TIDMACG
RNS Number : 4414Q
ACG Acquisition Company Limited
17 October 2023
THIS DOCUMENT IS IMPORTANT AND REQUIRES YOUR IMMEDIATE
ATTENTION. If
you are in any doubt about the contents of this document, or the
action you should take, you are recommended immediately to seek
your own personal financial advice from your stockbroker, bank
manager, solicitor, accountant, fund manager or other independent
financial adviser authorised under the Financial Services and
Markets Act 2000 who specialises in advising on the acquisition of
shares and other securities or, if you are in a territory outside
the United Kingdom, from an appropriately authorised independent
financial adviser.
Copies of this document are being sent to shareholders of ACG.
If you have sold or otherwise transferred all of your shares in ACG
Acquisition Company Limited please forward this document and the
accompanying Form of Proxy at once to the purchaser or transferee
or to the stockbroker or other agent through whom the sale or
transfer was effected for delivery to the purchaser or transferee.
If you have sold or transferred part only of your holding of shares
in ACG Acquisition Company Limited you should retain this document
and consult the stockbroker, bank or other agent through whom the
sale or transfer was effected.
The distribution of this document in jurisdictions other than
the UK may be restricted by law and therefore persons into whose
possession this document comes should inform themselves about and
observe such restrictions. Any failure to comply with these
restrictions may constitute a violation of the securities laws of
any such jurisdiction. This document does not constitute any offer
to issue or sell or a solicitation of any offer to subscribe for or
buy shares in ACG Acquisition Company Limited.
ACG ACQUISITION COMPANY LIMITED
(Incorporated and registered in the British Virgin Islands with
registered number 2067083)
Extension of Acquisition Deadline
Amendment of Memorandum and Articles of Association
Shareholders Circular and Notice of
Extraordinary General Meeting of Shareholders
Notice of the Extension EGM to be held at 10 a.m. (London time)
at the offices of Cleary Gottlieb Steen & Hamilton LLP at 2
London Wall Place, Barbican, London, EC2Y 5AU, England on 25
October 2023 is set out at the end of this document.
A Form of Proxy for use at the Extension EGM by holders of Class
B Shares accompanies this document and, to be valid, must be
completed and returned to Link Group at PXS1, Central Square, 29
Wellington Street, Leeds, LS1 4DL, England. The Form of Proxy must
be returned as soon as possible but in any event to be received not
later than 10 a.m. London time on 23 October 2023 or 48 hours
before any adjourned meeting. A Form of Direction for use at the
Extension EGM by holders of depositary interests accompanies this
document and, to be valid, must be completed and returned to Link
Group at PXS1, Central Square, 29 Wellington Street, Leeds, LS1
4DL, England as soon as possible but in any event to be received
not later than 10 a.m. London time on 20 October 2023 or 72 hours
before any adjourned meeting. The return of one or more completed
Forms of Proxy or Forms of Direction will not prevent you from
attending the Extension EGM and voting in person if you wish to do
so (and are so entitled).
A summary of the action to be taken by the shareholders of ACG
is included in "Action to be taken by shareholders" in the Letter
from the Chairman on page 13 of this document and in the notes to
the Notice of the Extension EGM on pages 17 to 20 of this document.
This circular and all its accompanying materials are available on
the Company's website (https:// www.acgcorp.co/).
1
TABLE OF CONTENTS
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
..................................................................
3
DEFINITIONS
............................................................................................................................
4
LETTER FROM THE CHAIRMAN
.............................................................................................
5
NOTICE OF EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS
..................... 1 5
FORM OF PROXY
....................................................................................................................
1 6
FORM OF DIRECTION
............................................................................................................
1 9
EXHIBIT A: PROPOSED AMED AND RESTATED MEMORANDUM AND ARTICLES OF
ASSOCIATION...................................................................................................................
22
EXPECTED TIMETABLE OF PRINCIPAL EVENTS
Event Expected time/date(London time)
Initial Acquisition Deadline 12 October 2023
Publication of this document 17 October 2023
Commencement of redemption period 18 October 2023
Record date for the Extension EGM 5 p.m. on 19 October 2023
Deadline for submitting form of directions 10 a.m. on 20 October
2023
Deadline for submitting form of proxies 10 a.m. on 23 October
2023
Redemption deadline for existing ACG shareholders 1 p.m. on 23
October 2023
Extension EGM 10 a.m. on 25 October 2023
Redemption payment date As soon as possible on or after 26
October 2023
Extended Acquisition Deadline, if approved 25 January 2024
The dates and times above (all of which are London time) are
based on the Company's current expectations and may be subject to
change. Any revised dates and/or times will be notified to the
shareholders, by way of a press release published on the Company's
website (https:// www.acgcorp.co/).
DEFINITIONS
Defined terms used in this document shall have the meaning
ascribed to them in the Prospectus or as follows, unless the
context otherwise requires:
"Amended and Restated the revised Memorandum and Articles of Association of the
Memorandum and Articles of Company appended to this document as Exhibit A
Association"
"Act" the BVI Business Companies Act 2004, as amended from
time
to time, and includes the BVI Business Companies Regulations
2012 and any other regulations made under the Act
"Acquisition" has the meaning ascribed to it in the Memorandum
and Articles of Association
"Company"or "ACG" ACG Acquisition Company Limited
"Directors"or the "Board" the directors of ACG at the date of this document
"Extended Acquisition Deadline" 25 January 2024
"Extension" the extension of the deadline by which the Company
must complete an Acquisition in accordance with Regulation 26 of
its Memorandum and Articles of Association from the Initial
Acquisition Deadline to the Extended Acquisition Deadline
"Extension EGM" the extraordinary general meeting of
Shareholders of ACG at the
offices of Cleary Gottlieb Steen & Hamilton LLP at 2 London
Wall Place, Barbican, London, EC2Y 5AU, England, to be convened on
the date hereof, notice of which is set out at page 15 of this
document, and any adjournment of that meeting
"Form of Proxy" the form of proxy for use by holders of Class B
Shares in
connection with the Extension EGM
"Form of Direction" the form of direction for use by holders of
depositary interests in
Class A Ordinary Shares in connection with the Extension EGM
"Initial Acquisition Deadline" 12 October 2023
"IPO Prospectus " the initial public offering prospectus
published by the Company
on 7 October 2022.
"Notice" the notice of the Extension EGM set out at page 15 of
this document
"Prospectus" the prospectus prepared by the Company in
connection with the Acquisition and Re-Admission, as approved by
the FCA on 30 June 2023 and available on the Company's website
(https:// www.acgcorp.co/)
"Public Shareholders" means Class A Ordinary Shareholders who
are not the Co- Sponsors, the Directors or the Advisor and the
Founding Shareholders (each as defined in the Chapter 5.6.18 of the
Listing Rules of the U.K. Financial Conduct Authority). Public
Shareholders includes each of the Cornerstone Investor or the
Anchor Investors (together, the "Institutional Investors" as
defined in the IPO Prospectus).
"Resolutions" the resolutions set out in the Notice to be
proposed at the Extension EGM
"Shares" means the Class A Ordinary Shares and the Class B
Shares together
LETTER FROM THE CHAIRMAN
ACG ACQUISITION COMPANY LIMITED
(Incorporated and registered in the British Virgin Islands with
registered number 2067083)
Directors: Registered Office:
Peter Whelan (Chairman) Craigmuir Chambers
Artem Volynets (CEO and Executive Director ) P.O. Box 71
Warren Gilman (Independent Non-Executive Director) Road Town
Hendrik Johannes Faul (Independent Non-Executive Director) Tortola,
VG 1110 Mark Cutis
(Independent Non-Executive Director) British Virgin Islands
17 October 2023
Dear Shareholders,
1. Introduction
ACG Acquisition Company Limited is a special purpose acquisition
company ("SPAC") looking to benefit from favourable price
conditions for new economy metals and other mining materials. The
Company aims to optimise its expertise in global mining by
combining with a mining company that produces materials
characterised by supply constraints and rising long-term demand.
The combined entity will capitalise on the need for resource
security and geographic supply diversification, as well as the
global energy transition. ACG's team has extensive M&A
experience built through decades spent at blue-chip multinationals
in the sector. The team brings a significant network, including
access to many mining companies as well as a commitment to ESG
principles and strong corporate governance.
Today, the Company announced that it is seeking shareholder
approval to extend the deadline by which an Acquisition must be
completed from 12 October 2023 (the "Initial Acquisition Deadline")
to 25 January 2024 (the "Extended Acquisition Deadline" and, such
proposed extension, the "Extension") or such later date approved by
its Shareholders in case of a Further Extension (as defined
below).
The Extension will require an amendment to the Memorandum and
Articles of Association of the Company which, absent an extension,
require the Company to complete an Acquisition by no later than the
Initial Acquisition Deadline. The Company considers that the
extension beyond the deadline specified in the Memorandum and
Articles of Association is appropriate in the circumstances, giving
Shareholders the option of participating in a potential future
Acquisition through the Company.
For this reason, and as further described in this letter, on
behalf of the Company, we are pleased to invite you to the
Extension EGM which is to be held on 25 October 2023 at 10 a.m.
(London time) at the offices of Cleary Gottlieb Steen &
Hamilton LLP at 2 London Wall Place, Barbican, London, EC2Y 5AU,
England and to provide you with this circular.
Set out on page 15 of this document you will find a Notice
convening the Extension EGM and all the Resolutions to be submitted
for shareholder consideration therein. This letter sets out the
background to and the reasons for these Resolutions. These should
be considered together with the Prospectus and the other documents
circulated with the Notice. Shareholders are advised to read all
documents carefully. Shareholders should note in particular that
the Prospectus contains information which is relevant to the
resolutions being considered at the Extension EGM and that this
circular has not attempted to restate such information.
After careful consideration, the Board considers the Extension
and the corresponding Resolutions submitted for shareholder
consideration to be in the best interests of the Company and its
stakeholders, including its shareholders, for the reasons set out
below.
2. The Extension of the Acquisition Deadline
Background
Concurrent with its initial public offering, the Company adopted
an acquisition strategy to evaluate opportunities in the metals and
mining sector globally (excluding Russia), with a particular focus
on emerging markets.
However, as previously announced, the Company was not able to
complete an Acquisition by the Initial Acquisition Deadline, which
is the date by which, absent an extension, its Memorandum and
Articles of Association provide that the Company should cease all
operations, except for the purpose of winding up. In accordance
with Regulation 26 of its Memorandum and Articles of Association,
the Company announced on 12 October 2023 that it intended to cease
all operations, and is in the process of taking steps to organize
its voluntary liquidation in the event that the Extension is not
approved.
Reasons for the Extension
In order to allow the Company sufficient time to complete an
Acquisition, it is seeking an extension of its Initial Acquisition
Deadline to the Extended Acquisition Deadline (i.e., 25 January
2024).
While the overall market backdrop for SPACs and public equity
offerings more generally has been challenging, the Board however
remains positive on the prospect of successfully executing an
Acquisition. As discussed below, the Company has also secured
additional equity financing in the form of subscriptions by the
Co-Sponsors of 1,333,333 Class B Shares at a subscription price of
$1.50 per Class B Share (with total proceeds of $2 million), all
subject to the Extension being approved. As part of the foregoing,
loans from the Co-Sponsors of $975,000 have been capitalised. The
Company will use this financing to pay for certain accrued costs
and operational expenses during the period of the Extension and
continue to work on identifying a suitable target for an
Acquisition. Notwithstanding the foregoing, the Board can however
not guarantee that, if the Extension is approved, an Acquisition
will take place prior to the Extended Acquisition Deadline or such
later date approved by its Shareholders in case of a Further
Extension.
Accordingly, the Company is convening an extraordinary general
meeting to be held at 10:00 a.m. on 25 October 2023 to consider,
and if thought fit, approve the Extension by way of an amendment to
the Memorandum and Articles of Association. Shareholders are not
being asked to approve any Acquisition.
3. Exercise of Redemption Rights
No Automatic Redemption if Extension is Approved and Right to
Redeem Class A Ordinary Shares for Public Shareholders
The Company's Memorandum and Articles of Association provide
that, absent an extension, in the event the Company fails to
consummate an Acquisition by the Initial Acquisition Deadline
(i.e., 12 October 2023), Public Shareholders shall have their Class
A Ordinary Shares automatically redeemed and payment in respect of
such Class A Ordinary Shares will be made through CREST by the
Depositary, Link Market Services Trustees Limited, as promptly as
reasonably possible, but by no later than 26 October 2023.
However, the Company is now convening an extraordinary general
meeting for Shareholders to consider and, if thought fit, approve,
the Extension by way of an amendment to the Memorandum and Articles
of Association. Accordingly, to allow Public Shareholders that so
wish to keep their Class A Ordinary Shares for the duration of the
Extension (see Section 5 below for a description of the
consequences of the approval of the Extension), the Company shall
not automatically redeem public Class A Ordinary Shares, but
provide instead to Public Shareholders the right to redeem their
Class A Ordinary Shares at a per-share price, payable in cash,
equal to the aggregate amount then on deposit in the Escrow Account
calculated as of two business days prior to Initial Extension
Deadline (including any Overfunding), divided by the number of then
issued and outstanding Class A Ordinary Shares. The gross
redemption price of a Class A Ordinary Share is expected to be
$10.325 per Class A Ordinary Share, plus pro rata entitlement to
any interest accrued on the Escrow Account as reduced by any taxes
paid or payable. As noted in the IPO Prospectus, the amount held in
the Escrow Account earns interest at a rate equal to the Secured
Overnight Financing Rate less 5 basis points.
In the event that the Extension is not approved at the Extension
EGM, the automatic redemption process described in the first
paragraph above will complete, in accordance with Regulation 26 of
the Memorandum and Articles of Association.
Submitting Class A Ordinary Shares for Redemption
Redemption elections can be made through the UK's
Certificateless Registry for Electronic Share Transfer ("CREST")
from 18 October 2023 for holders of depositary interests
representing Class A Ordinary Shares. Class A Ordinary Shareholders
wishing to participate in the redemption should contact their
broker, bank or other institution through which they hold their
depositary interests in Class A Ordinary Shares to access CREST.
Redemptions cannot be submitted through means other than CREST.
Full election instruction details will be provided directly within
the CREST GUI Corporate Action event details under ISIN
VGG0056A1030.
If a Class A Ordinary Shareholder wishes to redeem all or a
portion of their depositary interests in Class A Ordinary Shares (a
"Redeeming Shareholder"), they are required to submit their
redemption election electronically through CREST by 1:00 pm BST at
the latest on 23 October 2023 (the "Election Cut-off Time").
Redeeming Shareholders should instruct their broker, bank or other
institution through which they hold their depositary interests in
Class A Ordinary Shares in time for these to be tendered through
CREST before the Election Cut-off Time. Please note that brokers,
banks or other institutions through which depositary interests in
Class A Ordinary Shares are held will establish their own cut-off
dates and times for the tender of such securities, which may be
earlier than the Election Cut-off Time. Redeeming Shareholders
should check with their broker, bank or other institution to
determine the appropriate procedures. Class A Ordinary Shareholders
who validly elect to redeem all or a portion of their depositary
interests in the Class A Ordinary Shares on or before the Election
Cut-off Time shall have such depositary interests in the Class A
Ordinary Shares redeemed and payment in respect of such will be
made by Link Market Services Trustees Limited, acting as Depositary
as soon as possible on or after 26 October 2023. The final
redemption price per Class A Ordinary Shareholders will be
confirmed prior to payment within CREST.
If a holder of Class A Ordinary Shares does not wish to redeem
any of their Class A Ordinary Shares, they do not need to submit a
redemption election through CREST or take any other action. The
redemption of the Class A Ordinary Shares held by a Public
Shareholder does not trigger the repurchase or redemption of any
Warrants held by such Public Shareholder. Accordingly, Public
Shareholders whose Class A Ordinary Shares are redeemed by the
Company will retain all rights to any public Warrants that they may
hold at the time of such redemption.
Withdrawal of elections to redeem
Any Redeeming Shareholder that has validly submitted their
depositary interests in Class A Ordinary Shares for redemption
through CREST may, prior to the Election Cut-off Time, notify the
Depositary by email at the following address -
shareholderenquiries@linkgroup.co.uk - that it wishes to
withdraw
such submission.
4. No Additional Co-Sponsor Overfunding
Pursuant to the Memorandum and Articles of Association and as
described in the IPO Prospectus, if the Initial Acquisition
Deadline were extended through extensions for one or two periods of
three months which are at the discretion of the Company (such type
of extension, a "Discretionary Extension"), the Co-Sponsors agreed
that they would commit further additional funds to the Company
through the subscription of further Sponsor Warrants, in the
proportions in which the Co-Sponsors have subscribed for Class B
Shares and Sponsor Warrants prior to the date of the IPO
Prospectus, the proceeds of which would be held in the Escrow
Account as Additional Co-Sponsor Overfunding.
However, the Extension does not constitute a Discretionary
Extension. As such, there will be no Additional Co-Sponsor
Overfunding should the Extension be approved.
5. Consequences of Approving the Extension
Extension of Acquisition Deadline and Process in Case of
Acquisition
If the Extension is approved, the Memorandum and Articles of
Association will require the Company to complete an Acquisition by
the Extended Acquisition Deadline (i.e., 25 January 2024). The
Company cannot estimate how long it will take to identify suitable
Acquisition opportunities and there can be no assurance that the
Company will be able to identify any suitable target company and
agree relevant terms of an Acquisition before the Extended
Acquisition Deadline or such later date approved by its
Shareholders in case of a Further Extension.
Should the Company identify a target and agree on suitable terms
for its Acquisition, the Company shall, prior to the completion of
an Acquisition, and in accordance with the revised Memorandum and
Articles of Association appended to this document as Exhibit A (the
"Amended and Restated Memorandum and Articles of Association"):
-- obtain the approval of the Public Shareholders for such Acquisition; and
-- provide any remaining holders of Class A Ordinary Shares with
the opportunity to redeem all or a portion of their Class A
Ordinary Shares upon the completion of an Acquisition at a
per-share price, payable in cash, equal to the aggregate amount
then on deposit in the Escrow Account calculated as of two business
days prior to the consummation of an Acquisition, divided by the
number of then issued and outstanding Class A Ordinary Shares.
The Amended and Restated Memorandum and Articles of Association
also provide that, in the event the Company does not complete an
Acquisition by the Extended Acquisition Deadline, it may request
Shareholders to approve a further extension of the deadline by
which the Company must complete an Acquisition (a "Further
Extension"). To pass such a resolution to approve a Further
Extension would require the affirmative vote of a majority of the
votes of the Shares entitled to vote thereon which are present at a
general meeting where such resolution is voted on. In the event the
Company does not complete an Acquisition by the Extended
Acquisition Deadline and no Further Extension is approved, the
Company will cease all operations, except for the purpose of
winding-up, following a procedure equivalent to the description
included in Section 6 below and in accordance with the Restated
Memorandum and Articles of Association.
Subscription of New Class B Shares by the Co-Sponsors
The Co-Sponsors have agreed to subscribe for an aggregate amount
of 1,333,333 Class B Shares at a price of $1.50 per Class B Share
as follows, subject to the approval of the Extension by
Shareholders at the Extension EGM (the "Additional Sponsor Class B
Shares"):
Co-Sponsor Subscription Amount Class B Shares Subscribed
ACG Mining Limited US$750,000.00 500,000
--------------------- --------------------------
De Heerd Investments
Limited US$625,000.50 416,667
--------------------- --------------------------
Argentem Creek Partners
Limited US$624,999.00 416,666
========================= ===================== ==========================
Total US$2,000,000* 1,333,333
------------------------- --------------------- --------------------------
*Adjusted for rounding
The Co-Sponsors have further agreed to (a) vote in favour of the
Resolutions at the Extension EGM, including to approve the
Extension, and (b) convert any or all of their Class B Shares,
including the Additional Sponsor Class B Shares, into Class A
Ordinary Shares at the Company's request. As part of the foregoing,
loans from the Co-Sponsors of $975,000 have been capitalised.
Upon issuance of the Additional Sponsor Class B Shares, holders
of Class B Shares other than the Co-Sponsors will be diluted
accordingly. However, the number of Class A Ordinary Shares
issuable upon automatic conversion of all Class B Shares at the
time of an Acquisition will not change and remains equal to, in the
aggregate, 20% of the total number of Class A Ordinary Shares that
were in issue upon the completion of the IPO. The Additional
Sponsor Class B Shares (and any Class A Ordinary Shares issuable
upon conversion of such Additional Sponsor Class B Shares) are not
subject to any lock-up arrangements.
At the date of this document, the Company has obtained
irrevocable undertakings from existing Shareholders (including the
Co-Sponsors) to vote their Shares in favour of the Extension
holding 20.8% of the total outstanding Shares entitled to vote at
the Extension EGM. The Company is seeking further irrevocable
undertakings to vote in favour of the Extension from other
significant Shareholders.
Possible dilutive effect on Public Shareholders in the event of
exercise of redemption rights
If the Extension is approved and some Public Shareholders
exercise their rights of redemption in respect of their Class A
Ordinary Shares, the Company shall be required to return a
proportion of the funds standing to their credit of the Escrow
Account and to redeem the relevant Class A Ordinary Shares. This
will result in the overall number of Class A Ordinary Shares
outstanding being reduced while the number of Warrants will remain
unchanged. The remaining Public Shareholders may therefore face
increased dilution of their interests, mainly as a result of the
increased proportion of outstanding Warrants relative to the number
of outstanding Class A Ordinary Shares remaining following the
exercise of redemptions by Public Shareholders.
Availability of funds to complete an Acquisition
In the event that there is a significant exercise of redemption
rights, the Company shall also have less funds available in the
Escrow Account to fund any Acquisition and will likely need to
raise additional third party finance at the time of any Acquisition
to meet its financing requirements, to pay any cash consideration
if required, and to satisfy any minimum cash balance condition
imposed as part of any Acquisition.
If the Company has insufficient funds available, the Company may
be required to seek additional financing by issuing new equity or
debt securities or securing debt financing. The Company may not
receive sufficient support from its existing Shareholders to raise
additional equity, and lenders may be unwilling to extend debt
financing to the Company on attractive terms, or at all.
In addition, raising additional third party financing may
involve dilutive equity issuances (which the Company is able to do
without requiring the prior approval of holders of its Shares) or
the incurrence of indebtedness at higher than desirable levels,
potentially up to, in each case, an amount sufficient to affect any
larger than expected number of Class A Ordinary Shares submitted
for redemption.
Possible dilutive effect on Public Shareholders in the event of
issue of additional Class A Ordinary Shares
It is likely that the Company will decide that there is a need
to raise additional third party finance at the time of any
Acquisition. In that event, the Company may issue a substantial
number of additional Class A Ordinary Shares to complete its
Acquisition, including via a private investment in a public
entity.
Such issuance of additional Class A Ordinary Shares:
-- may significantly dilute the equity interest of existing Public Shareholders;
-- could cause a change in control if a substantial number of
Class A Ordinary Shares are issued, which could, among other
things, result in the resignation or removal of the Company's
present directors; and
-- may adversely affect prevailing market prices for the Class A
Ordinary Shares and/or Warrants.
Ability to Complete an Acquisition Before the Extended
Acquisition Deadline or such later date approved by its
Shareholders in case of a Further Extension
While the Company would have until the Extended Acquisition
Deadline to implement an Acquisition, the Company cannot estimate
how long it will take to identify suitable Acquisition
opportunities and there can be no assurance that the Company will
be able to identify any suitable target company and agree relevant
terms of an Acquisition before the Extended Acquisition Deadline or
such later date approved by its Shareholders in case of a Further
Extension.
Failure to identify a suitable Acquisition or to reach an
agreement on acceptable terms could result from factors including
(but not limited to) a lack of suitable target companies, absence
of available funding on acceptable terms or at all, inability to
raise capital, and increased competition for such target companies.
Such competition may for example come from strategic buyers,
sovereign wealth funds, other SPACs, and public and private
investment funds, many of which are well established and have
extensive experience in identifying and completing acquisitions and
business combinations. A number of these competitors may possess
greater technical, financial, human and other resources than the
Company and may be able to facilitate a more expedited acquisition
process. Furthermore, some potential target companies have already
entered into business combinations, and the Company believes that
there are many SPACs seeking target companies for, and that may in
the future undertake initial public offers in order to seek target
companies for, business combinations. As a result, fewer attractive
target companies may be available at any point prior to the
Extended Acquisition Deadline or such later date approved by its
Shareholders in case of a Further Extension. Attractive deals could
also become scarcer for other reasons, such as economic or industry
sector downturns, geopolitical tensions, or increases in the cost
of additional capital needed to close business combinations or
operate target companies post-business combination, thereby
increasing competition. This could increase the cost of, or
otherwise complicate or frustrate the Company's ability to find and
consummate an Acquisition.
Any of these or other factors may place the Company at a
competitive disadvantage in successfully negotiating or completing
an attractive Acquisition. There cannot be any assurance that the
Company will be successful against such competition and will be
able to complete an Acquisition by the Extended Acquisition
Deadline. This competition may result in a potential target company
seeking a different buyer even after having spent considerable time
negotiating with the Company, or may require a competitive bidding
process in which the Company may ultimately not succeed.
Furthermore, even if an agreement is reached in respect of a
target company, the Company may fail to complete such Acquisition,
because shareholders of that target company do not approve the
transaction, a required regulatory condition is not obtained, the
Company does not have funding available or it is not able to raise
capital on favorable terms or at all, other conditions precedent
for completion for an Acquisition are not fulfilled, or for reasons
beyond its control, such as material adverse changes in economic
and market conditions.
In such circumstances, the Company will not be able to complete
an Acquisition by the Extended Acquisition Deadline and, absent a
Further Extension, will need to cease operations and return any
remaining funds in the Escrow Account to Public Shareholders in the
manner described in the Amended and Restated Memorandum and
Articles of Association. There is no assurance that the Company
will be able to complete an Acquisition by the Extended Acquisition
Deadline or such later date approved by its Shareholders in case of
a Further Extension.
The Company's negotiating position in light of the requirement
to complete an Acquisition by the Extended Acquisition Deadline or
such later date approved by its shareholders in case of a Further
Extension
Any potential target company with which the Company enters into
negotiations concerning an Acquisition will most likely be aware
that the Company must complete its Acquisition by the Extended
Acquisition Deadline or such later date approved by its
Shareholders in case of a Further Extension. Consequently, such
target company may obtain leverage over the Company in negotiating
its Acquisition, knowing that if the Company does not complete its
Acquisition with that particular target company, it may be unable
to complete an Acquisition with any target company.
As a result, the Company might at such time enter into an
Acquisition on terms that are not as favourable to the Company and
the Shareholders as they could be under different circumstances.
This risk will increase as the Company gets closer to the Extended
Acquisition Deadline or such later date approved by its
Shareholders in case of a Further Extension. In addition, the
Company may have limited time to conduct due diligence and, as a
consequence, such due diligence may not reveal all relevant
considerations or liabilities of a target business and the Company
may enter into its Acquisition on terms that it would have rejected
upon a more comprehensive investigation.
Following any redemption by Public Shareholders of their Class A
Ordinary Shares, the Company may no longer have sufficient shares
held in public hands for purposes of complying with the Listing
Rules and, as a result, any remaining Class A Ordinary Shares may
be suspended or cancelled from listing; the Company will also no
longer comply with the guidance in the Listing Rules regarding the
circumstances in which suspension of listing is not required upon
the announcement of an Acquisition, which may result in the
suspension of its Class A Ordinary Shares and Warrants. Any such
suspension or cancellation will significantly reduce liquidity in
the Class A Ordinary Shares and/or the Warrants, potentially for a
significant period of time or definitively, and may adversely
affect the price at which a holder can sell them.
Pursuant to Listing Rule 5.2.1R, the FCA may cancel the listing
of securities if it is satisfied that there are special
circumstances that preclude normal regular dealings in them.
Examples of circumstances where the FCA may cancel the listing of
securities where it appears to the FCA that the issuer no longer
satisfies its continuing obligations for listing include, under
Listing Rule 5.2.2G(2), where the percentage of shares in public
hands falls below 10% (the FCA may however allow a reasonable time
to restore the percentage, unless this is precluded by the need to
maintain the smooth operation of the market or to protect
investors). For these purposes, shares are not held in public hands
if they are, inter alia, held directly or indirectly by a director
or persons connected with a director or persons in the same group
or persons acting in concert who have an interest in 5% or more of
the shares of the relevant class or are subject to restrictions on
transfer of more than 180 days.
Any redemptions by Public Shareholders of their Class A Ordinary
Shares will result in the overall number of Class A Ordinary Shares
outstanding being reduced. As noted above, the Co-Sponsors have
agreed to convert any or all of their Class B Shares, including the
Additional Sponsor Class B Shares, into Class A Ordinary Shares at
the Company's request. Nevertheless, it cannot be excluded that the
number of Class A Ordinary Shares in issue and held in public hands
will be reduced following settlement of redemptions such that
either: (i) the percentage of Ordinary Shares in public hands falls
below 10% (meaning the Company would no longer comply with Listing
Rule 14.2.2R); or (ii) the number of Ordinary Shares will not
facilitate the smooth operation of the market. In each case,
although the FCA may permit the Company a reasonable time to
restore the percentage of shares held in public hands, the FCA may
cancel the listing of the Class A Ordinary Shares.
In addition, as a result of the proposed amendments to the
Memorandum and Articles of Association the Company will no longer
comply with the guidance set forth in the Listing Rules pursuant to
which suspension from listing for a SPAC is not required upon the
announcement of a reverse takeover. As such, there will be a
presumption that suspension of listing of the Class A Ordinary
Shares and Warrants is required upon an Acquisition announcement,
unless the Company can provide evidence to the FCA that it meets
the requirements under Listing Rule 5.6.8G(1) that there is
sufficient publicly available information about the proposed
transaction. In such circumstances, if information regarding an
Acquisition were to leak to the market, or the Board considered
that there were good reasons for announcing the transaction at a
time when it was unable to provide the market with sufficient
information regarding the impact of an Acquisition on its financial
position, the Class A Ordinary Shares and Warrants may be suspended
from listing. Any such suspension would be likely to continue until
sufficient financial information on an Acquisition was made public.
Depending on the nature of the transaction (or proposed
transaction) and the stage at which it is leaked or announced, it
may take a substantial period of time to compile the relevant
information, particularly where the target business does not have
financial or other information readily available which is
comparable with the information a listed company would be expected
to provide under the UK Market Abuse Regulation, the Disclosure
Guidance and Transparency Rules and the Listing Rules (for example,
where the target business is not itself already subject to a public
disclosure regime), and the period during which the Class A
Ordinary Shares and Warrants would be suspended may therefore be
significant.
Any such suspension or cancellation will significantly reduce
liquidity in any remaining Class A Ordinary Shares and/or the
Warrants, potentially for a significant period of time or
definitely, and may adversely affect the price at which a holder
can sell them.
Expected Financial Position of the Company in Case the Extension
is Approved
In the event the Extension is approved and upon receipt of the
proceeds from the Additional Sponsor Class B Shares net of
associated costs, the Company estimates that it will have US$1.7
million of cash on hand for purposes of pursuing an acquisition. As
at 25 October 2023, the Company estimates trade and other payables
which relate to ongoing operations will amount to US$0.3 million.
Amounts corresponding to Class A Ordinary Shares currently held by
Public Shareholders that are not redeemed will be held as
restricted cash and public share liabilities. The outstanding
Warrants, which had a value as at 30 June 2023 of US$4.3 million
will remain as a derivative liability. The Company estimates that,
as at 25 October 2023, outstanding sponsor loans in the amount of
$15.4 million will continue to be accounted for within the
share/warrant subscription reserve.
The Board will only effect the Extension and amendment to the
Memorandum and Articles of the Company if the Company receives the
proceeds of the subscription of the Additional Sponsor Class B
Shares from the Co-Sponsors by, at the latest, 30 October 2023.
While the Company expects cash on hand will be sufficient to cover
its working capital needs until the Extended Acquisition Deadline,
in order to complete an Acquisition, the Company will require
further funding from its Co-Sponsors or other investors to cover
its ongoing costs prior to completion of an Acquisition.
6. Consequences of Not Approving the Extension
In the event that the Extension is not approved by Shareholders,
the Memorandum and Articles of Association and, in turn, the date
by which the Company must complete an Acquisition (i.e., 12 October
2023) will remain unchanged. Accordingly, in such situation, the
Company will:
-- continue ceasing all operations and intends to complete its winding up;
-- on 26 October 2023, automatically redeem the Class A Ordinary
Shares held by Public Shareholders, at a per-share price, payable
in cash, equal to the aggregate amount then on deposit in the
Escrow Account, including interest earned on the funds held in the
Escrow Account (less taxes payable and up to $US100,000 to pay
dissolution expenses), divided by the number of then outstanding
Class A Ordinary Shares held by Public Shareholders (which is
expected to be approximately $10.325 per Public Share), which
redemption will completely extinguish Public Shareholders' rights
as Shareholders (including the right to receive further liquidation
distributions (if any)); and
-- as promptly as reasonably possible following such redemption,
subject to the approval of the Company's remaining Shareholders,
liquidate and dissolve the Company's assets and liabilities,
subject in each case to the Company's obligations under BVI law to
provide for claims of creditors and the requirements of other
applicable law. In such case, the Warrants will expire worthless
and any holder thereof will no longer have any rights
thereunder.
In such circumstances, there can be no assurance as to the
particular amount or value of the remaining assets at any such
future time either as a result of costs from the unsuccessful
Acquisition or from other factors, including disputes or legal
claims which the Company is required to pay out, the cost of the
liquidation and dissolution process, applicable tax liabilities or
amounts due to third-party creditors.
7. The Resolutions
In order to effect an Acquisition, the Company is tabling
Resolutions relating to the following matters for consideration by
its Shareholders:
(i) the proposed Extension of the Initial Acquisition Deadline
(i.e., 12 October 2023) to the Extended Acquisition Deadline (i.e.,
25 January 2024). To pass such resolution requires the affirmative
vote of two-thirds of the votes of the Shares entitled to vote
thereon which are present at the Extension EGM and vote;
(ii) a revised Memorandum and Articles of Association of the
Company, in the form appended to this document as Exhibit A, to be
approved. To pass such resolution requires the affirmative vote of
two-thirds of the votes of the Shares entitled to vote thereon
which are present at the Extension EGM and vote; and
(iii) a change in the Company's financial year, such that it
shall end on December 31 of each calendar year. To pass such
resolution requires the affirmative vote of a majority of the votes
of the Shares of the Shareholders entitled to vote thereon which
are present at the Extension EGM and vote.
8. Action to be taken by Shareholders
Form of Proxy
A Form of Proxy for use at the Extension EGM by holders of Class
B Shares is enclosed with this document for use. The Form of Proxy
must be returned to Link Group at 10thFloor, Central Square, 29
Wellington Street, Leeds, LS1 4DL, England as soon as possible but,
in any event, so as to arrive no later than 10 a.m. (London time)
on 23 October 2023 or 48 hours before any adjourned meeting.
The completion and return of a Form of Proxy will not preclude
you from attending the Extension EGM and voting in person should
you wish to do so, and should be done in accordance with the
instructions contained in the notes to the Notice of the Extension
EGM, as set out on page 14 of this document, and in the notes to
the Form of Proxy.
Unless otherwise indicated on the Form of Proxy, CREST or any
other electronic voting instruction, the proxy will vote as they
think fit or, at their discretion withhold from voting.
CREST voting and Form of Direction
In the case of holders of depository interests representing
Class A Ordinary Shares in dematerialised form, an electronic
instruction may be submitted through the CREST system in order to
instruct Link Market Services Trustees Limited, the Depository, to
vote on the holder's behalf at the Extension EGM by proxy or, if
the meeting is adjourned, at the adjourned meeting. If you are a
CREST Personal Member, or other CREST Sponsored Member, you should
consult your CREST sponsor, who will be able to take appropriate
action on your behalf. Instructions can be submitted via the CREST
system to be received by the issuer's agent, Link Group (ID:RA10)
by 10 a.m. (London time) on 20 October 2023.
Alternatively, holders of depositary interests should complete
the enclosed Form of Direction in accordance with the instructions
printed thereon to direct Link Market Services Trustees Limited as
the custodian of their shares how to exercise their votes. Any
holder of depository interest who wishes to attend the Extension
EGM must contact the Depositary at Link Market Services Trustees
Limited, Link Group, Central Square, 29 Wellington Street, Leeds,
LS1 4DL, United Kingdom or by email by using
nominee.enquiries@linkgroup.co.uk in order to request a Letter of
Representation no later than 10 a.m. on 20 October 2023. If any
holder of depositary interests attends the Extension EGM without a
letter of representation they will only be allowed to enter the
Extension EGM as a guest and will not be allowed to vote. To be
valid, the Form of Direction must be completed in accordance with
the instructions set out in the form and returned as soon as
possible to the offices of the Custodian at PXS1, Central Square,
29 Wellington Street, Leeds, LS1 4DL, England so as to be received
no later than 10 a.m. (London time) on 20 October 2023 or 72 hours
before any adjourned meeting.
In signing and returning the Form of Direction or otherwise
submitting an electronic voting instruction through the CREST
system, you will be representing that you are either: (a) outside
the United States, or (b) a qualified institutional buyer (within
the meaning given by Rule 144A under the US Securities Act of
1933). By continuing to hold their depositary interests following
the date of the Notice, holders of depositary interests acknowledge
and agree to be bound by the transfer restrictions set forth in the
section headed "Part XVI-Notices to Investors" in the Prospectus
(mutatis mutandiswith respect to such depositary interests).
9. Board Recommendation
The Board unanimously considers the approval of all Resolutions
to be in the best interests of the Company. Accordingly, the Board
recommends that Shareholders vote in favour of all the Resolutions
set out in the Notice of the Extension EGM. The Board will only
effect the Extension and amendment to the Memorandum and Articles
of the Company if the Company receives the proceeds of the
subscription of the Additional Sponsor Class B Shares from the
Co-Sponsors by, at the latest, 30 October 2023.
Your sincerely, Peter Whelan,
Chairman of the Board
ACG ACQUISITION COMPANY LIMITED
(Incorporated and registered in the British Virgin Islands with
registered number 2067083)
NOTICE OF EXTRAORDINARY GENERAL MEETING OF SHAREHOLDERS
NOTICE IS HEREBY GIVEN THAT a meeting of the shareholders of the
Company will be held at the offices of Cleary Gottlieb Steen &
Hamilton LLP at 2 London Wall Place, Barbican, London, EC2Y 5AU,
England on 25 October 2023 at 10 a .m. (London time) for the
purposes of considering and, if thought fit, approving the
following resolutions:
Resolution 1
THAT the deadline by which the Company must complete an
Acquisition in accordance with Regulation 26 of its Memorandum and
Articles of Association be extended from 12 October 2023 to 25
January 2024
Resolution 2
THAT the Memorandum and Articles of Association of the Company
be amended in the form recommended by the Board of Directors of the
Company and appended to the shareholders circular in Exhibit A,
with effect upon the satisfaction of the formalities required to
effect such an amendment under the laws of the BVI
Resolution 3
THAT the Company's financial year be and is hereby altered to
end on December 31 of each calendar year, with immediate effect,
and that the Directors be and are hereby authorised to take all
such steps as any of them may consider necessary or desirable to
implement and give full effect to such change.
Da ted 17 October 2023
Registered Office
Cra igmuir Chambers
P.O. Box 71
Road Town, Tortola British Virgin Isla nds
Peter Whelan, by order of the Board
17 October 2023
(1) To be entitled to attend and vote at the meeting (and for
the purpose of the determination by the Company of the number of
votes they may cast), shareholders must be registered in the
register of members of the Company at 5 p.m. (London time) on 19
October 2023. Changes to the register of members after the relevant
deadline shall be disregarded in determining the rights of any
person to attend and vote at the meeting.
(2) Shareholders, or their proxies, intending to attend the
meeting in person are requested, if possible, to arrive at the
meeting venue at least 20 minutes prior to the commencement of the
meeting at 10 a.m. (London time) on 25 October 2023 so that their
shareholding may be checked against the Company's register of
members and attendances recorded.
(3) Depositary interest holders who are CREST members may
appoint a proxy or proxies through the CREST electronic proxy
appointment service may do so for the Meeting (and any adjournment
of the Meeting) by using the procedures described in the CREST
Manual (available from www.euroclear.com). CREST Personal Members
or other CREST sponsored members, and those CREST members who have
appointed a service provider(s), should refer to their CREST
sponsor or voting service provider(s), who will be able to take the
appropriate action on their behalf.
(4) In order for a proxy appointment or instruction made by
means of CREST to be valid, the appropriate CREST message (a "CREST
Proxy Instruction") must be properly authenticated in accordance
with Euroclear UK & International Limited's specifications and
must contain the information required for such instructions, as
described in the CREST Manual. The message must be transmitted so
as to be received by the issuer's agent (ID RA10) by 10 a.m. on 20
October 2023. For this purpose, the time of receipt will be taken
to mean the time (as determined by the timestamp applied to the
message by the CREST application host) from which the issuer's
agent is able to retrieve the message by enquiry to CREST in the
manner prescribed by CREST. After this time, any change of
instructions to proxies appointed through CREST should be
communicated to the appointee through other means.
(5) CREST members and, where applicable, their CREST sponsors or
voting service providers should note that Euroclear UK &
International Limited does not make available special procedures in
CREST for any particular message. Normal system timings and
limitations will, therefore, apply in relation to the input of
CREST Proxy Instructions. It is the responsibility of the CREST
member concerned to take (or, if the CREST member is a CREST
personal member, or sponsored member, or has appointed a voting
service provider(s), to procure that his CREST sponsor or voting
service provider(s) take(s)) such action as shall be necessary to
ensure that a message is transmitted by means of the CREST system
by any particular time. In this connection, CREST members and,
where applicable, their CREST sponsors or voting system providers
are referred, in particular, to those sections of the CREST Manual
concerning practical limitations of the CREST system and
timings.
FORM OF PROXY
ACG ACQUISITION COMPANY LIMITED
Registered number 2067083
Form of Proxy - Extraordinary General Meeting of Shareholders to
be held on 25 October 2023
Kindly note: This form is issued only to the addressee(s). The
Company accepts no liability for any instruction that does not
comply with this form.
Explanatory Notes:
1. Please indicate, by placing "X" in the appropriate space
overleaf, how you wish your votes to be cast in respect of each of
the resolutions. If this form is duly signed and returned, but
without specific direction as to how you wish your votes to be cast
the form will be rejected.
2. The "Withheld" option overleaf is provided to enable you to
abstain on any particular resolution. However, it should be noted
that that a 'Vote Withheld is not a vote in law and will not be
counted in the calculation of the proportion of the votes 'For' or
'Against' a resolution.
3. Any alterations made to this form should be initialled.
4.
The completion and return of this form will not preclude a
member from attending the meeting and voting in person.
5. Every holder has the right to appoint some other person of
their choice, who need not be a Shareholder, to attend and act on
their behalf at the meeting. If you wish to appoint a person other
than the Chairman, please insert the name of your chosen proxy
holder in the space provided (see reverse).
6. Please ensure the completed voting instrument is returned to
Link Group at PXS1, Central Square, 29 Wellington Street, Leeds,
LS1 4DL, England.
To be effective, this form must be lodged at Link Group at PXS1,
Central Square, 29 Wellington Street, Leeds, LS1 4DL, England no
later than 48 hours before the commencement of the Meeting.
Form of Proxy
Please use a black pen. Mark an " X " inside the box to indicate
your directions, as shown in this example: I/We hereby direct the
Chairman of the Meeting OR the following person:
Please leave this box blank if you have selected the Chairman.
Do not insert your own name(s).
As my/our proxy to attend and vote on my/our behalf at the
meeting of shareholders of ACG Acquisition Company Limited to be
held at the offices of Cleary Gottlieb Steen & Hamilton LLP at
2 London Wall Place, Barbican, London, EC2Y 5AU, England on 25
October 2023 at 10 a.m. (London time) and any adjournment of that
meeting.
Resolutions
1. THAT the deadline by which the Company must complete For Against Withheld
an Acquisition in accordance with Regulation 26 of its
Memorandum and Articles of Association be extended from
12 October 2023 to 25 January 2024.
------------------------------------------------------------- --------------- ------------ -----------
2. THAT the Memorandum and Articles of Association of the For Against Withheld
Company be amended in the form recommended by the Board
of Directors of the Company and appended to the shareholders
circular in Exhibit A, with effect upon the satisfaction
of the formalities required to effect such an amendment
under the laws of the BVI.
------------------------------------------------------------- --------------- ------------ -----------
3. THAT the Company's financial year be and is hereby altered For Against Withheld
to end on December 31 of each calendar year, with immediate
effect, and that the Directors be and are hereby authorised
to take all such steps as any of them may consider necessary
or desirable to implement and give full effect to such
change.
I/We would like my/our proxy to vote on the resolutions proposed
at the meeting as indicated on this form. Unless otherwise
instructed the proxy may vote as he or she sees fit or abstain in
relation to any business of the meeting.
Signature Date
DD / MM/ YY In the case of joint holders, only one holder need sign. In the case of a
corporation, the Form of Proxy should be signed by a duly
authorised official whose capacity should be stated, or by an
attorney.
FORM OF DIRECTION
ACG ACQUISITION COMPANY LIMITED
Registered number 2067083
Form of Direction - Extraordinary General Meeting of
Shareholders to be held on 25 October 2023
Kindly note: This form is issued only to the addressee(s). The
Custodian accepts no liability for any instruction that does not
comply with this form.
Explanatory Notes:
1. Please indicate, by placing "X" in the appropriate space
overleaf, how you wish your votes to be cast in respect of each of
the resolutions. If this form is duly signed and returned, but
without specific direction as to how you wish your votes to be cast
the form will be rejected.
2. The 'Withheld' option overleaf is provided to enable you to
abstain on any particular resolution. However, it should be noted
that that a 'Vote Withheld' is not a vote in law and will not be
counted in the calculation of the proportion of the votes 'For' or
'Against' a resolution.
3. Any alterations to this form should be initialled.
4. The completion and return of this form will not preclude a
member from attending the meeting and voting in person.
5.
A member of CREST may use the CREST electronic voting
appointment service via the CREST system, CREST messages must be
received by the issuer's agent (ID number (ID: RA10) not later than
72 hours before the time appointed for the holding of the
meeting.
6. Should the holder, or a representative of that holder, wish
to attend the meeting and/o r vote at the meeting please ensure the
relevant box is completed on the reverse. Upon receipt of this
instruction, the registered holder, shown above, will receive a
Letter of Representation from Link Group authorising the person
detailed overleaf to attend on behalf of the holder.
7. Please ensure the completed voting instrument is returned to:
Link Group at PXS1, Central Square, 29 Wellington Street, Leeds,
LS1 4DL, England.
To be effective, all votes must be lodged at the office of the
Custodian no later than 72 hours before the commencement of the
meeting.
Form of Direction
Please use a black pen. Mark an " X " inside the box to indicate
your directions; as shown in this example.
I/We hereby:
1) represent that I/we am/are either (a) outside the United
States, or (b) a qualified institutional buyer (within the meaning
given by Rule 144A under the US Securities Act of 1933); 2)
represent that I/we am/are the holder of the depositary interests
in Class A Ordinary Shares that are the subject of this Direction;
3) direct the Custodian "Link Market Services Trustees Limited" to
vote on my/our behalf at the meeting of shareholders to be held at
the offices of Cleary Gottlieb Steen & Hamilton LLP at 2 London
Wall Place, Barbican, London, EC2Y 5AU, England on 25 October 2023
at 10 a.m.(London time) and any adjournment of that meeting; and 4)
by continuing to hold depositary interests following the date of
execution of this form, acknowledge and agree to be bound by the
transfer restrictions set forth in the section headed "Part
XVI-Notices to Investors" in the Prospectus (mutatis mutandis with
respect to such depositary interests).
Resolutions
1. THAT the deadline by which the Company must complete For Against Withheld
an Acquisition in accordance with Regulation 26 of its
Memorandum and Articles of Association be extended from
12 October 2023 to 25 January 2024.
-------------------------------------------------------------- ------------ -------------- -----------
2. THAT the Memorandum and Articles of Association of For Against Withheld
the Company be amended in the form recommended by the
Board of Directors of the Company and appended to the
shareholders circular in Exhibit A, with effect upon the
satisfaction of the formalities required to effect such
an amendment under the laws of the BVI.
-------------------------------------------------------------- ------------ -------------- -----------
3. THAT the Company's financial year be and is hereby For Against Withheld
altered to end on December 31 of each calendar year, with
immediate effect, and that the Directors be and are hereby
authorised to take all such steps as any of them may consider
necessary or desirable to implement and give full effect
to such change.
Intention to attend
I wish to attend the meeting of shareholders. Any Depository
Interest Holder who wishes to attend the Meeting must contact the
Depositary at Link Market Services Trustees Limited, Link Group,
Central Square, 29 Wellington Street, Leeds, LS1 4DL, United
Kingdom or by email by using nominee.enquiries@linkgroup.co.uk in
order to request a Letter of Representation no later than 10 a.m.
on 20 October 2023.
Signature Date
DD / MM / YY In the case of joint holders, only one holder need
sign. In the case of a
corporation, the Form of Direction should be signed by a duly
authorised official whose capacity should be stated, or by an
attorney.
EXHIBIT A
Proposed Amended and Restated Memorandum and Articles of
Association
TERRITORY OF THE BRITISH VIRGIN ISLANDS BVI BUSINESS COMPANIES
ACT 2004 ACG ACQUISITION COMPANY LIMITED A Company Limited
by Shares
AMED AND RESTATED MEMORANDUM AND ARTICLES
OF ASSOCIATION
--------------------------------------------------------------------------
TERRITORY OF THE British Virgin Islands
BVI BUSINESS COMPANIES ACT 2004
MEMORANDUM OF ASSOCIATION
OF
ACG ACQUISITION COMPANY LIMITED
(the Company)
A Company Limited By Shares
1. NAME
1.1. The name of the Company is ACG Acquisition Company Limited.
2. STATUS
2.1. The Company is a company limited by shares.
3. REGISTERED OFFICE AND REGISTERED AGENT
3.1. The first registered office of the Company is at Craigmuir
Chambers, Road Town, Tortola, VG 1110, British Virgin Islands.
3.2. The first registered agent of the Company is Harneys
Corporate Services Limited of Craigmuir Chambers, P.O. Box 71, Road
Town, Tortola, VG 1110, British Virgin Islands.
3.3. The Company may, by Resolution of Shareholders or by
Resolution of Directors, change the location of its registered
office or change its registered agent.
3.4. If at any time the Company does not have a registered agent
it may, by Resolution of Shareholders or Resolution of Directors,
appoint a registered agent.
3.5. Any change of registered office or registered agent will
take effect on the registration by the Registrar of a notice of the
change filed by the existing registered agent or a legal
practitioner in the British Virgin Islands acting on behalf of the
Company.
3.6. The registered agent shall:
(a) act on the instructions of the Directors if those
instructions are contained in a Resolution of Directors and a copy
of the Resolution of Directors is made available to the registered
agent; and
(b) recognize and accept the appointment or removal of a Director by the Shareholders.
4. CAPACITY AND POWERS
4.1. Subject to the Act and any other British Virgin Islands
legislation, the Company has, irrespective of corporate
benefit:
(a) full capacity to carry on or undertake any business or
activity, do any act or enter into any transaction; and
(b) for the purposes of paragraph (a) , full rights, powers and privileges.
4.2. For the purposes of section 9(4) of the Act, there are no
limitations on the business that the Company may carry on.
4.3. Each Reserved Matter is subject to the restrictions set out in Clause 7 .
5. NUMBER AND CLASSES OF SHARES
5.1. Shares in the Company shall be issued in the currency of the United States of America.
5.2. The Company is authorised to issue an unlimited number of shares divided into:
(a) an unlimited number of Class A Ordinary Shares with no par value; and
(b) an unlimited number of Class B Shares with no par value.
5.3. The Company shall not issue fractional Shares and
fractional Shares generated by any corporate action may, at the
discretion of the Directors, be rounded down to the nearest whole
Share.
5.4. Shares may be issued in one or more series of Shares as the
Directors may by Resolution of Directors determine from time to
time.
6. RIGHTS OF SHARES
6.1. Each Class A Ordinary share confers upon the Shareholder:
(a) the right to attend any meeting of Shareholders;
(b) the right to one vote on any Resolution of Shareholders;
(c) the right to an equal share in any dividend paid by the Company with each other Share;
(d) the right to an equal share in the distribution of the
surplus assets of the Company with each other Share;
(e) the right and obligation to be redeemed, purchased or
acquired by the Company in accordance with the terms of the
Articles; and
(f) such other rights and entitlements as may be specified in the Articles.
6.2. Each Class B Share confers upon the Shareholder:
(a) the right to attend any meeting of Shareholders;
(b) the right to one vote on any Resolution of Shareholders,
except any votes taken in relation to the approval of an
Acquisition; and
(c) the right to, and are subject to, conversion in accordance with Clause 6.4 .
6.3. The Class B Shares do not confer upon the Shareholder:
(a) the right to an equal share in any dividend paid by the
Company with each other Share; and
(b) the right to an equal share in the distribution of the
surplus assets of the Company with each other Share.
6.4. Each Class B Share will automatically convert into Class A
Ordinary Shares at the time of Acquisition, or earlier at the
option of the holder thereof, at a ratio such that the number of
Class A Ordinary Shares issuable upon conversion of all Class B
Shares will equal, in the aggregate 20% of the total number of
Class A Ordinary Shares in issue upon the completion of the
Offering, and assuming all Class B Shares had converted into Class
A Ordinary Shares as of the completion of the Offering.
7. RESERVED MATTERS
7.1. The following are Reserved Matters:
(a) entering into any agreements (including, but not limited to,
agreements entered into in connection with the Acquisition) which
provide for the payment by the Company of any break fee or other
similar fee to any third party; and
(b) the incurring of any liability, except for (i) Permitted
Indebtedness and (ii) liabilities which are both contingent upon
and payable following the completion of an Acquisition provided
that (a) the relevant creditors to which such liabilities pertain
have agreed in writing with the Company that such liabilities shall
only become due and payable on completion of an Acquisition and in
no other circumstances, and (b) such creditors have waived any
right, title, interest or claim of any kind in or to any monies
held in or released from the Escrow Account, including (without
limitation) in the event of a dissolution or liquidation of the
Company, other than those amounts released to the Company from the
Escrow Account in relation to an approved Acquisition (but not, for
the avoidance of doubt, those amounts released in relation to
shareholder redemptions in such circumstances).
7.2. Notwithstanding anything else in this Memorandum or the
Articles, prior to the completion date of an Acquisition, a
Reserved Matter must be approved by a Reserved Matter Shareholder
Resolution.
8. REdemption, repurchase and surrender of shares
8.1. The Company may by Resolution of the Directors, redeem,
purchase or otherwise acquire all or any of the Shares in the
Company subject to the Articles.
8.2. Subject to the provisions of the Act, and, where
applicable, the rules of the London Stock Exchange and/or any
competent regulatory authority, the Company may issue Shares that
are to be redeemed or are liable to be redeemed at the option of
the Shareholder or the Company. The redemption of such Shares,
except the Class A Ordinary Shares, shall be effected in such
manner and upon such other terms as the Company may, by Resolution
of Directors, determine before the issue of such Shares. With
respect to redeeming or repurchasing the Shares:
(a) Shareholders who hold Class A Ordinary Shares are entitled
to request the redemption of such Shares in the circumstances
described in Regulation 18 ;
(b) each Class B Share will automatically convert into Class A
Ordinary Shares at the time of Acquisition, or earlier at the
option of the holder thereof, at a ratio such that the number of
Class A Ordinary Shares issuable upon conversion of all Class B
Shares will equal, in the aggregate 20% of the total number of
Class A Ordinary Shares in issue upon the completion of the
Offering, and assuming all Class B Shares had converted into Class
A Ordinary Shares as of the completion of the Offering; and
(c) Class A Ordinary Shares shall be repurchased by way of
tender offer in the circumstances set out in Regulation 18 .
8.3. Subject to the Act, and, where applicable, the rules of the
London Stock Exchange and/or any competent regulatory authority,
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 Shareholder. For the avoidance of doubt,
redemptions and repurchases of Shares in the circumstances
described at Clauses 8.2(a) , 8.2(b) , 8.2(c) above shall not
require further approval of the Shareholders.
8.4. The Company may make a payment in respect of the redemption
or purchase of its own Shares in any manner permitted by the
Act.
8.5. The Directors may accept the surrender for no consideration of any fully paid Share.
9. Variation of rights
9.1. The rights attached to Class A Ordinary Shares may only,
whether or not the Company is being wound up, be varied with the
consent in writing of or by a resolution passed at a meeting by the
holders of more than 66.6% of the issued Class A Ordinary Shares
(or 50% per cent if approved in connection with the first
Acquisition).
9.2. The rights attached to Class B Shares may only, whether or
not the Company is being wound up, be varied with the consent in
writing of or by a resolution passed at a meeting by the holders of
more than 66.6% of the issued Class B Shares (or 50% per cent if
approved in connection with the first Acquisition).
9.3. The rights conferred upon the holders of the Shares of any
class shall not, unless otherwise expressly provided by the terms
of issue of the Shares of that class, be deemed to be varied by the
creation or issue of further Shares ranking equally with such
existing Shares.
10. REGISTERED SHARES
10.1. The Company shall issue registered Shares only. The
Company is not authorised to issue bearer Shares, convert
registered Shares to bearer Shares or exchange registered Shares
for bearer Shares.
11. AMMENT OF THE MEMORANDUM AND THE ARTICLES
11.1. The Company may only amend this Memorandum or the Articles
by a resolution approved at a duly convened and constituted meeting
of the Shareholders by the affirmative vote of two-thirds of the
votes of the Shares entitled to vote thereon which were present at
the meeting and were voted.
11.2. Any amendment of this Memorandum or the Articles will take
effect from the date that the notice of amendment, or restated
Memorandum and Articles incorporating the amendment, is registered
by the Registrar or from such other date as determined pursuant to
the Act.
12. DEFINITIONS AND INTERPRETATION
12.1. In this Memorandum and the attached Articles, if not
inconsistent with the subject or context:
Acceptance Period has the meaning given to it at Regulation 18.9
.
ACG Sponsor means ACG Mining Limited, a BVI business company
with number 2067090.
Acquisition means the acquisition by the Company or by any
subsidiary thereof (which may be in the form of a merger, capital
stock exchange, asset acquisition, stock purchase, scheme of
arrangement, reorganisation or similar acquisition) of an interest
in an operating company or business (and, in the context of the
Acquisition, references to a company without reference to a
business and references to a business without reference to a
company shall in both cases be construed to mean both a company or
a business).
Acquisition Date means the date of completion of an
Acquisition.
Acquisition Deadline means 25 January 2024, subject to any
Extensions.
Acquisition EGM means a general meeting of the Shareholders
convened in order to obtain Shareholder approval of an
Acquisition.
Admission means admission of the Class A Ordinary Shares and
Warrants to the standard segment of the Official List and to
trading on the main market for listed securities of the London
Stock Exchange.
Admitted Institutions means those institutions admitted to the
London Stock Exchange.
Act means the BVI Business Companies Act 2004, as amended from
time to time, and includes the BVI Business Companies Regulations
2012 and any other regulations made under the Act.
Advisor means Robert Friedland.
Anchor Investors means those institutional investors defined as
such by the Directors (each, an Anchor Investor).
Appointing Director has the meaning given to it at Regulation
12.5 .
ACP Sponsor means ACP II Trading LLC, a limited liability
company incorporated under the laws of the Cayman Islands.
Articles means the attached articles of association of the
Company.
Business Day means any day which is not a Saturday, Sunday or
recognised public holiday in the British Virgin Islands or in
England and Wales.
Audit Committee has the meaning given to it at Regulation 24.13
.
Class A Ordinary Shares means the Class A Ordinary shares issued
pursuant to the Offering.
Class A Ordinary Shareholders means holders of Class A Ordinary
Shares.
Class B Shareholders means holders of Class B Shares.
Class B Shares means the Class B shares of no par value.
Co-Sponsors means the ACG Sponsor, the De Heerd Sponsor and the
ACP Sponsor (each, a Co-Sponsor).
Cornerstone Investors means those institutional investors
defined as such by the Directors (each, a Cornerstone
Investor).
De Heerd Sponsor means De Heerd Investments Limited, a company
incorporated in Hong Kong with registered number 744662.
Directors means directors of the Company.
Escrow Account means an escrow account held by the Company with
the Escrow Agent.
Escrow Account Overfunding means the proceeds of the additional
funds committed by the Co-Sponsors to the Company through the
Co-Sponsor's subscription of Sponsor Warrants pursuant to the
Initial Co-Sponsor Overfunding which will be held in the Escrow
Account to fund the repurchase of the Class A Ordinary Shares from
the Class A Ordinary Shareholders or other purposes in connection
with the Escrow Account.
Escrow Agent means Citibank N.A. London.
Extension means an extension of the Acquisition Deadline beyond
25 January 2024 for such period as may be approved by a Resolution
of Shareholders at a meeting of the Shareholders called for such
purpose.
Extension EGM has the meaning given to it in the Extension EGM
Circular.
Extension EGM Circular has the meaning given to it at Regulation
18. 20.
FCA means the UK Financial Conduct Authority.
Founding Shareholders means any shareholder who founded or
established the Company.
Initial Co-Sponsor Overfunding means the additional funds
committed by the Co-Sponsors to the Company through subscription
for 4,062,500 Sponsor Warrants at a price of $1.00 per Sponsor
Warrant.
Institutional Investors means the Anchor Investors and the
Cornerstone Investor.
Listing Rules means the listing rules of the FCA as amended from
time to time.
London Stock Exchange means London Stock Exchange plc.
Memorandum means this memorandum of association of the
Company.
Original Shareholder means each Class B Shareholder, excluding
any Class B Shareholder who, for the time being, only holds Class B
Shares as a result of a Permitted Transfer.
Offering means the proposed offering of the Class A Ordinary
Shares and Warrants on behalf of the Company at the Offer Price and
on the terms and subject to the conditions agreed upon by the
Directors.
Offer Price means $10.00 per Class A Ordinary Share.
Official List means the official list maintained by the FCA.
Overfunding means the Initial Co-Sponsor Overfunding.
Permitted Indebtedness means:
(a) liabilities incurred on or following the closing date of the
IPO not exceeding, in aggregate, $2,813,000, being the capital held
by the Company outside the Escrow Account after the costs relating
to the IPO have been paid, as disclosed in the IPO prospectus;
(b) any financing in connection with the Acquisition and
associated financing fees, provided that the Acquisition and such
financing and associated fees have been approved by a simple
majority (more than 50%) of the Shareholders (excluding the
Co-Sponsors);
(c) any loans made to the Company by the Co-Sponsors, provided
that such Co-Sponsors have, in a written agreement with the
Company, waived their rights to recourse against funds in, or
released from, the Escrow Account in respect of any such loans,
including, but not limited to, in the event of a dissolution and/or
liquidation of the Company;
(d) any liabilities for the account of any party to the
Acquisition (other than the Company) provided that the Acquisition
and such liabilities have been approved by a simple majority (more
than 50%) of the Shareholders (excluding the Co-Sponsors); and
(e) any other liabilities incurred by the Company in connection
with its pursuit of an Acquisition not exceeding USD 500,000 in
aggregate outstanding amount.
Permitted Transfer means a transfer of Class B Shares made in
accordance with Regulations 6.2 to 6.5 (inclusive).
Permitted Transferees means:
(a) participants in one or more share or share-based incentive
arrangements involving Class B Shares and Sponsor Warrants after
Admission;
(b) the Directors, any affiliates or family members of any of
the Directors, any members of the Co-Sponsors, or any affiliates of
the Co-Sponsors;
(c) the Anchor Investors;
(d) in the case of an individual, by gift to a member of the
individual's immediate family or to a trust, the beneficiary of
which is a member of the individual's immediate family or an
affiliate of such person, or to a charitable organisation;
(e) in the case of an individual, by virtue of distribution upon death of the individual;
(f) by private sales or transfers made in connection with the
consummation of an Acquisition at prices no greater than the price
at which the Sponsor Warrants were originally purchased;
(g) in the event of a liquidation of the Company prior to completion of an Acquisition;
(h) in the case of an entity, by virtue of the laws of its
jurisdiction or its organisational documents or operating
agreement; or
(i) in the event of completion of a liquidation, merger, share
exchange, reorganisation or other similar transaction which results
in all of the Class A Ordinary Shareholders having the right to
exchange their Ordinary Shares for cash, securities or other
property subsequent to completion of an Acquisition.
person includes individuals, corporations, trusts, the estates
of deceased individuals, partnerships and unincorporated
associations of persons.
Prohibited Transaction has the meaning given to it at Regulation
6.12 .
Proscribed Powers means the powers to:
(a) amend this Memorandum or the Articles;
(b) designate committees of Directors;
(c) delegate powers to a committee of Directors;
(d) appoint or remove Directors;
(e) appoint or remove an agent;
(f) approve a plan of merger, consolidation or arrangement;
(g) make a declaration of solvency or to approve a liquidation plan; or
(h) make a determination that immediately after a proposed
distribution the value of the Company ' s assets will exceed its
liabilities and the Company will be able to pay its debts as they
fall due.
Public Shareholders means Class A Ordinary Shareholders who are
not the Co-Sponsors, the Directors or the Advisor and the Founding
Shareholders.
Redeeming Shareholder has the meaning given to it at Regulation
18.2 .
Redemption Arrangements has the meaning given to it at
Regulation 18.6 .
Redemption Date has the meaning given to it at Regulation 18.1
.
Registrar means the BVI Registrar of Corporate Affairs.
Reserved Matter Shareholder Resolution means:
(j) a resolution approved at a duly convened and constituted
meeting of the Shareholders by the affirmative vote of 85% of the
votes of the Shares of the Shareholders entitled to vote thereon
which were present at the meeting and voted; or
(k) a resolution consented to in writing by 85% of the votes of
the Shares entitled to vote on such resolution.
Resolution of Directors means either:
(a) a resolution approved at a duly convened and constituted
meeting of Directors or of a committee of Directors by the
affirmative vote of a majority of the Directors present at the
meeting who voted except that where a Director is given more than
one vote, they shall be counted by the number of votes they cast
for the purpose of establishing a majority; or
(b) a resolution consented to in writing by an absolute majority
of the total number of Directors or by an absolute majority of all
the members of a committee of Directors, as the case may be.
Resolution of Shareholders means either:
(a) a resolution approved at a duly convened and constituted
meeting of the Shareholders by the affirmative vote of a majority
of the votes of the Shares of the Shareholders entitled to vote
thereon which were present at the meeting and voted; or
(b) a resolution consented to in writing by a majority of the
votes of the Shares entitled to vote on such resolution.
Sanctioned Shares has the meaning given to it at Regulation 6.12
.
Seal means any seal which has been duly adopted as the common
seal of the Company.
Securities Act means the U.S. Securities Act of 1933, as
amended.
Share means a share issued or to be issued by the Company.
Shareholder means a person whose name is entered in the register
of members of the Company as the holder of one or more Shares.
Sponsor Director means Artem Volynets.
Sponsor Warrants means the warrants issued to the Co-Sponsors
and Institutional Investors prior to the Offering.
Trading Days means a day on which the main market of the London
Stock Exchange (or such other applicable securities exchange or
quotation system on which the Class A Ordinary Shares or Warrants
are listed) is open for business (other than a day on which the
main market of the London Stock Exchange (or such other applicable
securities exchange or quotation system) is scheduled to or does
close prior to its regular weekday closing time).
U.S. Investment Company Act means the U.S. Investment Company
Act of 1940, as amended, and related rules.
Warrant Instrument means the instrument constituting the
Warrants executed by the Company.
Warrants means any warrants to subscribe for Class A Ordinary
Shares issued or to be issued pursuant to a Warrant Instrument.
written or any term of like import includes information
generated, sent, received or stored by electronic, electrical,
digital, magnetic, optical, electromagnetic, biometric or photonic
means, including electronic data interchange, electronic mail,
telegram, telex or telecopy, and in writing shall be construed
accordingly.
12.2. In this Memorandum and the Articles, unless the context
otherwise requires, a reference to:
(a) a Regulation is a reference to a regulation of the Articles;
(b) a Clause is a reference to a clause of this Memorandum;
(c) voting by Shareholders is a reference to the casting of the
votes attached to the Shares held by the Shareholder voting;
(d) a provision of law (including the Act) is a reference to
that provision as amended or re-enacted;
(e) this Memorandum or the Articles is a reference to those documents as amended; and
(f) the singular includes the plural and vice versa.
12.3. Where a period of time is expressed as a number of days,
the days on which the period begins and ends are not included in
the computation of the number of days.
12.4. Any reference to a month shall be construed as a reference
to a period starting on one day in a calendar month and ending on
the numerically corresponding day in the next calendar month and a
reference to a period of several months shall be construed
accordingly.
12.5. Any words or expressions defined in the Act bear the same
meaning in this Memorandum and the Articles unless the context
otherwise requires or they are otherwise defined in this Memorandum
or the Articles.
12.6. Headings are inserted for convenience only and shall be
disregarded in interpreting this Memorandum and the Articles.
Signed for HARNEYS CORPORATE SERVICES LIMITED of Craigmuir
Chambers, Road Town, Tortola, VG 1110, British Virgin Islands for
the purpose of incorporating a BVI Business Company under the laws
of the British Virgin Islands on 22nd of June 2021:
Incorporator
..............................................................
Indira Ward-Lewis
Authorised Signatory
HARNEYS CORPORATE SERVICES LIMITED
TERRITORY OF THE British Virgin Islands
BVI BUSINESS COMPANIES ACT 2004
ARTICLES OF ASSOCIATION
OF
ACG Acquisition Company Limited
A Company Limited by Shares
1. DISAPPLICATION OF THE ACT
1.1. The following sections of the Act shall not apply to the Company:
(a) section 46 (Pre-emptive rights);
(b) section 60 (Process for acquisition of own shares);
(c) section 61 (Offer to one or more shareholders);
(d) section 62 (Shares redeemed otherwise than at the option of company); and
(e) section 175 (Disposition of assets).
2. SHARES
2.1. Any issue of Shares shall be subject to Regulation 6.12 .
2.2. Subject to the provisions, if any, in the Memorandum (and
to any direction that may be given by the Company in general
meeting), the Act and, where applicable, the rules of the London
Stock Exchange and/or any competent regulatory authority, and
without prejudice to any rights attached to any existing Shares,
the Directors may allot, issue, grant options over or otherwise
dispose of Shares with or without preferred, deferred or other
rights or restrictions, whether in regard to a dividend or other
distribution, 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 Act and the Articles) vary
such rights.
2.3. The Company may issue securities in the Company, which may
be comprised of whole 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.
2.4. Upon request, a Shareholder is entitled to a certificate
signed by a Director or officer of the Company, or any other person
authorised by Resolution of Directors, or under the Seal specifying
the number of Shares held by them and the signature of the
Director, officer or authorised person and the Seal may be
facsimiles.
2.5. Any Shareholder receiving a certificate shall indemnify and
hold the Company and its Directors and officers harmless from any
loss or liability which it or they may incur by reason of any
wrongful or fraudulent use or representation made by any person by
virtue of the possession thereof. If a certificate for Shares is
worn out or lost it may be renewed on production of the worn out
certificate or on satisfactory proof of its loss together with such
indemnity as may be required by Resolution of Directors.
2.6. If several persons are registered as joint holders of any
Shares, any one of such persons may give an effectual receipt for
any distribution.
2.7. No Shares may be issued for a consideration other than
money, unless a Resolution of Directors has been passed
stating:
(a) the amount to be credited for the issue of the Shares; and
(b) that, in their opinion, the present cash value of the
non-money consideration for the issue is not less than the amount
to be credited for the issue of the Shares.
2.8. The consideration for a Share with par value shall be not
less than the par value of the Share. If a Share with par value is
issued for consideration less than the par value, the person to
whom the Share is issued is liable to pay to the Company an amount
equal to the difference between the issue price and the par
value.
2.9. The Company shall keep a register of members containing:
(a) the names and addresses of the persons who hold Shares;
(b) the number of each class and series of Shares held by each Shareholder;
(c) the date on which the name of each Shareholder was entered
in the register of members; and
(d) the date on which any person ceased to be a Shareholder.
2.10. The register of members may be in any such form as the
Directors may approve, but if it is in magnetic, electronic or
other data storage form, the Company must be able to produce
legible evidence of its contents. Until the Directors otherwise
determine, the magnetic, electronic or other data storage form
shall be the original register of members.
2.11. A Share is deemed to be issued when the name of the
Shareholder is entered in the register of members.
3. REDEMPTION OF SHARES AND TREASURY SHARES
3.1. The Company may purchase, redeem or otherwise acquire and
hold its own Shares save that the Company may not purchase, redeem
or otherwise acquire its own Shares without the consent of
Shareholders whose Shares are to be purchased, redeemed or
otherwise acquired unless the Company is permitted by the Act or
any other provision in the Memorandum or Articles to purchase,
redeem or otherwise acquire the Shares without their consent.
3.2. The Company may acquire its own fully paid Shares for no
consideration by way of surrender of the Shares to the Company by
the person holding the Shares. Any such surrender shall be
evidenced in writing and signed by the person holding the
Shares.
3.3. The Company may only offer to purchase, redeem or otherwise
acquire Shares if the Resolution of Directors authorising the
purchase, redemption or other acquisition contains a statement that
the Directors are satisfied, on reasonable grounds, that
immediately after the purchase, redemption or other acquisition the
value of the Company ' s assets will exceed its liabilities and the
Company will be able to pay its debts as they fall due.
3.4. Shares that the Company purchases, redeems or otherwise
acquires may be cancelled or held as treasury shares provided that
the number of Shares purchased, redeemed or otherwise acquired and
held as treasury shares, when aggregated with Shares of the same
class already held by the Company as treasury shares, may not
exceed 50% of the Shares of that class previously issued by the
Company excluding Shares that have been cancelled. Shares which
have been cancelled shall be available for reissue.
3.5. All rights and obligations attaching to a treasury share
are suspended and shall not be exercised by the Company while it
holds the Share as a treasury share.
3.6. Treasury shares may be transferred by the Company on such
terms and conditions (not otherwise inconsistent with the
Memorandum and the Articles) as the Company may by Resolution of
Directors determine.
4. MORTGAGES AND CHARGES OF SHARES
4.1. Shareholders may mortgage or charge their Shares.
4.2. There shall be entered in the register of members at the
written request of the Shareholder:
(a) a statement that the Shares held by them are mortgaged or charged;
(b) the name of the mortgagee or chargee; and
(c) the date on which the particulars specified in subparagraphs
(a) and (b) are entered in the register of members.
4.3. Where particulars of a mortgage or charge are entered in
the register of members, such particulars may be cancelled:
(a) with the written consent of the named mortgagee or chargee
or anyone authorised to act on their behalf; or
(b) upon evidence satisfactory to the Directors of the discharge
of the liability secured by the mortgage or charge and the issue of
such indemnities as the Directors shall consider necessary or
desirable.
4.4. Whilst particulars of a mortgage or charge over Shares are
entered in the register of members pursuant to this Regulation:
(a) no transfer of any Share the subject of those particulars shall be effected;
(b) the Company may not purchase, redeem or otherwise acquire any such Share; and
(c) no replacement certificate shall be issued in respect of such Shares,
without the written consent of the named mortgagee or
chargee.
4.5. The Directors may not resolve to refuse or delay the
transfer of a Share pursuant to the enforcement of a valid security
interest created over the Share.
5. FORFEITURE
5.1. Shares that are not fully paid on issue are subject to the
forfeiture provisions set forth in this Regulation and for this
purpose Shares or securities issued for a promissory note, other
written obligation to contribute money or property or a contract
for future services are deemed to be not fully paid.
5.2. A written notice of call specifying the date for payment to
be made shall be served on the Shareholder who defaults in making
payment in respect of the Shares.
5.3. The written notice of call referred to in Regulation 5.2
shall name a further date not earlier than the expiration of 14
days from the date of service of the notice on or before which the
payment required by the notice is to be made and shall contain a
statement that in the event of non-payment at or before the time
named in the notice the Shares, or any of them, in respect of which
payment is not made will be liable to be forfeited.
5.4. Where a written notice of call has been issued pursuant to
Regulation 5.2 and the requirements of the notice have not been
complied with, the Directors may, at any time before tender of
payment, forfeit and cancel the Shares to which the notice
relates.
5.5. If a Shareholder intends to offer, sell, transfer, assign,
novate or otherwise dispose of any Shares or Warrants they shall do
so only in compliance with an exemption from the registration
requirements of the Securities Act and under circumstances which
will not require the Company to register under the U.S. Investment
Company Act.
5.6. The Company is under no obligation to refund any moneys to
the Shareholder whose Shares have been cancelled pursuant to
Regulation 5.4 and 5.5 and that Shareholder shall be discharged
from any further obligation to the Company.
6. TRANSFER OF SHARES and warrants
6.1. A share may, subject to the provisions of the Articles, be
transferred subject to the prior or subsequent approval of the
Company contained in a Resolution of Shareholders or a Resolution
of Directors.
6.2. Class B Shares may only be transferred in accordance with Regulations 6.3, 6.4 and 6.5 .
6.3. An Original Shareholder (excluding any Anchor Investor) may
transfer their Class B Shares to any of their Permitted Transferees
without restriction as to price or otherwise. Any Anchor Investor
who holds Class B Shares on the completion date of the Offering may
transfer its Class B Shares in accordance with any agreement
entered into between it and the Company prior to the Offering.
6.4. A Shareholder holding Class B Shares as a result of:
(a) a transfer by an Original Shareholder under Regulation 6.3; or
(b) a transfer by a Permitted Transferee of an Original Shareholder,
may transfer any or all such Class B Shares back to that
Original Shareholder (or to one or more other Permitted Transferees
of that Original Shareholder) without restriction as to price or
otherwise.
6.5. An Original Shareholder may transfer their Class B Shares
or Sponsor Warrants following the completion of the Offering to any
Anchor Investor in the Offering with whom an agreement has been
concluded on or before the date of the Offering among the Company,
the Original Shareholders and such Anchor Investor.
6.6. Shares may be transferred by a written instrument of
transfer signed by the transferor and containing the name and
address of the transferee, which shall be sent to the Company for
registration, provided that such transfer also complies with
applicable laws of England and Wales. If the Shares in question
were issued in conjunction with rights, options or warrants issued
on terms that one cannot be transferred without the other, the
Directors shall refuse to register the transfer of any such Share
without evidence satisfactory to them of the like transfer of such
option or warrant.
6.7. In addition to the above, the instrument of transfer of any
Share shall be in writing in the usual or common form or in a form
prescribed by the London Stock Exchange or in any other form
approved by the officers of the Company 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.
6.8. The transfer of a Share is effective when the name of the
transferee is entered on the register of members.
6.9. If the Directors are satisfied that an instrument of
transfer relating to Shares has been signed but that the instrument
has been lost or destroyed, they may resolve by Resolution of
Directors:
(a) to accept such evidence of the transfer of Shares as they consider appropriate; and
(b) that the transferee ' s name should be entered in the
register of members notwithstanding the absence of the instrument
of transfer.
6.10. The personal representative of a deceased Shareholder may
transfer a Share even though the personal representative is not a
Shareholder at the time of the transfer.
6.11. The Directors may not resolve to refuse or delay the transfer of a Share unless:
(a) the Shareholder has failed to pay an amount due in respect of the Share; or
(b) such transfer would breach or cause a breach of: (i) the
rules of the London Stock Exchange or any stock exchange on which
the Shares may be listed; or (ii) applicable law or regulation at
such times and for such periods as the Directors may from time to
time determine.
6.12. Regulations 6.13 and 16.14 shall apply to any issue,
transfer or disposal of any interest in a Share (the Sanctioned
Shares) which would result in the Company becoming a sanctioned
entity (a Prohibited Transaction).
6.13. Where a Prohibited Transaction occurs, none of the rights
vested in a Shareholder relating to the Sanctioned Shares may be
exercised, and all such rights are suspended until Regulation 6.14
has been complied with and such shares have been transferred to a
third party. This includes but is not limited to any right to:
(a) attend or be counted in the quorum or vote either personally
or by proxy at any meeting of the Shareholders or at any separate
meeting of the holders of any class of Shares or upon any poll or
to exercise any other right or privilege in relation to any meeting
of the Shareholders or any meeting of the holders of any class of
Shares;
(b) vote on any Resolution of Shareholders or consent to any other corporate action;
(c) receive dividends or other distributions in relation to such
Shares (whether or not declared before or after the
suspension);
(d) redeem or convert such Shares; or
(e) receive any surplus assets in the liquidation of the Company.
6.14. The Company will, no later than five (5) Business Days
after becoming aware a Prohibited Transaction has taken place,
cause the Sanctioned Shares to be sold on the open market in a
transaction which is not a Prohibited Transaction (including, where
such Sanctioned Shares are held in dematerialised form, by
procuring the transfer of the depository interest representing the
Sanctioned Shares), the cash proceeds of which will be delivered to
the relevant Shareholder(s), subject to (x) deduction from any such
cash proceeds of any applicable withholding taxes and of an amount
equal to any stamp duty, stamp duty reserve tax, or any other
capital gain, net income, issue, transfer, registration, financial
transaction or documentary tax that may arise or be paid as a
consequence of such sale and (y) the delivery by the relevant
Shareholder of any other information required by law or reasonably
required by the Company.
7. MEETINGS AND CONSENTS OF ShareholderS
7.1. Any Director may convene meetings of the Shareholders at
such times and in such manner and places within or outside the
British Virgin Islands as the Director considers necessary or
desirable.
7.2. Upon the written request of Shareholders entitled to
exercise 30% or more of the voting rights in respect of the matter
for which the meeting is requested the Directors shall convene a
meeting of Shareholders.
7.3. The Director convening a meeting shall give not less than 7
days' notice of a meeting of Shareholders to:
(a) those Shareholders whose names on the date the notice is
given appear as Shareholders in the register of members of the
Company and are entitled to vote at the meeting; and
(b) the other Directors.
7.4. The Director convening a meeting of Shareholders may fix as
the record date for determining those Shareholders that are
entitled to vote at the meeting the date notice is given of the
meeting, or such other date as may be specified in the notice,
being a date not earlier than the date of the notice.
7.5. A meeting of Shareholders held in contravention of the
requirement to give notice is valid if Shareholders holding at
least 90% of the total voting rights on all the matters to be
considered at the meeting have waived notice of the meeting and,
for this purpose, the presence of a Shareholder at the meeting
shall constitute waiver in relation to all the Shares which that
Shareholder holds.
7.6. The inadvertent failure of a Director who convenes a
meeting to give notice of a meeting to a Shareholder or another
Director, or the fact that a Shareholder or another Director has
not received notice, does not invalidate the meeting.
7.7. A Shareholder may be represented at a meeting of
Shareholders by a proxy who may speak and vote on behalf of the
Shareholder.
7.8. The instrument appointing a proxy shall be produced at the
place designated for the meeting before the time for holding the
meeting at which the person named in such instrument proposes to
vote. The notice of the meeting may specify an alternative or
additional place or time at which the proxy shall be presented.
7.9. The instrument appointing a proxy shall be in substantially
the following form or such other form as approved by the Directors
or as the chair of the meeting shall accept as properly evidencing
the wishes of the Shareholder appointing the proxy
ACG ACQUISITION COMPANY LIMITED
I/We being a Shareholder of the above Company HEREBY APPOINT
............
..................... of ................................. or
failing them .............................
of ................................... to be my/our proxy to
vote for me/us at the meeting
of Shareholders to be held on the ...... day of
.........................., 20...... and at any
adjournment thereof.
(Any restrictions on voting to be inserted here.)
Signed this ...... day of ..........................,
20......
.................................
Shareholder
7.10. The following applies where Shares are jointly owned:
(a) if two or more persons hold Shares jointly each of them may
be present in person or by proxy at a meeting of Shareholders and
may speak as a Shareholder;
(b) if only one of the joint owners is present in person or by
proxy they may vote on behalf of all joint owners; and
(c) if two or more of the joint owners are present in person or
by proxy they must vote as one.
7.11. A Shareholder shall be deemed to be present at a meeting
of Shareholders if they participate by telephone or other
electronic means and all Shareholders or their authorised
representatives participating in the meeting are able to hear each
other.
7.12. A meeting of Shareholders is duly constituted if, at the
commencement of the meeting, there are present in person or by
proxy not less than thirty percent (30%) of the votes of the Shares
entitled to vote on Resolutions of Shareholders to be considered at
the meeting. A quorum may comprise a single Shareholder or proxy
and then such person may pass a Resolution of Shareholders and a
certificate signed by such person accompanied where such person be
a proxy by a copy of the proxy instrument shall constitute a valid
Resolution of Shareholders, provided that a meeting shall not be
considered quorate if a majority of such shareholders present at
such meeting are represented by a single Co-Sponsor.
7.13. If within two hours from the time appointed for the
meeting a quorum is not present, the meeting, if convened upon the
requisition of Shareholders, shall be dissolved; in any other case
it shall stand adjourned to the next Business Day in the
jurisdiction in which the meeting was to have been held at the same
time and place or to such other time and place as the Directors may
determine, and if at the adjourned meeting there are present within
one hour from the time appointed for the meeting in person or by
proxy not less than one third of the votes of the Shares or each
class or series of Shares entitled to vote on the matters to be
considered by the meeting, those present shall constitute a quorum
but otherwise the meeting shall be dissolved.
7.14. At every meeting of Shareholders, the chair of the board
of Directors shall preside as chair of the meeting. If there is no
chair of the board of Directors or if that chair is not present at
the meeting, the Shareholders present shall choose one of their
number to be the chair. If the Shareholders are unable to choose a
chair for any reason, then the person representing the greatest
number of voting Shares present in person or by proxy at the
meeting shall preside as chair failing which the oldest individual
Shareholder or representative of a Shareholder present shall take
the chair.
7.15. The chair may, with the consent of the meeting, adjourn
any 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.
7.16. At any meeting of the Shareholders the chair is
responsible for deciding in such manner as they consider
appropriate whether any resolution proposed has been carried or not
and the result of their decision shall be announced to the meeting
and recorded in the minutes of the meeting. If the chair has any
doubt as to the outcome of the vote on a proposed resolution, they
shall cause a poll to be taken of all votes cast upon such
resolution. If the chair fails to take a poll then any Shareholder
present in person or by proxy who disputes the announcement by the
chair of the result of any vote may immediately following such
announcement demand that a poll be taken and the chair shall cause
a poll to be taken. If a poll is taken at any meeting, the result
shall be announced to the meeting and recorded in the minutes of
the meeting.
7.17. Subject to the specific provisions contained in this
Regulation for the appointment of representatives of persons other
than individuals the right of any individual to speak for or
represent a Shareholder shall be determined by the law of the
jurisdiction where, and by the documents by which, the person is
constituted or derives its existence. In case of doubt, the
Directors may in good faith seek legal advice from any qualified
person and unless and until a court of competent jurisdiction shall
otherwise rule, the Directors may rely and act upon such advice
without incurring any liability to any Shareholder or the
Company.
7.18. Any person other than an individual which is a Shareholder
may by resolution of its Directors or other governing body
authorise such individual as it thinks fit to act as its
representative at any meeting of Shareholders or of any class of
Shareholders, and the individual so authorised shall be entitled to
exercise the same rights on behalf of the Shareholder which they
represent as that Shareholder could exercise if it were an
individual.
7.19. The chair of any meeting at which a vote is cast by proxy
or on behalf of any person other than an individual may call for a
notarially certified copy of such proxy or authority which shall be
produced within 7 days of being so requested or the votes cast by
such proxy or on behalf of such person shall be disregarded.
7.20. Directors may attend and speak at any meeting of
Shareholders and at any separate meeting of the holders of any
class or series of Shares.
7.21. An action that may be taken by the Shareholders at a
meeting may also be taken by a resolution consented to in writing,
without the need for any notice, but if any Resolution of
Shareholders is adopted otherwise than by the unanimous written
consent of all Shareholders, a copy of such resolution shall
forthwith be sent to all Shareholders not consenting to such
resolution. The consent may be in the form of counterparts; each
counterpart being signed by one or more Shareholders. If the
consent is in one or more counterparts, and the counterparts bear
different dates, then the resolution shall take effect on the
earliest date upon which Shareholders holding a sufficient number
of votes of Shares to constitute a Resolution of Shareholders have
consented to the resolution by signed counterparts.
8. UNtraceable members
8.1. Where any Shareholder is untraceable, the Company may sell
any of their Shares provided that:
(a) no less than 3 checks for any sums payable in cash to such
Shareholder have remained uncashed for a period of 12 years from
the date of issue of the check;
(b) the Company not having during that time or before the expiry
of the three-month period referred to in (c) below received any
indication of the existence of the Shareholder or person entitled
to such shares by death, bankruptcy or operation of law; and
(c) upon expiration of the 12-year period, an advertisement has
been published in newspapers, giving notice of the Company ' s
intention to sell those Shares, and a period of three months or
such shorter period has elapsed since the date of such
advertisement.
8.2. Where the Company sells the Shares of any untraceable
Shareholder, the net proceeds of any such sale shall be held in the
Company, and the net proceeds shall be accounted as a debt due to
that untraceable Shareholder for an amount equal to such net
proceeds.
9. DIRECTORS
9.1. The first Directors shall be appointed by the first
registered agent within 6 months of the date of incorporation of
the Company; and thereafter, the Directors shall be elected by
Resolution of Shareholders or by Resolution of Directors. If,
before the Company has any members, all of the Directors appointed
by the registered agent resign or die or otherwise cease to exist,
the registered agent may appoint one or more further persons as
Directors.
9.2. No person shall be appointed as a Director or alternate
Director, or nominated as a reserve Director, unless they have
consented in writing to be a Director or alternate Director, or to
be nominated as a reserve Director.
9.3. Subject to Regulation 9.1 , the minimum number of Directors
shall be one and there shall be no maximum number, provided that
Directors who are affiliated with any single Co-Sponsor may not
constitute a majority of the board of Directors.
9.4. Each Director holds office for the term, if any, fixed by
the Resolution of Shareholders or the Resolution of Directors
appointing them, or until their earlier death, resignation or
removal. If no term is fixed on the appointment of a Director, the
Director serves indefinitely until their earlier death, resignation
or removal.
9.5. No Director will be required to submit for re-election
until the first annual general meeting of the Company following the
Acquisition.
9.6. A Director may be removed from office:
(a) with or without cause, by Resolution of Shareholders passed
at a meeting of Shareholders called for the purpose of removing the
Director or for purposes including the removal of the Director or
by a written resolution passed by at least 75% of the votes of the
Shares of the Company entitled to vote, provided that no Director
appointed from the closing of the Offering until completion of the
first Acquisition may be removed by a Resolution of Shareholders;
or
(b) with cause, by Resolution of Directors passed at a meeting
of Directors called for the purpose of removing the Director or for
purposes including the removal of the Director.
9.7. A Director may resign their office by giving written notice
of their resignation to the Company and the resignation has effect
from the date the notice is received by the Company or from such
later date as may be specified in the notice. A Director shall
resign forthwith as a Director if they are, or become, disqualified
from acting as a Director under the Act.
9.8. The Directors may at any time appoint any person to be a
Director either to fill a vacancy or as an addition to the existing
Director. Where the Directors appoint a person as Director to fill
a vacancy, the term shall not exceed the term that remained when
the person who has ceased to be a Director ceased to hold
office.
9.9. A vacancy in relation to Directors occurs if a Director
dies or otherwise ceases to hold office prior to the expiration of
their term of office.
9.10. Where the Company only has one Shareholder who is an
individual and that Shareholder is also the sole Director, the sole
Shareholder/Director may, by instrument in writing, nominate a
person who is not disqualified from being a Director as a reserve
Director to act in the place of the sole Director in the event of
their death.
9.11. The nomination of a person as a reserve Director ceases to have effect if:
(a) before the death of the sole Shareholder/ Director who nominated them,
(i) they resign as reserve Director, or
(ii) the sole Shareholder/Director revokes the nomination in writing; or
(b) the sole Shareholder/Director who nominated them ceases to be able to be the sole Shareholder/Director for any reason other than their death.
9.12. The Company shall keep a register of Director containing:
(a) the names and addresses of the persons who are Directors or
who have been nominated as reserve Directors;
(b) the date on which each person whose name is entered in the
register was appointed as a Director, or nominated as a reserve
Director;
(c) the date on which each person named as a Director ceased to be a Director;
(d) the date on which the nomination of any person nominated as
a reserve Director ceased to have effect; and
(e) such other information as may be prescribed by the Act.
9.13. The register of Directors may be kept in any such form as
the Directors may approve, but if it is in magnetic, electronic or
other data storage form, the Company must be able to produce
legible evidence of its contents. Until a Resolution of Directors
determining otherwise is passed, the magnetic, electronic or other
data storage shall be the original register of Directors.
9.14. A Director is not required to hold a Share as a qualification to office.
10. REmuneration of directors
10.1. Certain Class B Shares and Sponsor Warrants are intended
to be used for one or more incentive arrangements after Admission,
from which the executive directors and senior executives will be
paid based on performance. The remaining incentive pool will be
allocated among the employees of the Company and beneficial owners
of the Co-Sponsors, on the basis of their contribution to the
Company from time to time during its operations. It is intended
that these equities will vest at the time of the Acquisition.
10.2. The Sponsor Director will be remunerated according to the
terms of an agreed contract between the Sponsor Director and the
Company.
10.3. The Sponsor Director will not be entitled to any
additional fees for attendance on any committees of the board of
Directors.
10.4. Each independent director will be entitled to a fee of
$80,000 per annum for services in the role of non-executive
Director. Additional fees of $20,000 per annum shall be payable for
taking on the role of chairman of the Board, $15,000 per annum
shall be payable for taking on the role of chairman of a committee
of the board of Directors, and $10,000 per annum for serving as a
member of a committee of the board of Directors.
10.5. All the Directors are entitled to be reimbursed by the
Company for travel, hotel and other expenses incurred by them in
the course of their Directors' duties relating to the Company.
11. POWERS OF DIRECTORS
11.1. The business and affairs of the Company shall be managed
by, or under the direction or supervision of, the Directors. The
Directors have all the powers necessary for managing, and for
directing and supervising, the business and affairs of the Company.
The Directors may pay all expenses incurred preliminary to and in
connection with the incorporation of the Company and may exercise
all such powers of the Company as are not by the Act or by the
Memorandum or the Articles required to be exercised by the
Shareholders.
11.2. Each Director shall exercise their powers for a proper
purpose and shall not act or agree to the Company acting in a
manner that contravenes the Memorandum, the Articles or the Act.
Each Director, in exercising their powers or performing their
duties, shall act honestly and in good faith in what the Director
believes to be the best interests of the Company.
11.3. If the Company is the wholly owned subsidiary of a parent,
a Director may, when exercising powers or performing duties as a
Director, act in a manner which they believe is in the best
interests of the parent even though it may not be in the best
interests of the Company.
11.4. Any Director which is a body corporate may appoint any
individual as its duly authorised representative for the purpose of
representing it at meetings of the Directors, with respect to the
signing of consents or otherwise.
11.5. The continuing Directors may act notwithstanding any vacancy in their body.
11.6. The Directors may by Resolution of Directors exercise all
the powers of the Company to incur indebtedness, liabilities or
obligations and to secure indebtedness, liabilities or obligations
whether of the Company or of any third party.
11.7. All cheques, promissory notes, drafts, bills of exchange
and other negotiable instruments and all receipts for moneys paid
to the Company shall be signed, drawn, accepted, endorsed or
otherwise executed, as the case may be, in such manner as shall
from time to time be determined by Resolution of Directors.
12. PROCEEDINGS OF DIRECTORS
12.1. Any one Director may call a meeting of the Directors by
sending a written notice to each other Director.
12.2. The Directors or any committee thereof may meet at such
times and in such manner and places within or outside the British
Virgin Islands as the Directors may determine to be necessary or
desirable.
12.3. A Director is deemed to be present at a meeting of
Directors if they participate by telephone or other electronic
means and all Directors participating in the meeting are able to
hear each other.
12.4. A Director shall be given not less than 3 days ' notice of
meetings of Directors, but a meeting of Directors held without 3
days ' notice having been given to all Directors shall be valid if
all the Directors entitled to vote at the meeting who do not attend
waive notice of the meeting, and for this purpose the presence of a
Director at a meeting shall constitute waiver by that Director. The
inadvertent failure to give notice of a meeting to a Director, or
the fact that a Director has not received the notice, does not
invalidate the meeting.
12.5. A Director (the Appointing Director) may appoint any other
Director or any other eligible person as their alternate to
exercise the Appointing Director ' s powers and carry out the
Appointing Director ' s responsibilities in relation to the taking
of decisions by the Directors in the absence of the Appointing
Director.
12.6. The appointment and termination of an alternate Director
must be in writing, and written notice of the appointment and
termination must be given by the Appointing Director to the Company
as soon as reasonably practicable.
12.7. An alternate Director has the same rights as the
Appointing Director in relation to any Directors ' meeting and any
written resolution circulated for written consent. An alternate
Director has no power to appoint a further alternate, whether of
the Appointing Director or of the alternate Director, and the
alternate does not act as an agent of or for the Appointing
Director.
12.8. The Appointing Director may, at any time, voluntarily
terminate the alternate Director ' s appointment. The voluntary
termination of the appointment of an alternate shall take effect
from the time when written notice of the termination is given to
the Company. The rights of an alternate shall automatically
terminate if the Appointing Director dies or otherwise ceases to
hold office.
12.9. A meeting of Directors is duly constituted for all
purposes if at the commencement of the meeting there are present in
person or by alternate not less than one-half of the total number
of Directors, subject to a minimum of 2 and provided that Directors
who are affiliated with any single Co-Sponsor may not constitute a
majority of the board of Directors counted in convening a
meeting.
12.10. If the Company has only one Director the provisions
herein contained for meetings of Directors do not apply and such
sole Director has full power to represent and act for the Company
in all matters as are not by the Act, the Memorandum or the
Articles required to be exercised by the Shareholders. In lieu of
minutes of a meeting the sole Director shall record in writing and
sign a note or memorandum of all matters requiring a Resolution of
Directors. Such a note or memorandum constitutes sufficient
evidence of such resolution for all purposes.
12.11. The Directors may appoint a Director as chair of the
board of Directors. At meetings of Directors at which the chair of
the board of Directors is present, they shall preside as chair of
the meeting. If there is no chair of the board of Directors or if
the chair of the board is not present, the Directors present shall
choose one of their number to be chair of the meeting.
12.12. An action that may be taken by the Directors or a
committee of Directors at a meeting may also be taken by a
Resolution of Directors or a resolution of a committee of Directors
consented to in writing by all Directors or by all members of the
committee, as the case may be, without the need for any notice. The
consent may be in the form of counterparts each counterpart being
signed by one or more Directors. If the consent is in one or more
counterparts, and the counterparts bear different dates, then the
resolution shall take effect on the date upon which the last
Director has consented to the resolution by signed
counterparts.
13. COMMITTEES
13.1. The Directors may, by Resolution of Directors, designate
one or more committees, each consisting of one or more Directors,
and delegate one or more of their powers, including the power to
affix the Seal, to the committee.
13.2. The Directors have no power to delegate to a committee of
Directors any of the Proscribed Powers.
13.3. A committee of Directors, where authorised by the
Resolution of Directors appointing such committee or by a
subsequent Resolution of Directors, may appoint a sub-committee and
delegate powers exercisable by the committee to the
sub-committee.
13.4. The meetings and proceedings of each committee of
Directors consisting of 2 or more Directors shall be governed by
the provisions of these Articles regulating the proceedings of
Directors with any necessary changes so far as the same are not
superseded by any provisions in the Resolution of Directors
establishing the committee.
13.5. Where the Directors delegate their powers to a committee
of Directors they remain responsible for the exercise of that power
by the committee, unless they believed on reasonable grounds at all
times before the exercise of the power that the committee would
exercise the power in conformity with the duties imposed on
Directors under the Act.
14. OFFICERS AND AGENTS
14.1. The Company may by Resolution of Directors appoint
officers of the Company at such times as may be considered
necessary or expedient. The officers shall perform such duties as
are prescribed at the time of their appointment subject to any
modification in such duties as may be prescribed thereafter by
Resolution of Directors.
14.2. The emoluments of all officers shall be fixed by Resolution of Directors.
14.3. The officers of the Company shall hold office until their
successors are duly appointed, but any officer elected or appointed
by the Directors may be removed at any time, with or without cause,
by Resolution of Directors. Any vacancy occurring in any office of
the Company may be filled by Resolution of Directors.
14.4. The Directors may, by Resolution of Directors, appoint any
person, including a person who is a Director, to be an agent of the
Company.
14.5. An agent of the Company shall have such powers and
authority of the Directors, including the power and authority to
affix the Seal, as are set forth in the Articles or in the
Resolution of Directors appointing the agent, except that no agent
has any power or authority with respect to the following:
(a) the Proscribed Powers;
(b) to change the registered office or agent;
(c) to fix emoluments of Directors; or
(d) to authorise the Company to continue as a company
incorporated under the laws of a jurisdiction outside the British
Virgin Islands.
14.6. The Resolution of Directors appointing an agent may
authorise the agent to appoint one or more substitutes or delegates
to exercise some or all of the powers conferred on the agent by the
Company.
14.7. The Directors may remove an agent appointed by the Company
and may revoke or vary a power conferred on them.
15. Financial Year
15.1. Unless the Directors otherwise prescribe, the financial
year of the Company shall end on 31 December in each year.
16. Mergers and consolidations
16.1. The Company shall have the power to merge or consolidate
with one or more other constituent companies upon such terms as the
Directors may determine by a Resolution of the Directors subject as
may be permitted by the Act.
17. Acquisition
17.1. Notwithstanding any other Regulations of the Articles,
this Regulation 17 shall apply during the period commencing upon
the adoption of the Articles and terminating upon the completion of
an Acquisition. In the event of a conflict between this Regulation
17 and any other Regulation, the provisions of this Regulation 17
shall prevail, and this Regulation may not be amended prior to the
completion of an Acquisition without the approval of a Resolution
of Shareholders.
17.2. Prior to the completion of an Acquisition, the Company shall:
(a) submit such Acquisition to its Shareholders for approval;
(b) obtain the approval of the Public Shareholders for such
Acquisition (after ensuring that none of the Founding Shareholders,
the Co-Sponsors or the Directors vote on the relevant resolution);
and
(c) provide the Class A Ordinary Shareholders the opportunity to
redeem all or a portion of their Class A Ordinary Shares upon the
completion of the Acquisition at a per-share price, payable in
cash, equal to the aggregate amount then on deposit in the Escrow
Account calculated as of two Trading Days prior to the consummation
of the Acquisition, divided by the number of then issued and
outstanding Class A Ordinary Shares, provided that the solvency
test in s.56 of the Act would not be breached as a result.
17.3. The Company shall initiate any approval of an Acquisition
in accordance with 5.6.18AG of the Listing Rules and this shall
include:
(a) obtaining the approval of the board of Directors; and
(b) the approval of the Class A Ordinary Shareholders.
17.4. In accordance with 5.6.18AG of the Listing Rules, the
Company shall not submit an Acquisition to its Shareholders for
approval without first obtaining the approval of the board of
Directors.
17.5. In accordance with 5.6.18AG of the Listing Rules, the
following may not participate in the board of Directors' discussion
or resolution on the Acquisition:
(a) any Director who is, or an associate of whom is, a director
of the target entity or of a subsidiary undertaking of the target
entity under consideration for the Acquisition; and
(b) any Director who has a conflict of interest in relation to
the target entity or a subsidiary undertaking of the target entity
under consideration for the Acquisition.
17.6. In accordance with 5.6.18AG of the Listing Rules, where
any Director has a conflict of interest in relation to the
Acquisition, the Company shall publish, in sufficient time before
submitting such Acquisition to its Shareholders for approval, a
statement by the board of Directors that:
(a) the proposed Acquisition is fair and reasonable as far as
the Public Shareholders are concerned; and
(b) the Directors have been so advised by an appropriately
qualified and independent advisor.
17.7. At a general meeting called for the purposes of approving
an Acquisition pursuant to this Regulation, in the event that a
majority of the Public Shareholders voted are voted for the
approval of the Acquisition, the Company shall be authorised to
complete the Acquisition provided that if the Acquisition is to be
completed by statutory merger under the Act, the relevant approvals
under the Act are also obtained.
17.8. Prior to the completion date of an Acquisition, the
Company shall take commercially reasonable efforts to procure that
all vendors, service providers (other than its independent auditors
and legal counsels), prospective target companies or businesses,
and other entities with which the Company does business, execute
agreements with the Company waiving any right, title, interest or
claim of any kind in or to any monies held in or released from the
Escrow Account, including in the event of a dissolution and
liquidation of the Company.
18. REDEMPTION
Redemption of Class A Ordinary Shares held by Public
Shareholders at the time of the Acquisition
18.1. The Company will provide its Public Shareholders with the
opportunity to redeem all or a portion of their Class A Ordinary
Shares upon the completion of the Acquisition at a per-share price,
payable in cash, equal to the aggregate amount then on deposit in
the Escrow Account calculated as of two Trading Days prior to the
consummation of the Acquisition (including any Overfunding),
divided by the number of then issued and outstanding Class A
Ordinary Shares, subject to amongst other things the redemption
limitations described in these Articles. On the date set by the
Directors for the redemption of the relevant Class A Ordinary
Shares (the Redemption Date), which will be on or about the
Acquisition Date, the Company will be required to redeem any Class
A Ordinary Shares properly delivered for redemption and not
withdrawn.
18.2. Each Public Shareholder (a Redeeming Shareholder) may
elect to have their Class A Ordinary Shares redeemed without
attending or voting at the Acquisition EGM and, if they do vote,
they may still elect to redeem their Class A Ordinary Shares
irrespective of whether they vote for or against or abstain from
voting on the proposed Acquisition. The Co-Sponsors and the
Directors have entered into an agreement with the Company, pursuant
to which they have agreed to waive their redemption rights in
connection with the consummation of the Acquisition with respect to
any Class A Ordinary Shares held by them.
18.3. For the avoidance of doubt, the Redemption Arrangements
(as defined below) set out in this Regulation shall only apply to
the Class A Ordinary Shares and not to any other class of
Shares.
18.4. The amount in the Escrow Account is initially anticipated
to be $10.325 per Class A Ordinary Share. There will be no
redemption rights upon the consummation of the Acquisition with
respect to the Warrants that have not been exercised for Class A
Ordinary Shares. However, because Class A Ordinary Shareholders who
wish to redeem their Class A Ordinary Shares in connection with the
Acquisition will receive their pro rata share of the Escrow
Account, the amount they receive may be less than $10.325 per Class
A Ordinary Share (comprising $10.00 per Class A Ordinary Share
representing the amount subscribed for by Class A Ordinary
Shareholders together with the Class A Ordinary Shareholders' pro
rata entitlement to the Escrow Account Overfunding, expected to be
$0.325 per Class A Ordinary Share, and excluding any Class A
Ordinary Shareholders' pro rata entitlement to any interest accrued
on the Escrow Account (if any)).
18.5. In addition, as a matter of BVI law, the Company may only
redeem Class A Ordinary Shares if the solvency test under s.56 of
the Act will not be breached.
18.6. Subject to the above, the Company will redeem the Class A
Ordinary Shares held by the Redeeming Shareholders in accordance
with the arrangements described below and BVI law, under the
following terms (together, the Redemption Arrangements).
Redemption price and Acceptance Period
18.7. The gross redemption price of a Class A Ordinary Share
under the Redemption Arrangements is expected to be $10.325 per
Class A Ordinary Share (comprising $10.00 per Class A Ordinary
Share representing the amount subscribed for by Class A Ordinary
Shareholders together with the Class A Ordinary Shareholders' pro
rata entitlement to the Escrow Account Overfunding, expected to be
$0.325 per Class A Ordinary Share, and excluding any Class A
Ordinary Shareholders' pro rata entitlement to any interest accrued
on the Escrow Account (if any)).
18.8. The Directors will set an acceptance period for the
redemption of Class A Ordinary Shares under the Redemption
Arrangements. The relevant dates will be included in the press
release issued in connection with the convocation of the
Acquisition EGM. The Acceptance Period shall in any event be the
period from the day of the convocation of the Acquisition EGM
ending on the second Trading Day preceding the Acquisition EGM (the
Acceptance Period).
18.9. Redeeming Shareholders will receive the redemption price
within two Trading Days after the Redemption Date. The Redemption
Date will be set by the Directors and will be included in the press
release issued in connection with the convocation of the
Acquisition EGM. The Redemption Date is expected to be on or about
Acquisition Date.
18.10. The notice of the Acquisition EGM that the Company will
furnish to Class A Ordinary Shareholders in connection with an
Acquisition will describe the various procedures that must be
complied with in order to validly tender or redeem Class A Ordinary
Shares. In the event that a Class A Ordinary Shareholder fails to
comply with these procedures, their Class A Ordinary Shares may not
be redeemed.
18.11. Class A Ordinary Shareholders may require the Company to
redeem all or a portion of the Class A Ordinary Shares held by them
if all of the following conditions have been met:
(a) the Redeeming Shareholder exercising their right to sell
their Class A Ordinary Shares to the Company has notified the
Company through their Admitted Institution by no later than 9:00
a.m. (London time) on the date two Trading Days after the date of
the Acquisition EGM of its intention to transfer their Class A
Ordinary Shares to the Company in accordance with the transfer
instructions included in the press release issued in connection
with the convocation of the Acquisition EGM; and
(b) the proposed Acquisition has been completed on or before the Acquisition Deadline.
Withdrawal of redemption notification
18.12. Any request to redeem Class A Ordinary Shares, once made,
may be withdrawn up to two Trading Days prior to the Acquisition
EGM (unless the Company elects to allow additional withdrawal
rights).
18.13. Any notice of withdrawal must specify the name of the
person having tendered the Class A Ordinary Shares to be withdrawn,
the number of Class A Ordinary Shares to be withdrawn and the name
of the registered holder of the Class A Ordinary Shares to be
withdrawn, if different from that of the person who tendered such
Class A Ordinary Shares. The signature(s) on the notice of
withdrawal must be guaranteed by an Admitted Institution, unless
such Class A Ordinary Shares have been tendered for the account of
any Admitted Institution. All questions as to the form and validity
(including time of receipt) of any notice of withdrawal will be
determined by the Company, in its sole discretion, which
determination will be final and binding. Public Shareholders should
contact their custodian, bank or stockbroker to obtain information
about the deadline by which such Class A Ordinary Shareholder must
send instructions to the custodian, bank or stockbroker to withdraw
their Class A Ordinary Shares for redemption and should comply with
the dates set by such custodian, bank or stockbroker, as such dates
may differ from the dates and times noted in these Articles or any
subsequent publication on redemption.
18.14. Withdrawals of tenders for redemption of Class A Ordinary
Shares may not be rescinded, and any Class A Ordinary Shares
properly withdrawn will be deemed not to have been validly tendered
for redemption. Class A Ordinary Shares may be re-tendered for
redemption.
18.15. It may take up to two Trading Days for Class A Ordinary
Shares that have been withdrawn to be unblocked and for the Public
Shareholder to have the ability to trade such Class A Ordinary
Shares. In addition, should a Public Shareholder withdraw its Class
A Ordinary Shares and subsequently again wish to notify the Company
of its intention to redeem its Class A Ordinary Shares such
notification may not be able to be made in a timely fashion and
such Class A Ordinary Shares may therefore not be able to be
redeemed.
Transfer details
18.16. Redeeming Shareholders must transfer their Class A
Ordinary Shares to the Company via an Admitted Institution by
virtue of submitting an instruction via the custodian, bank or
stockbroker where the securities account of the Redeeming
Shareholder is held. The instructions for the transfer of the Class
A Ordinary Shares will also be included in the shareholder circular
or prospectus (as applicable) for the Acquisition EGM.
Cancellation or placement of Class A Ordinary Shares
redeemed
18.17. Following the occurrence of a redemption in accordance
with this Regulation 18 , the Directors may resolve:
(a) within one month following redemption, to place any or all
of the Class A Ordinary Shares acquired by the Company from Class A
Ordinary Shareholders with existing Shareholders or with third
parties seeking to obtain Class A Ordinary Shares;
(b) to hold any or all of the Class A Ordinary Shares acquired
by the Company from the Class A Ordinary Shareholders as treasury
shares (subject to s.64(1)(c) of the Act, which prevents any
company holding more than 50% of its shares in treasury); or
(c) to cancel any or all the Class A Ordinary Shares acquired by
the Company from Class A Ordinary Shareholders.
18.18. For the avoidance of doubt, the redemption of the Class A
Ordinary Shares held by a Redeeming Shareholder does not trigger
the redemption of the Warrants held by such Redeeming Shareholder
(if any). Accordingly, Redeeming Shareholders whose Class A
Ordinary Shares are redeemed by the Company will retain all rights
to any Warrants that they may hold at the time of redemption.
No redemption if the Acquisition is not completed
18.19. If the Acquisition is not approved or completed for any
reason, then the Redeeming Shareholders will not be entitled to
redeem their Class A Ordinary Shares for the applicable pro rata
share of the Escrow Account.
Acknowledgement by the Company of the rights of Class A Ordinary
Shareholders that elected to redeem their Class A Ordinary Shares
prior to the Extension EGM
18.20. As described in the Shareholders Circular and Notice of
Extraordinary General Meeting of Shareholders published by the
Company on 17 October 2023 (the "Extension EGM Circular"), the
Company has provided Class A Ordinary Shareholders the right to
redeem their Class A Ordinary Shares at a per-share price, payable
in cash, equal to the aggregate amount then on deposit in the
Escrow Account calculated as of two business days prior to 12
October 2023 (including any Overfunding), divided by the number of
then issued and outstanding Class A Ordinary Shares. The gross
redemption price of a Class A Ordinary Share is expected to be
$10.325 per Class A Ordinary Share, plus pro rata entitlement to
any interest accrued on the Escrow Account as reduced by any taxes
paid or payable. Class A Ordinary Shareholders who validly elect to
redeem their Class A Ordinary Shares as per the procedures
described in the Extension EGM Circular shall have such Class A
Ordinary Shares redeemed and payment in respect of such Class A
Ordinary Shares will be made as soon as possible on or after 26
October 2023.
19. CONFLICT OF INTERESTS
19.1. A Director shall, forthwith after becoming aware of the
fact that they are interested in a transaction entered into or to
be entered into by the Company, disclose the interest to all other
Directors.
19.2. For the purposes of Regulation 19.1 , a disclosure to all
other Directors to the effect that a Director is a member, Director
or officer of another named entity or has a fiduciary relationship
with respect to the entity or a named individual and is to be
regarded as interested in any transaction which may, after the date
of the entry into the transaction or disclosure of the interest, be
entered into with that entity or individual, is a sufficient
disclosure of interest in relation to that transaction.
19.3. Subject to any rules or regulations of the London Stock
Exchange or any laws or regulations governing companies listed on
the London Stock Exchange, a Director who is interested in a
transaction entered into or to be entered into by the Company
may:
(a) vote on a matter relating to the transaction;
(b) attend a meeting of Directors at which a matter relating to
the transaction arises and be included among the Directors present
at the meeting for the purposes of a quorum; and
(c) sign a document on behalf of the Company, or do any other
thing in their capacity as a Director, that relates to the
transaction,
and, subject to compliance with the Act shall not, by reason of
their office be accountable to the Company for any benefit which
they derive from such transaction and no such transaction shall be
liable to be avoided on the grounds of any such interest or
benefit.
20. INDEMNIFICATION
20.1. Subject to the limitations hereinafter provided the
Company shall indemnify against all expenses, including legal fees,
and against all judgments, fines and amounts paid in settlement and
reasonably incurred in connection with legal, administrative or
investigative proceedings any person who:
(a) is or was a party or is threatened to be made a party to any
threatened, pending or completed proceedings, whether civil,
criminal, administrative or investigative, by reason of the fact
that the person is or was a Director; or
(b) is or was, at the request of the Company, serving as a
Director of, or in any other capacity is or was acting for, another
body corporate or a partnership, joint venture, trust or other
enterprise.
20.2. The indemnity in Regulation 20.1 only applies if the
person acted honestly and in good faith with a view to the best
interests of the Company and, in the case of criminal proceedings,
the person had no reasonable cause to believe that their conduct
was unlawful.
20.3. For the purposes of Regulation 20.2 and without
limitation, a Director acts in the best interests of the Company if
they act in the best interests of the Company ' s parent in the
circumstances specified in Regulation 11.3 .
20.4. The decision of the Directors as to whether the person
acted honestly and in good faith and with a view to the best
interests of the Company and as to whether the person had no
reasonable cause to believe that their conduct was unlawful is, in
the absence of fraud, sufficient for the purposes of the Articles,
unless a question of law is involved.
20.5. The termination of any proceedings by any judgment, order,
settlement, conviction or the entering of a nolle prosequi does
not, by itself, create a presumption that the person did not act
honestly and in good faith and with a view to the best interests of
the Company or that the person had reasonable cause to believe that
their conduct was unlawful.
20.6. Expenses, including legal fees, incurred by a Director in
defending any legal, administrative or investigative proceedings
may be paid by the Company in advance of the final disposition of
such proceedings upon receipt of an undertaking by or on behalf of
the Director to repay the amount if it shall ultimately be
determined that the Director is not entitled to be indemnified by
the Company in accordance with Regulation 20.1 .
20.7. Expenses, including legal fees, incurred by a former
Director in defending any legal, administrative or investigative
proceedings may be paid by the Company in advance of the final
disposition of such proceedings upon receipt of an undertaking by
or on behalf of the former Director to repay the amount if it shall
ultimately be determined that the former Director is not entitled
to be indemnified by the Company in accordance with Regulation 20.1
and upon such terms and conditions, if any, as the Company deems
appropriate.
20.8. The indemnification and advancement of expenses provided
by, or granted pursuant to, this section is not exclusive of any
other rights to which the person seeking indemnification or
advancement of expenses may be entitled under any agreement,
Resolution of Shareholders, resolution of disinterested Directors
or otherwise, both as to acting in the person ' s official capacity
and as to acting in another capacity while serving as a
Director.
20.9. If a person referred to in Regulation 20.1 has been
successful in defence of any proceedings referred to in Regulation
20.1 , the person is entitled to be indemnified against all
expenses, including legal fees, and against all judgments, fines
and amounts paid in settlement and reasonably incurred by the
person in connection with the proceedings.
20.10. The Company may purchase and maintain insurance in
relation to any person who is or was a Director, officer or
liquidator of the Company, or who at the request of the Company is
or was serving as a Director, officer or liquidator of, or in any
other capacity is or was acting for, another body corporate or a
partnership, joint venture, trust or other enterprise, against any
liability asserted against the person and incurred by the person in
that capacity, whether or not the Company has or would have had the
power to indemnify the person against the liability as provided in
the Articles.
21. Corporate RECORDS
21.1. The Company shall keep the following documents at the office of its registered agent:
(a) the Memorandum and the Articles;
(b) the register of members, or a copy of the register of members;
(c) the register of Directors, or a copy of the register of Directors; and
(d) copies of all notices and other documents filed by the
Company with the Registrar in the previous 10 years.
21.2. Until the Directors determine otherwise by Resolution of
Directors the Company shall keep the original register of members
and original register of Directors at the office of its registered
agent.
21.3. If the Company maintains only a copy of the register of
members or a copy of the register of Directors at the office of its
registered agent, it shall:
(a) within 15 days of any change in either register, notify the
registered agent in writing of the change; and
(b) provide the registered agent with a written record of the
physical address of the place or places at which the original
register of members or the original register of Directors is
kept.
21.4. The Company shall keep the following records at the office
of its registered agent or at such other place or places, within or
outside the British Virgin Islands, as the Directors may
determine:
(a) minutes of meetings and Resolutions of Directors and committees of Directors; and
(b) minutes of meetings and Resolutions of Shareholders and classes of Shareholders.
21.5. Where any original records referred to in this Regulation
are maintained other than at the office of the registered agent of
the Company, and the place at which the original records is
changed, the Company shall provide the registered agent with the
physical address of the new location of the records of the Company
within 14 days of the change of location.
21.6. The records kept by the Company under this Regulation
shall be in written form or either wholly or partly as electronic
records complying with the requirements of the Electronic
Transactions Act 2001 as from time to time amended or
re-enacted.
22. SEAL
22.1. The Company shall have a Seal an impression of which shall
be kept at the office of the registered agent of the Company. The
Company may have more than one Seal and references herein to the
Seal shall be references to every Seal which shall have been duly
adopted by Resolution of Directors. The Directors shall provide for
the safe custody of the Seal and for an imprint thereof to be kept
at the registered office. Except as otherwise expressly provided
herein the Seal when affixed to any written instrument shall be
witnessed and attested to by the signature of any one Director or
other person so authorised from time to time by Resolution of
Directors. Such authorisation may be before or after the Seal is
affixed, may be general or specific and may refer to any number of
sealings. The Directors may provide for a facsimile of the Seal and
of the signature of any Director or authorised person which may be
reproduced by printing or other means on any instrument and it
shall have the same force and validity as if the Seal had been
affixed to such instrument and the same had been attested to as
hereinbefore described.
23. DISTRIBUTIONS BY WAY OF DIVID
23.1. The Directors may, by Resolution of Directors, authorise a
distribution by way of dividend at a time and of an amount they
think fit if they are satisfied, on reasonable grounds, that,
immediately after the distribution, the value of the Company ' s
assets will exceed its liabilities and the Company will be able to
pay its debts as they fall due.
23.2. Dividends may be paid in money, shares, or other property.
23.3. The Company may, by Resolution of Directors, from time to
time pay to the Members such interim dividends as appear to the
Directors to be justified by the profits of the Company, provided
always that they are satisfied, on reasonable grounds, that,
immediately after the distribution, the value of the Company ' s
assets will exceed its liabilities and the Company will be able to
pay its debts as and when they fall due.
23.4. Notice of any dividend that may have been declared shall
be given to each Shareholder as specified in Regulation 25 and all
dividends unclaimed for 3 years after having been declared may be
forfeited by Resolution of Directors for the benefit of the
Company.
23.5. No dividend shall bear interest as against the Company and
no dividend shall be paid on treasury shares.
24. ACCOUNTS AND AUDIT
24.1. The Company shall keep records and underlying
documentation that are sufficient to show and explain the Company '
s transactions and that will, at any time, enable the financial
position of the Company to be determined with reasonable
accuracy.
24.2. The records and underlying documentation of the Company
shall be kept at the office of its registered agent or at such
other place or places, within or outside the British Virgin
Islands, as the Directors may determine and if the records and
underlying documentation are kept in a location other than the
office of the registered agent, the Company shall provide the
registered agent with a written record of:
(a) the physical address of the place at which the records and
underlying documentation are kept; and
(b) the name of the person who maintains and controls the Company ' s records and underlying documentation.
24.3. If the location at which the records and underlying
documentation are kept or the name of the person who maintains and
controls the records and underlying documentation changes, the
Company shall, within 14 days of the change provide its registered
agent with:
(a) the physical address of the new location at which the
records and underlying documentation are kept; and
(b) the name of the new person who maintains and controls the
Company ' s records and underlying documentation.
24.4. The Company may by Resolution of Shareholders call for the
Directors to prepare periodically and make available a profit and
loss account and a balance sheet. The profit and loss account and
balance sheet shall be drawn up so as to give respectively a true
and fair view of the profit and loss of the Company for a financial
period and a true and fair view of the assets and liabilities of
the Company as at the end of a financial period.
24.5. The Company may by Resolution of Shareholders call for the
accounts to be examined by auditors.
24.6. The first auditors shall be appointed by Resolution of
Directors; subsequent auditors shall be appointed by Resolution of
Shareholders or by Resolution of Directors.
24.7. The auditors may be Shareholders, but no Director or other
officer shall be eligible to be an auditor of the Company during
their continuance in office.
24.8. The remuneration of the auditors of the Company may be fixed by Resolution of Directors.
24.9. The auditors shall examine each profit and loss account
and balance sheet required to be laid before a meeting of the
Shareholders or otherwise given to Shareholders and shall state in
a written report whether or not:
(a) in their opinion the profit and loss account and balance
sheet give a true and fair view respectively of the profit and loss
for the period covered by the accounts, and of the assets and
liabilities of the Company at the end of that period; and
(b) all the information and explanations required by the auditors have been obtained.
24.10. The report of the auditors shall be annexed to the
accounts and shall be read at the meeting of Shareholders at which
the accounts are laid before the Company or shall be otherwise
given to the Shareholders.
24.11. Every auditor of the Company shall have a right of access
at all times to the books of account and vouchers of the Company,
and shall be entitled to require from the Directors and officers of
the Company such information and explanations as they think
necessary for the performance of the duties of the auditors.
24.12. The auditors of the Company shall be entitled to receive
notice of, and to attend any meetings of Shareholders at which the
Company ' s profit and loss account and balance sheet are to be
presented.
24.13. The Directors shall establish and maintain an audit
committee (the 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 FCA and the
London Stock Exchange. Once formed, the Audit Committee shall meet
at least once every financial quarter, or more frequently as the
circumstances dictate.
25. NOTICES
25.1. Any notice, information or written statement to be given
by the Company to Shareholders shall be in writing and may be given
by personal service, mail, courier, email, or fax to such
Shareholder ' s address as shown in the register of members.
25.2. Any summons, notice, order, document, process, information
or written statement to be served on the Company may be served by
leaving it, or by sending it by registered mail addressed to the
Company, at its registered office, or by leaving it with, or by
sending it by registered mail addressed to the Company at the
offices of the registered agent of the Company.
25.3. Where a notice is sent by post, service of the notice
shall be deemed to be effected by properly addressing, prepaying
and posting a letter containing notice, and shall be deemed to be
received on the fifth Business Day following the day on which the
notice was posted. Where a notice is sent by fax or email, notice
shall be deemed to be effected by transmitting the email or fax to
the address or number provided by the intended recipient and
service of the notice shall be deemed to have been received on the
same day that it was transmitted.
26. VOLUNTARY LIQUIDATION
26.1. The Company may by a Resolution of Shareholders or by a
Resolution of Directors appoint a voluntary liquidator.
26.2. In the event the Company fails to consummate an
Acquisition by the Acquisition Deadline the Company intends to:
(a) cease all operations except for the purpose of winding up;
(b) as promptly as reasonably possible but not more than 10
Trading Days thereafter, redeem the Class A Ordinary Shares, with
the per-share consideration expected to comprise $10.325 per Class
A Ordinary Share (representing the amount subscribed for by Class A
Ordinary Shareholders in the Offering together with Ordinary
Shareholders' pro rata entitlement to the Escrow Account
Overfunding (expected to be $0.325 per Class A Ordinary Share))
together with the Class A Ordinary Shareholders' pro rata
entitlement to interest accrued on the Escrow Account (if any),
subject at all times to the Escrow Account containing sufficient
proceeds, which redemption will completely extinguish Class A
Ordinary Shareholders' rights as Shareholders (including the right
to receive further liquidating distributions, if any); and
(c) as promptly as reasonably possible following such
redemption, subject to the approval of the remaining Shareholders,
liquidate and dissolve the Company's assets and liabilities,
subject in each case to the Company's obligations under BVI law to
provide for claims of creditors and the requirements of other
applicable law. In such case, the Class A Ordinary Shareholders may
receive only $10.325 per Class A Ordinary Share, or less than
$10.325 per Class A Ordinary Share, on the redemption of their
Class A Ordinary Shares, and the Warrants will expire worthless and
any holder thereof will no longer have any rights thereunder.
26.3. The balance of the Company's assets remaining after all
liabilities have been paid shall, if possible, be distributed to
the holders of Class A Ordinary Shares, for purposes hereof being
considered to be Shares of the same class, pro rata to the number
of Shares held by each Shareholder.
27. CONTINUATION
27.1. Subject to the Act, the Company may by Resolution of
Directors continue as a company incorporated under the laws of a
jurisdiction outside the British Virgin Islands in the manner
provided under those laws.
Signed for HARNEYS CORPORATE SERVICES LIMITED of Craigmuir
Chambers, Road Town, Tortola, VG 1110, British Virgin Islands for
the purpose of incorporating a BVI Business Company under the laws
of the British Virgin Islands on 22nd of June 2021:
Incorporator
..............................................................
Indira Ward-Lewis
Authorised Signatory
HARNEYS CORPORATE SERVICES LIMITED
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MSCMRBRTMTTBBFJ
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October 17, 2023 13:30 ET (17:30 GMT)
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