ARTICLES OF ASSOCIATION
(adopted by a special resolution passed on , effective on ) 1. The name of the Company is . 2. The Registered Office of the Company shall be at the offices
of or at such other place in the Cayman Islands as the Directors may from time to time decide.
3. The objects for which the Company is established are unrestricted and the
Company shall have full power and authority to carry out any object not prohibited by the Companies Law (Revised) or as the same may be revised from time to time, or any other law of the Cayman Islands.
4. The Company has unrestricted corporate capacity. Without limitation to the foregoing, as provided by [Section 27(2)] of the Companies Law (Revised), the
Company has and is capable of exercising all the functions of a natural person of full capacity irrespective of any question of corporate benefit. Without in any way limiting the unrestricted nature of its objects, the Company may accept mortgages over land or any other property irrespective of location.
5. Nothing in any of the preceding paragraphs permits the Company to carry on any of the following businesses without being duly licensed, namely:
a. the business of a bank or trust company without being licensed in that behalf under the Banks and Trust Companies Law (Revised); or
b. insurance business from within the Cayman Islands or the business of an
insurance manager, agent, sub-agent or broker without being licensed in that behalf under the Insurance Law (Revised); or
c. the business of company management without being licensed in that behalf under the Companies Management Law (Revised).
6. The liability of each Member is limited to the amount from time to time unpaid on such Member’s Shares.
7. The authorized share capital of the Company is US$ divided into (i) Ordinary Shares of par value US$ each, and (ii) Series A Preferred Shares of par value US$ each (the “Series A Preferred Shares”).
8. If the Company is registered as exempted, its operations will be carried on subject to the provisions of [Section 193] of the Companies Law (Revised) and, subject to the provisions of the Companies Law (Revised) and the Articles of Association, 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.
9. Capitalised terms that are not defined in this Memorandum of Association bear the same meaning as those given in the Articles of Association of the Company.
INTERPRETATION
1. In these Articles Table A in the First Schedule to the Statute does not apply and, unless there is something in the subject or context inconsistent therewith:
“Affiliate” means, with respect to a Person, any other Person that, directly or indirectly, Controls, is Controlled by or is under common Control with such Person. [In the case of the Investor, the term “Affiliate” also includes (v) any shareholder of the Investor, (w) any of such shareholder’s or the Investor’s general partners or limited partners, (x) the fund manager managing or advising such
shareholder or the Investor (and general partners, limited partners and officers thereof) and other funds managed or advised by such fund manager, (y) trusts Controlled by or for the benefit of any such Person referred to in (v), (w) or (x), and (z) any fund or holding company formed for investment purposes that is promoted, sponsored, managed, advised or serviced by the Investor or any of its shareholder or its shareholder’s general partner or fund manager.]
“Associate” means, with respect to any Person, (1) a corporation or organization (other than the Group Companies) of which such Person is an officer or partner or is, directly or indirectly, the beneficial owner of ten percent (10%) or more of any class of Equity Securities of such corporation or organization, (2) any trust or other estate in which such Person has a substantial beneficial interest or as to which such Person serves as trustee or in a similar capacity, or (3) any relative or spouse of such Person, or any relative of such spouse.
“Articles” means these articles of association of the Company as originally formed or as from time to time altered by Special Resolution.
“Auditor” means the Person for the time being performing the duties of auditor of the Company (if any), who unless otherwise approved by the Investor Director, shall be one of the “Big Four” international accounting firms.
“Automatic Conversion” shall have the meaning set forth in Article 8.3(c) hereof. “Board” or “Board of Directors” means the board of directors of the Company. “Business Day” means any day that is not a Saturday, Sunday, legal holiday or other day on which commercial banks are required or authorized by law to be closed in the Cayman Islands, PRC [or Hong Kong].
“Charter Documents” means, with respect to a particular legal entity, the articles or certificate of incorporation, formation or registration (including, if
applicable, certificates of change of name), memorandum of association, articles of association, bylaws, articles of organization, limited liability company agreement, trust deed, trust instrument, operating agreement, joint venture agreement, business license, or similar or other constitutive, governing, or charter documents, or equivalent documents, of such entity.
“Company”means the above named company.
“Consent” shall have the meaning set forth in Article 117.
“Control” of a given Person means the power or authority, whether exercised or not, to direct the business, management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise;
provided, that such power or authority shall conclusively be presumed to exist upon possession of beneficial ownership or power to direct the vote of more than fifty percent (50%) of the votes entitled to be cast at a meeting of the Members or
shareholders of such Person or power to control the composition of a majority of the board of directors of such Person. The terms “Controlled” and “Controlling” have meanings correlative to the foregoing.
“Control Documents” means the following contracts: [(i) Exclusive Technology and Consulting Service Agreement (独家技术和咨询服务协议) to be entered into by and between the WFOE and the Domestic Company, (ii) Exclusive Option Agreement (独家购买权协议) to be entered into by and among the WFOE, the Domestic Company and the equity holders of the Domestic Company, (iii) Shareholders Voting Rights Proxy Agreement (股东表决权委托协议) to be entered into by and the among the WFOE, the Domestic Company and the equity holders of the Domestic
Company, (iv) Equity Pledge Agreement (股权质押合同) to be entered into by and among the WFOE, the Domestic Company and each equity holder of the Domestic Company, and (v) Spouse Consent Letter (配偶同意书) to be signed by the spouse of each natural person equity holder of the Domestic Company].
“Conversion Shares” means Ordinary Shares issuable upon conversion of any Preferred Shares.
“Convertible Securities” shall have the meaning set forth in Article 8.3(E)(5)(a)(ii) hereof.
“Deemed Liquidation Event” means any of the following events whether in a single
transaction or series of related transactions:
(1) any merger, amalgamation, consolidation, acquisition, tender offer,
reorganization or scheme thereof or other business combination or other transactions or a series of related transactions in which the holders of the voting stock of the Company immediately prior to such transaction do not own a majority of the voting power or voting stock of the Company or the surviving or acquiring person;
(2) any sale of all or substantially all of any Group Company’s assets (including by means of the exclusive licensing of all or substantially all of any Group Company’s intellectual property); or
(3) any termination of, unapproved amendment to or breach of any Control Documents.
“Director” means a director serving on the Board for the time being of the Company and shall include an alternate Director appointed in accordance with these Articles. “Drag-Along Notice” shall have the meaning set forth in Article 121. “Drag-Along Sale”shall have the meaning set forth in Article 121. “Drag Holder(s)” shall have the meaning set forth in Article 121. “Dragged Holder(s)” shall have the meaning set forth in Article 121.
“Equity Securities” means, with respect to any Person that is a legal entity, any and all shares of capital stock, membership interests, units, profits interests, ownership
interests, equity interests, registered capital, and other equity securities of such Person, and any right, warrant, option, call, commitment, conversion privilege, preemptive right or other right to acquire any of the foregoing, or security convertible into,
exchangeable or exercisable for any of the foregoing, or any contract providing for the acquisition of any of the foregoing.
“Excepted Issuances”shall have the meaning set forth in Article 8.3(E)(5)(a)(iii) hereof.
“Exempted Distribution” means (a) a dividend payable solely in Ordinary Shares, (b) the purchase, repurchase or redemption of Ordinary Shares by the Company at no more than the original purchase price from terminated employees, officers or
consultants in accordance with the ESOP, or pursuant to the exercise of a contractual right of first refusal held by the Company, if any, or pursuant to written contractual arrangements with the Company approved by the Board (so long as such approval includes the approval of the Investor Director), and (c) the purchase, repurchase or redemption of the Preferred Shares pursuant to these Articles (including in connection with the conversion of such Preferred Shares into Ordinary Shares).
“ESOP” means the employee share incentive plan of the Company to be adopted pursuant to these Articles covering the grant or issuance of Ordinary Shares (or options therefor) to employees, officers, directors, or consultants of a Group Company.
“Governmental Authority” means any government of any nation or any federation, province or state or any other political subdivision thereof, any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any government authority, agency,
department, board, commission or instrumentality of the PRC or any other country, or any political subdivision thereof, any court, tribunal or arbitrator, and any self-regulatory organization.
“Group Company” means each of the Company, [the HK Company], the Domestic Company, and the WFOE, together with each Subsidiary of any of the foregoing, and “Group” refers to all of the Group Companies collectively.
“Indebtedness” of any Person means, without duplication, each of the following of such Person: (i) all indebtedness for borrowed money, (ii) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than trade payables entered into in the ordinary course of business), (iii) all
reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (iv) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced that are incurred in connection with the acquisition of properties, assets or businesses, (v) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (vi) all obligations that are capitalized in accordance with the applicable accounting standards, (vii) all obligations under banker’s acceptance, letter of credit or similar facilities, (viii) all obligations to
purchase, redeem, retire, defease or otherwise acquire for value any Equity Securities of such Person, (ix) all obligations in respect of any interest rate swap, hedge or cap agreement, and (x) all guarantees issued in respect of the Indebtedness referred to in clauses (i) through (ix) above of any other Person, but only to the extent of the Indebtedness guaranteed.
“Interested Transaction” shall have the meaning set forth in Article 81 hereof. “Investor Director” shall have the meaning set forth in Article 62.
“IPO” means the first firm underwritten registered public offering by the Company of its Ordinary Shares pursuant to a registration statement that is filed with and