8-K
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Date of report (Date of earliest event reported) |
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September 8, 2009
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Ideation Acquisition Corp.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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001-33800
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77-0688094 |
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification No.) |
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1105 N. Market Street, Suite 1300, Wilmington, Delaware
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19801 |
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(Address of Principal Executive Offices)
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(Zip Code) |
(Registrants Telephone Number, Including Area Code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy
the filing obligation of the registrant under any of the following provisions (see General
Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17
CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
Second Amendment to Share Exchange Agreement
On September 8, 2009, Ideation Acquisition Corp., a Delaware corporation (Ideation), entered
into a Second Amendment to the Agreement and Plan of Merger, Conversion and Share Exchange, dated
September 8, 2009 (the Second Amendment) with Earl Yen, Tommy Cheung, Stephen Yau, Qinying Liu,
Linden Ventures, Vervain Equity Investment Limited, Sun Hing Associates Limited and The Frost
Group, LLC. The Amendment amends the previously announced Agreement and Plan of Merger, Conversion
and Share Exchange (the Share Exchange Agreement) by and among Ideation, ID Arizona Corp., an
Arizona corporation and wholly owned subsidiary of Ideation (ID Arizona), SearchMedia
International Limited, an exempted company incorporated with limited liability in the Cayman
Islands (SM Cayman), the direct subsidiaries of SM Cayman, and Shanghai Jingli Advertising Co.
Ltd., and certain shareholders and warrantholders of SM Cayman, among others. The Share Exchange
Agreement was previously amended on May 27, 2009.
The Second Amendment amends the Share Exchange Agreement to provide the following:
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acknowledgement of the transfer of the SM Cayman Series C preferred shares previously owned by Gentfull Investment Limited
and Gavast Estates Limited to Vervain Equity Investment Limited and Sun Hing Associates
Limited, respectively, their affiliates, and the joinder of such transferee to the Share Exchange Agreement; |
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the elimination of a potential obligation of ID Cayman to
issue Series A preferred shares in connection with the closing, but continuing to provide for the issuance of a
warrant to acquire 0.25 of an ID Cayman ordinary share, regardless of the amount in the
trust account after closing, for each ID Cayman ordinary share issued to or acquired by
those investors who hold SM Cayman interim notes or the Linden note that converted to ID
Cayman ordinary shares at closing or ID Cayman ordinary shares acquired or to be acquired in connection with
the Sponsor Purchase Commitment Amount; |
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the imposition of one-year lock-up restrictions with respect to the ID Cayman shares
underlying ID Cayman restricted share awards and options issued pursuant to the Share Exchange Agreement; |
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an additional covenant requiring the repayment of certain loans owed by Qinying Liu and
Le Yang to SM Cayman prior to closing. Ms. Liu and Ms. Yang have agreed to repay an
aggregate of RMB 4,289,889 owed by them to SM Cayman prior to the closing of the business
combination. They may do so in cash or by surrendering a number of ordinary shares of SM
Cayman owned by them prior to closing equal in value to such amount; |
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an increase of the board of directors of ID Cayman after the closing to ten members,
adding one director to be appointed by the Ideation representative and requiring certain
independence and citizenship requirements; |
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the amendment of the sponsor purchase commitment of The Frost Group, LLC to allow for
certain warrant exercises, effective immediately after the closing, to be counted toward
the satisfaction of the Sponsor Purchase Commitment Amount, as such term is defined in the
Share Exchange Agreement; |
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the addition of Ideation stockholder approval of the Ideation charter amendment (and a
corresponding amendment to the charter of ID Arizona Corp., Ideations wholly-owned
subsidiary) as a condition to the closing of the business combination; |
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the extension of the date by which the business combination must be consummated to
October 30, 2009 from September 30, 2009; |
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technical corrections to the definition of adjusted net income; |
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the amendment of Schedules B and C to the Share Exchange
Agreement to reflect the transfers by Gentfull Investment Limited and Gavast Estates Limited and certain
transfers by and among SM Cayman shareholders and to correct some rounding errors; and |
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the amendment of the Memorandum and Articles of Association of ID Cayman, Exhibit A to
the Share Exchange Agreement, to eliminate the designation of the ID Cayman Series A
preferred shares. |
The foregoing description is qualified in its entirety by the Second Amendment, which is filed
as Exhibit 2.1 hereto and incorporated herein by this reference.
Letter Agreement
In addition, on September 8, 2009, in connection with the execution of the Second Amendment,
Ideation entered into a letter agreement with the interim noteholders and holder of the Linden Note
and The Frost Group, LLC (the Letter Agreement). Pursuant to the Letter Agreement, if at any
time during the two years following the closing of the business combination, ID Cayman issues any
preferred shares or other equity securities (including securities convertible into or exchangeable
for preferred shares or other equity securities), the parties to the Letter Agreement will have the
right to exchange, for such securities, any ordinary shares of ID Cayman acquired by them as a
result of:
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conversion of an interim note from SM Cayman or the Linden Note; |
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warrant exercises to satisfy the Sponsor Purchase Commitment Amount; or |
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open market purchases or new issuances of Ideation shares to satisfy the
Sponsor Purchase Commitment Amount, |
up to the amount of such issuance by ID Cayman. The valuation of the exchanged ordinary shares will
be $7.8815 per share.
The foregoing description is qualified in its entirety by the Letter Agreement, which is filed
as Exhibit 10.1 hereto and incorporated herein by this reference.
Item 3.02 Unregistered Sale of Equity Securities
At the closing of the Share Exchange Agreement, and as a result of the Second Amendment: (i)
SM Cayman shareholders will receive 6,865,339 ordinary shares of ID Cayman, (ii) SM Cayman
warrantholders will receive warrants to purchase 1,519,186 ordinary shares of ID Cayman, (iii) SM
Cayman option holders will receive options to purchase 702,013 ordinary shares of ID Cayman, (iv)
SM Cayman holders of restricted shares and restricted share units, which we refer to collectively
as restricted share awards, will receive 261,179 restricted share awards of ID Cayman, and (v)
certain SM Cayman noteholders will receive 1,712,874 ordinary shares of ID Cayman and warrants to
purchase 428,219 ordinary shares of ID Cayman. In addition, the shareholders and warrantholders of
SM Cayman may receive an additional 10,150,352 ordinary shares of ID Cayman pursuant to an earn-out
provision in the share exchange agreement.
Forward Looking Statements
Any statements contained in this Form 8-K that do not describe historical facts may constitute
forward-looking statements as that term is defined by the United States Private Securities
Litigation Reform Act of 1995. Any such forward-looking statements contained herein are based on
current expectations, but are subject to a number of risks and uncertainties that may cause actual
results to differ materially from expectations such as material adverse events affecting Ideation
and SearchMedia, their ability to complete a business combination and those other risks and
uncertainties detailed in Ideations filings with the Securities and Exchange Commission (the
SEC). Ideation and SearchMedia caution readers not to place undue reliance upon any
forward-looking statements, which speak
only as of the date made. Ideation and SearchMedia do not undertake or accept any obligation or
undertaking to release publicly any updates or revisions to any forward-looking statement to
reflect any change in their expectations or any change in events, conditions or circumstances on
which any such statement is based.
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Participation in Solicitation/Additional Information
In connection with the proposed transaction, Ideation and ID Arizona Corp. filed Amendment No. 2 to
Form S-4 containing a proxy statement/prospectus in conjunction with the transaction with the SEC
on September 10, 2009, which is subject to review by the SEC. A definitive Proxy
Statement/Prospectus will be mailed to Ideation stockholders. INVESTORS AND SECURITY HOLDERS OF
IDEATION ARE URGED TO READ A DEFINITIVE PROXY STATEMENT/PROSPECTUS AND OTHER DOCUMENTS FILED WITH
THE SEC CAREFULLY IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security holders will be able to obtain
free copies of the Registration Statement and the definitive Proxy Statement/Prospectus (when
available) and other documents filed with the SEC by Ideation through the website maintained by the
SEC at www.sec.gov under the registrant names Ideation and ID Arizona Corp. Free copies of the
Registration Statement and the Proxy Statement/Prospectus (when available) and other documents
filed with the SEC can also be obtained by directing a request to Ideation, 1105 N. Market Street,
Suite 1300, Wilmington, Delaware 19801.
Ideation, SearchMedia and their respective directors, executive officers, affiliates and other
persons may be deemed to be participants in the solicitation of proxies in respect of the proposed
transaction. Information regarding Ideations directors and executive officers is available in its
Annual Report on Form 10-K for the year ended December 31, 2008, which was filed with the SEC on
March 20, 2009, and information regarding SearchMedias directors and executive officers is
available in Ideations and ID Arizona Corp.s preliminary Proxy Statement/Prospectus, Amendment
No. 2 of which was filed with the SEC on September 10, 2009, and can be found on the SEC website at
www.sec.gov under the registrant name ID Arizona Corp. Other information regarding the
participants in the proxy solicitation and a description of their direct and indirect interests, by
security holdings or otherwise, will be contained in the definitive Proxy Statement/Prospectus and
other relevant materials to be filed with the SEC when they become available.
ITEM 9.01. Financial Statements and Exhibits.
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Exhibit No. |
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Description |
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2.1 |
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Second Amendment to Share Exchange Agreement, dated September
8, 2009 |
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10.1 |
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Letter Agreement, dated September 8, 2009 |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly
caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Dated: September 14, 2009 |
IDEATION ACQUISITION CORP.
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/s/ Robert N. Fried
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Robert N. Fried |
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President and Chief Executive Officer |
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Exhibit No. |
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Description |
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2.1 |
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Second Amendment to Share Exchange Agreement, dated September 8, 2009 |
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10.1 |
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Letter Agreement, dated September 8, 2009 |
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EX-2.1
Exhibit
2.1
SECOND
AMENDMENT AND JOINDER TO
AGREEMENT AND PLAN OF MERGER, CONVERSION AND SHARE
EXCHANGE
This SECOND AMENDMENT AND JOINDER TO AGREEMENT AND PLAN OF
MERGER, CONVERSION AND SHARE EXCHANGE
(Amendment) effective this
8th day
of September, 2009 is by and among Ideation Acquisition Corp., a
corporation incorporated in the State of Delaware, USA
(Ideation), ID Arizona Corp., a
corporation incorporated in the State of Arizona, USA, Earl Yen
(the CSV Representative), Tommy Cheung
and Stephen Lau (collectively, the DB
Representative), Qinying Liu (the
Management Shareholder Representative
and, together with the CSV Representative and the DB
Representative, the SM Shareholders
Representatives), Linden Ventures II (BVI),
Ltd. (Linden), Vervain Equity
Investment Limited (the Gentfull
Transferee), Sun Hing Associates Ltd. (the
Gavast Transferee, and, together with
the Gentfull Transferee, the
Transferees) and The Frost Group, LLC
(the Sponsor Entity).
Recitals
WHEREAS, Ideation, the SM Shareholders
Representatives and Linden, along with the other parties
thereto, have previously entered into that certain Agreement and
Plan of Merger, Conversion and Share Exchange dated as of
March 31, 2009, including the exhibits and schedules
thereto (as amended, the SEA);
WHEREAS, Gentfull Investment Limited
(Gentfull) desires to transfer all
right, title and interest in and to the 5,454,543 Series C
preferred shares, par value US$0.0001 per share, in the capital
of the Company (Series C Shares)
held by it to the Gentfull Transferee (an Affiliate of
Gentfull), and Gavast Estates Limited
(Gavast) desires to transfer all
right, title and interest in and to the 12,727,272 Series C
Shares held by it to the Gavast Transferee (an Affiliate of
Gavast) (together, the Transfers), and
such transferees wish to join as parties to the SEA;
WHEREAS, the parties to the SEA also desire to make
certain amendments to the SEA as set forth herein; and
WHEREAS, (i) in accordance with Section 16.2 of
the SEA, Ideation, a majority of the SM Shareholders
Representatives and Linden wish to amend the SEA to reflect the
terms set forth below and (ii) the Gavast Transferee and
the Gentfull Transferee wish to become bound by the SEA as SM
Shareholders, in the place of Gavast and Gentfull, respectively.
Agreement
NOW, THEREFORE, in consideration of the premises, the
mutual covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:
1. As of the date hereof, being the effective date of the
Transfers (the Effective Date), the
Gentfull Transferee shall be substituted for and shall replace
Gentfull as a party to the in the SEA that by their terms can
only be made by the Transferees on the Effective Date, which
representations and warranties shall be deemed to be made, for
purposes of the SEA, as of the Effective Date; provided
that (x) the Gentfull Transferee shall be responsible
for any breach by Gentfull prior to the Effective Date of any
such representations and warranties made by Gentfull and
(y) the Gavast Transferee shall be responsible for any
breach prior to the Effective Date of any such representations
and warranties made by Gavast).
2. Section 4.5 of the SEA is hereby amended and
restated in its entirety to read as follows:
Issuance of New Warrants. Immediately
following the Conversion Effective Time, New Warrants shall be
issued to the holders of Acquired Shares and Sponsor Warrant
Holders in accordance with Section 12.12 hereof, if
applicable.
3. Section 5.1(c)(ii) of the SEA is hereby amended and
restated in its entirety to read as follows:
(ii) In all other regards, the terms of each New
Restricted Shares Award shall be the same as the SM Restricted
Shares Award which it replaces, and the Option Plan under which
such SM Restricted
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Shares Award was initially granted as in effect immediately
prior to the Closing shall continue to apply in all material
respects to the New Restricted Shares Award, including all
restrictions or limitations on transfer and vesting, to the
extent that such restrictions or limitations shall not have
already lapsed, after giving effect to the Closing; provided
that the holder of any ID Cayman Shares delivered upon the
vesting of a New Restricted Shares Award prior to the one
(1) year anniversary of the Closing shall be subject to the
restrictions set forth in Clauses 2 and 3 of the form of
Lock-Up
Agreement attached hereto as
Exhibit F-2
with respect to such shares until the one (1) year
anniversary of the Closing.
4. Section 5.1(d)(ii) of the SEA is hereby amended and
restated in its entirety to read as follows:
(ii) In all other regards, the terms of each New Option
shall be the same as the SM Option which it replaces, and the
Option Plan under which such SM Option was initially granted as
in effect immediately prior to the Closing shall continue to
apply in all material respects to the New Options, including all
restrictions or limitations on transfer and vesting, to the
extent that such restrictions or limitations shall not have
already lapsed, after giving effect to the Closing; provided
that the holder of any ID Cayman Shares delivered upon the
exercise of a New Option prior to the one (1) year
anniversary of the Closing shall be subject to the restrictions
set forth in Clauses 2 and 3 of the form of
Lock-Up
Agreement attached hereto as
Exhibit F-2
with respect to such shares until the one (1) year
anniversary of the Closing.
5. Section 5.1(e) of the SEA is hereby amended and
restated in its entirety to read as follows:
Interim Notes. Upon the Closing, the
principal amount outstanding under each Interim Note as of the
Closing and US$10,000,000 of the principal amount outstanding
under the Linden Note as of the Closing shall be converted into
(a) a number of ID Cayman Shares calculated by dividing
such outstanding principal amount by US$7.8815, rounded up to
the nearest whole share (the Note
Shares), plus (b) a number of New Warrants
equal to the number of such Note Shares issued, with each such
New Warrant representing the right to purchase 0.25 of an ID
Cayman Share at an exercise price per whole share of $7.8815.
The aggregate number of shares underlying such New Warrants
shall be rounded up to the nearest whole share. At the Closing,
(x) US$5,000,000 of the principal amount outstanding under
the Linden Note plus all accrued and unpaid interest on the
Linden Note, plus US$20,000 as reimbursement for Linden
Ventures legal expenses, shall be paid in cash to Linden
Ventures and (y) all accrued and unpaid interest under the
Interim Notes shall be paid in cash to the holders thereof.
6. Section 5.3(a) of the SEA is hereby amended by
adding the following sentence at the end of such Section:
The holder of such ID Cayman Shares shall be subject to
the restrictions set forth in Clauses 2 and 3 of the form
of Lock-Up
Agreement attached hereto as
Exhibit F-2
with respect to such shares until the one (1) year
anniversary of the Closing.
7. Section 5.3(b) of the SEA is hereby amended by
adding the following sentence at the end of such Section:
The holder of such ID Cayman Shares shall be subject to
the restrictions set forth in Clauses 2 and 3 of the form
of Lock-Up
Agreement attached hereto as
Exhibit F-2
with respect to such shares until the one (1) year
anniversary of the Closing.
8. Section 9.5 of the SEA is hereby amended and
restated in its entirety to read as follows:
Section 9.5 Other Pre-Closing
Covenants. Prior to the Closing, (i) each of
the SM Entities agrees that it shall, and each of the SM
Shareholders agrees that it shall use commercially reasonable
efforts (which, with respect to the SM Institutional
Shareholders, shall only mean the directing of such SM
Institutional Shareholders nominee(s) on the board of
directors of SM Cayman to vote against any action in
contravention of this Section 9.5) to, cause the relevant
Group Companies to complete the actions set forth in
items 2, 3 and 4 of Schedule 9.5,
(ii) Ms. Liu and Ms. Yang shall use commercially
reasonable efforts to complete the actions set forth in
item 1 of Schedule 9.5, and (iii) all amounts
owing by Ms. Liu and Ms. Yang to SM Cayman shall have
been
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repaid in accordance with the terms of that certain Repayment
Agreement dated as of June 23, 2009 among SM Cayman,
Ms. Liu and Ms. Yang.
9. Section 12.4 of the SEA is hereby amended and
restated in its entirety to read as follows:
Board Composition. Ideation shall take
such action, including amending its bylaws, as may be required
to cause the number of directors constituting the Combined Board
immediately after the Closing to consist of ten
(10) persons, for a period commencing on the Closing Date
and ending not sooner than the third anniversary of the Closing
Date. Ideation shall have received the resignation of a
sufficient number of current directors (which resignation may be
conditioned upon the Closing of the Share Exchange) to allow for
the election of the Director Nominees pursuant to this Section,
and the remaining members of the Ideation Board shall have
elected the other Director Nominees (as hereafter defined) as
members of the Combined Board, effective upon the Closing, to
fill the vacancies created by such increase in the size of the
board and such resignations. Each Director Nominee shall serve
as a director for a term expiring at ID Caymans next
annual meeting of stockholders following the Closing Date and
until his or her successor is elected and qualified.
Director Nominees means (i) five
(5) persons nominated by the Ideation Representative (at
least three (3) of whom shall be independent
directors as such term is defined in the rules and
regulations of AMEX (Independent
Directors) and at least two (2) of whom must
be
non-U.S. citizens)
and (ii) five (5) persons nominated by the SM
Shareholders Representatives (two (2) of whom shall
be Qinying Liu and Earl Yen, at least three (3) of whom
shall be Independent Directors, and at least three (3) of
whom shall be
non-U.S. citizens).
10. Section 12.9 of the SEA is hereby amended and
restated in its entirety to read as follows:
Series D or Other
Financing. Notwithstanding anything to the
contrary set forth herein, from the date hereof until the date
the Proxy Statement/Prospectus is declared effective by the SEC,
SM Cayman shall be permitted to raise capital pursuant to an
issuance of Series D Preferred Shares, on the terms and
conditions agreed upon by Ideation and SM Cayman, provided that
such financing results in maximum aggregate proceeds to the
borrower of US$15 million and no dividends shall accrue on
such shares until the end of the first full calendar quarter
after the Closing or termination hereof (a
Series D Financing). The terms of
any such Series D Preferred Shares must provide for their
automatic conversion at the Closing into (a) a number of ID
Cayman Shares calculated by using a ratio of one (1) ID
Cayman Share per each US$7.8815 of aggregate liquidation
preference thereunder, rounded up to the nearest whole share,
plus (b) a number of New Warrants equal to the number of ID
Cayman Shares issued pursuant to clause (a) above, with
each such New Warrant representing the right to purchase 0.25 of
an ID Cayman Share at an exercise price per whole share of
$7.8815. The aggregate number of shares underlying such New
Warrants shall be rounded up to the nearest whole share.
Notwithstanding anything to the contrary set forth in this
Agreement, SM Cayman shall also be permitted to discuss with
potential lenders the terms of a subordinated debt financing,
provided that the consent of Ideation shall be required prior to
SM Cayman entering into any agreement or commitment with respect
to such financing.
11. Section 12.10(a) of the SEA is hereby amended and
restated in its entirety to read as follows:
Sponsor Purchases. Following the initial
filing of the Proxy Statement/Prospectus with the SEC and
continuing until no later than 4:30 pm Eastern time on the day
that is two (2) business days before the day of the
Stockholders Meeting (the Reference Date), The Frost
Group, LLC (the Sponsor Entity),
through itself, its Affiliates or other Persons (each such other
Person, a Non-Affiliate Purchaser),
agrees to purchase
and/or enter
into binding contracts to purchase (the Sponsor
Purchases) Ideation Shares in the open market or
in privately negotiated transactions (the Acquired
Shares), in such an amount (the
Sponsor Purchase Commitment Amount)
equal to the lesser of (i) an aggregate expenditure of
US$18.25 million and (ii) an amount that, when
combined with purchases by Ideation pursuant to
Section 12.11, Warrant Purchases (as defined below) and
proxies delivered by Ideation stockholders not electing
Conversion Rights, would result in ID Cayman possessing
(assuming settlement of such Section 12.11 purchases and
Warrant Purchases) in the aggregate no less than
US$18.25 million in its Trust Account (or other
accounts)
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immediately after the Closing, before payment of the expenses
set forth in clauses (b) through (e) of
Section 8.19 (or any obligations incurred by any SM Party
that may become obligations of ID Cayman as a result of the
Closing), provided, however, that (w) the purchase price
per Ideation Share is not more than $9.00; (x) the Sponsor
Purchase Commitment Amount is used solely to purchase Ideation
Shares and is not applied to any transaction cost related to
such purchase, other than normal brokerage fees; (y) such
Sponsor Purchases are conducted in compliance with the
Securities Act, the Exchange Act and any other applicable Legal
Requirements; and (z) the aggregate amount of such Sponsor
Purchases shall be disclosed to the holders of Ideation Shares
in an appropriate filing with the SEC one (1) business day
before the Stockholders Meeting. To the extent that the Sponsor
Entity, through itself, its Affiliates or Non-Affiliate
Purchasers has not otherwise satisfied the Sponsor Purchase
Commitment Amount on or prior to the Reference Date, the Sponsor
Entity, through itself, its Affiliates or Non-Affiliate
Purchasers may satisfy its obligations pursuant to this Section
prior to the Closing by delivering into an escrow account
irrevocable written notices to exercise all or any of their
respective Ideation Warrants that are Public
Warrants (as defined in the Warrant Agreement related
thereto) to be effective immediately after the Closing (each, a
Warrant Purchase), together with the cash exercise
price for the shares to be issued pursuant to such Ideation
Warrants in an amount up to the difference between the dollar
amount of Sponsor Purchases and the Sponsor Purchase Commitment
Amount. The escrow account shall be established with an escrow
agent and on terms and conditions mutually agreeable to Ideation
and the SM Shareholders Representatives, provided that the
cash exercise price so delivered shall be released to ID Cayman
upon written notice from the SM Shareholders
Representatives following the Closing, at which time the shares
underlying such warrants (the Warrant
Shares) shall be issued to the Persons who have so
elected such exercise (each, a Sponsor Warrant
Holder). Alternatively, to the extent that the
Sponsor Entity, through itself, its Affiliates or Non-Affiliate
Purchasers, is unable to make sufficient Sponsor Purchases of
Acquired Shares or Warrant Purchases to satisfy the Sponsor
Purchase Commitment Amount for any reason, Ideation agrees to
sell shares of Ideation Common Stock (which shall also be deemed
to be Acquired Shares for purposes of this
Article XII) to the Sponsor Entity, its Affiliates or
Non-Affiliate Purchasers for a price per share equal to $7.8815
in such number as necessary to remedy such shortfall, and the
Sponsor Entity shall not be in breach of this section to the
extent it so remedies such shortfall pursuant to such purchases
within ten (10) business days after the Closing. Such
purchases shall be made pursuant to a purchase agreement in
reasonable and customary form and substance for a transaction of
such nature, which shall include customary registration rights
with respect to the shares acquired, which rights shall be pari
passu with other registration rights granted to holders of ID
Cayman Securities. The Sponsor Entity agrees to promptly provide
reasonable supporting evidence of its compliance with the
provisions of this Article XII, upon request by an SM
Shareholders Representative.
12. Section 12.12 of the SEA is hereby amended and
restated in its entirety to read as follows:
ID Cayman New Warrants. Immediately
prior to the Closing of the Share Exchange, each holder of
Acquired Shares and each Sponsor Warrant Holder shall be issued
a New Warrant to purchase 0.25 of an ID Cayman Share for each
Acquired Share held by him or it or Warrant Share that will be
issued to him or it immediately after the Closing pursuant to
Section 12.10(a). The exercise price per whole ID Cayman
Share of such New Warrants shall be US$7.8815, and the aggregate
number of shares underlying such New Warrants shall be rounded
up to the nearest whole share. Such issuance shall be
conditioned upon the execution and delivery by the holder of
such an Acquired Share or Sponsor Warrant Holder of a purchase
agreement in reasonable and customary form and substance for a
transaction of such nature, which shall include customary
registration rights with respect to the ID Cayman Shares
underlying such New Warrants, which rights shall be pari passu
with other registration rights granted to holders of ID Cayman
Securities. Each holder of Acquired Shares and each Sponsor
Warrant Holder shall be a third-party beneficiary to this
provision for so long as he or it holds any Acquired Shares or
is in escrow pursuant to Section 12.10 (a) with
respect to any Warrant Shares.
4
13. Section 13.1(e) of the SEA is hereby amended and
restated in its entirety to read as follows:
Approval by Ideations
Stockholders. The Transactions shall have been
approved by the holders of Common Stock in accordance with
applicable Legal Requirements.
14. The following Section 13.1(r) is hereby added to
the SEA:
Approval of Charter Amendments. An
amendment to the Amended and Restated Certificate of
Incorporation of Ideation in substantially the form and
substance attached hereto as Exhibit I (the
Ideation Charter Amendment) shall have
been approved by the holders of Common Stock and filed with the
Secretary of State of the State of Delaware in accordance with
applicable Legal Requirements. If the Ideation Charter Amendment
shall have been approved and become effective pursuant to this
subsection, the board of directors and sole stockholder of ID
Arizona shall have adopted corresponding changes to its Articles
of Incorporation and filed the same with the Arizona Corporation
Commission (the Arizona Charter
Amendment).
15. Section 13.2(d) of the SEA is hereby amended and
restated in its entirety to read as follows:
Approval by Ideations
Stockholders. The Transactions shall have been
approved by the holders of Common Stock in accordance with
applicable Legal Requirements.
16. The following Section 13.2(p) is hereby added to
the SEA:
Approval of Charter Amendments. The
Ideation Charter Amendment shall have been approved by the
holders of Common Stock and filed with the Secretary of State of
the State of Delaware in accordance with applicable Legal
Requirements. If the Ideation Charter Amendment shall have been
approved and become effective pursuant to this subsection, the
Arizona Charter Amendment shall have been approved by its board
of directors and sole stockholder and been filed with the
Arizona Corporation Commission.
17. Section 15.1(b) of the SEA is hereby amended and
restated in its entirety to read as follows:
by either Ideation or the SM Shareholders
Representatives (in accordance with Section 16.5), if the
Closing has not occurred by the later of
(i) October 30, 2009 or (ii) such other date that
has been agreed in writing by the SM Shareholders
Representatives and Ideation (the End
Date); provided, however, that the right to
terminate this Agreement under this Section 15.1(b) shall
not be available to any Party whose failure to comply with any
provision of this Agreement has been the cause of, or resulted
in, the failure of the Closing Date to occur on or before such
date.
18. The definition of Adjusted Net Income set
forth in Annex A of the SEA is hereby amended to delete
clause (iv) set forth therein. The numbering of the
remaining clauses in such definition shall remain unchanged, and
clause (iv) shall be deemed to read intentionally
omitted.
19. Clause (vi) of the definition of Adjusted
Net Income set forth in Annex A of the SEA is hereby
amended and restated in its entirety to read as follows:
(vi) any costs, expenses or other items relating or
attributable to that certain Convertible Note and Warrant
Agreement (the Note Agreement), dated as of
March 17, 2008, among SM Cayman, Linden Ventures and the
other parties thereto, as amended on September 15, 2008,
December 18, 2008, March 12, 2009 and August 21,
2009 (including the issuance of the Linden Note (as defined in
the Note Agreement), as amended on September 15, 2008,
December 18, 2008, March 12, 2009 and August 21,
2009)
20. The definition of ID Cayman Preferred
Shares as set forth in Annex A to the SEA is
hereby deleted.
21. Schedule B to the SEA is hereby amended and
restated in its entirety to read as set forth in Schedule 1
to this Amendment.
22. Schedule C to the SEA is hereby amended and
restated in its entirety to read as set forth in Schedule 2
to this Amendment.
5
23. The Memorandum and Articles of Association of ID Cayman
following the Closing, as set forth in Exhibit A to
the SEA, are hereby amended and restated in their entireties as
set forth in Exhibit 1 to this Amendment.
24. A new Exhibit I is hereby added to the SEA
in the form attached hereto as Exhibit 2.
25. Except as amended by the terms of this Amendment, the
SEA remains in full force and effect.
26. Unless otherwise defined, capitalized terms used herein
have the meanings given to them in the SEA.
[Signature
Page Follows]
6
IN WITNESS WHEREOF, the parties have executed this
Amendment as of the date and year first set forth above.
IDEATION ACQUISITION CORP.
Name: Steven D. Rubin
|
|
|
|
Address:
|
1990 S. Bundy Drive, Suite 620
|
Los Angeles, CA 90025
|
|
|
|
Facsimile:
|
(310) 861-5454
|
ID ARIZONA CORP.
Name: Steven D. Rubin
|
|
|
|
Address:
|
1990 S. Bundy Drive, Suite 620
|
Los Angeles, CA 90025
|
|
|
|
Facsimile:
|
(310) 861-5454
|
MANAGEMENT SHAREHOLDER REPRESENTATIVE:
Name: Qinying Liu
|
|
|
|
Address:
|
Room 4B, Yinglong Building
|
No. 1358 Yan An Road West
Shanghai 200052, China
|
|
|
|
Facsimile:
|
+86
(21) 6283-0552
|
7
Name: Earl Ching-Hwa Yen
|
|
|
|
Address:
|
Rm. 104, Bldg.18
|
No. 800 Huashan Road
Shanghai 200050, China
|
|
|
|
Facsimile:
|
+86
(21) 6225-8573
|
DB REPRESENTATIVE:
Name: Tommy Cheung
|
|
|
|
Address:
|
56/F, Cheung Kong Center
|
2 Queens Road Central
Hong Kong
|
|
|
|
Facsimile:
|
+852
2203-8304
|
Name: Stephen Lau
|
|
|
|
Address:
|
56/F, Cheung Kong Center
|
2 Queens Road Central
Hong Kong
|
|
|
|
Facsimile:
|
+852
2203-8304
|
LINDEN VENTURES II (BVI), LTD.
Name: Craig Jarvis
|
|
|
|
Title: Authorized Signatory
|
|
|
|
|
|
Address:
|
c/o Linden
Advisors LP,
|
590 Madison Ave., 15th Floor, New York, NY 10022, USA
|
|
|
|
Facsimile:
|
+1
(646) 840-3625
|
8
SUN HING ASSOCIATES LTD. for and on behalf of Sun Hing
Associates Limited
Name: Yuen Yui Wing Authorized
Signature(s)
|
|
|
|
Address: 9/F Central Building, 3 Pedder Street, Central, Hong Kong
|
VERVAIN EQUITY INVESTMENT LIMITED for and on behalf of
Vervain Equity Investment Limited
Name: Karen
Cheung and Peh Jefferson Tun Lu Authorized Signature(s)
|
|
|
|
Address: 9/F Central Building, 3 Pedder Street, Central, Hong Kong
|
THE FROST GROUP, LLC
Name: Steven D. Rubin
9
Schedule 1
SCHEDULE B
SM Share
Ownership*
|
|
|
|
|
|
|
|
|
|
|
Number of SM
|
|
|
Percentage
|
|
SM Shareholder
|
|
Shares Held**
|
|
|
Ownership Interest
|
|
|
Deutsche Bank AG
|
|
|
32,727,272
|
|
|
|
32.2
|
%
|
China Seed Ventures
|
|
|
20,623,779
|
|
|
|
20.3
|
%
|
Qinying Liu
|
|
|
14,660,750
|
***
|
|
|
14.4
|
%
|
Le Yang
|
|
|
14,660,750
|
***
|
|
|
14.4
|
%
|
Sun Hing Associates Ltd.
|
|
|
12,727,272
|
|
|
|
12.5
|
%
|
Vervain Equity Investment
|
|
|
5,454,543
|
|
|
|
5.4
|
%
|
Total Signing
|
|
|
100,854,366
|
|
|
|
99.2
|
%
|
Jianxun Wang(1)
|
|
|
798,000
|
|
|
|
0.8
|
%
|
Total
|
|
|
101,652,366
|
|
|
|
100.0
|
%
|
|
|
|
* |
|
Does not reflect outstanding options issued under the ESOP. |
|
** |
|
Reflects the number of SM Ordinary Shares held by each SM
Shareholder after giving effect to the Preferred Conversion. |
|
*** |
|
Subject to reduction for any share repurchases by SM Cayman
pursuant to that certain Repayment Agreement dated as of
June 23, 2009 among SM Cayman, Qinying Liu and Le Yang. |
|
(1) |
|
Non-signing shareholder. |
SM
Warrant Ownership
|
|
|
|
|
|
|
Number of SM
|
|
|
|
Shares Underlying
|
|
SM Warrantholder
|
|
Warrants
|
|
|
China Seed Ventures
|
|
|
12,670,568
|
|
Linden Ventures II
|
|
|
5,875,639
|
|
Deutsche Bank AG
|
|
|
3,782,000
|
|
Qinying Liu
|
|
|
33,142
|
|
Le Yang
|
|
|
33,142
|
|
Xuebao Yang
|
|
|
33,142
|
|
Jianhai Huang
|
|
|
33,142
|
|
Min Wu
|
|
|
33,142
|
|
Total
|
|
|
22,493,917
|
|
10
Schedule 2
SCHEDULE C
Share
Allocation Shareholders
|
|
|
|
|
|
|
|
|
|
|
Initial
|
|
|
Earn-out Shares
|
|
SM Shareholder
|
|
Share Payment
|
|
|
Percentage
|
|
|
Deutsche Bank AG
|
|
|
2,210,316
|
|
|
|
26.36
|
%
|
China Seed Ventures
|
|
|
1,392,877
|
|
|
|
16.61
|
%
|
Qinying Liu
|
|
|
990,149
|
*
|
|
|
11.81
|
%
|
Le Yang
|
|
|
990,149
|
*
|
|
|
11.81
|
%
|
Sun Hing Associates
|
|
|
859,567
|
|
|
|
10.25
|
%
|
Vervain Equity Investment
|
|
|
368,386
|
|
|
|
4.39
|
%
|
Total Signing
|
|
|
6,811,444
|
|
|
|
81.23
|
%
|
Jianxun Wang(1)
|
|
|
53,895
|
|
|
|
0.64
|
%
|
Total Shareholders
|
|
|
6,865,339
|
|
|
|
81.87
|
%
|
|
|
|
* |
|
Subject to reduction for any share repurchases by SM Cayman
pursuant to that certain Repayment Agreement dated as of
June 23, 2009 among SM Cayman, Qinying Liu and Le Yang. Any
such reduction shall be calculated by subtracting (i) the
number of SM Cayman ordinary shares so repurchased multiplied by
0.0675374 from (ii) the number of ID Cayman shares set
forth on this Schedule next to such persons name. |
Share
Allocation Warrantholders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of ID
|
|
|
|
|
|
|
|
|
|
Cayman Shares
|
|
|
|
|
|
|
|
|
|
Underlying
|
|
|
Exercise
|
|
|
Earn-out Shares
|
|
SM Warrantholder
|
|
Warrants
|
|
|
Price
|
|
|
Percentage
|
|
|
China Seed Ventures Series A
|
|
|
675,374
|
|
|
$
|
1.48
|
|
|
|
8.06
|
%
|
China Seed Ventures Series B
|
|
|
33,769
|
|
|
$
|
8.14
|
|
|
|
0.40
|
%
|
China Seed Ventures Series C
|
|
|
79,443
|
|
|
$
|
6.51
|
|
|
|
0.95
|
%
|
China Seed Ventures DB Transferred
|
|
|
67,152
|
|
|
$
|
0.0001
|
|
|
|
0.80
|
%
|
Linden Ventures II
|
|
|
396,826
|
|
|
$
|
6.30
|
|
|
|
4.73
|
%
|
Deutsche Bank AG
|
|
|
255,427
|
|
|
$
|
8.14
|
|
|
|
3.05
|
%
|
Qinying Liu
|
|
|
2,239
|
|
|
$
|
0.0001
|
|
|
|
0.03
|
%
|
Le Yang
|
|
|
2,239
|
|
|
$
|
0.0001
|
|
|
|
0.03
|
%
|
Xuebao Yang
|
|
|
2,239
|
|
|
$
|
0.0001
|
|
|
|
0.03
|
%
|
Jianhai Huang
|
|
|
2,239
|
|
|
$
|
0.0001
|
|
|
|
0.03
|
%
|
Min Wu
|
|
|
2,239
|
|
|
$
|
0.0001
|
|
|
|
0.03
|
%
|
Total Warrantholders
|
|
|
1,519,186
|
|
|
|
|
|
|
|
18.14
|
%
|
|
|
|
(1) |
|
Non-signing shareholder. |
11
Exhibit 1
EXHIBIT A
Memorandum
and Articles of Association of ID Cayman
12
Company
No:
[ ]
MEMORANDUM
AND ARTICLES OF ASSOCIATION
OF
SEARCHMEDIA HOLDINGS LIMITED
(adopted
on [], 2009 by a special resolution of the
members)
Registered
on the
[ ] day
of
[ ]
2009
REGISTERED
IN THE CAYMAN ISLANDS
13
THE
COMPANIES LAW (2007 Revision)
COMPANY
LIMITED BY SHARES
MEMORANDUM
OF
ASSOCIATION
OF
SEARCHMEDIA HOLDINGS LIMITED
Adopted on
[ l ],
2009 by a special resolution of the Members and effective
immediately upon the registration of the company as a Cayman
Islands company limited by shares.
1. The name of the Company is SearchMedia Holdings Limited.
2. The Registered Office of the Company shall be at the
offices of Corporate Services Limited, PO Box 309,
Ugland House, Grand Cayman, KY1-1104, Cayman Islands or at such
other place as the Directors may from time to time decide.
3. The objects for which the Company is established are
unrestricted and the Company shall have full power and authority
to carry out any object not prohibited by the Companies Law
(2007 Revision), as amended from time to time, or any other law
of the Cayman Islands.
4. The liability of each Member is limited to the amount
from time to time unpaid on such Members shares.
5. The share capital of the Company is US$101,000 divided
into (i) 1,000,000,000 Ordinary Shares of a nominal or par
value of US$0.0001 each and (ii) 10,000,000 Preferred
Shares of a nominal or par value of US$0.0001 each, provided
that the Company has the power, insofar as is permitted by law,
to redeem or purchase any of its shares and to increase or
reduce the said capital subject to the provisions of the
Companies Law (2007 Revision) (as amended or modified from time
to time) and the Articles of Association and to issue any part
of its capital, whether original, redeemed or increased with or
without any preference, priority or special privilege or subject
to any postponement of rights or to any conditions or
restrictions and so that unless the conditions of issue shall
otherwise expressly declare every issue of shares, whether
declared to be preferred or otherwise, shall be subject to the
powers hereinbefore contained.
6. If the Company is registered as exempted, its operations
will be carried on subject to the provisions of the Companies
Law (2007 Revision) (as amended or modified from time to time)
and the Articles of Association, and it shall have the power to
register by way of continuation as a body corporate limited by
shares under the laws of any jurisdiction outside the Cayman
Islands and to be deregistered in the Cayman Islands.
7. The Company may amend its Memorandum of Association by a
resolution of Members in accordance with the relevant provisions
of the Articles of Association.
8. Capitalized terms that are not defined herein shall bear
the same meanings as those given in the Articles of Association
of the Company.
14
THE
COMPANIES LAW (2007 Revision)
COMPANY
LIMITED BY SHARES
ARTICLES OF
ASSOCIATION
OF
SEARCHMEDIA HOLDINGS LIMITED
Adopted on
[ l ],
2009 by a special resolution of the Members and effective
immediately upon the registration of the company as a Cayman
Islands company limited by shares.
1. In these Articles, Table A in the Schedule to the
Statute does not apply and, unless there be something in the
subject or context inconsistent therewith, the following defined
terms shall have the meanings assigned to them as follows:
|
|
|
Affiliate |
|
means, with respect to any given Person, any other Person
directly or indirectly Controlling, Controlled by, or under
common Control with such Person and, where the given Person is
an individual, the spouse, parent, sibling, or child thereof; |
|
Agreement and Plan of Merger, Conversion and Share
Exchange |
|
means, the Agreement and Plan of Merger, Conversion and Share
Exchange dated as of March 31, 2009, among Ideation
Acquisition Corp., ID Arizona Corp., and each of the other
parties thereto, as amended; |
|
Applicable Law |
|
means, with respect to any Person, any and all provisions of any
constitution, treaty, statute, law, regulation, ordinance, code,
rule, judgment, rule of common law, order, decree, award,
injunction, governmental approval, concession, grant, franchise,
license, agreement, directive, requirement, or other
governmental restriction or any similar form of decision of, or
determination by, or any interpretation or administration of any
of the foregoing by, any governmental authority, whether in
effect as of the date hereof or thereafter and in each case as
amended, applicable to such Person or its subsidiaries or their
respective assets; |
|
Articles |
|
means these Articles of Association (including any appendix,
annex, schedule and exhibit attached hereto) as originally
framed or as from time to time altered by Special Resolution; |
|
Auditors |
|
means the Persons for the time being performing the duties of
auditors of the Company; |
|
Board of Directors or Board |
|
means the board of directors of the Company; |
|
Business |
|
means out-of-home advertising and media-related business,
including in-elevator advertising; |
|
Business Day |
|
means a day, excluding a Saturday, Sunday, legal holiday or
other day on which banks are required to be closed in the PRC,
Hong Kong or New York; |
|
Change of Control |
|
means any: (a) merger, consolidation, business combination
or similar transaction involving the Company in which any of the
outstanding voting securities of the Company is converted into
or exchanged for cash, securities or other property, other than
any |
15
|
|
|
|
|
such transaction where the voting securities of the Company
outstanding immediately prior to such transaction are converted
into or exchanged for voting securities of the surviving or
transferee Person that constitute a majority of the outstanding
shares of voting securities of such surviving or transferee
Person (immediately after giving effect to such issuance);
(b) sale, lease or other disposition directly or indirectly
by merger, consolidation, business combination, share exchange,
joint venture, or otherwise of assets of the Company or any of
its Subsidiaries or controlled Affiliates representing all or
substantially all of the consolidated assets of the Company and
its Subsidiaries and controlled Affiliates; (c) issuance,
sale or other disposition of (including by way of share
exchange, joint venture, or any similar transaction by either
the Company or its shareholders) securities (or options, rights
or warrants to purchase, or securities convertible into or
exchangeable for such securities) representing 50% or more of
the voting power of the Company; provided, that any acquisition
of securities directly from the Company that the independent
Directors determine is primarily for the purposes of raising
financing for the Company will not be taken into account when
determining if a Change in Control has occurred under this
clause (c); (d) transaction in which any person
(as such term is used in Sections 13(d) and 14(d) of the
Exchange Act) becomes the beneficial owner (as
defined in
Rule 13d-3
of the Exchange Act) of securities of the Company representing
50% or more of the outstanding voting capital of the Company;
provided, that any acquisition of securities directly from the
Company that the independent Directors determine is primarily
for the purposes of raising financing for the Company will not
be taken into account when determining if a Change in Control
has occurred under this clause (d); and (e) any combination
of the foregoing. |
|
Class |
|
means any class or classes of Shares as may from time to time be
issued by the Company; |
|
Closing Price |
|
means the closing sale price or, if no closing sale price is
reported, the last reported sale price of the Ordinary Shares on
the NYSE Amex on such date. If the Ordinary Shares are not
traded on the NYSE Amex on any date of determination, the
closing price of the Ordinary Shares on such date of
determination means the closing sale price as reported in the
composite transactions for the principal U.S. national or
regional securities exchange on which the Ordinary Shares are so
listed or quoted, or, if no closing sale price is reported, the
last reported sale price on the principal U.S. national or
regional securities exchange on which the Ordinary Shares are so
listed or quoted, or if the Ordinary Shares are not so listed or
quoted on a U.S. national or regional securities exchange, the
last quoted bid price for the Ordinary Shares in the
over-the-counter market as reported by Pink Sheets LLC or
similar organization, or, if that bid price is not available,
the market price of the Ordinary Shares on that date as
determined by a nationally recognized investment banking firm
retained by the Company for this purpose. |
16
|
|
|
Company |
|
means SearchMedia International Limited; |
|
Company Securities |
|
means any outstanding Securities issued by the Company; |
|
Constitutional Documents |
|
means, with respect to any Person, the certificate of
incorporation, by-laws, memorandum of association, articles of
association, or similar constitutive documents for such Person; |
|
Control |
|
means, when used with respect to any Person, the power to direct
the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities,
by contract or otherwise, and the terms Controlling
and Controlled have meanings correlative to the
foregoing. Without limiting the foregoing, a Person shall be
deemed Controlled by another Person if such other Person,
directly or indirectly, owns or has the power to direct the
voting of more than fifty percent (50%) of the outstanding share
capital or other ownership interest having voting power to elect
directors, managers or trustees of such Person; |
|
Convertible Security |
|
means, with respect to any specified Person, evidence of
indebtedness, shares or other securities directly or indirectly
convertible into or exchangeable for any shares or other units
in the share capital or other ownership interest of such
specified Person, however described and whether voting or
non-voting; |
|
Designated Stock Exchange |
|
the Global Market of The Nasdaq Stock Market, the New York Stock
Exchange, NYSE Amex or any other internationally recognized
stock exchange where the Companys securities are traded; |
|
Directors |
|
means the directors for the time being of the Company; |
|
Encumbrance |
|
means (i) any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, deed of trust, title
retention, security interest or other third party rights of any
kind securing, or conferring any priority of payment in respect
of, any obligation of any Person, including without limitation
any right granted by a transaction which, in legal terms, is not
the granting of security but which has an economic or financial
effect substantially similar to the granting of security under
Applicable Law, (ii) any lease, sub-lease, occupancy
agreement, easement or covenant granting a right of use or
occupancy to any Person, (iii) any proxy, power of
attorney, voting trust agreement, interest, option, right of
first offer, right of pre-emption negotiation or refusal or
transfer restriction in favour of any Person and (iv) any
adverse claim as to title, possession or use; |
|
Equity Security |
|
means, with respect to any specified Person, any shares,
registered capital or other units in the share capital or other
ownership interest of such specified Person, however described
and whether voting or non-voting, all Convertible Securities and
all Option Securities of such specified Person; |
|
Exchange Act |
|
means the Securities Exchange Act of 1934, as amended; |
|
Group Companies |
|
means the Company, the PRC Entity and all Subsidiaries of the
foregoing (including without limitation the WFOEs); a
Group Company means any of the Group Companies; |
17
|
|
|
HK Subs |
|
means Great Talent Holdings Limited, a Hong Kong company and
Ad-icon Company Limited, a Hong Kong company; |
|
Issued Shares |
|
means all issued and outstanding Equity Securities in the
Company assuming the exercise of all options and the conversion
or exchange of all convertible or exchangeable Equity Securities; |
|
Liquidation Event |
|
shall bear the meaning as ascribed to it in Article 135(a); |
|
Member |
|
means a person who is registered in the register of members of
the Company as being a holder of Shares in the Company and
includes each subscriber to the Memorandum of Association
pending entry into the register of members of certain of such
subscribers; |
|
Memorandum of Association |
|
means the memorandum of association of the Company in force and
effect, as amended and restated from time to time; |
|
Option Security |
|
means, with respect to any specified Person, all options,
warrants, instruments and other rights and agreements (including
without limitation any preemptive rights or rights of first
refusal) to subscribe for, purchase or otherwise acquire any
shares or other units in the share capital or other ownership
interest of such specified Person, however described and whether
voting or non-voting, or any Convertible Securities of such
specified Person; |
|
Ordinary Resolution |
|
means a resolution: |
|
|
|
(a) passed by a simple majority of votes cast by such
Members on an as-if converted basis as, being entitled to do so,
vote in person or, in the case of any Member being an
organization, by its duly authorised representative or, where
proxies are allowed, by proxy at a general meeting of the
Company; or
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(b) approved in writing by all of the Members entitled to
vote at a general meeting of the Company in one or more
instruments each signed by one or more of the Members and the
effective date of the resolution so adopted shall be the date on
which the instrument, or the last of such instruments if more
than one, is executed;
|
|
Ordinary Shareholders |
|
means the Members registered from time to time as holders of
Ordinary Shares in the register of Members of the Company; |
|
Ordinary Shares |
|
means the ordinary Shares in the capital of the Company, par
value of US$0.0001 per share, with the rights and privileges as
set out in these Articles; |
|
Paid-up |
|
means
paid-up
and/or credited as
paid-up; |
|
Person |
|
means any individual, corporation, partnership, limited
partnership, proprietorship, association, limited liability
company, firm, trust, estate or other enterprise or entity
(including, without limitation, any unincorporated joint venture
and whether or not having separate legal personality); |
|
PRC |
|
means the Peoples Republic of China, but solely for the
purposes of these Articles, excluding the Hong Kong Special
Administrative Region, the Macau Special Administrative Region
and the islands of Taiwan; |
18
|
|
|
PRC Entity |
|
means Shanghai Jingli Advertising Co., Ltd.,
(Chinease Character), a limited liability company organized
under the laws of the Peoples Republic of China; |
|
Related Party |
|
means any of the officers, directors, supervisory board members,
or holders of Equity Securities of any Group Company or any
Affiliates of any of the foregoing; |
|
RMB |
|
means Renminbi, the lawful currency of the PRC; |
|
Seal |
|
means the common seal of the Company and includes every
duplicate seal; |
|
Secretary |
|
includes an Assistant Secretary and any individual appointed to
perform the duties of Secretary of the Company; |
|
Securities |
|
with respect to any Person, means Equity Securities and debt
securities, including without limitation bonds, notes and
debentures, of whatever kind of such Person, whether readily
marketable or not; |
|
Securities Act |
|
means the U.S. Securities Act of 1933, as amended from time to
time; |
|
Share |
|
means a share in the capital of the Company. All references to
Shares herein shall be deemed to be shares of any or
all Classes as the context may require. For the avoidance of
doubt in these Articles the expression Share shall
include a fraction of a Share; |
|
Shareholders |
|
means, as of any time, any Ordinary Shareholders and any holders
of any other Equity Securities of the Company; |
|
Special Resolution |
|
means a resolution: |
|
|
|
(a) passed by a majority of not less than two-thirds of
such Members on an as-if converted basis as, being entitled to
do so, vote in person or, where proxies are allowed, by proxy at
a general meeting of the Company of which notice specifying the
intention to propose the resolution as a special resolution has
been duly given and where a poll is taken regard shall be had in
computing a majority to the number of votes to which each Member
is entitled; or
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(b) approved in writing by all of the Members entitled to
vote at a general meeting of the Company in one or more
instruments each signed by one or more of the Members and the
effective date of the special resolution so adopted shall be the
date on which the instrument or the last of such instruments, if
more than one, is executed;
|
|
Statute |
|
means the Companies Law (2007 Revision) of the Cayman Islands as
amended and every statutory modification or re-enactment thereof
for the time being in force; |
|
Subsidiary |
|
means with respect to any specified Person, any other Person
(other than a natural Person) Controlled by such specified
Person. For the avoidance of doubt, the PRC Entity or any of the
Subsidiaries of the PRC Entity shall not be deemed to be a
Subsidiary of the Company; |
19
|
|
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Trading Day |
|
means, for purposes of determining a Closing Price per Ordinary
Share, a Business Day on which the Designated Stock Exchange is
scheduled to be open for business; |
|
US$ |
|
means United States dollars, the lawful currency of the U.S.; |
|
US GAAP |
|
means the generally accepted accounting principles in the United
States; |
|
WFOE or WFOEs |
|
means Jieli Investment Management Consulting (Shanghai) Co.,
Ltd. and Jieli Network Technology Development (Shanghai) Co.,
Ltd., both wholly foreign owned enterprises established by the
Company in Shanghai, PRC under the laws of the PRC; |
|
written and in writing |
|
include all modes of representing or reproducing words in
visible form in the English language. |
Words importing the singular number only include the plural
number and vice versa.
Words importing one gender only include the other gender and the
neuter.
Words importing persons only include corporations.
PRELIMINARY
2. The business of the Company may be commenced as soon
after incorporation as the Directors shall see fit,
notwithstanding that part only of the Shares may have been
allotted.
3. The registered office of the Company shall be at such
address in the Cayman Islands as the Directors shall from time
to time determine. The Company may in addition establish and
maintain such other offices and places of business and agencies
in such places as the Directors may from time to time determine.
4. The Directors may pay, out of the capital or any other
monies of the Company, all expenses incurred in or about the
formation and establishment of the Company including the
expenses of registration.
CERTIFICATES
FOR SHARES
5. Certificates representing Shares of the Company shall be
in such form as shall be determined by the Directors. Such
certificates may be under Seal. All certificates for Shares
shall be consecutively numbered or otherwise identified and
shall specify the Shares to which they relate. The name and
address of the Person to whom the Shares represented thereby are
issued, with the number of Shares and date of issue, shall be
entered in the register of Members of the Company. All
certificates surrendered to the Company for transfer shall be
cancelled and no new certificate shall be issued until the
former certificate for a like number of Shares shall have been
surrendered and cancelled. The Directors may authorize
certificates to be issued with the Seal and authorised
signature(s) affixed by some method or system of mechanical
process.
6. Notwithstanding Article 5 of these Articles, if a
share certificate is defaced, lost or destroyed, it may be
renewed on payment of a fee of one dollar (US$l.00) or such
lesser sum and on such terms (if any) as to evidence and
indemnity and the payment of the expenses incurred by the
Company in investigating evidence, as the Directors may
prescribe.
ISSUE OF
SHARES
7. Subject to applicable law, rules, regulations and the
relevant provisions, if any, in the Memorandum of Association
and these Articles and to any direction that may be given by the
Company in general meeting and without prejudice to any special
rights previously conferred on the holders of existing Shares,
the Directors may, in their absolute discretion and without the
approval of the holders of the Companys outstanding
Shares, cause the Company to issue such additional Shares
(whether in certificated form or non-certificated form), or
20
issue other securities, in one or more classes or series as they
deem necessary and appropriate and determine designations,
powers, preferences, privileges and other rights, including
dividend rights, voting rights, conversion rights, terms of
redemption and liquidation preferences, any or all of which may
be greater or more advantageous than the powers and rights
associated with the then outstanding Shares, at such times and
on such other terms as they think proper. The Company shall not
issue Shares or other Securities in bearer form.
8. The Board may reserve such number of Shares or
Securities of the Company as the Board may be required to issue
in connection with the exercise of an option, right, or warrant
or other Security of the Company or any other person (each a
Conversion Right) that is exercisable for,
convertible into, exchangeable for or otherwise issuable in
respect of Shares or Securities of the Company. For these
purposes, to reserve a number of Shares shall mean
that at the relevant time, such number of Shares shall be
authorised but unissued, and the Board shall not issue such
Shares otherwise than pursuant to the exercise.
REGISTER
OF MEMBERS AND SHARE CERTIFICATES
9. The Company shall maintain a Register of Members and
every Person whose name is entered as a Member in the Register
of Members shall, without payment, be entitled to receive within
two (2) months after allotment or lodgment of transfer (or
within such other period as the conditions of issue shall
provide) one certificate for all his or her or its Shares or
several certificates each for one or more of his or her or its
Shares upon payment of fifty cents (US$0.50) for every
certificate after the first or such lesser sum as the Directors
shall from time to time determine. All certificates shall
specify the Share or Shares held by that person and par value of
such Shares, provided that, in respect of a Share or Shares held
jointly by several persons, the Company shall not be bound to
issue more than one certificate, and delivery of a certificate
for a Share to one of the several joint holders shall be
sufficient delivery to all such holders. All certificates for
Shares shall be delivered personally or sent through the post
addressed to the Member entitled thereto at the Members
registered address as appearing in the Register of Members.
10. Every share certificate of the Company shall bear
legends required under the applicable laws, including the
Securities Act.
11. Any two or more certificates representing Shares of any
one Class held by any Member may at the Members request be
cancelled and a single new certificate for such Shares issued in
lieu on payment (if the Directors shall so require) of US$1.00
or such smaller sum as the Directors shall determine.
12. If a share certificate shall be damaged or defaced or
alleged to have been lost, stolen or destroyed, a new
certificate representing the same Shares may be issued to the
relevant Member upon request subject to delivery of the old
certificate or (if alleged to have been lost, stolen or
destroyed) compliance with such conditions as to evidence and
indemnity and the payment of out-of-pocket expenses of the
Company in connection with the request as the Directors may
think fit.
13. In the event that Shares are held jointly by several
persons, any request may be made by any one of the joint holders
and if so made shall be binding on all of the joint holders.
ORDINARY
SHARES
14. Holders of Ordinary Shares shall be entitled to receive
notice of, to attend and to speak and vote at, any general
meeting of the Company.
TRANSFER
OF SHARES
15. The instrument of transfer of any Share shall be in any
usual or common form or such other form as the Directors may, in
their absolute discretion, approve and be executed by or on
behalf of the transferor and if in respect of a nil or partly
paid up Share, or if so required by the Directors, shall also be
executed on behalf of the transferee and shall be accompanied by
the certificate (if any) of the Shares to which it relates and
such other evidence as the Directors may reasonably require to
show the right of the transferor to make
21
the transfer. The transferor shall be deemed to remain a
Shareholder until the name of the transferee is entered in the
Register of Members in respect of the relevant Shares.
16. All instruments of transfer of Shares that have been
registered shall be retained by the Company, but any instrument
of transfer that the Directors decline to register shall (except
in any case of fraud) be returned to the Person depositing the
same.
REDEMPTION AND
PURCHASE OF SHARES
17. Subject to the Statute, these Articles, and the
Memorandum of Association, the Company may:
(a) issue Shares on terms that they are to be redeemed or
are liable to be redeemed at the option of the Company or the
Shareholders on such terms and in such manner as the Directors
may, before the issue of such Shares, determine;
(b) purchase its own Shares (including any redeemable
Shares) on such terms and in such manner as the Directors may
determine provided that the Members shall have authorised the
manner of purchase by Ordinary Resolution or the manner of
purchase shall be in accordance with Articles 18 and 19
(which shall constitute authorisation for the purposes of and in
accordance with section 37(3)(d) of the Statute); provided
however, that notwithstanding anything to the contrary set forth
herein, no Member authorisation shall be required with respect
to any purchase of Shares which occurs pursuant to that certain
letter agreement dated as of August [ ], 2009 by
and among Ideation Acquisition Corp. and certain investors
listed on Exhibit A thereto; and
(c) make a payment in respect of the redemption or purchase
of its own Shares in any manner authorised by the Law, including
without limitation out of its capital, profits or the proceeds
of a fresh issue of Shares.
18. The Company is authorised to purchase, on behalf of the
Company, any Share listed on a Designated Stock Exchange in
accordance with the following manner of purchase:
(a) the maximum number of Shares that may be purchased
shall be equal to the number of issued and outstanding Shares
less one Share; and
(b) the purchase shall be at such time, at such price and
on such other terms as determined and agreed by the Directors in
their sole discretion provided however that:
(i) such purchase transactions shall be in accordance with
the relevant code, rules and regulations applicable to the
listing of the Shares on the Designated Stock Exchange; and
(ii) at the time of the repurchase, the Company is able to
pay its debts as they fall due in the ordinary course of its
business.
19. The holder of the Shares being purchased or redeemed
shall be bound to deliver up to the Company at its registered
office or such other place as the Directors shall specify, the
certificate(s) (if any) thereof for cancellation and thereupon
the Company shall pay to him the purchase or redemption monies
or consideration in respect thereof and the Shares being
purchased or redeemed shall be cancelled or shall form part of
the authorised but unissued capital of the Company.
20. Any Share in respect of which a notice of redemption
has been given shall not be entitled to participate in the
profits of the Company in respect of the period after the date
specified as the date of redemption in the notice of redemption.
21. The redemption or purchase of any Share shall not
oblige the Company to redeem or purchase of any other Share
other than as may be required pursuant to applicable law and any
other contractual obligations of the Company.
22
22. The Directors may when making payments in respect of
redemption or purchase of Shares, if authorised by the terms of
issue of the Shares being redeemed or purchased or with the
agreement of the holder of such Shares, make such payment either
in cash or in specie.
VARIATION
OF RIGHTS OF SHARES
23.
(a) Subject to any other provisions contained herein, if at
any time the share capital of the Company is divided into
different Classes or series of Shares, the rights attached to
any Class or series (unless otherwise provided by the terms of
issue of the Shares of that Class or series) may, whether or not
the Company is being wound up, be varied with the consent in
writing of the holders of three-fourths of the Issued Shares of
that Class or series.
(b) The provisions of these Articles relating to general
meetings shall apply to every such general meeting of the
holders of one Class of Shares except that the necessary quorum
shall be one or more persons holding or representing by proxy at
least half of the Issued Shares of the Class and that any holder
of Shares of the Class present in person or by proxy may demand
a poll.
24. The rights conferred upon the holders of the Shares of
any Class issued with preferred or other rights shall not,
unless otherwise expressly provided by the terms of issue of the
Shares of that class, be deemed to be varied by the creation or
issue of further Shares ranking pari passu therewith.
COMMISSION
ON SALE OF SHARES
25. The Company may in so far as the Statute from time to
time permits pay a commission to any Person in consideration of
his or her or its subscribing or agreeing to subscribe whether
absolutely or conditionally for any Shares of the Company. Such
commissions may be satisfied by the payment of cash or the
lodgment of fully or partly
Paid-up
Shares or partly in one way and partly in the other. The Company
may also on any issue of Shares pay such brokerage as may be
lawful.
NON-RECOGNITION
OF TRUSTS
26. No Person shall be recognized by the Company as holding
any Share upon any trust and the Company shall not be bound by
or be compelled in any way to recognize (even when having notice
thereof) any equitable, contingent, future, or partial interest
in any Share, or any interest in any fractional part of a Share,
or (except only as is otherwise provided by these Articles or
the Statute) any other rights in respect of any Share except an
absolute right to the entirety thereof in the registered holder.
LIEN ON
SHARES
27. The Company shall have a first and paramount lien and
charge on all Shares (whether fully
Paid-up or
not) registered in the name of a Member (whether solely or
jointly with others) for all debts, liabilities or engagements
to or with the Company (whether presently payable or not) by
such Member or such Members estate, either alone or
jointly with any other Person, whether a Member or not, but the
Directors may at any time declare any Share to be wholly or in
part exempt from the provisions of this Article. The
registration of a transfer of any such Share shall operate as a
waiver of the Companys pre-existing lien (if any) thereon.
The Companys lien (if any) on a Share shall extend to all
dividends or other monies payable in respect thereof.
28. The Company may sell, in such manner as the Directors
think fit, any Shares on which the Company has a lien, but no
sale shall be made unless a sum in respect of which the lien
exists is presently payable, nor until the expiration of
fourteen (14) days after a notice in writing stating and
demanding payment of such part of the amount in respect of which
the lien exists as is presently payable, has been given to the
registered holder or holders for the time being of the Share, or
the Person, of which the Company has notice, entitled thereto by
reason of such Persons death or bankruptcy.
23
29. To give effect to any such sale, the Directors may
authorize a Person to transfer the Shares sold to the purchaser
thereof. The purchaser shall be registered as the holder of the
Shares comprised in any such transfer, and the purchaser shall
not be bound to see to the application of the purchase money,
nor shall the title of the purchaser to the Shares be affected
by any irregularity or invalidity in the proceedings in
reference to the sale.
30. The proceeds of such sale shall be received by the
Company and applied in payment of such part of the amount in
respect of which the lien exists as is presently payable and the
residue, if any, shall (subject to a like lien for sums not
presently payable as existed upon the Shares before the sale) be
paid to the Person entitled to the Shares at the date of the
sale.
CALL ON
SHARES
31.
(a) The Directors may from time to time make calls upon the
Members in respect of any monies unpaid on their Shares (whether
on account of the nominal value of the Shares or by way of
premium or otherwise) and not by the conditions of allotment
thereof made payable at fixed terms, provided that no call shall
be payable at less than one (1) month from the date fixed
for the payment of the last preceding call, and each Member
shall (subject to receiving at least fourteen (14) days
notice specifying the time or times of payment) pay to the
Company at the time or times so specified the amount called on
the Shares. A call may be revoked or postponed as the Directors
may determine. A call may be made payable by installments.
(b) A call shall be deemed to have been made at the time
when the resolution of the Directors authorizing such call was
passed.
(c) The joint holders of a Share shall be jointly and
severally liable to pay all calls in respect thereof.
32. If a sum called in respect of a Share is not paid
before or on a day appointed for payment thereof, the Persons
from whom the sum is due shall pay interest on the sum from the
day appointed for payment thereof to the time of actual payment
at such rate not exceeding ten per cent per annum as the
Directors may determine, but the Directors shall be at liberty
to waive payment of such interest either wholly or in part.
33. Any sum which by the terms of issue of a Share becomes
payable on allotment or at any fixed date, whether on account of
the nominal value of the Share or by way of premium or
otherwise, shall for the purposes of these Articles be deemed to
be a call duly made, notified and payable on the date on which
by the terms of issue the same becomes payable, and in the case
of non-payment all the relevant provisions of these Articles as
to payment of interest forfeiture or otherwise shall apply as if
such sum had become payable by virtue of a call duly made and
notified.
34. The Directors may, on the issue of Shares,
differentiate between the holders as to the amount of calls or
interest to be paid and the times of payment.
35.
(a) The Directors may, if they think fit, receive from any
Member willing to advance the same, all or any part of the
monies uncalled and unpaid upon any Shares held by him, and upon
all or any of the monies so advanced may (until the same would
but for such advances, become payable) pay interest at such rate
not exceeding (unless the Company in general meeting shall
otherwise direct) seven per cent per annum, as may be agreed
upon between the Directors and the Member paying such sum in
advance.
(b) No such sum paid in advance of calls shall entitle the
Member paying such sum to any portion of a dividend declared in
respect of any period prior to the date upon which such sum
would, but for such payment, become presently payable.
24
FORFEITURE
OF SHARES
36.
(a) If a Member fails to pay any call or installment of a
call or to make any payment required by the terms of issue on
the day appointed for payment thereof, the Directors may, at any
time thereafter during such time as any part of the call,
installment or payment remains unpaid, give notice requiring
payment of so much of the call, installment or payment as is
unpaid, together with any interest which may have accrued and
all expenses that have been incurred by the Company by reason of
such non-payment. Such notice shall name a day (not earlier than
the expiration of fourteen (14) days from the date of
giving of the notice) on or before which the payment required by
the notice is to be made, and shall state that, in the event of
non-payment at or before the time appointed the Shares in
respect of which such notice was given will be liable to be
forfeited.
(b) If the requirements of any such notice as aforesaid are
not complied with, any Share in respect of which the notice has
been given may at any time thereafter, before the payment
required by the notice has been made, be forfeited by a
resolution of the Directors to that effect. Such forfeiture
shall include all dividends declared in respect of the forfeited
Share and not actually paid before the forfeiture.
(c) A forfeited Share may be sold or otherwise disposed of
on such terms and in such manner as the Directors think fit and
at any time before a sale or disposition the forfeiture may be
cancelled on such terms as the Directors think fit.
37. A Person whose Shares have been forfeited shall cease
to be a Member in respect of the forfeited Shares, but shall,
notwithstanding, remain liable to pay to the Company all monies
which, at the date of forfeiture were payable by such Person to
the Company in respect of the Shares together with interest
thereon, but such Persons liability shall cease if and
when the Company shall have received payment in full of all
monies whenever payable in respect of the Shares.
38. A certificate in writing under the hand of one Director
or the Secretary of the Company that a Share in the Company has
been duly forfeited on a date stated in the declaration shall be
conclusive evidence of the fact therein stated as against all
Persons claiming to be entitled to the Share. The Company may
receive the consideration given for the Share on any sale or
disposition thereof and may execute a transfer of the Share in
favour of the Person to whom the Share is sold or disposed of
and such Person shall thereupon be registered as the holder of
the Share and shall not be bound to see to the application of
the purchase money, if any, nor shall such Persons title
to the Share be affected by any irregularity or invalidity in
the proceedings in reference to the forfeiture, sale or disposal
of the Share.
39. The provisions of these Articles as to forfeiture shall
apply in the case of non-payment of any sum which, by the terms
of issue of a Share, becomes payable at a fixed time, whether on
account of the nominal value of the Share or by way of premium
as if the same had been payable by virtue of a call duly made
and notified.
REGISTRATION
OF EMPOWERING INSTRUMENTS
40. The Company shall be entitled to charge a fee not
exceeding one dollar (US$l.00) on the registration of every
probate, letters of administration, certificate of death or
marriage, power of attorney, notice in lieu of distringas, or
other instrument.
TRANSMISSION
OF SHARES
41. In case of the death of a Member, the survivor or
survivors where the deceased was a joint holder, and the legal
personal representatives of the deceased where the deceased was
a sole holder, shall be the only persons recognized by the
Company as having any title to his or her or its interest in the
Shares, but nothing herein contained shall release the estate of
any such deceased holder from any liability in respect of any
Shares which had been held by him or her solely or jointly with
other Persons.
25
42.
(a) Any Person becoming entitled to a Share in consequence
of the death or bankruptcy or liquidation or dissolution of a
Member (or in any other way than by transfer) may, upon such
evidence being produced as may from time to time be required by
the Directors and subject as hereinafter provided, elect either
to be registered himself or herself as holder of the Share or to
make such transfer of the Share to such other Person nominated
by such Person as the deceased or bankrupt Person could have
made and to have such Person registered as the transferee
thereof, but the Directors shall, in either case, have the same
right to decline or suspend registration as they would have had
in the case of a transfer of the Share by that Member before
such Members death or bankruptcy as the case may be.
(b) If the Person so becoming entitled shall elect to be
registered as holder, such Person shall deliver or send to the
Company a notice in writing signed by such Person stating that
such Person so elects.
43. A Person becoming entitled to a Share by reason of the
death or bankruptcy or liquidation or dissolution of the holder
(or in any other case than by transfer) shall be entitled to the
same dividends and other advantages to which such Person would
be entitled if such Person were the registered holder of the
Share, except that such Person shall not, before being
registered as a Member in respect of the Share, be entitled in
respect of it to exercise any right conferred by membership in
relation to meetings of the Company, provided however, that the
Directors may at any time give notice requiring any such Person
to elect either to be registered or to transfer the Share and if
the notice is not complied with within ninety (90) days the
Directors may thereafter withhold payment of all dividends,
bonuses or other monies payable in respect of the Share until
the requirements of the notice have been complied with.
AMENDMENT
OF MEMORANDUM OF ASSOCIATION, CHANGE OF LOCATION
OF REGISTERED OFFICE & ALTERATION OF CAPITAL
44.
(a) Subject to and in so far as permitted by the provisions
of the Statute and these Articles, the Company may from time to
time by Ordinary Resolution alter or amend its Memorandum of
Association otherwise than with respect to its name and objects
and may, without restricting the generality of the foregoing:
(i) increase the share capital by such sum to be divided
into Shares of such amount or without nominal or par value as
the resolution shall prescribe and with such rights, priorities
and privileges annexed thereto, as the Company in general
meeting may determine;
(ii) consolidate and divide all or any of its share capital
into Shares of larger amount than its existing Shares;
(iii) by subdivision of its existing Shares or any of them
divide the whole or any part of its share capital into Shares of
smaller amount than is fixed by the Memorandum of Association or
into Shares without nominal or par value;
(iv) cancel any Shares which at the date of the passing of
the resolution have not been taken or agreed to be taken by any
Person; and
(v) increase or decrease the number of the authorised
Ordinary Shares.
(b) All new Shares created hereunder shall be subject to
the same provisions with reference to the payment of calls,
liens, transfer, transmission and forfeiture and otherwise as
the Shares in the original Share capital.
(c) Subject to the provisions of the Statute, the Company
may by Special Resolution change its name or alter its objects.
(d) Without prejudice to Article 23(a) hereof and
subject to the provisions of the Statute, the Company may by
Special Resolution reduce its share capital and any capital
redemption reserve fund.
26
(e) Subject to the provisions of the Statute, the Company
may by resolution of the Directors change the location of its
registered office.
CLOSING
REGISTER OF MEMBERS OR FIXING RECORD DATE
45. For the purpose of determining Members entitled to
notice of or to vote at any meeting of Members or any
adjournment thereof, or Members entitled to receive payment of
any dividend, or in order to make a determination of Members for
any other proper purpose, the Directors of the Company may
provide that the register of Members shall be closed for
transfers for a stated period but not to exceed in any case
forty (40) days. If the register of Members shall be so
closed for the purpose of determining Members entitled to notice
of or to vote at a meeting of Members such register shall be so
closed for at least ten (10) days immediately preceding
such meeting and the record date for such determination shall be
the date of the closure of the register of Members.
46. In lieu of or apart from closing the register of
Members, the Directors may fix in advance a date as the record
date for any such determination of Members entitled to notice of
or to vote at a meeting of the Members and for the purpose of
determining the Members entitled to receive payment of any
dividend the Directors may, at or within ninety (90) days
prior to the date of declaration of such dividend fix a
subsequent date as the record date for such determination.
47. If the register of Members is not so closed and no
record date is fixed for the determination of Members entitled
to notice of or to vote at a meeting of Members or Members
entitled to receive payment of a dividend, the date on which
notice of the meeting is mailed or the date on which the
resolution of the Directors declaring such dividend is adopted,
as the case may be, shall be the record date for such
determination of Members. When a determination of Members
entitled to vote at any meeting of Members has been made as
provided in this section, such determination shall apply to any
adjournment thereof.
GENERAL
MEETING
48.
(a) Subject to paragraph (c) hereof, the Company shall
within one (1) year of its incorporation and in each year
of its existence thereafter hold a general meeting as its annual
general meeting and shall specify the meeting as such in the
notices calling it. The annual general meeting shall be held at
such time and place as the Directors shall appoint.
(b) At these meetings the report of the Directors (if any)
shall be presented.
(c) If the Company is exempted as defined in the Statute it
may but shall not be obliged to hold an annual general meeting.
49.
(a) The Directors may whenever they think fit, and they
shall on the requisition of Members of the Company holding at
the date of the deposit of the requisition not less than
one-third of such of the
Paid-up
capital of the Company as at the date of the deposit carries the
right of voting at general meetings of the Company, proceed to
convene a general meeting of the Company.
(b) The requisition must state the objects of the meeting
and must be signed by the requisitionists and deposited at the
office of the Chairman of the Board or the president of the
Company and may consist of several documents in like form each
signed by one or more requisitionists.
(c) If the Directors do not within twenty-one
(21) days from the date of the deposit of the requisition
duly proceed to convene a general meeting, the requisitionists,
or any of them representing more than one-half of the total
voting rights of all of them, may themselves convene a general
meeting, but any meeting so convened shall not be held after the
expiration of three (3) months after the expiration of the
said twenty (21) days.
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(d) A general meeting convened as aforesaid by
requisitionists shall be convened in the same manner as nearly
as possible as that in which general meetings are to be convened
by Directors.
NOTICE OF
GENERAL MEETINGS
50. At least five (5) days notice shall be given by
the Board of Directors of an annual general meeting or any other
general meeting to the Members whose names on the date of the
notice appear as a shareholder in the register of Members of the
Company and are entitled to vote at the meeting. Every notice
shall be exclusive of the day on which it is given or deemed to
be given and of the day for which it is given and shall specify
the place, the day and the hour of the meeting and the general
nature of the business and shall be given in the manner
hereinafter mentioned or in such other manner if any as may be
prescribed by the Company, provided that a general meeting of
the Company shall, whether or not the notice specified in this
regulation has been given and whether or not the provisions of
Article 52 have been complied with, be deemed to have been
duly convened if it is so agreed:
(a) in the case of a general meeting called as an annual
general meeting by all the Members entitled to attend and vote
thereat or their proxies; and
(b) in the case of any other general meeting by a majority
in number of the Members having a right to attend and vote at
the meeting, being a majority together holding not less than
662/3%
in nominal value of the Shares in issue (on an as-if-converted
basis).
51. The accidental omission to give notice of a general
meeting to, or the non-receipt of notice of a meeting by any
Person entitled to receive notice shall not invalidate the
proceedings of that meeting.
PROCEEDINGS
AT GENERAL MEETINGS
52. A general meeting shall be deemed duly constituted if,
at the commencement of and throughout the meeting, there are
present in person or by proxy the holder(s) of (i) at least
fifty percent (50%) of all Shares carrying an entitlement to
vote in issue provided always that if the Company has one Member
of record the quorum shall be that one Member present in person
or by proxy. No business shall be transacted at any general
meeting unless the aforesaid quorum of Members is present at the
time when the meeting proceeds to business.
53. A resolution (including a Special Resolution) in
writing (in one or more counterparts) signed by the Members
required to vote on such resolution (or being corporations by
their duly authorised representatives) shall be as valid and
effective as if the same had been passed at a general meeting of
the Company duly convened and held.
54. If within one (1) hour from the time appointed for
the meeting a quorum is not present, the meeting, if convened
upon the requisition of Members, shall be dissolved and in any
other case it shall stand adjourned to the same time and place
seven (7) Business Days later or such other place as the
Directors may determine and if at the adjourned meeting a quorum
is not present within half an hour from the time appointed for
the meeting, the Members present shall be a quorum.
55. The general meeting of the Company may be held and any
Member may participate in such meeting, by means of a conference
telephone or similar communication equipment by means of which
all persons participating in the meeting are capable of hearing
each other; and such participation shall be deemed to constitute
presence in person at that meeting.
56. The Chairman, if any, of the Board of Directors shall
preside as Chairman at every general meeting of the Company, or
if there is no such Chairman, or if such Chairman shall not be
present within fifteen (15) minutes after the time
appointed for the holding of the meeting, or is unwilling to
act, the Directors present shall elect one of their number to be
Chairman of the meeting.
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57. If at any general meeting no Director is willing to act
as Chairman or if no Director is present within fifteen
(15) minutes after the time appointed for holding the
meeting, the Members present shall choose one of their numbers
to be Chairman of the meeting.
58. The Chairman may, with the consent of any general
meeting duly constituted hereunder, and shall if so directed by
the meeting, adjourn the meeting from time to time and from
place to place, but no business shall be transacted at any
adjourned meeting other than the business left unfinished at the
meeting from which the adjournment took place. When a general
meeting is adjourned for thirty (30) days or more, notice
of the adjourned meeting shall be given as in the case of an
original meeting; save as aforesaid it shall not be necessary to
give any notice of an adjournment or of the business to be
transacted at an adjourned general meeting.
59. At any general meeting a resolution put to the vote of
the meeting shall be decided on a show of hands unless a poll
is, before or on the declaration of the result of the show of
hands, demanded by the Chairman or any other Member present in
person or by proxy.
60. Unless a poll be so demanded a declaration by the
Chairman that a resolution has on a show of hands been carried,
or carried unanimously, or by a particular majority, or lost, an
entry to that effect in the Companys Minute Book
containing the Minutes of the proceedings of the meeting shall
be conclusive evidence of that fact without proof of the number
or proportion of the votes recorded in favour of or against such
resolution.
61. The demand for a poll may be withdrawn.
62. Except as provided herein, if a poll is duly demanded
it shall be taken in such manner as the Chairman directs and the
result of the poll shall be deemed to be the resolution of the
general meeting at which the poll was demanded.
63. In the case of an equality of votes, whether on a show
of hands or on a poll, the Chairman of the general meeting at
which the show of hands takes place or at which the poll is
demanded, shall be entitled to a second or casting vote.
64. A poll demanded on the election of a Chairman or on a
question of adjournment shall be taken forthwith. A poll
demanded on any other question shall be taken at such time as
the Chairman of the general meeting directs and any business
other than that upon which a poll has been demanded or is
contingent thereon may be proceeded with pending the taking of
the poll.
VOTES OF
MEMBERS
65. Subject to any rights or restrictions for the time
being attached to any Class or series or Classes or series of
Shares, on a show of hands every Member of record present in
person or by proxy at a general meeting shall have one vote and
on a poll every Member of record present in person or by proxy
shall have one vote for each Share registered in such
Members name in the register of Members.
66. In the case of joint holders of record the vote of the
senior who tenders a vote, whether in person or by proxy, shall
be accepted to the exclusion of the votes of the other joint
holders, and for this purpose seniority shall be determined by
the order in which the names stand in the register of Members.
67. A Member of unsound mind, or in respect of whom an
order has been made by any court, having jurisdiction in lunacy,
may vote, whether on a show of hands or on a poll, by such
Members committee, receiver, curator bonis, or other
Person in the nature of a committee, receiver or curator bonis
appointed by that court, and any such committee, receiver,
curator bonis or other persons may vote by proxy.
68. No Member shall be entitled to vote at any general
meeting unless such Member is registered as a shareholder of the
Company on the record date for such meeting nor unless all calls
or other sums presently payable by such Member in respect of
Shares in the Company have been paid.
29
69. No objection shall be raised to the qualification of
any voter except at the general meeting or adjourned general
meeting at which the vote objected to is given or tendered and
every vote not disallowed at such general meeting shall be valid
for all purposes. Any such objection made in due time shall be
referred to the Chairman of the general meeting whose decision
shall be final and conclusive.
70. On a poll or on a show of hands votes may be given
either personally or by proxy.
PROXIES
71. The instrument appointing a proxy shall be in writing
and shall be executed under the hand of the appointor or of the
attorney of the appointor duly authorised in writing, or, if the
appointor is a corporation under the hand of an officer or
attorney duly authorised in that behalf. A proxy need not be a
Member of the Company.
72. The instrument appointing a proxy shall be deposited at
such place as is specified for that purpose in the notice
convening the meeting no later than the time for holding the
meeting, or adjourned meeting provided that the Chairman of the
Meeting may at his or her discretion direct that an instrument
of proxy shall be deemed to have been duly deposited upon
receipt of telex, cable or telecopy confirmation from the
appointor that the instrument of proxy duly signed is in the
course of transmission to the Company.
73. The instrument appointing a proxy may be in any usual
or common form and may be expressed to be for a particular
meeting or any adjournment thereof or generally until revoked.
An instrument appointing a proxy shall be deemed to include the
power to demand or join or concur in demanding a poll.
74. A vote given in accordance with the terms of an
instrument of proxy shall be valid notwithstanding the previous
death or insanity of the principal or revocation of the proxy or
of the authority under which the proxy was executed, or the
transfer of the Share in respect of which the proxy is given
provided that no intimation in writing of such death, insanity,
revocation or transfer as aforesaid shall have been received by
the Company at the registered office before the commencement of
the general meeting, or adjourned meeting at which it is sought
to use the proxy.
75. Any corporation which is a Member of record of the
Company may in accordance with its Articles or in the absence of
such provision by resolution of its Directors or other governing
body authorize such Person as it thinks fit to act as its
representative at any meeting of the Company or of any Class or
series of Members of the Company, and the Person so authorised
shall be entitled to exercise the same powers on behalf of the
corporation which such Person represents as the corporation
could exercise if it were an individual Member of record of the
Company.
76. Shares of its own capital belonging to the Company or
held by it in a fiduciary capacity shall not be voted, directly
or indirectly, at any meeting and shall not be counted in
determining the total number of outstanding Shares at any given
time.
DIRECTORS
77.
(a) Unless otherwise determined by the Company in a general
meeting, the number of Directors shall not be less than three
Directors nor more than ten (10) Directors, the exact
number to be determined from time to time by the Directors.
(b) Each Director shall hold office until the expiration of
his term and until his successor shall have been elected and
qualified.
(c) The Board of Directors shall have a Chairman of the
Board of Directors (the Chairman) elected and
appointed by a majority of the Directors then in office. The
Chairman shall preside as chairman at every meeting of the Board
of Directors. To the extent the Chairman is not present at a
30
meeting of the Board of Directors, the attending Directors may
choose one Director to be the chairman of the meeting.
(d) The Company may by Ordinary Resolution elect any person
to be a Director either to fill a casual vacancy on the Board or
as an addition to the existing Board.
(e) The Directors by the affirmative vote of a simple
majority of the remaining Directors present and voting at a
Board meeting, or the sole remaining Director, shall have the
power from time to time and at any time to appoint any person as
a Director to fill a casual vacancy on the Board or as an
addition to the existing Board.
78. A Director may be removed from office by Special
Resolution at any time before the expiration of his term
notwithstanding anything in these Articles or in any agreement
between the Company and such Director (but without prejudice to
any claim for damages under such agreement).
79. The Directors may, from time to time adopt, institute,
amend, modify or revoke the corporate governance policies or
initiatives, which shall be intended to set forth the policies
of the Company and the Board on various corporate governance
related matters as the Directors shall determine by resolution
from time to time.
80. A Director shall not be required to hold any Shares in
the Company by way of qualification. A Director who is not a
Member of the Company shall nevertheless be entitled to receive
notice of and to attend and speak at general meetings of the
Company and of all classes of Shares of the Company.
81. The remuneration to be paid to the Directors shall be
such remuneration as the Directors shall determine. Such
remuneration shall be deemed to accrue from day to day. The
Directors shall also be entitled to be paid their reasonable
traveling, hotel and other expenses properly incurred by them in
going to, attending and returning from meetings of the
Directors, or any committee of the Directors, or general
meetings of the Company, or otherwise in connection with the
business of the Company, or to receive a fixed allowance in
respect thereof as may be determined by the Directors from time
to time, or a combination partly of one such method and partly
the other.
82. The Directors may by resolution award special
remuneration to any Director of the Company undertaking any
special work or services for, or undertaking any special mission
on behalf of, the Company other than the ordinary routine work
as a Director. Any fees paid to a Director who is also counsel
or solicitor to the Company, or otherwise serves it in a
professional capacity shall be in addition to the remuneration
as a Director.
83. A Director or alternate Director may hold any other
office or place of profit under the Company (other than the
office of Auditor) in conjunction with the office of Director
for such period and on such terms as to remuneration and
otherwise as the Directors may determine.
84. A Director or alternate Director may act individually
or via the firm with which such Director/alternate Director is
associated in a professional capacity for the Company, such
Director/alternate Director or such firm shall be entitled to
remuneration for such professional services as if such person
were not a Director or alternate Director.
85. A shareholding qualification for Directors may be fixed
by the Company in general meeting, but unless and until so fixed
no qualification shall be required.
86. A Director or alternate Director of the Company may be
or become a director or other officer of or otherwise interested
in any company promoted by the Company or in which the Company
may be interested as shareholder or otherwise and no such
Director or alternate Director shall be accountable to the
Company for any remuneration or other benefits received by such
Director or alternate Director as a director or officer of, or
from his or her interest in, such other company.
87. No individual shall be disqualified from the office of
Director or alternate Director or prevented by such office from
contracting with the Company, either as vendor, purchaser or
otherwise, nor shall any such contract or any contract or
transaction entered into by or on behalf of the Company in which
any Director or
31
alternate Director shall be in any way interested be or be
liable to be avoided, nor shall any Director or alternate
Director so contracting or being so interested be liable to
account to the Company for any profit realized by any such
contract or transaction by reason of such Director holding
office or of the fiduciary relation thereby established. A
Director (or alternate Director) shall be at liberty to vote in
respect of any contract or transaction in which such Director or
alternate Director is so interested as aforesaid, provided
however, that the nature of the interest of any Director or
alternate Director in any such contract or transaction shall be
disclosed by such Director or the alternate Director appointed
by such Director at or prior to its consideration and any vote
thereon.
88. A general notice that a Director or alternate Director
is a shareholder of any specified firm or company and is to be
regarded as interested in any transaction with such firm or
company shall be sufficient disclosure under Article 87 and
after such general notice it shall not be necessary to give
special notice relating to any particular transaction.
ALTERNATE
DIRECTORS
89. Subject to the exception contained in Article 97,
a Director who expects to be unable to attend Directors
Meetings because of absence, illness or otherwise may appoint
any individual to be an alternate Director to act in such
Directors stead and such appointee whilst he or she holds
office as an alternate Director shall, in the event of absence
therefrom of the appointor, be entitled to attend meetings of
the Directors and to vote thereat and to do, in the place and
stead of the appointor, any other act or thing which the
appointor is permitted or required to do by virtue of such
appointor being a Director as if the alternate Director were the
appointor, other than appointment of an alternate to such
Director, and such appointee shall ipso facto vacate office if
and when the appointor ceases to be a Director or removes the
appointee from office. Any appointment or removal under this
Article shall be effected by notice in writing under the hand of
the Director making the same.
POWERS
AND DUTIES OF DIRECTORS
90. The business of the Company shall be managed in the
best interests of the Company by the Directors (or a sole
Director if only one is appointed) who may pay all expenses
incurred in promoting, registering and setting up the Company,
and may exercise all such powers of the Company as are not, from
time to time by the Statute, or by these Articles, or such
regulations, being not inconsistent with the aforesaid, as may
be prescribed by the Company in general meeting required to be
exercised by the Company in general meeting, provided however,
that no regulations made by the Company in general meeting shall
invalidate any prior act of the Directors which would have been
valid if that regulation had not been made.
91. The Directors may from time to time and at any time by
powers of attorney appoint any company, firm, Person or body of
Persons, whether nominated directly or indirectly by the
Directors, to be the attorney or attorneys of the Company for
such purpose and with such powers, authorities and discretions
(not exceeding those vested in or exercisable by the Directors
under these Articles) and for such period and subject to such
conditions as they may think fit, and any such powers of
attorney may contain such provisions for the protection and
convenience of Persons dealing with any such attorneys as the
Directors may think fit and may also authorize any such attorney
to delegate all or any of the powers, authorities and
discretions vested in him.
92. All cheques, promissory notes, drafts, bills of
exchange and other negotiable instruments and all receipts for
monies paid to the Company shall be signed, drawn, accepted,
endorsed or otherwise executed as the case may be in such manner
as the Directors shall from time to time by resolution determine.
93. The Directors shall cause minutes to be made in books
provided for the purpose:
(a) of all appointments of officers made by the Directors;
(b) of the names of the Directors (including those
represented thereat by an alternate or by proxy) present at each
meeting of the Directors and of any committee of the Directors;
32
(c) of all resolutions and proceedings at all meetings of
the Company and of the Directors and of committees of Directors.
94. The Directors on behalf of the Company may pay a
gratuity or pension or allowance on retirement to any Director
who has held any other salaried office or place of profit with
the Company or to his or her widow or dependants and may make
contributions to any fund and pay premiums for the purchase or
provision of any such gratuity, pension or allowance.
95. Except as otherwise provided by these Articles, the
Directors may exercise all the powers of the Company to borrow
money and to mortgage or charge its undertaking, property and
uncalled capital or any part thereof and to issue debentures,
debenture stock and other securities whether outright or as
security for any debt, liability or obligation of the Company or
of any third party.
MANAGEMENT
96.
(a) The Directors may from time to time provide for the
management of the affairs of the Company in such manner as they
shall think fit and the provisions contained in the three next
following paragraphs shall be without prejudice to the general
powers conferred by this paragraph.
(b) Except as otherwise provided by these Articles, the
Directors from time to time and at any time may establish any
committees, local boards or agencies for managing any of the
affairs of the Company and may appoint any persons to be members
of such committees or local boards or any managers or agents and
may fix their remunerations.
(c) The Directors from time to time and at any time may
delegate to any such committee, local board, manager or agent
any of the powers, authorities and discretions for the time
being vested in the Directors and may authorize the members for
the time being of any such local board, or any of them to fill
up any vacancies therein and to act notwithstanding vacancies
and any such appointment or delegation may be made on such terms
and subject to such conditions as the Directors may think fit
and the Directors may at any time remove any individual so
appointed and may annul or vary any such delegation, but no
individual dealing in good faith and without notice of any such
annulment or variation shall be affected thereby.
(d) Any such delegates as aforesaid may be authorised by
the Directors to subdelegate all or any of the powers,
authorities, and discretions for the time being vested in them.
MANAGING
DIRECTORS
97. The Directors may, from time to time, appoint one or
more of their body (but not an alternate Director) to the office
of Managing Director for such term and at such remuneration
(whether by way of salary, or commission, or participation in
profits, or partly in one way and partly in another) as they may
think fit but such appointment shall be subject to determination
ipso facto if the Director ceases from any cause to be a
Director and no alternate Director appointed by such Director
can act in his or her stead as a Director or Managing Director.
98. The Directors may entrust to and confer upon a Managing
Director any of the powers exercisable by them upon such terms
and conditions and with such restrictions as they may think fit
and either collaterally with or to the exclusion of their own
powers and may from time to time revoke, withdraw, alter or vary
all or any of such powers.
PROCEEDINGS
OF DIRECTORS
99. Except as otherwise provided by these Articles, the
Directors shall meet together, either telephonically
and/or in
person, for the dispatch of business, convening, adjourning and
otherwise regulating
33
their meetings as they think fit. Notices and agenda of the
business to be transacted at the meeting and all relevant
documents and materials to be circulated at or presented to the
meeting shall be sent to every Director and alternate Director
at least seven (7) days prior to the relevant Board meeting
(exclusive of the day on which such notice is given). Minutes of
Board meetings shall be sent to every Director and alternate
Director within thirty (30) days after the relevant
meeting. Except as provided herein, questions or issues arising
at any meeting or matters brought before the Board to be voted
on shall be decided by the affirmative vote of a simple majority
of the Directors or alternate Directors present at the meeting
which there is a quorum. The vote of an alternate Director not
being counted if such alternates appointor be present at
such meeting. In case of an equality of votes, the Chairman
shall have a second or casting vote.
100. A Director or alternate Director may, and the
Secretary on the requisition of a Director or alternate Director
shall, at any time summon a meeting of the Directors by at least
seven (7) days written notice (exclusive of the day
on which such notice is given) to every Director and alternate
Director which notice shall set forth the general nature of the
business to be considered unless such notice is waived in
writing by all the Directors (or their alternates) either at,
before or after the meeting is held, provided that the presence
of a Director at a meeting shall be deemed to constitute a
waiver on such Directors part in respect of such meeting,
and, provided further, if the notice is given in person, by
cable, telex or telecopy the same shall be deemed to have been
given on the day it is delivered to the Directors or
transmitting organization as the case may be.
101. The quorum necessary for the transaction of the
business of the Directors may be fixed by the Directors and
unless so fixed shall be a majority of the Directors then in
office, provided that a Director and his appointed alternate
Director shall be considered only one person for this purpose. A
meeting of the Directors at which a quorum is present when the
meeting proceeds to business shall be competent to exercise all
powers and discretions for the time being exercisable by the
Directors. A meeting of the Directors may be held by means of
telephone or teleconferencing or any other telecommunication
facility provided that all participants are thereby able to
communicate immediately by voice with all other participants.
102. The continuing Directors may act notwithstanding any
vacancy in their body, but if and so long as their number is
reduced below the number fixed by or pursuant to these Articles
as the necessary quorum of Directors the continuing Directors or
Director may act for the purpose of increasing the number of
Directors to that number, or of summoning a general meeting of
the Company, but for no other purpose.
103. The Directors may elect a Chairman of their Board and
determine the period for which the Chairman is to hold office;
but if no such Chairman is elected, or if at any meeting the
Chairman is not present within thirty (30) minutes after
the time appointed for holding the same, the Directors present
may choose one of their number to be Chairman of the meeting.
104. The Directors may delegate any of their powers to
committees consisting of such member or members of their body as
they think fit; any committee so formed shall in the exercise of
the powers so delegated conform to any regulations that may be
imposed on it by the Directors.
105. A committee may meet and adjourn as it thinks proper.
Questions or issues arising or matters brought to be voted upon
at any meeting shall be determined by a majority of votes of the
members present, and in the case of an equality of votes the
chairman of such committee shall have a second or casting vote.
106. All acts done by any meeting of the Directors or of a
committee of Directors (including any individual acting as an
alternate Director) shall, notwithstanding that it be afterwards
discovered that there was some defect in the appointment of any
Director or alternate Director, or that they or any of them were
disqualified, be as valid as if every such individual had been
duly appointed and qualified to be a Director or alternate
Director as the case may be.
107. Members of the Board of Directors or of any committee
thereof may participate in a meeting of the Board or of such
committee by means of conference telephone or similar
communications equipment by means of which all persons
participating in the meeting can hear each other and
participation in a meeting pursuant to this provision shall
constitute presence in person at such meeting. A resolution in
writing (in one or more counterparts), signed by all the
Directors for the time being or all the members of a committee
of
34
Directors (an alternate Director being entitled to sign such
resolution on behalf of such alternates appointor) shall
be as valid and effectual as if it had been passed at a meeting
of the Directors or committee as the case may be duly convened
and held.
108.
(a) A Director may be represented at any meetings of the
Board of Directors by a proxy appointed by such Director in
which event the presence or vote of the proxy shall for all
purposes be deemed to be that of the Director.
(b) The provisions of
Articles 71-76
shall mutatis mutandis apply to the appointment of proxies by
Directors.
VACATION
OF OFFICE OF DIRECTOR
109. The office of a Director shall be vacated:
(a) if such Director gives notice in writing to the Company
that such Director resigns the office of Director;
(b) if such Director is absent (without being represented
by proxy or an alternate Director appointed by such Director)
from three (3) consecutive meetings of the Board of
Directors without special leave of absence from the Directors,
and they pass a resolution that such Director has by reason of
such absence vacated office;
(c) if such Director dies, becomes bankrupt or makes any
arrangement or composition with such Directors creditors
generally;
(d) if such Director is found a lunatic or becomes of
unsound mind; and
(e) if such Director is removed pursuant to these Articles.
PRESUMPTION
OF ASSENT
110. A Director of the Company who is present at a meeting
of the Board of Directors at which action on any Company matter
is taken shall be presumed to have assented to the action taken
unless such Directors dissent shall be entered in the
Minutes of the meeting or unless such Director shall file his or
her written dissent from such action with the individual acting
as the Secretary of the meeting before the adjournment thereof
or shall forward such dissent by registered mail to such Person
immediately after the adjournment of the meeting. Such right to
dissent shall not apply to a Director who voted in favour of
such action.
SEAL
111.
(a) The Company may, if the Directors so determine, have a
Seal which shall, subject to paragraph (c) hereof, only be
used by the authority of the Directors or of a committee of the
Directors authorised by the Directors in that behalf and every
instrument to which the Seal has been affixed shall be signed by
one individual
who shall be either a Director or the Secretary or
Secretary-Treasurer or some individual appointed by the
Directors for the purpose.
(b) The Company may have for use in any place or places
outside the Cayman Islands a duplicate Seal or Seals each of
which shall be a facsimile of the Common Seal of the Company
and, if the Directors so determine, with the addition on its
face of the name of every place where it is to be used.
(c) A Director, Secretary or other officer or
representative or attorney may without further authority of the
Directors affix the Seal of the Company over his or her
signature alone to any document of the
35
Company required to be authenticated by him or her under Seal or
to be filed with the Registrar of Companies in the Cayman
Islands or elsewhere wheresoever.
OFFICERS
112. The Company may have a President, a Secretary or
Secretary-Treasurer appointed by the Directors who may also from
time to time appoint such other officers as they consider
necessary, all for such terms, at such remuneration and to
perform such duties, and subject to such provisions as to
disqualification and removal as the Directors from time to time
prescribe.
DIVIDENDS,
DISTRIBUTIONS AND RESERVE
113. Subject to the Statute and these Articles, the
Directors may from time to time declare dividends (including
interim dividends) and distributions on Shares of the Company
outstanding and authorize payment of the same out of the funds
of the Company lawfully available therefore.
114. The Directors may, before declaring any dividends or
distributions, set aside such sums as they think proper as a
reserve or reserves which shall at the discretion of the
Directors, be applicable for any purpose of the Company and
pending such application may, at the like discretion, be
employed in the business of the Company.
115. Subject to the rights of Persons, if any, entitled to
Shares with special rights as to dividends or distributions, if
dividends or distributions are to be declared on a class of
Shares, they shall be declared and paid according to the amounts
paid or credited as paid on the Shares of such class outstanding
on the record date for such dividend or distribution, as
determined in accordance with these Articles. No amount paid or
credited as paid on a Share in advance of calls shall be treated
for the purpose of this Article as paid on the Share.
116. Except as otherwise provided herein, the Directors may
deduct from any dividend or distribution payable to any Member
all sums of money (if any) presently payable by such Member to
the Company on the account of calls.
117. The Directors may declare that any dividend or
distribution be paid wholly or partly by the distribution of
specific assets and in particular of paid up Shares, debentures,
or debenture stock of any other company or in any one or more of
such ways and where any difficulty arises in regard to such
distribution, the Directors may settle the same as they think
expedient and in particular may issue fractional certificates
and fix the value for distribution of such specific assets or
any part thereof and may determine that cash payments shall be
made to any Members upon the footing of the value so fixed in
order to adjust the rights of all Members and may vest any such
specific assets in trustees as may seem expedient to the
Directors.
118. Any dividend, distribution, interest or other monies
payable in cash in respect of Shares may be paid by cheque or
warrant sent through the post directed to the registered address
of the holder or, in the case of joint holders, to the holder
who is first named on the register of Members or to such Person
and to such address as such holder or joint holders may in
writing direct. Every such cheque or warrant shall be made
payable to the order of the Person to whom it is sent. Any one
of two or more joint holders may give effectual receipts for any
dividends, bonuses, or other monies payable in respect of the
Share held by them as joint holders.
119. No dividend or distribution shall bear interest
against the Company.
CAPITALIZATION
120. The Company may upon the recommendation of the
Directors by Ordinary Resolution authorize the Directors to
capitalize any sum standing to the credit of any of the
Companys reserve accounts (including share premium account
and capital redemption reserve fund) or any sum standing to the
credit of profit and loss account or otherwise available for
distribution and to appropriate such sum to Members in the
proportions
36
in which such sum would have been divisible amongst them had the
same been a distribution of profits by way of dividend and to
apply such sum on their behalf in paying up in full unissued
Shares for allotment and distribution credited as fully paid up
to and amongst them in the proportion aforesaid. In such event
the Directors shall do all acts and things required to give
effect to such capitalization, with full power to the Directors
to make such provisions as they think fit for the case of Shares
becoming distributable in fractions (including provisions
whereby the benefit of fractional entitlements accrue to the
Company rather than to the Members concerned). The Directors may
authorize any Person to enter on behalf of all of the Members
interested into an agreement with the Company providing for such
capitalization and matters incidental thereto and any agreement
made under such authority shall be effective and binding on all
concerned.
BOOKS OF
ACCOUNT
121. The Directors shall cause proper books of account to
be kept with respect to:
(a) all sums of money received and expended by the Company
and the matters in respect of which the receipt or expenditure
takes place;
(b) all sales and purchases of goods by the
Company; and
(c) the assets and liabilities of the Company.
Proper books shall not be deemed to be kept if there are not
kept such books of account as are necessary to give a true and
fair view of the state of the Companys affairs and to
explain its transactions.
122. Except as otherwise provided by these Articles, the
Directors shall from time to time determine whether and to what
extent and at what times and places and under what conditions or
regulations the accounts and books of the Company or any of them
shall be open to the inspection of Members not being Directors
and no Member (not being a Director) shall have any right of
inspecting any account or book or document of the Company except
as conferred by Statute or authorised by the Directors or by the
Company in general meeting.
123. The Directors may from time to time cause to be
prepared and to be laid before the Company in general meeting
profit and loss accounts, balance sheets, group accounts (if
any) and such other reports and accounts as may be required by
law
AUDIT
124. The Company may at any annual general meeting appoint
an Auditor or Auditors of the Company who shall hold office
until the next annual general meeting and may fix the
remuneration of such Auditor or Auditors.
125. The Directors may before the first annual general
meeting appoint an Auditor or Auditors of the Company who shall
hold office until the first annual general meeting unless
previously removed by an Ordinary Resolution of the Members in
general meeting in which case the Members at that meeting may
appoint Auditors. The Directors may fill any casual vacancy in
the office of Auditor but while any such vacancy continues the
surviving or continuing Auditor or Auditors, if any, may act.
The remuneration of any Auditor appointed by the Directors under
this Article may be fixed by the Directors.
126. Every Auditor of the Company shall have a right of
access at all times to the books and accounts and vouchers of
the Company and shall be entitled to require from the Directors
and Officers of the Company such information and explanation as
may be necessary for the performance of the duties of the
auditors.
127. Auditors shall at the next annual general meeting
following their appointment and at any other time during their
term of office, upon request of the Directors or any general
meeting of the Members, make a report on the accounts of the
Company in general meeting during their tenure of office.
37
NOTICES
128. Notices shall be in writing. Any Member may provide
notice to the Company and the Company may provide notice to any
Member either personally or by sending it by internationally
recognized courier, post, facsimile, cable, telex, telecopy or
electronic message to (i) a Member at his or her or its or
its address, facsimile number or electronic mail address as
shown in the register of Members (if by the Company) or
(ii) the Company at the address, facsimile number or
electronic mail address of its principal office in the PRC (if
by a Member). Any such notice, if mailed, will be forwarded
airmail if the address be outside the Cayman Islands.
129.
(a) Where a notice is sent by post, service of the notice
shall be deemed to be effected by properly addressing,
pre-paying and posting a letter containing the notice, and to
have been effected at the expiration of sixty (60) hours
after the letter containing the same is posted as aforesaid.
(b) Where a notice is sent by facsimile, cable, telex,
telecopy or electronic message, service of the notice shall be
deemed to be effected by properly addressing, and sending such
notice through a transmitting organization and to have been
effected on the day the same is sent as aforesaid.
(c) Where a notice is sent by courier, service of the
notice shall be deemed to be effected by properly addressing,
pre-paying and posting a letter containing the notice, and to
have been effected on the date set forth in the instructions for
delivery when sent as aforesaid.
130. A notice may be given by the Company to the joint
holders of record of a Share by giving the notice to the joint
holder first named on the register of Members in respect of the
Share.
131. A notice may be given by the Company to the Person or
Persons which the Company has been advised are entitled to a
Share or Shares in consequence of the death or bankruptcy of a
Member by sending it through the post as aforesaid in a pre-paid
letter addressed to them by name, or by the title of
representatives of the deceased, or trustee of the bankrupt, or
by any like description at the address supplied for that purpose
by the Persons claiming to be so entitled, or at the option of
the Company by giving the notice in any manner in which the same
might have been given if the death or bankruptcy had not
occurred.
132. Notice of every general meeting shall be given in any
manner hereinbefore authorised to:
(a) every Person shown as a Member in the register of
Members as of the record date for such meeting except that in
the case of joint holders the notice shall be sufficient if
given to the joint holder first named in the register of
Members; and
(b) every Person upon whom the ownership of a Share
devolves by reason of his or her or its being a legal personal
representative or a trustee in bankruptcy of a Member of record
where the Member of record but for his or her death or
bankruptcy would be entitled to receive notice of the meeting.
No other Person shall be entitled to receive notices of general
meetings.
WINDING
UP
133. Subject to the rights of the respective classes and
series of Shareholders as set forth in Article 135, if the
Company shall be wound up, the liquidator may, with the sanction
of a Special Resolution of the Company and any other sanction
required by the Statute and these Articles, divide amongst the
Members in specie or kind the whole or any part of the assets of
the Company (whether they shall consist of property of the same
kind or not) and may for such purpose set such value as the
liquidator deems fair upon any property to be divided as
aforesaid and may determine how such division shall be carried
out as between the Members or different classes of Members.
Subject to the rights of the respective classes and series of
Shareholders as set forth in Article 135, the liquidator
may with the like sanction, vest the whole or any part of such
assets in trustees upon such trusts for the benefit of the
contributories as the liquidator, with the like sanction, shall
38
think fit, but so that no Member shall be compelled to accept
any Shares or other securities whereon there is any liability.
134. If the Company shall be wound up, and the assets
available for distribution amongst the Members as such shall be
insufficient to repay the whole of the
Paid-up
capital, such assets shall be distributed in accordance with
Article 135.
LIQUIDATION
PREFERENCE
135.
(a) Upon any liquidation, dissolution or winding up of the
Company (a Liquidation Event), either
voluntary or involuntary, the assets of the Company available
for distribution shall be distributed to all holders of share
capital of the Company (including the Ordinary Shareholders) pro
rata on an as-if converted basis.
(b) In the event the Company proposes to distribute assets
other than cash in connection with any liquidation, dissolution
or winding up of the Company, the value of the assets to be
distributed to the holders of Ordinary Shares shall be
determined in good faith by the Board (but in accordance with
the liquidation preferences and amounts set forth in this
Article 135), or by a liquidator if one is appointed. Any
securities not subjected to investment letter or similar
restrictions on free marketability shall be valued as follows:
(i) if traded on a securities exchange, the value shall be
deemed to be the average of the securitys closing prices
on such exchange over the thirty (30) day period ending one
(1) day prior to the distribution;
(ii) if traded over-the-counter, the value shall be deemed
to be the average of the closing bid prices over the thirty
(30) day period ending three (3) days prior to the
distribution; and
(iii) if there is no active public market, the value shall
be the fair market value thereof as determined in good faith by
the Board.
The method of valuation of securities subject to investment
letter or other restrictions on free marketability shall be
adjusted to make an appropriate discount from the market value
determined as above in clauses (i), (ii) or (iii) to
reflect the fair market value thereof as determined in good
faith by the Board, or by a liquidator if one is appointed.
INDEMNITY
136. To the fullest extent permitted by Statute, the
Directors and officers for the time being of the Company and any
trustee for the time being acting in relation to any of the
affairs of the Company and their heirs, executors,
administrators and personal representatives respectively shall
be indemnified out of the assets of the Company from and against
all actions, proceedings, costs, charges, losses, damages and
expenses which they or any of them shall or may incur or sustain
by reason of any act done or omitted in or about the execution
of their duty in their respective offices or trusts, except such
(if any) as they shall incur or sustain by or through their own
willful neglect or default respectively and no such Director,
officer or trustee shall be answerable for the acts, receipts,
neglects or defaults of any other Director, officer or trustee
or for joining in any receipt for the sake of conformity or for
the solvency or honesty of any banker or other Persons with whom
any monies or effects belonging to the Company may be lodged or
deposited for safe custody or for any insufficiency of any
security upon which any monies of the Company may be invested or
for any other loss or damage due to any such cause as aforesaid
or which may happen in or about the execution of his or her
office or trust unless the same shall happen through the willful
neglect or default of such Director, Officer or trustee.
137. Expenses (including attorneys fees, costs and
charges) incurred by a Director or officer of the Company in
defending a proceeding shall be paid by the Company in advance
of the final disposition of such
39
proceeding upon receipt of an undertaking by or on behalf of the
Director or officer to repay all amounts so advanced in the
event that it shall ultimately be determined that such Director
or officer is not entitled to be indemnified by the Company
pursuant to Article 136.
FINANCIAL
YEAR
138. Unless the Directors otherwise prescribe, the
financial year of the Company shall end on 31st December in
each year and, following the year of incorporation, shall begin
on 1st January in each year.
AGGREGATION
OF SHARES
139. All Ordinary Shares held or acquired by affiliated
entities or Persons (as defined in Rule 144 under the
Securities Act, or underlying any Convertible Securities or
Option Securities, on an as-if-converted basis) shall be
aggregated together for the purpose of determining the
availability of any rights under these Articles.
AMENDMENTS
OF ARTICLES
140. Subject to the Statute and these Articles, the Company
may at any time and from time to time by Special Resolution
alter or amend these Articles in whole or in part.
TRANSFER
BY WAY OF CONTINUATION
141. If the Company is exempted as defined in the Statute,
it shall, subject to the provisions of the Statute and with the
approval of a Special Resolution, have the power to register by
way of continuation as a body corporate under the laws of any
jurisdiction outside the Cayman Islands and to be deregistered
in the Cayman Islands.
40
Exhibit 2
EXHIBIT I
Ideation
Charter Amendment
CERTIFICATE
OF AMENDMENT
TO
THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
IDEATION ACQUISITION CORP.
IDEATION ACQUISITION CORP., a corporation organized and existing
under and by virtue of the General Corporation Law of the State
of Delaware (the Corporation), DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of said
corporation, at a duly called and held meeting of its members,
adopted a resolution proposing and declaring advisable the
following amendment to the Amended and Restated Certificate of
Incorporation of said corporation (the Amendment):
RESOLVED, that SECTION D OF ARTICLE SIXTH of the
Amended and Restated Certificate of Incorporation of the
Corporation is amended in its entirety to read as follows:
At the time the Corporation seeks approval of the Initial
Business Combination in accordance with paragraph C above,
each holder of IPO Shares (each a Public
Stockholder) may, at its option, in accordance with the
terms of this Section, convert its IPO Shares into cash at a per
share conversion price (the Conversion Price),
calculated as of two business days prior to the proposed
consummation of the Initial Business Combination, equal to
(A) the amount in the Trust Account, inclusive of
(x) the proceeds from the IPO held in the
Trust Account and the proceeds from the sale of the Insider
Warrants, (y) the amount held in the Trust Account
representing the Deferred Underwriting Compensation and
(z) any interest income earned on the funds held in the
Trust Account, net of taxes payable, that is not released
to the Corporation to cover its operating expenses in accordance
with paragraph B above, divided by (B) the number of
IPO Shares outstanding on the date of calculation (including
shares sold pursuant to the exercise of the over-allotment
option, if any). If a majority of the shares voted by the Public
Stockholders are voted to approve the Initial Business
Combination, and if Public Stockholders owning less than 30% of
the total IPO Shares both (1) vote against approval of the
proposed Initial Business Combination and (2) elect to
convert their shares, the Corporation will proceed with such
Initial Business Combination. If the Corporation so proceeds,
subject to the availability of lawful funds therefor, the
Corporation will convert IPO Shares held by those Public
Stockholders who have voted such IPO Shares, either in person or
by proxy, for or against the Initial Business Combination,
regardless of whether such IPO Shares were voted for or against
the Initial Business Combination, and in connection with voting
such shares, have affirmatively elected to convert such IPO
Shares into cash at the Conversion Price. Only Public
Stockholders shall be entitled to receive distributions from the
Trust Account in connection with the approval of an Initial
Business Combination, and the Corporation shall pay no
distributions with respect to any other holders or shares of
capital stock of the Corporation. If Public Stockholders holding
30% or more of the IPO Shares vote against approval of the
proposed Initial Business Combination and elect to convert their
IPO Shares, the Corporation will not proceed with such Initial
Business Combination and will not convert any IPO Shares.
SECOND: This Certificate of Amendment was duly
adopted by the stockholders of the Corporation in accordance
with Section 242 of the General Corporation Law of the
State of Delaware.
THIRD: That the aforesaid amendment was duly
adopted in accordance with the applicable provisions of
Sections 242 of the General Corporation Law of the State of
Delaware.
41
IN WITNESS WHEREOF, the Corporation has caused this certificate
to be signed by its President and Chief Executive Officer, this
8th day
of September, 2009.
IDEATION ACQUISITION CORP.
Name: Robert Fried
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Title:
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President and Chief Executive Officer
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42
EX-10.1
EXHIBIT
10.1
Ideation
Acquisition Corp.
1990 S. Bundy Drive, Suite 620
Los Angeles, CA 90025
September 8,
2009
To the
Investors Listed on Exhibit A Hereto (Investors)
Re: Exchange of Securities of SearchMedia
Holdings Limited
Ladies and
Gentlemen:
Reference is made to the Agreement and Plan of Merger,
Conversion and Share Exchange, dated as of March 31, 2009,
by and among Ideation Acquisition Corp. (Ideation),
SearchMedia International Limited (SM Cayman) and
the other parties named therein, as amended and as may be
further amended from time to time (the Agreement).
All capitalized terms used but not defined herein shall have the
definitions set forth in the Agreement.
For a period of two years from and after the Closing Date, if ID
Cayman issues, on any one or more occasions, any preferred
shares
and/or other
equity security (or any security convertible into or
exchangeable or exercisable for preferred shares
and/or other
equity security) (a Financing), then each of the
undersigned Investors (and its successors, assigns and
transferees) shall have the right to cause ID Cayman to
repurchase its Acquired Shares (as converted into ID Cayman
Shares pursuant to the Conversion), Warrant Shares and Note
Shares in exchange for new securities of the same class or
series of preferred shares
and/or other
equity securities issued pursuant to such Financing (New
Securities) on the same terms and conditions of such
Financing; provided that each such Acquired Share,
Warrant Share and Note Share shall be valued at $7.8815 per
share for purposes of calculating the number of New Securities
to be issued to such Investor (subject to adjustment for share
splits, dividends, recapitalizations, and other similar events).
Each such Investor will be entitled to all the same rights and
privileges as the participants in such Financing on a pari
passu basis. Notwithstanding the foregoing, the undersigned
Investors, as a group, may only exchange a number of such shares
with an aggregate dollar value equal to the aggregate dollar
amount of New Securities sold in the Financing.
The undersigned Investors may exercise the exchange rights set
forth in this letter upon any successive Financing that closes
within two years after the Closing Date with respect to
(a) any New Securities received upon any prior exchange
hereunder and (b) any Acquired Shares (as converted into ID
Cayman Shares pursuant to the Conversion), Warrant Shares and
Note Shares not previously exchanged pursuant to this letter.
The valuation of New Securities being exchanged in connection
with such successive financing shall be based upon the valuation
of such shares at the time of issuance, plus all accrued and
unpaid dividends, interest or other payment rights (all subject
to adjustment for share splits, dividends, recapitalizations,
and other similar events). Ideation hereby agrees that it will
provide the undersigned Investors with thirty (30) days
advance written notice of any proposed Financing, and each such
Investor shall have a period of twenty-five (25) days after
receipt of such notice to elect to exchange all or any portion
of its securities hereunder by written notice to ID Cayman.
Notices shall be provided hereunder in the same manner provided
in the Agreement, to ID Cayman at the address of its principal
office and to the Investors at the addresses set forth in
Exhibit A hereto.
On or prior to the Closing, Ideation shall sign a counterpart of
this Agreement with each other Person who acquires Acquired
Shares or who will acquire at or after the Closing any Warrant
Shares or Note Shares, and such Persons shall be deemed
Investors hereunder.
In the event that the Agreement is terminated, this letter
agreement shall also terminate and be of no force or effect.
Furthermore, this letter agreement is enforceable by any
Investor who is a signatory hereto, regardless of whether or not
it has been signed by any other Investor.
1
Please indicate your consent to the aforementioned by signing
this letter in the space indicated below and returning it to
Ideation.
Very truly yours,
IDEATION ACQUISITION CORP.
Name: Robert N. Fried
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Title:
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President and Chief Executive
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Officer
ACKNOWLEDGED AND AGREED
this 8th
day of September, 2009:
Frost Gamma Investments Trust
Name: Phillip Frost
The Frost Group, LLC
Name: Steven D. Rubin
Linden Ventures II (BVI), Ltd.
Name: Craig Jarvis
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Title:
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Authorized Signatory
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2
China Seed Ventures, L.P.
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By:
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/s/ Earl
Ching-Hwa Yen
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Name: Earl Ching-Hwa Yen
Qinying Liu
Le Yang
Xuebao Yang
Min Wu
Chardan Securities LLC
Name: Kerry Propper
Min Wu
Robert Fried
Rao Uppaluri
Halpryn Capital Partners LLC
Name: Glenn Halpryn
3
Frost Gamma
Investments Trust
c/o Frost
Administrative Services, Inc.
4400 Biscayne Boulevard, 15th Floor
Miami, Florida 33137
The Frost
Group, LLC
4400 Biscayne Boulevard, 15th Floor
Miami, Florida 33137
New York, New York 10022
China Seed
Ventures, L.P.
Rm. 104, Bldg. 18
No. 800 Huashan Road
Shanghai, 200050, China
Qinying Liu
Room 4B, Yinglong Building
No. 1358 Yan An Road West
Shanghai 200052, China
Le Yang
Room 4B, Yinglong Building
No. 1358 Yan An Road West
Shanghai 200052, China
Xuebao Yang
Room 4B, Yinglong Building
No. 1358 Yan An Road West
Shanghai 200052, China
Jianhai
Huang
Room 4B, Yinglong Building
No. 1358 Yan An Road West
Shanghai 200052, China
Halpryn
Capital Partners LLC
4400 Biscayne Boulevard, Suite 950
Miami, Florida 33137
Linden
Ventures II (BVI), Ltd.
c/o Linden
Advisors
590 Madison Avenue, 15th Floor
Rao Uppaluri
4400 Biscayne Boulevard, 15th Floor
Miami, Florida 33137
Robert Fried
4400 Biscayne Boulevard, 15th Floor
Miami, Florida 33137
Chardan Securities LLC
17 State Street, Suite 1600
New York, NY 10004
Min Wu
Room 4B, Yinglong Building
No. 1358 Yan An Road West
Shanghai 200052, China
4