitled to refuse
to register and does not register, after lodgement of a Share transfer with the Company.
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7 |
Transfer of Shares
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7.1 |
Subject to the terms of the Articles, any Member may transfer all or any of his Shares by an instrument of transfer provided that such transfer complies with the rules and regulations of the Designated Stock Exchange, the Securities and
Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law. If the Shares in question were issued in conjunction with rights, options, warrants or units issued pursuant to the Articles on terms that
one cannot be transferred without the other, the Directors shall refuse to register the transfer of any such Share without evidence satisfactory to them of the like transfer of such right, option, warrant or unit.
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7.2 |
The instrument of transfer of any Share shall be in writing in the usual or common form or in a form prescribed by the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other
competent regulatory authority or otherwise under Applicable Law or in any other form approved by the Directors and shall be executed by or on behalf of the transferor (and if the Directors so require, signed by or on behalf of the
transferee) and may be under hand or, if the transferor or transferee is a Clearing House or its nominee(s), by hand or by machine imprinted signature or by such other manner of execution as the Directors may approve from time to time. The
transferor shall be deemed to remain the holder of a Share until the name of the transferee is entered in the Register of Members.
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8 |
Redemption, Repurchase and Surrender of Shares
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8.1 |
Subject to the provisions of the Statute, and, where applicable, the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under
Applicable Law, the Company may issue Shares that are to be redeemed or are liable to be redeemed at the option of the Member or the Company. The redemption of such Shares, except Public Shares, shall be effected in such manner and upon such
other terms as the Company may, by Special Resolution, determine before the issue of such Shares. With respect to redeeming or repurchasing the Shares:
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(a) |
Members who hold Public Shares are entitled to request the redemption of such Shares in the circumstances described in the Business Combination Article hereof;
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(b) |
Class B Shares held by the Sponsor shall be surrendered by the Sponsor for no consideration on a pro-rata basis to the extent that the Over-Allotment Option is not exercised in full so that the Founders will own 20 per cent of the
Company’s issued Shares after the IPO (exclusive of any securities purchased in a private placement simultaneously with the IPO); and
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(c) |
Public Shares shall be repurchased by way of tender offer in the circumstances set out in the Business Combination Article hereof.
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8.2 |
Subject to the provisions of the Statute, and, where applicable, the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under
Applicable Law, the Company may purchase its own Shares (including any redeemable Shares) in such manner and on such other terms as the Directors may agree with the relevant Member. For the avoidance of doubt, redemptions, repurchases and
surrenders of Shares in the circumstances described in the Article above shall not require further approval of the Members.
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8.3 |
The Company may make a payment in respect of the redemption or purchase of its own Shares in any manner permitted by the Statute, including out of capital.
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8.4 |
The Directors may accept the surrender for no consideration of any fully paid Share.
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9 |
Treasury Shares
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9.1 |
The Directors may, prior to the purchase, redemption or surrender of any Share, determine that such Share shall be held as a Treasury Share.
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9.2 |
The Directors may determine to cancel a Treasury Share or transfer a Treasury Share on such terms as they think proper (including, without limitation, for nil consideration).
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10 |
Variation of Rights of Shares
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10.1 |
Subject to Article 3.1, if at any time the share capital of the Company is divided into different classes of Shares, all or any of the rights attached to any class (unless otherwise provided by the terms of issue of the Shares of that
class) may, whether or not the Company is being wound up, be varied without the consent of the holders of the issued Shares of that class where such variation is considered by the Directors not to have a material adverse effect upon such
rights; otherwise, any such variation shall be made only with the consent in writing of the holders of not less than two thirds of the issued Shares of that class (other than with respect to a waiver of the provisions of the Class B Ordinary
Share Conversion Article hereof, which as stated therein shall only require the consent in writing of the holders of a majority of the issued Shares of that class), or with the approval of a resolution passed by a majority of not less than
two thirds of the votes cast at a separate meeting of the holders of the Shares of that class. For the avoidance of doubt, the Directors reserve the right, notwithstanding that any such variation may not have a material adverse effect, to
obtain consent from the holders of Shares of the relevant class. To any such meeting all the provisions of the Articles relating to general meetings shall apply mutatis mutandis, except that the
necessary quorum shall be one person holding or representing by proxy at least one third of the issued Shares of the class and that any holder of Shares of the class present in person or by proxy may demand a poll.
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10.2 |
For the purposes of a separate class meeting, the Directors may treat two or more or all the classes of Shares as forming one class of Shares if the Directors consider that such class of Shares would be affected in the same way by the
proposals under consideration, but in any other case shall treat them as separate classes of Shares.
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10.3 |
The rights conferred upon the holders of the Shares of any class issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the Shares of that class, be deemed to be varied by the creation
or issue of further Shares ranking pari passu therewith or Shares issued with preferred or other rights.
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11 |
Commission on Sale of Shares
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12 |
Non Recognition of Trusts
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13 |
Lien on Shares
|
13.1 |
The Company shall have a first and paramount lien on all Shares (whether fully paid-up or not) registered in the name of a Member (whether solely or jointly with others) for all debts, liabilities or engagements to or with the Company
(whether presently payable or not) by such Member or his estate, either alone or jointly with any other person, whether a Member or not, but the Directors may at any time declare any Share to be wholly or in part exempt from the provisions of
this Article. The registration of a transfer of any such Share shall operate as a waiver of the Company’s lien thereon. The Company’s lien on a Share shall also extend to any amount payable in respect of that Share.
|
13.2 |
The Company may sell, in such manner as the Directors think fit, any Shares on which the Company has a lien, if a sum in respect of which the lien exists is presently payable, and is not paid within fourteen clear days after notice has
been received or deemed to have been received by the holder of the Shares, or to the person entitled to it in consequence of the death or bankruptcy of the holder, demanding payment and stating that if the notice is not complied with the
Shares may be sold.
|
13.3 |
To give effect to any such sale the Directors may authorise any person to execute an instrument of transfer of the Shares sold to, or in accordance with the directions of, the purchaser. The purchaser or his nominee shall be registered as
the holder of the Shares comprised in any such transfer, and he shall not be bound to see to the application of the purchase money, nor shall his title to the Shares be affected by any irregularity or invalidity in the sale or the exercise of
the Company’s power of sale under the Articles.
|
13.4 |
The net proceeds of such sale after payment of costs, shall be applied in payment of such part of the amount in respect of which the lien exists as is presently payable and any balance shall (subject to a like lien for sums not presently
payable as existed upon the Shares before the sale) be paid to the person entitled to the Shares at the date of the sale.
|
14 |
Call on Shares
|
14.1 |
Subject to the terms of the allotment and issue of any Shares, the Directors may make calls upon the Members in respect of any monies unpaid on their Shares (whether in respect of par value or premium), and each Member shall (subject to
receiving at least fourteen clear days’ notice specifying the time or times of payment) pay to the Company at the time or times so specified the amount called on the Shares. A call may be revoked or postponed, in whole or in part, as the
Directors may determine. A call may be required to be paid by instalments. A person upon whom a call is made shall remain liable for calls made upon him notwithstanding the subsequent transfer of the Shares in respect of which the call was
made.
|
14.2 |
A call shall be deemed to have been made at the time when the resolution of the Directors authorising such call was passed.
|
14.3 |
The joint holders of a Share shall be jointly and severally liable to pay all calls in respect thereof.
|
14.4 |
If a call remains unpaid after it has become due and payable, the person from whom it is due shall pay interest on the amount unpaid from the day it became due and payable until it is paid at such rate as the Directors may determine (and
in addition all expenses that have been incurred by the Company by reason of such non-payment), but the Directors may waive payment of the interest or expenses wholly or in part.
|
14.5 |
An amount payable in respect of a Share on issue or allotment or at any fixed date, whether on account of the par value of the Share or premium or otherwise, shall be deemed to be a call and if it is not paid all the provisions of the
Articles shall apply as if that amount had become due and payable by virtue of a call.
|
14.6 |
The Directors may issue Shares with different terms as to the amount and times of payment of calls, or the interest to be paid.
|
14.7 |
The Directors may, if they think fit, receive an amount from any Member willing to advance all or any part of the monies uncalled and unpaid upon any Shares held by him, and may (until the amount would otherwise become payable) pay
interest at such rate as may be agreed upon between the Directors and the Member paying such amount in advance.
|
14.8 |
No such amount paid in advance of calls shall entitle the Member paying such amount to any portion of a Dividend or other distribution payable in respect of any period prior to the date upon which such amount would, but for such payment,
become payable.
|
15 |
Forfeiture of Shares
|
15.1 |
If a call or instalment of a call remains unpaid after it has become due and payable the Directors may give to the person from whom it is due not less than fourteen clear days’ notice requiring payment of the amount unpaid together with
any interest which may have accrued and any expenses incurred by the Company by reason of such non-payment. The notice shall specify where payment is to be made and shall state that if the notice is not complied with the Shares in respect of
which the call was made will be liable to be forfeited.
|
15.2 |
If the notice is not complied with, any Share in respect of which it was given may, before the payment required by the notice has been made, be forfeited by a resolution of the Directors. Such forfeiture shall include all Dividends, other
distributions or other monies payable in respect of the forfeited Share and not paid before the forfeiture.
|
15.3 |
A forfeited Share may be sold, re-allotted or otherwise disposed of on such terms and in such manner as the Directors think fit and at any time before a sale, re-allotment or disposition the forfeiture may be cancelled on such terms as the
Directors think fit. Where for the purposes of its disposal a forfeited Share is to be transferred to any person the Directors may authorise some person to execute an instrument of transfer of the Share in favour of that person.
|
15.4 |
A person any of whose Shares have been forfeited shall cease to be a Member in respect of them and shall surrender to the Company for cancellation the certificate for the Shares forfeited and shall remain liable to pay to the Company all
monies which at the date of forfeiture were payable by him to the Company in respect of those Shares together with interest at such rate as the Directors may determine, but his liability shall cease if and when the Company shall have received
payment in full of all monies due and payable by him in respect of those Shares.
|
15.5 |
A certificate in writing under the hand of one Director or Officer that a Share has been forfeited on a specified date shall be conclusive evidence of the facts stated in it as against all persons claiming to be entitled to the Share. The
certificate shall (subject to the execution of an instrument of transfer) constitute a good title to the Share and the person to whom the Share is sold or otherwise disposed of shall not be bound to see to the application of the purchase
money, if any, nor shall his title to the Share be affected by any irregularity or invalidity in the proceedings in reference to the forfeiture, sale or disposal of the Share.
|
15.6 |
The provisions of the Articles as to forfeiture shall apply in the case of non payment of any sum which, by the terms of issue of a Share, becomes payable at a fixed time, whether on account of the par value of the Share or by way of
premium as if it had been payable by virtue of a call duly made and notified.
|
16 |
Transmission of Shares
|
16.1 |
If a Member dies, the survivor or survivors (where he was a joint holder), or his legal personal representatives (where he was a sole holder), shall be the only persons recognised by the Company as having any title to his Shares. The
estate of a deceased Member is not thereby released from any liability in respect of any Share, for which he was a joint or sole holder.
|
16.2 |
Any person becoming entitled to a Share in consequence of the death or bankruptcy or liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may be required by the Directors,
elect, by a notice in writing sent by him to the Company, either to become the holder of such Share or to have some person nominated by him registered as the holder of such Share. If he elects to have another person registered as the holder
of such Share he shall sign an instrument of transfer of that Share to that person. The Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by
the relevant Member before his death or bankruptcy or liquidation or dissolution, as the case may be.
|
16.3 |
A person becoming entitled to a Share by reason of the death or bankruptcy or liquidation or dissolution of a Member (or in any other case than by transfer) shall be entitled to the same Dividends, other distributions and other advantages
to which he would be entitled if he were the holder of such Share. However, he shall not, before becoming a Member in respect of a Share, be entitled in respect of it to exercise any right conferred by membership in relation to general
meetings of the Company and the Directors may at any time give notice requiring any such person to elect either to be registered himself or to have some person nominated by him be registered as the holder of the Share (but the Directors
shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the Share by the relevant Member before his death or bankruptcy or liquidation or dissolution or any other case
than by transfer, as the case may be). If the notice is not complied with within ninety days of being received or deemed to be received (as determined pursuant to the Articles), the Directors may thereafter withhold payment of all Dividends,
other distributions, bonuses or other monies payable in respect of the Share until the requirements of the notice have been complied with.
|
17 |
Class B Ordinary Share Conversion
|
17.1 |
The rights attaching to the Class A Shares and Class B Shares shall rank pari passu in all respects, and the Class A Shares and Class B Shares shall vote together as a single class on all matters
(subject to the Variation of Rights of Shares Article and the Appointment and Removal of Directors Article hereof) with the exception that the holder of a Class B Share shall have the conversion rights referred to in this Article.
|
17.2 |
Class B Shares shall automatically convert into Class A Shares on a one-for-one basis (the “Initial Conversion Ratio”): (a) automatically on the day of the consummation of a Business Combination, or
(b) earlier at the option of the holders thereof.
|
17.3 |
Notwithstanding the Initial Conversion Ratio, in the case that additional Class A Shares or any other Equity-linked Securities, are issued, or deemed issued, by the Company in excess of the amounts offered in the IPO and related to the
consummation of a Business Combination, all Class B Shares in issue shall automatically convert into Class A Shares at the time of the consummation of a Business Combination at a ratio for which the Class B Shares shall convert into Class A
Shares will be adjusted (unless the holders of a majority of the Class B Shares in issue agree to waive such anti-dilution adjustment with respect to any such issuance or deemed issuance) so that the number of Class A Shares issuable upon
conversion of all Class B Shares will equal, on an as-converted basis, in the aggregate, 20 per cent of the sum of all Class A Shares and Class B Shares in issue upon completion of the IPO plus all Class A Shares and Equity-linked Securities
issued or deemed issued in connection with a Business Combination, excluding any Shares or Equity-linked Securities issued, or to be issued, to any seller in a Business Combination and any private placement warrants issued to the Sponsor, its
Affiliates or any member of the Company’s management team upon conversion of working capital loans made to the Company.
|
17.4 |
Notwithstanding anything to the contrary contained herein, the foregoing adjustment to the Initial Conversion Ratio may be waived as to any particular issuance or deemed issuance of additional Class A Shares or Equity-linked Securities by
the written consent or agreement of holders of a majority of the Class B Shares then in issue consenting or agreeing separately as a separate class in the manner provided in the Variation of Rights of Shares Article hereof.
|
17.5 |
The foregoing conversion ratio shall also be adjusted to account for any subdivision (by share subdivision, exchange, capitalisation, rights issue, reclassification, recapitalisation or otherwise) or combination (by share consolidation,
exchange, reclassification, recapitalisation or otherwise) or similar reclassification or recapitalisation of the Class A Shares in issue into a greater or lesser number of shares occurring after the original filing of the Articles without a
proportionate and corresponding subdivision, combination or similar reclassification or recapitalisation of the Class B Shares in issue.
|
17.6 |
Each Class B Share shall convert into its pro rata number of Class A Shares pursuant to this Article. The pro rata share for each holder of Class B Shares will be determined as follows: each Class B Share shall convert into such number of
Class A Shares as is equal to the product of 1 multiplied by a fraction, the numerator of which shall be the total number of Class A Shares into which all of the Class B Shares in issue shall be converted pursuant to this Article and the
denominator of which shall be the total number of Class B Shares in issue at the time of conversion.
|
17.7 |
References in this Article to “converted”, “conversion” or “exchange” shall mean the compulsory redemption without
notice of Class B Shares of any Member and, on behalf of such Members, automatic application of such redemption proceeds in paying for such new Class A Shares into which the Class B Shares have been converted or exchanged at a price per Class
B Share necessary to give effect to a conversion or exchange calculated on the basis that the Class A Shares to be issued as part of the conversion or exchange will be issued at par. The Class A Shares to be issued on an exchange or
conversion shall be registered in the name of such Member or in such name as the Member may direct.
|
17.8 |
Notwithstanding anything to the contrary in this Article, in no event may any Class B Share convert into Class A Shares at a ratio that is less than one-for-one.
|
18 |
Amendments of Memorandum and Articles of Association and Alteration of Capital
|
18.1 |
The Company may by Ordinary Resolution:
|
|
(a) |
increase its share capital by such sum as the Ordinary Resolution shall prescribe and with such rights, priorities and privileges annexed thereto, as the Company in general meeting may determine;
|
|
(b) |
consolidate and divide all or any of its share capital into Shares of larger amount than its existing Shares;
|
|
(c) |
convert all or any of its paid-up Shares into stock, and reconvert that stock into paid-up Shares of any denomination;
|
|
(d) |
by subdivision of its existing Shares or any of them divide the whole or any part of its share capital into Shares of smaller amount than is fixed by the Memorandum or into Shares without par value; and
|
|
(e) |
cancel any Shares that at the date of the passing of the Ordinary Resolution have not been taken or agreed to be taken by any person and diminish the amount of its share capital by the amount of the Shares so cancelled.
|
18.2 |
All new Shares created in accordance with the provisions of the preceding Article shall be subject to the same provisions of the Articles with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise as
the Shares in the original share capital.
|
18.3 |
Subject to the provisions of the Statute, and the provisions of the Articles as regards the matters to be dealt with by Ordinary Resolution and Article 29.4, the Company may by Special Resolution:
|
|
(a) |
change its name;
|
|
(b) |
alter or add to the Articles;
|
|
(c) |
alter or add to the Memorandum with respect to any objects, powers or other matters specified therein; and
|
|
(d) |
reduce its share capital or any capital redemption reserve fund.
|
19 |
Offices and Places of Business
|
20 |
General Meetings
|
20.1 |
All general meetings other than annual general meetings shall be called extraordinary general meetings.
|
20.2 |
The Company may, but shall not (unless required by the Statute) be obliged to, in each year hold a general meeting as its annual general meeting, and shall specify the meeting as such in the notices calling it. Any annual general meeting
shall be held at such time and place as the Directors shall appoint. At these meetings the report of the Directors (if any) shall be presented.
|
20.3 |
The Directors, the chief executive officer or the chairman of the board of Directors may call general meetings, and, for the avoidance of doubt, Members shall not have the ability to call general meetings.
|
20.4 |
Members seeking to bring business before the annual general meeting or to nominate candidates for appointment as Directors at the annual general meeting must deliver notice to the principal executive offices of the Company not less than
120 calendar days before the date of the Company’s proxy statement released to Members in connection with the previous year’s annual general meeting or, if the Company did not hold an annual general meeting the previous year, or if the date
of the current year’s annual general meeting has been changed by more than 30 days from the date of the previous year’s annual general meeting, then the deadline shall be set by the board of Directors with such deadline being a reasonable
time before the Company begins to print and send its related proxy materials.
|
21 |
Notice of General Meetings
|
21.1 |
At least five clear days’ notice shall be given of any general meeting. Every notice shall specify the place, the day and the hour of the meeting and the general nature of the business to be conducted at the general meeting and shall be
given in the manner hereinafter mentioned or in such other manner if any as may be prescribed by the Company, provided that a general meeting of the Company shall, whether or not the notice specified in this Article has been given and whether
or not the provisions of the Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed:
|
|
(a) |
in the case of an annual general meeting, by all of the Members entitled to attend and vote thereat; and
|
|
(b) |
in the case of an extraordinary general meeting, by a majority in number of the Members having a right to attend and vote at the meeting, together holding not less than ninety-five per cent in par value of the Shares giving that right.
|
21.2 |
The accidental omission to give notice of a general meeting to, or the non receipt of notice of a general meeting by, any person entitled to receive such notice shall not invalidate the proceedings of that general meeting.
|
22 |
Proceedings at General Meetings
|
22.1 |
No business shall be transacted at any general meeting unless a quorum is present. The holders of a majority of the Shares being individuals present in person or by proxy or if a corporation or other non-natural person by its duly
authorised representative or proxy shall be a quorum.
|
22.2 |
A person may participate at a general meeting by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other. Participation by a person in a general
meeting in this manner is treated as presence in person at that meeting.
|
22.3 |
A resolution (including a Special Resolution) in writing (in one or more counterparts) signed by or on behalf of all of the Members for the time being entitled to receive notice of and to attend and vote at general meetings (or, being
corporations or other non-natural persons, signed by their duly authorised representatives) shall be as valid and effective as if the resolution had been passed at a general meeting of the Company duly convened and held.
|
22.4 |
If a quorum is not present within half an hour from the time appointed for the meeting to commence, the meeting shall stand adjourned to the same day in the next week at the same time and/or place or to such other day, time and/or place as
the Directors may determine, and if at the adjourned meeting a quorum is not present within half an hour from the time appointed for the meeting to commence, the Members present shall be a quorum.
|
22.5 |
The Directors may, at any time prior to the time appointed for the meeting to commence, appoint any person to act as chairman of a general meeting of the Company or, if the Directors do not make any such appointment, the chairman, if any,
of the board of Directors shall preside as chairman at such general meeting. If there is no such chairman, or if he shall not be present within fifteen minutes after the time appointed for the meeting to commence, or is unwilling to act, the
Directors present shall elect one of their number to be chairman of the meeting.
|
22.6 |
If no Director is willing to act as chairman or if no Director is present within fifteen minutes after the time appointed for the meeting to commence, the Members present shall choose one of their number to be chairman of the meeting.
|
22.7 |
The chairman may, with the consent of a meeting at which a quorum is present (and shall if so directed by the meeting) adjourn the meeting from time to time and from place to place, but no business shall be transacted at any adjourned
meeting other than the business left unfinished at the meeting from which the adjournment took place.
|
22.8 |
When a general meeting is adjourned for thirty days or more, notice of the adjourned meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of an adjourned meeting.
|
22.9 |
If, prior to a Business Combination, a notice is issued in respect of a general meeting and the Directors, in their absolute discretion, consider that it is impractical or undesirable for any reason to hold that general meeting at the
place, the day and the hour specified in the notice calling such general meeting, the Directors may postpone the general meeting to another place, day and/or hour provided that notice of the place, the day and the hour of the rearranged
general meeting is promptly given to all Members. No business shall be transacted at any postponed meeting other than the business specified in the notice of the original meeting.
|
22.10 |
When a general meeting is postponed for thirty days or more, notice of the postponed meeting shall be given as in the case of an original meeting. Otherwise it shall not be necessary to give any such notice of a postponed meeting. All
proxy forms submitted for the original general meeting shall remain valid for the postponed meeting. The Directors may postpone a general meeting which has already been postponed.
|
22.11 |
A resolution put to the vote of the meeting shall be decided on a poll.
|
22.12 |
A poll shall be taken as the chairman directs, and the result of the poll shall be deemed to be the resolution of the general meeting at which the poll was demanded.
|
22.13 |
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 date, time and place as the chairman of the general meeting directs, and
any business other than that upon which a poll has been demanded or is contingent thereon may proceed pending the taking of the poll.
|
22.14 |
In the case of an equality of votes the chairman shall be entitled to a second or casting vote.
|
23 |
Votes of Members
|
23.1 |
Subject to any rights or restrictions attached to any Shares, including as set out at Article 29.4, every Member present in any such manner shall have one vote for every Share of which he is the holder.
|
23.2 |
In the case of joint holders the vote of the senior holder who tenders a vote, whether in person or by proxy (or, in the case of a corporation or other non-natural person, by its duly authorised representative or proxy), shall be accepted
to the exclusion of the votes of the other joint holders, and seniority shall be determined by the order in which the names of the holders stand in the Register of Members.
|
23.3 |
A Member of unsound mind, or in respect of whom an order has been made by any court, having jurisdiction in lunacy, may vote by his committee, receiver, curator bonis, or other person on such Member’s behalf appointed by that court, and
any such committee, receiver, curator bonis or other person may vote by proxy.
|
23.4 |
No person shall be entitled to vote at any general meeting unless he is registered as a Member on the record date for such meeting nor unless all calls or other monies then payable by him in respect of Shares have been paid.
|
23.5 |
No objection shall be raised as to the qualification of any voter except at the general meeting or adjourned general meeting at which the vote objected to is given or tendered and every vote not disallowed at the meeting shall be valid.
Any objection made in due time in accordance with this Article shall be referred to the chairman whose decision shall be final and conclusive.
|
23.6 |
Votes may be cast either personally or by proxy (or in the case of a corporation or other non-natural person by its duly authorised representative or proxy). A Member may appoint more than one proxy or the same proxy under one or more
instruments to attend and vote at a meeting. Where a Member appoints more than one proxy the instrument of proxy shall specify the number of Shares in respect of which each proxy is entitled to exercise the related votes.
|
23.7 |
A Member holding more than one Share need not cast the votes in respect of his Shares in the same way on any resolution and therefore may vote a Share or some or all such Shares either for or against a resolution and/or abstain from voting
a Share or some or all of the Shares and, subject to the terms of the instrument appointing him, a proxy appointed under one or more instruments may vote a Share or some or all of the Shares in respect of which he is appointed either for or
against a resolution and/or abstain from voting a Share or some or all of the Shares in respect of which he is appointed.
|
24 |
Proxies
|
24.1 |
The instrument appointing a proxy shall be in writing and shall be executed under the hand of the appointor or of his attorney duly authorised in writing, or, if the appointor is a corporation or other non natural person, under the hand of
its duly authorised representative. A proxy need not be a Member.
|
24.2 |
The Directors may, in the notice convening any meeting or adjourned meeting, or in an instrument of proxy sent out by the Company, specify the manner by which the instrument appointing a proxy shall be deposited and the place and the time
(being not later than the time appointed for the commencement of the meeting or adjourned meeting to which the proxy relates) at which the instrument appointing a proxy shall be deposited. In the absence of any such direction from the
Directors in the notice convening any meeting or adjourned meeting or in an instrument of proxy sent out by the Company, the instrument appointing a proxy shall be deposited physically at the Registered Office not less than 48 hours before
the time appointed for the meeting or adjourned meeting to commence at which the person named in the instrument proposes to vote.
|
24.3 |
The chairman may in any event at his discretion declare that an instrument of proxy shall be deemed to have been duly deposited. An instrument of proxy that is not deposited in the manner permitted, or which has not been declared to have
been duly deposited by the chairman, shall be invalid.
|
24.4 |
The instrument appointing a proxy may be in any usual or common form (or such other form as the Directors may approve) and may be expressed to be for a particular meeting or any adjournment thereof or generally until revoked. An instrument
appointing a proxy shall be deemed to include the power to demand or join or concur in demanding a poll.
|
24.5 |
Votes given in accordance with the terms of an instrument of proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the proxy or of the authority under which the proxy was executed, or the
transfer of the Share in respect of which the proxy is given unless notice in writing of such death, insanity, revocation or transfer was received by the Company at the Registered Office before the commencement of the general meeting, or
adjourned meeting at which it is sought to use the proxy.
|
25 |
Corporate Members
|
25.1 |
Any corporation or other non-natural person which is a Member may in accordance with its constitutional documents, or in the absence of such provision by resolution of its directors or other governing body, authorise such person as it
thinks fit to act as its representative at any meeting of the Company or of any class of Members, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as the corporation
could exercise if it were an individual Member.
|
25.2 |
If a Clearing House (or its nominee(s)), being a corporation, is a Member, it may authorise such persons as it sees fit to act as its representative at any meeting of the Company or at any meeting of any class of Members provided that the
authorisation shall specify the number and class of Shares in respect of which each such representative is so authorised. Each person so authorised under the provisions of this Article shall be deemed to have been duly authorised without
further evidence of the facts and be entitled to exercise the same rights and powers on behalf of the Clearing House (or its nominee(s)) as if such person was the registered holder of such Shares held by the Clearing House (or its
nominee(s)).
|
26 |
Shares that May Not be Voted
|
27 |
Directors
|
27.1 |
There shall be a board of Directors consisting of not less than one person provided however that the Company may by Ordinary Resolution increase or reduce the limits in the number of Directors.
|
27.2 |
The Directors shall be divided into three classes: Class I, Class II and Class III. The number of Directors in each class shall be as nearly equal as possible. Upon the adoption of the Articles, the existing Directors shall by resolution
classify themselves as Class I, Class II or Class III Directors. The Class I Directors shall stand appointed for a term expiring at the Company’s first annual general meeting, the Class II Directors shall stand appointed for a term expiring
at the Company’s second annual general meeting and the Class III Directors shall stand appointed for a term expiring at the Company’s third annual general meeting. Commencing at the Company’s first annual general meeting, and at each annual
general meeting thereafter, Directors appointed to succeed those Directors whose terms expire shall be appointed for a term of office to expire at the third succeeding annual general meeting after their appointment. Except as the Statute or
other Applicable Law may otherwise require, in the interim between annual general meetings or extraordinary general meetings called for the appointment of Directors and/or the removal of one or more Directors and the filling of any vacancy in
that connection, additional Directors and any vacancies in the board of Directors, including unfilled vacancies resulting from the removal of Directors for cause, may be filled by the vote of a majority of the remaining Directors then in
office, although less than a quorum (as defined in the Articles), or by the sole remaining Director. All Directors shall hold office until the expiration of their respective terms of office and until their successors shall have been appointed
and qualified. A Director appointed to fill a vacancy resulting from the death, resignation or removal of a Director shall serve for the remainder of the full term of the Director whose death, resignation or removal shall have created such
vacancy and until his successor shall have been appointed and qualified.
|
28 |
Powers of Directors
|
28.1 |
Subject to the provisions of the Statute, the Memorandum and the Articles and to any directions given by Special Resolution, the business of the Company shall be managed by the Directors who may exercise all the powers of the Company. No
alteration of the Memorandum or Articles and no such direction shall invalidate any prior act of the Directors which would have been valid if that alteration had not been made or that direction had not been given. A duly convened meeting of
Directors at which a quorum is present may exercise all powers exercisable by the Directors.
|
28.2 |
All cheques, promissory notes, drafts, bills of exchange and other negotiable or transferable instruments and all receipts for monies paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed as the case may be
in such manner as the Directors shall determine by resolution.
|
28.3 |
The Directors on behalf of the Company may pay a gratuity or pension or allowance on retirement to any Director who has held any other salaried office or place of profit with the Company or to his widow or dependants and may make
contributions to any fund and pay premiums for the purchase or provision of any such gratuity, pension or allowance.
|
28.4 |
The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and assets (present and future) and uncalled capital or any part thereof and to issue debentures, debenture stock,
mortgages, bonds and other such securities whether outright or as security for any debt, liability or obligation of the Company or of any third party.
|
29 |
Appointment and Removal of Directors
|
29.1 |
Prior to the consummation of a Business Combination, the Company may by Ordinary Resolution of the holders of the Class B Shares appoint any person to be a Director or may by Ordinary Resolution of the holders of the Class B Shares remove
any Director. For the avoidance of doubt, prior to the consummation of a Business Combination, holders of Class A Shares shall have no right to vote on the appointment or removal of any Director.
|
29.2 |
The Directors may appoint any person to be a Director, either to fill a vacancy or as an additional Director provided that the appointment does not cause the number of Directors to exceed any number fixed by or in accordance with the
Articles as the maximum number of Directors.
|
29.3 |
After the consummation of a Business Combination, the Company may by Ordinary Resolution appoint any person to be a Director or may by Ordinary Resolution remove any Director.
|
29.4 |
Prior to the consummation of a Business Combination, Article 29.1 may only be amended by a Special Resolution passed by at least two-thirds of such Members (which shall include a simple majority of the holders of Class B Shares) as, being
entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting of which notice specifying the intention to propose the resolution as a special resolution has been given, or by way of unanimous written
resolution.
|
30 |
Vacation of Office of Director
|
|
(a) |
the Director gives notice in writing to the Company that he resigns the office of Director; or
|
|
(b) |
the Director absents himself (for the avoidance of doubt, without being represented by proxy) from three consecutive meetings of the board of Directors without special leave of absence from the Directors, and the Directors pass a
resolution that he has by reason of such absence vacated office; or
|
|
(c) |
the Director dies, becomes bankrupt or makes any arrangement or composition with his creditors generally; or
|
|
(d) |
the Director is found to be or becomes of unsound mind; or
|
|
(e) |
all of the other Directors (being not less than two in number) determine that he should be removed as a Director, either by a resolution passed by all of the other Directors at a meeting of the Directors duly convened and held in
accordance with the Articles or by a resolution in writing signed by all of the other Directors.
|
31 |
Proceedings of Directors
|
31.1 |
The quorum for the transaction of the business of the Directors may be fixed by the Directors, and unless so fixed shall be a majority of the Directors then in office.
|
31.2 |
Subject to the provisions of the Articles, the Directors may regulate their proceedings as they think fit. Questions arising at any meeting shall be decided by a majority of votes. In the case of an equality of votes, the chairman shall
have a second or casting vote.
|
31.3 |
A person may participate in a meeting of the Directors or any committee of Directors by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other
at the same time. Participation by a person in a meeting in this manner is treated as presence in person at that meeting. Unless otherwise determined by the Directors, the meeting shall be deemed to be held at the place where the chairman is
located at the start of the meeting.
|
31.4 |
A resolution in writing (in one or more counterparts) signed by all the Directors or all the members of a committee of the Directors or, in the case of a resolution in writing relating to the removal of any Director or the vacation of
office by any Director, all of the Directors other than the Director who is the subject of such resolution shall be as valid and effectual as if it had been passed at a meeting of the Directors, or committee of Directors as the case may be,
duly convened and held.
|
31.5 |
A Director may, or other Officer on the direction of a Director shall, call a meeting of the Directors by at least two days’ notice in writing to every Director which notice shall set forth the general nature of the business to be
considered unless notice is waived by all the Directors either at, before or after the meeting is held. To any such notice of a meeting of the Directors all the provisions of the Articles relating to the giving of notices by the Company to
the Members shall apply mutatis mutandis.
|
31.6 |
The continuing Directors (or a sole continuing Director, as the case may be) may act notwithstanding any vacancy in their body, but if and so long as their number is reduced below the number fixed by or pursuant to the Articles as the
necessary quorum of Directors the continuing Directors or Director may act for the purpose of increasing the number of Directors to be equal to such fixed number, or of summoning a general meeting of the Company, but for no other purpose.
|
31.7 |
The Directors may elect a chairman of their board 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 the meeting to commence, the Directors present may choose one of their number to be chairman of the meeting.
|
31.8 |
All acts done by any meeting of the Directors or of a committee of the Directors shall, notwithstanding that it is afterwards discovered that there was some defect in the appointment of any Director, and/or that they or any of them were
disqualified, and/or had vacated their office and/or were not entitled to vote, be as valid as if every such person had been duly appointed and/or not disqualified to be a Director and/or had not vacated their office and/or had been entitled
to vote, as the case may be.
|
31.9 |
A Director may be represented at any meetings of the board of Directors by a proxy appointed in writing by him. The proxy shall count towards the quorum and the vote of the proxy shall for all purposes be deemed to be that of the
appointing Director.
|
32 |
Presumption of Assent
|
33 |
Directors’ Interests
|
33.1 |
A Director may hold any other office or place of profit under the Company (other than the office of Auditor) in conjunction with his office of Director for such period and on such terms as to remuneration and otherwise as the Directors may
determine.
|
33.2 |
A Director may act by himself or by, through or on behalf of his firm in a professional capacity for the Company and he or his firm shall be entitled to remuneration for professional services as if he were not a Director.
|
33.3 |
A Director may be or become a director or other officer of or otherwise interested in any company promoted by the Company or in which the Company may be interested as a shareholder, a contracting party or otherwise, and no such Director
shall be accountable to the Company for any remuneration or other benefits received by him as a director or officer of, or from his interest in, such other company.
|
33.4 |
No person shall be disqualified from the office of Director or prevented by such office from contracting with the Company, either as vendor, purchaser or otherwise, nor shall any such contract or any contract or transaction entered into by
or on behalf of the Company in which any Director shall be in any way interested be or be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realised by or
arising in connection with any such contract or transaction by reason of such Director holding office or of the fiduciary relationship thereby established. A Director shall be at liberty to vote in respect of any contract or transaction in
which he is interested provided that the nature of the interest of any Director in any such contract or transaction shall be disclosed by him at or prior to its consideration and any vote thereon.
|
33.5 |
A general notice that a Director is a shareholder, director, officer or employee of any specified firm or company and is to be regarded as interested in any transaction with such firm or company shall be sufficient disclosure for the
purposes of voting on a resolution in respect of a contract or transaction in which he has an interest, and after such general notice it shall not be necessary to give special notice relating to any particular transaction.
|
34 |
Minutes
|
35 |
Delegation of Directors’ Powers
|
35.1 |
The Directors may delegate any of their powers, authorities and discretions, including the power to sub-delegate, to any committee consisting of one or more Directors (including, without limitation, the Audit Committee, the Compensation
Committee and the Nominating and Corporate Governance Committee). Any such delegation may be made subject to any conditions the Directors may impose and either collaterally with or to the exclusion of their own powers and any such delegation
may be revoked or altered by the Directors. Subject to any such conditions, the proceedings of a committee of Directors shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying.
|
35.2 |
The Directors may establish any committees, local boards or agencies or appoint any person to be a manager or agent for managing the affairs of the Company and may appoint any person to be a member of such committees, local boards or
agencies. Any such appointment may be made subject to any conditions the Directors may impose, and either collaterally with or to the exclusion of their own powers and any such appointment may be revoked or altered by the Directors. Subject
to any such conditions, the proceedings of any such committee, local board or agency shall be governed by the Articles regulating the proceedings of Directors, so far as they are capable of applying.
|
35.3 |
The Directors may adopt formal written charters for committees. Each of these committees shall be empowered to do all things necessary to exercise the rights of such committee set forth in the Articles and shall have such powers as the
Directors may delegate pursuant to the Articles and as required by the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under
Applicable Law. Each of the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee, if established, shall consist of such number of Directors as the Directors shall from time to time determine (or
such minimum number as may be required from time to time by the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law).
For so long as any class of Shares is listed on the Designated Stock Exchange, the Audit Committee, the Compensation Committee and the Nominating and Corporate Governance Committee shall be made up of such number of Independent Directors as
is required from time to time by the rules and regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law.
|
35.4 |
The Directors may by power of attorney or otherwise appoint any person to be the agent of the Company on such conditions as the Directors may determine, provided that the delegation is not to the exclusion of their own powers and may be
revoked by the Directors at any time.
|
35.5 |
The Directors may by power of attorney or otherwise appoint any company, firm, person or body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or authorised signatory of the Company for such purpose
and with such powers, authorities and discretions (not exceeding those vested in or exercisable by the Directors under the Articles) and for such period and subject to such conditions as they may think fit, and any such powers of attorney or
other appointment may contain such provisions for the protection and convenience of persons dealing with any such attorneys or authorised signatories as the Directors may think fit and may also authorise any such attorney or authorised
signatory to delegate all or any of the powers, authorities and discretions vested in him.
|
35.6 |
The Directors may appoint such Officers as they consider necessary on such terms, at such remuneration and to perform such duties, and subject to such provisions as to disqualification and removal as the Directors may think fit. Unless
otherwise specified in the terms of his appointment an Officer may be removed by resolution of the Directors or Members. An Officer may vacate his office at any time if he gives notice in writing to the Company that he resigns his office.
|
36 |
No Minimum Shareholding
|
37 |
Remuneration of Directors
|
37.1 |
The remuneration to be paid to the Directors, if any, shall be such remuneration as the Directors shall determine, provided that no cash remuneration shall be paid to any Director by the Company prior to the consummation of a Business
Combination. The Directors shall also, whether prior to or after the consummation of a Business Combination, be entitled to be paid all travelling, hotel and other expenses properly incurred by them in connection with their attendance at
meetings of Directors or committees of Directors, or general meetings of the Company, or separate meetings of the holders of any class of Shares or debentures of the Company, or otherwise in connection with the business of the Company or the
discharge of their duties as a Director, or to receive a fixed allowance in respect thereof as may be determined by the Directors, or a combination partly of one such method and partly the other.
|
37.2 |
The Directors may by resolution approve additional remuneration to any Director for any services which in the opinion of the Directors go beyond his ordinary routine work as a Director. Any fees paid to a Director who is also counsel,
attorney or solicitor to the Company, or otherwise serves it in a professional capacity shall be in addition to his remuneration as a Director.
|
38 |
Seal
|
38.1 |
The Company may, if the Directors so determine, have a Seal. The Seal shall only be used by the authority of the Directors or of a committee of the Directors authorised by the Directors. Every instrument to which the Seal has been affixed
shall be signed by at least one person who shall be either a Director or some Officer or other person appointed by the Directors for the purpose.
|
38.2 |
The Company may have for use in any place or places outside the Cayman Islands a duplicate Seal or Seals each of which shall be a facsimile of the common Seal of the Company and, if the Directors so determine, with the addition on its face
of the name of every place where it is to be used.
|
38.3 |
A Director or Officer, representative or attorney of the Company may without further authority of the Directors affix the Seal over his signature alone to any document of the Company required to be authenticated by him under seal or to be
filed with the Registrar of Companies in the Cayman Islands or elsewhere wheresoever.
|
39 |
Dividends, Distributions and Reserve
|
39.1 |
Subject to the Statute and this Article and except as otherwise provided by the rights attached to any Shares, the Directors may resolve to pay Dividends and other distributions on Shares in issue and authorise payment of the Dividends or
other distributions out of the funds of the Company lawfully available therefor. A Dividend shall be deemed to be an interim Dividend unless the terms of the resolution pursuant to which the Directors resolve to pay such Dividend specifically
state that such Dividend shall be a final Dividend. No Dividend or other distribution shall be paid except out of the realised or unrealised profits of the Company, out of the share premium account or as otherwise permitted by law.
|
39.2 |
Except as otherwise provided by the rights attached to any Shares, all Dividends and other distributions shall be paid according to the par value of the Shares that a Member holds. If any Share is issued on terms providing that it shall
rank for Dividend as from a particular date, that Share shall rank for Dividend accordingly.
|
39.3 |
The Directors may deduct from any Dividend or other distribution payable to any Member all sums of money (if any) then payable by him to the Company on account of calls or otherwise.
|
39.4 |
The Directors may resolve that any Dividend or other distribution be paid wholly or partly by the distribution of specific assets and in particular (but without limitation) by the distribution of shares, debentures, or securities of any
other company or in any one or more of such ways and where any difficulty arises in regard to such distribution, the Directors may settle the same as they think expedient and in particular may issue fractional Shares and may fix the value for
distribution of such specific assets or any part thereof and may determine that cash payments shall be made to any Members upon the basis of the value so fixed in order to adjust the rights of all Members and may vest any such specific assets
in trustees in such manner as may seem expedient to the Directors.
|
39.5 |
Except as otherwise provided by the rights attached to any Shares, Dividends and other distributions may be paid in any currency. The Directors may determine the basis of conversion for any currency conversions that may be required and how
any costs involved are to be met.
|
39.6 |
The Directors may, before resolving to pay any Dividend or other distribution, set aside such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors, be applicable for any purpose of the Company
and pending such application may, at the discretion of the Directors, be employed in the business of the Company.
|
39.7 |
Any Dividend, other distribution, interest or other monies payable in cash in respect of Shares may be paid by wire transfer to the holder or by cheque or warrant sent through the post directed to the registered address of the holder or,
in the case of joint holders, to the registered address of the holder who is first named on the Register of Members or to such person and to such address as such holder or joint holders may in writing direct. Every such cheque or warrant
shall be made payable to the order of the person to whom it is sent. Any one of two or more joint holders may give effectual receipts for any Dividends, other distributions, bonuses, or other monies payable in respect of the Share held by
them as joint holders.
|
39.8 |
No Dividend or other distribution shall bear interest against the Company.
|
39.9 |
Any Dividend or other distribution which cannot be paid to a Member and/or which remains unclaimed after six months from the date on which such Dividend or other distribution becomes payable may, in the discretion of the Directors, be paid
into a separate account in the Company’s name, provided that the Company shall not be constituted as a trustee in respect of that account and the Dividend or other distribution shall remain as a debt due to the Member. Any Dividend or other
distribution which remains unclaimed after a period of six years from the date on which such Dividend or other distribution becomes payable shall be forfeited and shall revert to the Company.
|
40 |
Capitalisation
|
41 |
Books of Account
|
41.1 |
The Directors shall cause proper books of account (including, where applicable, material underlying documentation including contracts and invoices) to be kept with respect to all sums of money received and expended by the Company and the
matters in respect of which the receipt or expenditure takes place, all sales and purchases of goods by the Company and the assets and liabilities of the Company. Such books of account must be retained for a minimum period of five years from
the date on which they are prepared. Proper books shall not be deemed to be kept if there are not kept such books of account as are necessary to give a true and fair view of the state of the Company’s affairs and to explain its transactions.
|
41.2 |
The Directors shall determine whether and to what extent and at what times and places and under what conditions or regulations the accounts and books of the Company or any of them shall be open to the inspection of Members not being
Directors and no Member (not being a Director) shall have any right of inspecting any account or book or document of the Company except as conferred by Statute or authorised by the Directors or by the Company in general meeting.
|
41.3 |
The Directors may cause to be prepared and to be laid before the Company in general meeting profit and loss accounts, balance sheets, group accounts (if any) and such other reports and accounts as may be required by law.
|
42 |
Audit
|
42.1 |
The Directors may appoint an Auditor of the Company who shall hold office on such terms as the Directors determine.
|
42.2 |
Without prejudice to the freedom of the Directors to establish any other committee, if the Shares (or depositary receipts therefor) are listed or quoted on the Designated Stock Exchange, and if required by the rules and regulations of the
Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law, the Directors shall establish and maintain an Audit Committee as a committee of the Directors
and shall adopt a formal written Audit Committee charter and review and assess the adequacy of the formal written charter on an annual basis. The composition and responsibilities of the Audit Committee shall comply with the rules and
regulations of the Designated Stock Exchange, the Securities and Exchange Commission and/or any other competent regulatory authority or otherwise under Applicable Law.
|
42.3 |
If the Shares (or depositary receipts therefor) are listed or quoted on the Designated Stock Exchange, the Company shall conduct an appropriate review of all related party transactions on an ongoing basis and shall utilise the Audit
Committee for the review and approval of potential conflicts of interest.
|
42.4 |
The remuneration of the Auditor shall be fixed by the Audit Committee (if one exists).
|
42.5 |
If the office of Auditor becomes vacant by resignation or death of the Auditor, or by his becoming incapable of acting by reason of illness or other disability at a time when his services are required, the Directors shall fill the vacancy
and determine the remuneration of such Auditor.
|
42.6 |
Every Auditor of the Company shall have a right of access at all times to the books and accounts and vouchers of the Company and shall be entitled to require from the Directors and Officers such information and explanation as may be
necessary for the performance of the duties of the Auditor.
|
42.7 |
Auditors shall, if so required by the Directors, make a report on the accounts of the Company during their tenure of office at the next annual general meeting following their appointment in the case of a company which is registered with
the Registrar of Companies as an ordinary company, and at the next extraordinary general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an exempted company, and at any other
time during their term of office, upon request of the Directors or any general meeting of the Members.
|
42.8 |
The Audit Committee shall monitor compliance with the terms of the IPO and, if any non-compliance is identified, the Audit Committee shall be charged with the responsibility to take all action necessary to rectify such non-compliance or
otherwise cause compliance with the terms of the IPO.
|
43 |
Notices
|
43.1 |
Notices shall be in writing and may be given by the Company to any Member either personally or by sending it by courier, post, cable, telex, fax or e-mail to him or to his address as shown in the Register of Members (or where the notice is
given by e-mail by sending it to the e-mail address provided by such Member). Notice may also be served by Electronic Communication in accordance with the rules and regulations of the Designated Stock Exchange, the Securities and Exchange
Commission and/or any other competent regulatory authority or by placing it on the Company’s Website.
|
43.2 |
Where a notice is sent by:
|
|
(a) |
courier; service of the notice shall be deemed to be effected by delivery of the notice to a courier company, and shall be deemed to have been received on the third day (not including Saturdays or Sundays or public holidays) following the
day on which the notice was delivered to the courier;
|
|
(b) |
post; service of the notice shall be deemed to be effected by properly addressing, pre paying and posting a letter containing the notice, and shall be deemed to have been received on the fifth day (not including Saturdays or Sundays or
public holidays in the Cayman Islands) following the day on which the notice was posted;
|
|
(c) |
cable, telex or fax; service of the notice shall be deemed to be effected by properly addressing and sending such notice and shall be deemed to have been received on the same day that it was transmitted;
|
|
(d) |
e-mail or other Electronic Communication; service of the notice shall be deemed to be effected by transmitting the e-mail to the e-mail address provided by the intended recipient and shall be deemed to have been received on the same day
that it was sent, and it shall not be necessary for the receipt of the e-mail to be acknowledged by the recipient; and
|
|
(e) |
placing it on the Company’s Website; service of the notice shall be deemed to have been effected one hour after the notice or document was placed on the Company’s Website.
|
43.3 |
A notice may be given by the Company to the person or persons which the Company has been advised are entitled to a Share or Shares in consequence of the death or bankruptcy of a Member in the same manner as other notices which are required
to be given under the Articles and shall be addressed to them by name, or by the title of representatives of the deceased, or trustee of the bankrupt, or by any like description at the address supplied for that purpose by the persons claiming
to be so entitled, or at the option of the Company by giving the notice in any manner in which the same might have been given if the death or bankruptcy had not occurred.
|
43.4 |
Notice of every general meeting shall be given in any manner authorised by the Articles to every holder of Shares carrying an entitlement to receive such notice on the record date for such meeting except that in the case of joint holders
the notice shall be sufficient if given to the joint holder first named in the Register of Members and every person upon whom the ownership of a Share devolves by reason of his being a legal personal representative or a trustee in bankruptcy
of a Member where the Member but for his death or bankruptcy would be entitled to receive notice of the meeting, and no other person shall be entitled to receive notices of general meetings.
|
44 |
Winding Up
|
44.1 |
If the Company shall be wound up, the liquidator shall apply the assets of the Company in satisfaction of creditors’ claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any Shares, in a winding
up:
|
|
(a) |
if the assets available for distribution amongst the Members shall be insufficient to repay the whole of the Company’s issued share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the
Members in proportion to the par value of the Shares held by them; or
|
|
(b) |
if the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the Company’s issued share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members
in proportion to the par value of the Shares held by them at the commencement of the winding up subject to a deduction from those Shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls or
otherwise.
|
44.2 |
If the Company shall be wound up the liquidator may, subject to the rights attaching to any Shares and with the approval of a Special Resolution of the Company and any other approval required by the Statute, divide amongst the Members in
kind the whole or any part of the assets of the Company (whether such assets shall consist of property of the same kind or not) and may for that purpose value any assets and determine how the division shall be carried out as between the
Members or different classes of Members. The liquidator may, with the like approval, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator, with the like approval, shall think
fit, but so that no Member shall be compelled to accept any asset upon which there is a liability.
|
45 |
Indemnity and Insurance
|
45.1 |
Every Director and Officer (which for the avoidance of doubt, shall not include auditors of the Company), together with every former Director and former Officer (each an “Indemnified Person”) shall
be indemnified out of the assets of the Company against any liability, action, proceeding, claim, demand, costs, damages or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any act or failure
to act in carrying out their functions other than such liability (if any) that they may incur by reason of their own actual fraud, wilful neglect or wilful default. No Indemnified Person shall be liable to the Company for any loss or damage
incurred by the Company as a result (whether direct or indirect) of the carrying out of their functions unless that liability arises through the actual fraud, wilful neglect or wilful default of such Indemnified Person. No person shall be
found to have committed actual fraud, wilful neglect or wilful default under this Article unless or until a court of competent jurisdiction shall have made a finding to that effect.
|
45.2 |
The Company shall advance to each Indemnified Person reasonable attorneys’ fees and other costs and expenses incurred in connection with the defence of any action, suit, proceeding or investigation involving such Indemnified Person for
which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the Indemnified Person shall execute an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or
other final adjudication that such Indemnified Person was not entitled to indemnification pursuant to this Article. If it shall be determined by a final judgment or other final adjudication that such Indemnified Person was not entitled to
indemnification with respect to such judgment, costs or expenses, then such party shall not be indemnified with respect to such judgment, costs or expenses and any advancement shall be returned to the Company (without interest) by the
Indemnified Person.
|
45.3 |
The Directors, on behalf of the Company, may purchase and maintain insurance for the benefit of any Director or Officer against any liability which, by virtue of any rule of law, would otherwise attach to such person in respect of any
negligence, default, breach of duty or breach of trust of which such person may be guilty in relation to the Company.
|
46 |
Financial Year
|
47 |
Transfer by Way of Continuation
|
48 |
Mergers and Consolidations
|
49 |
Business Combination
|
49.1 |
Notwithstanding any other provision of the Articles, this Article shall apply during the period commencing upon the adoption of the Articles and terminating upon the first to occur of the consummation of a Business Combination and the full
distribution of the Trust Account pursuant to this Article. In the event of a conflict between this Article and any other Articles, the provisions of this Article shall prevail.
|
49.2 |
Prior to the consummation of a Business Combination, the Company shall either:
|
|
(a) |
submit such Business Combination to its Members for approval; or
|
|
(b) |
provide Members with the opportunity to have their Shares repurchased by means of a tender offer for a per-Share repurchase price payable in cash, equal to the aggregate amount then on deposit in the Trust Account, calculated as of two
business days prior to the consummation of such Business Combination, including interest earned on the Trust Account (net of taxes paid or payable, if any), divided by the number of then issued Public Shares, provided that the Company shall
not repurchase Public Shares in an amount that would cause the Company’s net tangible assets to be less than US$5,000,001 upon consummation of such Business Combination.
|
49.3 |
If the Company initiates any tender offer in accordance with Rule 13e-4 and Regulation 14E of the Exchange Act in connection with a proposed Business Combination, it shall file tender offer documents with the Securities and Exchange
Commission prior to completing such Business Combination which contain substantially the same financial and other information about such Business Combination and the redemption rights as is required under Regulation 14A of the Exchange Act.
If, alternatively, the Company holds a general meeting to approve a proposed Business Combination, the Company will conduct any redemptions in conjunction with a proxy solicitation pursuant to Regulation 14A of the Exchange Act, and not
pursuant to the tender offer rules, and file proxy materials with the Securities and Exchange Commission.
|
49.4 |
At a general meeting called for the purposes of approving a Business Combination pursuant to this Article, in the event that such Business Combination is approved by Ordinary Resolution, the Company shall be authorised to consummate such
Business Combination, provided that the Company shall not consummate such Business Combination unless the Company has net tangible assets of at least US$5,000,001 immediately prior to, or upon such consummation of, or any greater net tangible
asset or cash requirement that may be contained in the agreement relating to, such Business Combination.
|
49.5 |
Any Member holding Public Shares who is not the Sponsor, a Founder, Officer or Director may, at least two business days’ prior to any vote on a Business Combination, elect to have their Public Shares redeemed for cash, in accordance with
any applicable requirements provided for in the related proxy materials (the “IPO Redemption”), provided that no such Member acting together with any Affiliate of his or any other person with whom he is
acting in concert or as a partnership, limited partnership, syndicate, or other group for the purposes of acquiring, holding, or disposing of Shares may exercise this redemption right with respect to more than 15 per cent of the Public Shares
in the aggregate without the prior consent of the Company. If so demanded, the Company shall pay any such redeeming Member, regardless of whether he is voting for or against such proposed Business Combination, a per-Share redemption price
payable in cash, equal to the aggregate amount then on deposit in the Trust Account calculated as of two business days prior to the consummation of the Business Combination, including interest earned on the Trust Account (such interest shall
be net of taxes payable) and not previously released to the Company to pay its taxes, divided by the number of then issued Public Shares (such redemption price being referred to herein as the “Redemption Price”),
but only in the event that the applicable proposed Business Combination is approved and consummated. The Company shall not redeem Public Shares that would cause the Company’s net tangible assets to be less than US$5,000,001 (following such
redemptions the “Redemption Limitation”).
|
49.6 |
A Member may not withdraw a Redemption Notice once submitted to the Company unless the Directors determine (in their sole discretion) to permit the withdrawal of such redemption request (which they may do in whole or in part).
|
49.7 |
In the event that the Company does not consummate a Business Combination within 15 months from the consummation of the IPO or such later time as the Members may approve in accordance with the Articles, the Company shall:
|
|
(a) |
cease all operations except for the purpose of winding up;
|
|
(b) |
as promptly as reasonably possible but not more than ten business days thereafter, redeem the Public Shares, at a per-Share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest
earned on the funds held in the Trust Account and not previously released to the Company (less taxes payable and up to US$100,000 of interest to pay dissolution expenses), divided by the number of then Public Shares in issue, which redemption
will completely extinguish public Members’ rights as Members (including the right to receive further liquidation distributions, if any); and
|
|
(c) |
as promptly as reasonably possible following such redemption, subject to the approval of the Company’s remaining Members and the Directors, liquidate and dissolve,
|
49.8 |
In the event that any amendment is made to the Articles:
|
|
(a) |
to modify the substance or timing of the Company’s obligation to allow redemption in connection with a Business Combination or redeem 100 per cent of the Public Shares if the Company does not consummate a Business Combination within 15
months from the consummation of the IPO, or such later time as the Members may approve in accordance with the Articles; or
|
|
(b) |
with respect to any other provision relating to Members’ rights or pre-Business Combination activity,
|
49.9 |
A holder of Public Shares shall be entitled to receive distributions from the Trust Account only in the event of an IPO Redemption, a repurchase of Shares by means of a tender offer pursuant to this Article, or a distribution of the Trust
Account pursuant to this Article. In no other circumstance shall a holder of Public Shares have any right or interest of any kind in the Trust Account.
|
49.10 |
After the issue of Public Shares, and prior to the consummation of a Business Combination, the Company shall not issue additional Shares or any other securities that would entitle the holders thereof to:
|
|
(a) |
receive funds from the Trust Account; or
|
|
(b) |
vote as a class with Public Shares on a Business Combination.
|
49.11 |
The uninterested Independent Directors shall approve any transaction or transactions between the Company and any of the following parties:
|
|
(a) |
any Member owning an interest in the voting power of the Company that gives such Member a significant influence over the Company; and
|
|
(b) |
any Director or Officer and any Affiliate of such Director or Officer.
|
49.12 |
A Director may vote in respect of a Business Combination in which such Director has a conflict of interest with respect to the evaluation of such Business Combination. Such Director must disclose such interest or conflict to the other
Directors.
|
49.13 |
As long as the securities of the Company are listed on the Nasdaq Capital Market, the Company must complete one or more Business Combinations having an aggregate fair market value of at least 80 per cent of the assets held in the Trust
Account (excluding the deferred underwriting commissions and taxes payable on the income earned on the Trust Account) at the time of the Company’s signing a definitive agreement in connection with a Business Combination. A Business
Combination must not be solely effectuated with another blank cheque company or a similar company with nominal operations.
|
49.14 |
The Company may enter into a Business Combination with a target business that is Affiliated with the Sponsor, a Founder, a Director or an Officer. In the event the Company seeks to consummate a Business Combination with a target that is
Affiliated with the Sponsor, a Founder, a Director or an Officer, the Company, or a committee of Independent Directors, will obtain an opinion from an independent investment banking firm or another valuation or appraisal firm that regularly
renders fairness opinions on the type of target business the Company is seeking to acquire that is a member of the United States Financial Industry Regulatory Authority or an independent accounting firm that such a Business Combination is
fair to the Company from a financial point of view.
|
50 |
Certain Tax Filings
|
51 |
Business Opportunities
|
51.1 |
To the fullest extent permitted by Applicable Law, no individual serving as a Director or an Officer (“Management”) shall have any duty, except and to the extent expressly assumed by contract, to
refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Company. To the fullest extent permitted by Applicable Law, the Company renounces any interest or expectancy of the Company
in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate opportunity for Management, on the one hand, and the Company, on the other. Except to the extent expressly assumed by
contract, to the fullest extent permitted by Applicable Law, Management shall have no duty to communicate or offer any such corporate opportunity to the Company and shall not be liable to the Company or its Members for breach of any fiduciary
duty as a Member, Director and/or Officer solely by reason of the fact that such party pursues or acquires such corporate opportunity for itself, himself or herself, directs such corporate opportunity to another person, or does not
communicate information regarding such corporate opportunity to the Company.
|
51.2 |
Except as provided elsewhere in this Article, the Company hereby renounces any interest or expectancy of the Company in, or in being offered an opportunity to participate in, any potential transaction or matter which may be a corporate
opportunity for both the Company and Management, about which a Director and/or Officer who is also a member of Management acquires knowledge.
|
51.3 |
To the extent a court might hold that the conduct of any activity related to a corporate opportunity that is renounced in this Article to be a breach of duty to the Company or its Members, the Company hereby waives, to the fullest extent
permitted by Applicable Law, any and all claims and causes of action that the Company may have for such activities. To the fullest extent permitted by Applicable Law, the provisions of this Article apply equally to activities conducted in the
future and that have been conducted in the past.
|
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY,
|
||
as Warrant Agent
|
||
By:
|
/s/ Douglas Reed
|
|
Name: Douglas Reed
|
||
Title: Vice President
|
||
HCM ACQUISITION CORP
|
||
By:
|
/s/ Shawn Matthews
|
|
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
NUMBER
|
CUSIP: G4365A 127
|
HCM ACQUISITION CORP
|
||
By:
|
||
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
||
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY, as Warrant Agent
|
||
By:
|
||
Name:
|
||
Title:
|
Date:
|
, 2022
|
(Signature)
|
|
(Address)
|
|
(Tax Identification Number)
|
|
Signature(s) Guaranteed:
|
|
THE SIGNATURE(S) MUST BE GUARANTEED BY AN
|
|
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
|
|
STOCKBROKERS, SAVINGS AND LOAN
|
|
ASSOCIATIONS AND CREDIT UNIONS WITH
|
|
MEMBERSHIP IN AN APPROVED SIGNATURE
|
|
GUARANTEE MEDALLION PROGRAM, PURSUANT TO
|
|
S.E.C. RULE 17Ad-15 UNDER THE SECURITIES
|
|
EXCHANGE ACT OF 1934, AS AMENDED (OR ANY SUCCESSOR RULE).
|
1. |
Agreements and Covenants of Trustee. The Trustee hereby agrees and covenants to:
|
|
(i) |
Hold the Property in trust for the Beneficiaries in accordance with the terms of this Agreement in the Trust Account established by the Trustee in the United States at J.P. Morgan Chase Bank, N.A. (or at another U.S. chartered commercial
bank with consolidated assets of $100 billion or more) in the United States, maintained by the Trustee and at a brokerage institution selected by the Trustee that is reasonably satisfactory to the Company;
|
|
(ii) |
Manage, supervise and administer the Trust Account subject to the terms and conditions set forth herein;
|
|
(iii) |
In a timely manner, upon the written instruction of the Company, invest and reinvest the Property only in United States government securities within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, having
a maturity of 185 days or less, or in money market funds meeting the conditions of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended (or any successor rule), which
invest only in direct U.S. government treasury obligations, as determined by the Company; it being understood that the Trust Account will earn no interest while account funds are uninvested awaiting the Company’s instructions hereunder; and
while account funds or invested or uninvested, the Trustee may earn bank credits or other consideration;
|
|
(iv) |
Collect and receive, when due, all interest or other income arising from the Property, which shall become part of the “Property,” as such term is used herein;
|
|
(v) |
Promptly notify the Company and the Representatives of all communications received by the Trustee with respect to any Property requiring action by the Company;
|
|
(vi) |
Supply any necessary information or documents as may be requested by the Company (or its authorized agents) in connection with the Company’s preparation of the tax returns relating to assets held in the Trust Account;
|
|
(vii) |
Participate in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as and when instructed by the Company to do so;
|
|
(viii) |
Render to the Company monthly written statements of the activities of, and amounts in, the Trust Account reflecting all receipts and disbursements of the Trust Account;
|
|
(ix) |
Commence liquidation of the Trust Account only after and promptly after (x) receipt of, and only in accordance with, the terms of a letter from the Company (“Termination Letter”)
in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B, as applicable, signed on behalf of the Company by its Chief Executive Officer, Chief Financial Officer or other authorized officer of
the Company, and, in the case of the Termination Letter attached hereto as Exhibit A, acknowledged and agreed to by the Representatives, and complete the liquidation of the Trust Account and distribute the Property in the Trust
Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay its taxes (less up to $100,000 of interest to pay dissolution expenses), only as directed in the Termination Letter
and the other documents referred to therein, or (y) upon the date which is the later of (1) fifteen (15) months after the closing of the Offering and (2) such later date as may be approved by the Company’s shareholders in accordance with the
Company’s amended and restated memorandum and articles of association, if a Termination Letter has not been received by the Trustee prior to such date, in which case the Trust Account shall be liquidated in accordance with the procedures set
forth in the Termination Letter attached hereto as Exhibit B and the Property in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay its taxes (less up
to $100,000 of interest to pay dissolution expenses), shall be distributed to the Public Shareholders of record as of such date. It is acknowledged and agreed that there should be no reduction in the principal amount per share initially
deposited in the Trust Account;
|
|
(x) |
Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit C (a “Tax Payment Withdrawal
Instruction”), withdraw from the Trust Account and distribute to the Company the amount of interest earned on the Property requested by the Company to cover any tax obligation owed by the Company as a result of assets of the Company
or interest or other income earned on the Property, which amount shall be delivered directly to the Company by electronic funds transfer or other method of prompt payment, and the Company shall forward such payment to the relevant taxing
authority, so long as there is no reduction in the principal amount per share initially deposited in the Trust Account; provided, however, that, to the extent there is not sufficient cash in the Trust Account to pay such tax
obligation, the Trustee shall liquidate such assets held in the Trust Account as shall be designated by the Company in writing to make such distribution (it being acknowledged and agreed that any such amount in excess of interest income
earned on the Property shall not be payable from the Trust Account). The written request of the Company referenced above shall constitute presumptive evidence that the Company is entitled to said funds, and the Trustee shall have no
responsibility to look beyond said request;
|
|
(xi) |
Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit D (a “Shareholder Redemption
Withdrawal Instruction”), the Trustee shall distribute to the remitting brokers on behalf of Public Shareholders redeeming Ordinary Shares the amount required to pay redeemed Ordinary Shares from Public Shareholders pursuant to the
Company’s amended and restated memorandum and articles of association; and
|
|
(xii) |
Not make any withdrawals or distributions from the Trust Account other than pursuant to Section 1(ix), (x) or (xi) above.
|
2. |
Agreements and Covenants of the Company. The Company hereby agrees and covenants to:
|
|
(i) |
Give all instructions to the Trustee hereunder in writing, signed by the Company’s Chief Executive Officer, Chief Financial Officer or other authorized officer of the Company. In addition, except with respect to its duties under Sections
1(ix), (x) or (xi), the Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal or telephonic advice or instruction which it, in good faith and with reasonable care, believes to be given by
any one of the persons authorized above to give written instructions, provided that the Company shall promptly confirm such instructions in writing;
|
|
(ii) |
Subject to Section 4, hold the Trustee harmless and indemnify the Trustee from and against any and all expenses, including reasonable counsel fees and disbursements, or losses suffered by the Trustee in connection with any action
taken by it hereunder and in connection with any action, suit or other proceeding brought against the Trustee involving any claim, or in connection with any claim or demand, which in any way arises out of or relates to this Agreement, the
services of the Trustee hereunder, or the Property or any interest earned on the Property, except for expenses and losses resulting from the Trustee’s gross negligence, fraud or willful misconduct. Promptly after the receipt by the Trustee of
notice of demand or claim or the commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek indemnification under this Section 2(ii), it shall notify the Company in writing of such claim (an “Indemnified Claim”). The Trustee shall have the right to conduct and manage the defense against such Indemnified Claim; provided, however, that the Trustee shall obtain
the consent of the Company with respect to the selection of counsel, which consent shall not be unreasonably withheld. The Trustee may not agree to settle any Indemnified Claim without the prior written consent of the Company, which such
consent shall not be unreasonably withheld. The Company may participate in such action with its own counsel;
|
|
(iii) |
Pay the Trustee the fees set forth on Schedule A hereto, including an initial acceptance fee, annual administration fee and transaction processing fee which fees shall be subject to modification by the parties from time to time. It
is expressly understood that the Property shall not be used to pay such fees unless and until it is distributed to the Company pursuant to Sections 1(ix) through 1(xi). The Company shall pay the Trustee the initial acceptance
fee and the first annual administration fee at the consummation of the Offering. The Company shall not be responsible for any other fees or charges of the Trustee except as set forth in this Section 2(iii) and as may be provided in Section
2(ii);
|
|
(iv) |
In connection with any vote of the Company’s shareholders regarding a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination involving the Company and one or more businesses (the “Business Combination”), provide to the Trustee an affidavit or certificate of the inspector of elections for the general meeting verifying the vote of such shareholders regarding such
Business Combination;
|
|
(v) |
Provide the Representatives with a copy of any Termination Letter(s) and/or any other correspondence that is sent to the Trustee with respect to any proposed withdrawal from the Trust Account promptly after it issues the same;
|
|
(vi) |
Unless otherwise agreed between the Company and the Representatives, ensure that any Instruction Letter (as defined in Exhibit A) delivered in connection with a Termination Letter in the form of Exhibit A expressly provides
that the Deferred Discount is paid directly to the account or accounts directed by the Representatives on behalf of the Underwriters prior to any transfer of the funds held in the Trust Account to the Company or any other person;
|
|
(vii) |
Instruct the Trustee to make only those distributions that are permitted under this Agreement, and refrain from instructing the Trustee to make any distributions that are not permitted under this Agreement;
|
|
(viii) |
If the Company seeks to amend any provisions of its amended and restated memorandum and articles of association (A) to modify the substance or timing of the Company’s obligation to provide holders of the Ordinary Shares the right to have
their shares redeemed in connection with the Company’s initial Business Combination or to redeem 100% of the Ordinary Shares if the Company does not complete its initial Business Combination within the time period set forth therein or (B)
with respect to any other provision relating to the rights of holders of the Ordinary Shares (in each case, an “Amendment”), the Company will provide the Trustee with a letter (an “Amendment Notification Letter”) in the form of Exhibit D providing instructions for the distribution of funds to Public Shareholders who exercise their redemption option in
connection with such Amendment; and
|
|
(ix) |
Within five (5) business days after the Underwriters exercise their option to purchase additional units (or any unexercised portion thereof) or such option to purchase additional units expires, provide the Trustee with a notice in writing
of the total amount of the Deferred Discount.
|
3. |
Limitations of Liability. The Trustee shall have no responsibility or liability to:
|
|
(i) |
Imply obligations, perform duties, inquire or otherwise be subject to the provisions of any agreement or document other than this Agreement and that which is expressly set forth herein;
|
|
(ii) |
Take any action with respect to the Property, other than as directed in Section 1, and the Trustee shall have no liability to any third party except for liability arising out of the Trustee’s gross negligence, fraud or willful
misconduct;
|
|
(iii) |
Institute any proceeding for the collection of any principal and income arising from, or institute, appear in or defend any proceeding of any kind with respect to, any of the Property unless and until it shall have received instructions
from the Company given as provided herein to do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses incident thereto;
|
|
(iv) |
Change the investment of any Property, other than in compliance with Section 1;
|
|
(v) |
Refund any depreciation in principal of any Property;
|
|
(vi) |
Assume that the authority of any person designated by the Company to give instructions hereunder shall not be continuing unless provided otherwise in such designation, or unless the Company shall have delivered a written revocation of such
authority to the Trustee;
|
|
(vii) |
The other parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the Trustee’s best judgment, except for the Trustee’s gross negligence, fraud or
willful misconduct. The Trustee may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Trustee, which counsel may be the Company’s
counsel), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which
the Trustee believes, in good faith and with reasonable care, to be genuine and to be signed or presented by the proper person or persons. The Trustee shall not be bound by any notice or demand, or any waiver, modification, termination or
rescission of this Agreement or any of the terms hereof, unless evidenced by a written instrument delivered to the Trustee, signed by the proper party or parties and, if the duties or rights of the Trustee are affected, unless it shall give
its prior written consent thereto;
|
|
(viii) |
Verify the accuracy of the information contained in the Registration Statement;
|
|
(ix) |
Provide any assurance that any Business Combination entered into by the Company or any other action taken by the Company is as contemplated by the Registration Statement;
|
|
(x) |
File information returns with respect to the Trust Account with any local, state or federal taxing authority or provide periodic written statements to the Company documenting the taxes payable by the Company, if any, relating to any
interest income earned on the Property;
|
|
(xi) |
Prepare, execute and file tax reports, income or other tax returns and pay any taxes with respect to any income generated by, and activities relating to, the Trust Account, regardless of whether such tax is payable by the Trust Account or
the Company, including, but not limited to, tax obligations, except pursuant to Section 1(x); or
|
|
(xii) |
Verify calculations, qualify or otherwise approve the Company’s written requests for distributions pursuant to Sections 1(ix), 1(x) or 1(xi).
|
4. |
Trust Account Waiver. The Trustee has no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future. In the
event the Trustee has any Claim against the Company under this Agreement, including, without limitation, under Section 2(ii) or Section 2(iii), the Trustee shall pursue such Claim solely against the Company and its assets
outside the Trust Account and not against the Property or any monies in the Trust Account.
|
5. |
Termination. This Agreement shall terminate as follows:
|
|
(i) |
If the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable efforts to locate a successor trustee, pending which the Trustee shall continue to act in accordance
with this Agreement. At such time that the Company notifies the Trustee that a successor trustee has been appointed and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer the management of the Trust
Account to the successor trustee, including but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement shall terminate; provided, however, that, in the event
that the Company does not locate a successor trustee within ninety (90) days of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited with any court in the State of New York
or with the United States District Court for the Southern District of New York and upon such deposit, the Trustee shall be immune from any liability whatsoever; or
|
|
(ii) |
At such time that the Trustee has completed the liquidation of the Trust Account and its obligations in accordance with the provisions of Section 1(ix) and distributed the Property in accordance with the provisions of the
Termination Letter, this Agreement shall terminate except with respect to Section 2(ii).
|
6. |
Miscellaneous.
|
|
(i) |
The Company and the Trustee each acknowledge that the Trustee shall follow the security procedures set forth below with respect to funds transferred from the Trust Account. The Company and the Trustee will each restrict access to
confidential information relating to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe unauthorized persons may have obtained access to such confidential
information, or of any change in its authorized personnel. In executing funds transfers, the Trustee shall rely upon all information supplied to it by the Company, including, account names, account numbers and all other identifying
information relating to a Beneficiary, Beneficiary’s bank or intermediary bank. Except for any liability arising out of the Trustee’s gross negligence, fraud or willful misconduct, the Trustee shall not be liable for any loss, liability or
expense resulting from any error in the information or transmission of the funds.
|
|
(ii) |
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York. This Agreement may be executed in several original or facsimile counterparts, each one of which shall constitute an
original, and together shall constitute but one instrument.
|
|
(iii) |
This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. Except for Section 1(ix), 1(x) and 1(xi) (which sections may not be modified, amended
or deleted without the affirmative vote of sixty-five percent (65%) of the then outstanding Ordinary Shares and Class B ordinary shares, par value $0.0001 per share, of the Company, voting together as a single class; provided, however,
that no such amendment will affect any Public Shareholder who has properly elected to redeem his or her Ordinary Shares in connection with a shareholder vote to amend this Agreement to modify the substance or timing of the Company’s
obligation to provide for the redemption of the Public Shares in connection with an initial Business Combination or an Amendment or to redeem 100% of its Ordinary Shares if the Company does not complete its initial Business Combination within
the time frame specified in the Company’s amended and restated memorandum and articles of association), this Agreement or any provision hereof may only be changed, amended or modified (other than to correct a typographical error) by a writing
signed by each of the parties hereto.
|
|
(iv) |
The parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, State of New York, for purposes of resolving any disputes hereunder. AS TO ANY CLAIM, CROSS-CLAIM OR COUNTERCLAIM IN
ANY WAY RELATING TO THIS AGREEMENT, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY.
|
|
(v) |
Any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt
requested), by hand delivery or by electronic mail:
|
if to the Trustee, to:
|
||
Continental Stock Transfer & Trust Company
|
||
1 State Street, 30th Floor
|
||
New York, New York 10004
|
||
Attention:
|
Francis Wolf and Celeste Gonzalez
|
|
E-mail:
|
fwolf@continentalstock.com
|
|
cgonzalez@continentalstock.com
|
||
if to the Company, to:
|
||
HCM Acquisition Corp
|
||
100 First Stamford Place, Suite 330
|
||
Stamford, CT 06902
|
||
Attention:
|
Shawn Matthews, Chief Executive Officer
|
|
E-mail:
|
smatthews@hondiuscapital.com
|
|
in each case, with copies to:
|
||
King & Spalding LLP
|
||
1185 Avenue of the Americas, 34th Floor
|
||
New York, NY 10036
|
||
Attention:
|
Keith Townsend and Kevin Manz
|
|
E-mail:
|
ktownsend@kslaw.com
|
|
kmanz@kslaw.com
|
||
and
|
||
Cantor Fitzgerald & Co.
|
||
499 Park Avenue
|
||
New York, New York 10022
|
||
Attention:
|
General Counsel
|
|
Facsimile:
|
(212) 829-4708
|
|
and
|
||
Ellenoff Grossman & Schole LLP
|
||
1345 Avenue of the Americas, 11th Floor
|
||
New York, NY 10105
|
||
Attention:
|
Stuart Neuhauser
|
|
E-mail:
|
sneuhauser@egsllp.com
|
|
(vi) |
Each of the Company and the Trustee hereby represents that it has the full right and power and has been duly authorized to enter into this Agreement and to perform its respective obligations as contemplated hereunder. The Trustee
acknowledges and agrees that it shall not make any claims or proceed against the Trust Account, including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance.
|
|
(vii) |
This Agreement is the joint product of the Trustee and the Company and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto.
|
|
(viii) |
This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of a signed counterpart of this
Agreement by facsimile or electronic transmission shall constitute valid and sufficient delivery thereof.
|
|
(ix) |
Each of the Company and the Trustee hereby acknowledges and agrees that each of the Representatives on behalf of the Underwriters is a third-party beneficiary of this Agreement.
|
|
(x) |
Except as specified herein, no party to this Agreement may assign its rights or delegate its obligations hereunder to any other person or entity.
|
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY,
as Trustee
|
||
By:
|
/s/ Francis Wolf
|
|
Name: Francis Wolf
|
||
Title: Vice President
|
||
HCM ACQUISITION CORP
|
||
By:
|
/s/ Shawn Matthews
|
|
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
Fee Item
|
Time and method of payment
|
Amount
|
||
Initial acceptance fee
|
Initial closing of the Offering by wire transfer
|
$3,500.00
|
||
Annual fee
|
First year, initial closing of the Offering by wire transfer; thereafter on the anniversary of the closing date of the Offering by wire transfer or check
|
$10,000.00
|
||
Transaction processing fee for disbursements to the Company pursuant to Sections 1(i), (j) and (k)
|
Billed by the Trustee to the Company pursuant to Section 1
|
$250.00
|
||
Paying Agent services as required pursuant to Sections 1(i) and (k)
|
Billed to the Company upon delivery of service pursuant to Sections 1(i) and (k)
|
Prevailing rates
|
Re:
|
Trust Account – Termination Letter
|
Very truly yours,
|
||
HCM ACQUISITION CORP
|
||
By:
|
||
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
Agreed and acknowledged:
|
||
CANTOR FITZGERALD & CO.
|
||
By:
|
||
Name:
|
||
Title:
|
Re:
|
Trust Account – Termination Letter
|
Very truly yours,
|
||
HCM ACQUISITION CORP
|
||
By:
|
||
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
||
cc: Cantor Fitzgerald & Co.
|
Re:
|
Trust Account – Tax Payment Withdrawal Instruction
|
Very truly yours,
|
||
HCM ACQUISITION CORP
|
||
By:
|
||
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
||
cc: Cantor Fitzgerald & Co.
|
Re:
|
Trust Account – Working Capital Withdrawal Instruction
|
Very truly yours,
|
||
HCM ACQUISITION CORP
|
||
By:
|
||
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
||
cc: Cantor Fitzgerald & Co.
|
COMPANY:
|
||||
HCM ACQUISITION CORP
|
||||
By:
|
/s/ Shawn Matthews
|
|||
Name:
|
|
Shawn Matthews
|
||
Title:
|
|
Chairman and Chief Executive Officer
|
||
HOLDERS:
|
||||
HCM INVESTOR HOLDINGS, LLC
|
||||
By:
|
/s/ James Bond
|
|||
Name:
|
|
James Bond
|
||
Title:
|
|
President | ||
CANTOR FITZGERALD & CO.
|
||||
By:
|
/s/ Sage Kelly
|
|||
Name:
|
|
Sage Kelly
|
||
Title:
|
|
COMPANY:
|
||
HCM ACQUISITION CORP
|
||
By:
|
/s/ Shawn Matthews
|
|
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
PURCHASER:
|
||
HCM INVESTOR HOLDINGS, LLC
|
||
By:
|
/s/ James Bond
|
|
Name: James Bond
|
||
Title: President
|
COMPANY:
|
|||
HCM ACQUISITION CORP
|
|||
By:
|
/s/ Shawn Matthews
|
||
Name: Shawn Matthews
|
|||
Title: Chairman and Chief Executive Officer
|
|||
PURCHASER:
|
|||
CANTOR FITZGERALD & CO.
|
|||
By:
|
/s/ Sage Kelly
|
||
Name: Sage Kelly
|
|||
Title:
|
Sincerely,
|
||
HCM ACQUISITION CORP
|
||
By:
|
/s/ Shawn Matthews
|
|
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
||
INSIDER:
|
||
By:
|
/s/ Shawn Matthews
|
|
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
||
INSIDER:
|
||
By:
|
/s/ James Bond
|
|
Name: James Bond
|
||
Title: President and Chief Financial Officer
|
||
INSIDER:
|
||
By:
|
/s/ Steven Bischoff
|
|
Name: Steven Bischoff
|
||
Title: Director
|
||
INSIDER:
|
||
By:
|
/s/ David Goldfarb
|
|
Name: David Goldfarb
|
||
Title: Director
|
||
INSIDER:
|
||
By:
|
/s/ Jacob Loveless
|
|
Name: Jacob Loveless
|
||
Title: Director
|
Acknowledged and Agreed:
|
||
HCM INVESTOR HOLDINGS, LLC
|
||
By:
|
/s/ James Bond
|
|
Name: James Bond
|
||
Title: President
|
Sincerely,
|
||
HCM ACQUISITION CORP
|
||
By:
|
/s/ Shawn Matthews
|
|
Name: Shawn Matthews
|
||
Title: Chairman and Chief Executive Officer
|
AGREED AND ACCEPTED BY:
|
||
HCM INVESTOR HOLDINGS, LLC
|
||
By:
|
/s/ James Bond
|
|
Name: James Bond
|
||
Title: President
|