0001616533FALSE08/3000016165332024-10-152024-10-15
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
Date of Report (Date of earliest event reported): October 15, 2024
PENGUIN SOLUTIONS, INC.
(Exact name of registrant as specified in its charter)
Commission File Number 001-38102
| | | | | |
| Cayman Islands | 98-1013909 |
(State or Other Jurisdiction of
Incorporation or Organization) | (I.R.S. Employer
Identification No.) |
| | | | | |
| c/o Walkers Corporate Limited | |
| 190 Elgin Avenue | |
| George Town, Grand Cayman | |
| Cayman Islands | KY1-9008 |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including Area Code: (510) 623-1231
SMART Global Holdings, Inc.
(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:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| | | | | | | | |
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
| Ordinary shares, $0.03 par value per share | PENG | Nasdaq Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 2.02 Results of Operations and Financial Condition.
On October 15, 2024, Penguin Solutions, Inc. (the “Company”) issued a press release and will hold a conference call announcing its financial results for the fourth quarter and full year fiscal 2024. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K (the “Form 8-K”) and is incorporated herein by reference.
The Company refers to non-GAAP financial information in both the press release and on the conference call. A reconciliation of these non-GAAP financial measures to the comparable GAAP financial measures is contained in the attached press release.
The information furnished pursuant to Item 2.02 of this Form 8-K, including the information contained in Exhibit 99.1 of this Form 8-K, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such a filing.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
As previously announced, effective October 15, 2024, the Company changed its name from SMART Global Holdings, Inc. to Penguin Solutions, Inc. pursuant to the Company’s Third Amended and Restated Memorandum and Articles of Association (the “Articles of Association”) filed with the Cayman Islands Registrar of Companies on October 15, 2024 (the “Name Change”). Pursuant to Cayman Islands law, the Company’s shareholders approved the Name Change at an extraordinary general meeting of shareholders held on August 26, 2024. The Articles of Association reflect the Name Change, eliminate obsolete provisions, and incorporate certain other non-substantive changes.
In connection with the Name Change, the Company also announced that its ordinary shares have ceased trading under the ticker symbol “SGH” and began trading under its new ticker symbol, “PENG,” on the Nasdaq Global Select Market.
The foregoing description of the Articles of Association does not purport to be complete and is qualified in its entirety by reference to the Articles of Association. A copy of the Articles of Association is filed as Exhibit 3.1 to this Form 8-K and is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| | | | | |
Exhibit
No. | Description |
| 3.1 | |
| 99.1 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| | | | | | | | |
Date: October 15, 2024 | Penguin Solutions, Inc. |
| By: | /s/ Nate Olmstead |
| | Nate Olmstead |
| | Senior Vice President and Chief Financial Officer |
| | (Principal Financial and Accounting Officer) |
THE COMPANIES ACT (2023 REVISION) OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
THIRD AMENDED AND RESTATED MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
PENGUIN SOLUTIONS, INC.
Adopted by Special Resolution passed on 26 August 2024 and effective as of 15 October 2024
THE COMPANIES ACT (2023 REVISION) OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
THIRD AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION
OF
PENGUIN SOLUTIONS, INC.
Adopted by Special Resolution passed on 26 August 2024 and effective as of 15 October 2024
1The name of the Company is Penguin Solutions, Inc.
2The Registered Office of the Company shall be at the offices of Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands, or at such other place as the Directors may from time to time decide.
3The 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 Act (2023 Revision) or as the same may be revised from time to time, or any other law of the Cayman Islands.
4The liability of each Member is limited to the amount from time to time unpaid on such Member's shares.
5The authorised share capital of the Company is US$6,900,000 divided into 200,000,000 Ordinary Shares of a nominal or par value of US$0.03 each and 30,000,000 Preferred Shares of a nominal or par value of US$0.03 each with the power for the Company insofar as is permitted by law, to increase or reduce the said capital subject to the provisions of the Statute and the Amended and Restated Articles of Association of the Company and to issue any part of its capital, whether original 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 contained in the Amended and Restated Articles of Association of the Company.
6The Company has 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.
7Capitalized terms that are not defined in this Amended and Restated Memorandum of Association bear the same meaning as those given in the Amended and Restated Articles of Association of the Company.
THE COMPANIES ACT (2023 REVISION) OF THE CAYMAN ISLANDS
COMPANY LIMITED BY SHARES
THIRD AMENDED AND RESTATED ARTICLES OF ASSOCIATION
OF
PENGUIN SOLUTIONS, INC.
Adopted by Special Resolution passed on 26 August 2024 and effective as of 15 October 2024
1INTERPRETATION
1.1In these Articles, unless otherwise defined, the defined terms shall have the meanings assigned to them as follows:
| | | | | |
| "Articles" | means the Amended and Restated Articles of Association of the Company, as from time to time altered or added to in accordance with the Statute and these Articles. |
"Business Day" | means a day, excluding Saturdays or Sundays, on which banks in New York, U.S.A. are open for general banking business throughout their normal business hours. |
| "Commission" | means Securities and Exchange Commission of the United States of America or any other federal agency for the time being administering the Securities Act. |
| "Company" | means Penguin Solutions, Inc., a Cayman Islands company limited by shares. |
"Company's Website" | means the website of the Company, the address or domain name of which has been notified to Members. |
| "Designated Stock Exchange" | means the Nasdaq Global Market or any other stock exchange or automated quotation system on which the Company's securities are then traded. |
| | | | | |
"Directors" and "Board of Directors" and "Board" | means the directors of the Company for the time being, or as the case may be, the Directors assembled as a Board or as a committee thereof. |
"electronic" | means the meaning given to it in the Electronic Transactions Act (2003 Revision) of the Cayman Islands and any amendment thereto or re-enactments thereof for the time being in force and includes every other law incorporated therewith or substituted therefore. |
"electronic communication" | means electronic transmission to any number, address or internet website or other electronic delivery methods as otherwise decided and approved by not less than a majority vote of the Board. |
"electronic record" | means the meaning given to it in the Electronic Transactions Act (2003 Revision) of the Cayman Islands and any amendment thereto or re-enactments thereof for the time being in force and includes every other law incorporated therewith or substituted therefore. |
"Exchange Act" | means the United States Securities Exchange Act of 1934, as amended. |
"in writing" | includes writing, printing, lithograph, photograph, type-writing and every other mode of representing words or figures in a legible and non-transitory form and, only where used in connection with a notice served by the Company on Members or other persons entitled to receive notices hereunder, shall also include a record maintained in an electronic medium which is accessible in visible form so as to be useable for subsequent reference. |
"Market Price" | means for any given day, the price quoted in respect of the Ordinary Shares on the Designated Stock Exchange of the close of trading on the previous trading day. |
"Member" | means a person whose name is entered in the Register of Members as the holder of a share or shares. |
"Memorandum of
Association" | means the Memorandum of Association of the Company, as amended and restated from time to time. |
"month" | means the calendar month. |
| | | | | |
"Ordinary Resolution" | means a resolution: (i) passed by a simple majority of votes cast by such Members 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 (ii) 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 Shares" | means an Ordinary Share in the capital of the Company of US$0.03 nominal or par value designated as Ordinary Shares, and having the rights provided for in these Articles. |
"Preferred Shares" | means shares in the capital of the Company of US$0.03 nominal or par value designated as Preferred Shares, and having the rights provided for in these Articles. |
"Register of Members" | means the register maintained by the Company in accordance with section 40 of the Statute or any modification or re-enactment thereof for the time being in force. |
"Seal" | means the common seal of the Company including any facsimile thereof. |
"Securities Act" | means the Securities Act of 1933 of the United States of America, as amended, or any successor federal statute and the rules and regulations of the Commission thereunder, all as the same shall be in effect at the time. |
"share" | means any share in the capital of the Company, including the Ordinary Shares and shares of other classes or series. |
"signed" | means includes a signature or representation of a signature affixed by mechanical means or an electronic symbol or process attached to or logically associated with an electronic communication and executed or adopted by a person with the intent to sign the electronic communication. |
| | | | | |
"Special Resolution" | means a resolution shall be a special resolution when it has been (i) passed by not less than 75% of votes cast by such Members as, being entitled to do so, vote in person or, in the case of such Members as are corporations, by their duly authorised representative or, whether proxies are allowed, by proxy at a general meeting of which not less than fourteen (14) days' (nor more than sixty (60) days') notice, specifying the intention to propose the resolution as a special resolution, has been duly given, or (ii) 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. |
"Statute" | means the Companies Act (2023 Revision) of the Cayman Islands and any statutory amendment or re-enactment thereof. Where any provision of the Statute is referred to, the reference is to that provision as amended by any law for the time being in force. |
"year" | means the calendar year. |
1.2In these Articles, save where the context requires otherwise:
(a)words importing the singular number shall include the plural number and vice versa;
(b)words importing the masculine gender only shall include the feminine gender;
(c)words importing persons only shall include companies or associations or bodies of persons, whether corporate or not;
(d)"may" shall be construed as permissive and "shall" shall be construed as imperative;
(e)a reference to a dollar or dollars (or $) is a reference to dollars of the United States of America;
(f)references to a statutory enactment shall include reference to any amendment or re-enactment thereof for the time being in force;
(g)any phrase introduced by the terms "including", "include", "in particular" or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(h)Section 8 and 19(3) of the Electronic Transactions Act (2003 Revision) shall not apply;
(i)"written" and "in writing" include all modes of representing or reproducing words in visible form, including in the form of an electronic record and any requirements as to delivery under the Articles include delivery in the form of an electronic record;
(j)any requirements as to execution or signature under the Articles including the execution of the Articles themselves can be satisfied in the form of an electronic signature as defined in the Electronic Transactions Act (2003 Revision);
(k)the term "clear days" in relation to the period of a notice means that period excluding the day when the notice is received or deemed to be received and the day for which it is given or on which it is to take effect; and
(l)the term "holder" in relation to a share means a person whose name is entered in the Register of Members as the holder of such share.
1.3Subject to the last two preceding Articles, any words defined in the Statute shall, if not inconsistent with the subject or context, bear the same meaning in these Articles.
2PRELIMINARY
2.1The business of the Company may be commenced as soon after incorporation as the Directors see fit, notwithstanding that only part of the shares may have been allotted or issued.
2.2The 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.
3SHARE CAPITAL
3.1The authorised share capital of the Company at the date of adoption of these Articles is US$6,900,000 divided into 200,000,000 Ordinary Shares of a nominal or par value of US$0.03 each and 30,000,000 Preferred Shares of a nominal or par value of US$0.03 each, with power for the Company insofar as is permitted by law, to increase or reduce the said capital subject to the provisions of the Statute and these Articles and to issue any part of its capital, whether original 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.
4ISSUE OF SHARES
4.1Subject to the provisions, if any, in the Articles, the Memorandum of Association and applicable law, including the Statute, the Directors may, in their absolute discretion and without approval of the holders of Ordinary Shares, cause the Company to issue such amounts of Ordinary Shares and/or Preferred Shares or similar securities in one or more classes and/or series, to establish from time to time the number of shares to be included in such class or series, to grant rights over existing shares as they deem necessary and appropriate and to determine designations, powers, preferences, privileges and other rights, including dividend rights, conversion rights, terms of liquidation preferences, any or all of which may be greater than the powers and rights associated with the Ordinary Shares, at such times and on such other terms as they think proper. The Company shall not issue shares in bearer form and shall only issue shares as fully paid. The authority of the Directors with respect to each class or series shall include, but not be limited to, determination of the following:
(a)The number of shares constituting that class or series and the distinctive designation of that class or series;
(b)The dividend rate on the shares of that class or series, whether dividends shall be cumulative and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of that class or series;
(c)whether that class or series shall have voting rights, in addition to the voting rights provided by law and, if so, the terms of such voting rights;
(d)whether that class or series shall have conversion privileges and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as the Directors shall determine; and
(e)the rights of the shares of that class or series in the event of voluntary or involuntary liquidation, dissolution or winding up of the Company, and the rights of priority, if any, of payment of shares of that class or series relative to other classes or series of shares.
5REGISTER OF MEMBERS AND SHARE CERTIFICATES
5.1The Company shall maintain a Register of its Members. Every person whose name is entered as a Member in the Register of Members and whose shares are to be held in certificated form shall, upon request and without payment, be entitled to a certificate within two months after allotment or lodgement of transfer (or within such other period as the conditions of issue shall provide) in the form determined by the Directors. All certificates shall specify the share or shares held by that person and the amount paid up thereon, provided that in respect of a share or shares held jointly by several persons the Company shall not be bound to issue more than one certificate, and delivery of a certificate for a share to one of several joint holders shall be sufficient delivery to all. All certificates for shares shall be delivered personally or sent through the post addressed to the member entitled thereto at the Member's registered address as appearing in the register. Absent instructions to the contrary from the Company, such member's shares will be held in uncertificated, book entry form.
5.2Every share certificate of the Company shall bear any legends required under applicable laws, including the Securities Act.
5.3Any two or more certificates representing shares of any one class or series held by any Member may at the Member's request be cancelled and a single new certificate for such shares issued in lieu on payment (if the Directors shall so require) of US$1.00 or such smaller sum as the Directors shall determine.
5.4If 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 up 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.
5.5In 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.
6TRANSFER OF SHARES
6.1Subject to these Articles and the rules or regulations of the Designated Stock Exchange or any relevant securities laws (including, but not limited to U.S. securities law provisions related to insider trading), any Member may transfer all or any of his shares by an instrument of transfer in the usual or common form or in a form prescribed by the Designated Stock Exchange or in any other form approved by the Board and may be under hand or, if the transferor or transferee is a clearing house or its nominee(s), by hand or by machine imprinted signature or by such other manner of execution as the Board may approve from time to time.
6.2The instrument of transfer shall be executed by or on behalf of the transferor. Without prejudice to the last preceding Article, the Board may also resolve, either generally or in any particular case, upon request by the transferor or transferee to accept mechanically executed transfers. The transferor shall be deemed to remain the holder of the share until the name of the transferee in entered into the Register in respect thereof.
6.3The Directors may, in their absolute discretion, decline to register any transfer of Shares, subject to any applicable requirements imposed from time to time by the Commission and the Designated Stock Exchange.
6.4The Board in so far as permitted by any applicable law and rules of the Designated Stock Exchange may, in its absolute discretion, at any time and from time to time transfer any share upon the Register to any branch register or any share on any branch register to the Register or any other branch register. In the event of any such transfer, the shareholder requesting such transfer shall bear the cost of effecting such transfer unless the Board otherwise determines.
6.5Unless the Board otherwise agrees (which agreement may be on such terms and subject to such conditions as the Board in its absolute discretion may from time to time determine, and which agreement the Board shall, without giving any reason therefore, be entitled in its absolute discretion to give or withhold), no shares upon the Register shall be transferred to any branch register nor shall shares on any branch register be transferred to the Register or any other branch register and all transfers and other documents of title shall be lodged for registration, and registered, in the case of any shares on a branch register, at the relevant Registration Office, and, in the case of any shares on the Register, at the Office or such other place at which the Register is kept in accordance with the Statute.
6.6Without limiting the generality of the last preceding Article, the Board may decline to recognise any instrument of transfer unless:
(a)a fee of such maximum sum as the Board may from time to time require is paid to the Company in respect thereof;
(b)the instrument of transfer is in respect of only one class or series of share;
(c)the instrument of transfer is lodged at the Office or such other place as the Register is kept in accordance with the Statute accompanied by the relevant share certificate(s) or such other evidence as the Board may reasonably require to show the right of the transferor to make the transfer (and, if the instrument of transfer is executed by some other person on his behalf, the authority of that person so to do); and
(d)the instrument of transfer is duly and properly signed.
6.7If the Board refuses to register a transfer of any share, it shall, within two months after the date on which the transfer was lodged with the Company, send to each of the transferor and the transferee notice of the refusal.
6.8The registration of transfers may be suspended at such time and for such periods as the Directors may from time to time determine, provided always that such registration shall not be suspended for more than forty five (45) days in any year.
7PURCHASE OF OWN SHARES
7.1Subject to the provisions of the Statute, the Company may purchase its own shares in such manner and on such other terms as the Directors may agree with the relevant Member.
7.2The Company may make a payment in respect of the purchase of its own shares in any manner permitted by the Statute, including out of capital.
8VARIATION OF RIGHTS ATTACHING TO SHARES
8.1Subject to the Statute and the Articles, all or any of the special rights attached to shares of any class or series (unless otherwise provided for by the terms of issue of the shares of that class or series) may be varied, modified or abrogated with the sanction of a resolution passed by a majority of not less than two-thirds of the votes cast passed at a separate meeting of the holders of the shares of that class or series (as applicable) at which a quorum is present. For the avoidance of doubt, and notwithstanding the foregoing, all or any of the special rights attached to a series (unless otherwise provided for by the terms of issue of the shares of that series) may only be varied, modified or abrogated with the sanction of a resolution passed by a majority of not less than two-thirds of the votes cast at a separate meeting of the holders of the shares of that series at which a quorum is present.
8.2The provisions of these Articles relating to general meetings shall apply to every such general meeting of the holders of one class or series of shares (as applicable) except that the necessary quorum shall be at least one person holding or representing by proxy at least one-third of the par value of the issued shares of the class or series (as applicable). Every holder of Shares of the class or series (as applicable) shall be entitled on a poll to one vote for every such Share held by such holder and any holder of Shares of that class or series (as applicable) present in person or by proxy may demand a poll.
8.3The rights conferred upon the holders of the shares of any class or series issued with preferred or other rights shall not, unless otherwise expressly provided by the terms of issue of the shares of that class or series, be deemed to be varied by the creation or issue of further shares ranking in priority to or pari passu therewith.
9COMMISSION ON SALE OF SHARES
9.1The Company may in so far as the Statute from time to time permits pay a commission to any person in consideration of his 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 lodgement 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.
10NON-RECOGNITION OF TRUSTS
10.1No person shall be recognised by the Company as holding any share upon any trust and the Company shall not be bound by or be compelled in any way to recognise (even when having notice thereof) any equitable, contingent, future, or 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.
11REGISTRATION OF EMPOWERING INSTRUMENTS
11.1The Company shall be entitled to charge a fee not exceeding one dollar (US$1.00) on the registration of every probate, letters of administration, certificate of death or marriage, power of attorney, or other instrument.
12TRANSMISSION OF SHARES
12.1If a Member dies the survivor or survivors (where he was a joint holder) or his legal personal representatives (where he was a sole holder), shall be the only persons recognised by the Company as having any title to his shares. The estate of a deceased Member is not thereby released from any liability in respect of any share, for which he was a joint or sole holder.
12.2Any person becoming entitled to a share in consequence of the death or bankruptcy or liquidation or dissolution of a Member (or in any other way than by transfer) may, upon such evidence being produced as may be required by the Directors, elect, by a notice in writing sent by him to the Company, either to become the holder of such share or to have some person nominated by him registered as the holder of such share. If he elects to have another person registered as the holder of such share he shall sign an instrument of transfer of that share to that person. The Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the share by the relevant Member before his death or bankruptcy or liquidation or dissolution, as the case may be.
12.3A person becoming entitled to a share by reason of the death or bankruptcy or liquidation or dissolution of a Member (or in any other case than by transfer) shall be entitled to the same dividends, other distributions and other advantages to which he would be entitled if he were the holder of such share. However, he shall not, before becoming a Member in respect of a share, be entitled in respect of it to exercise any right conferred by membership in relation to general meetings of the Company and the Directors may at any time give notice requiring any such person to elect either to be registered himself or to have some person nominated by him be registered as the holder of the share (but the Directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of the share by the relevant Member before his death or bankruptcy or liquidation or dissolution or any other case than by transfer, as the case may be). If the notice is not complied with within ninety (90) calendar days of being received or deemed to be received (as determined pursuant to the Articles), the Directors may thereafter withhold payment of all dividends, other distributions, bonuses or other monies payable in respect of the share until the requirements of the notice have been complied with.
13ALTERATION OF CAPITAL
13.1Subject to these Articles, the Company may from time to time by Ordinary Resolution increase the share capital by such sum, to be divided into shares of such classes and amount, as the resolution shall prescribe.
13.2Subject to these Articles, the Company may by Ordinary Resolution:
(a)consolidate and divide all or any of its share capital into shares of larger amount than its existing shares, provided that any fractions of a share that result from such a consolidation or division of its share capital shall be automatically repurchased by the Company (i) at the Market Price on the date of such consolidation or division, in the case of any shares listed on a Designated Stock Exchange and (ii) at a price to be agreed between the Company and the applicable Member in the case of any shares not listed on a Designated Stock Exchange;
(b)sub-divide its existing shares, or any of them into shares of a smaller amount provided that in the subdivision the proportion between the amount paid and the amount, if any unpaid on each reduced share shall be the same as it was in case of the share from which the reduced share is derived;
(c)divide shares into multiple classes; or
(d)cancel any shares which, at the date of the passing of the resolution, have not been taken or agreed to be taken by any person and diminish the amount of its share capital by the amount of the shares so cancelled.
13.3Subject to these Articles, the Company may by Special Resolution:
(a)change its name;
(b)alter or add to these Articles;
(c)alter or add to the Memorandum of Association with respect to any objects, powers or other matters specified therein; or
(d)reduce its share capital and any capital redemption reserve in any manner authorised by law.
13.4All new shares created hereunder shall be subject to the same provisions with reference to the payment of calls, liens, transfer, transmission, forfeiture and otherwise as the shares in the original share capital.
14CLOSING REGISTER OF MEMBERS OR FIXING RECORD DATE
14.1For the purpose of determining those Members that are entitled to receive notice of, attend or vote at any meeting of Members or any adjournment thereof, or those Members that are entitled to receive payment of any dividend, or in order to make a determination as to who is a Member
for any other purpose, the Directors may provide that the Register of Members shall be closed for transfers for a stated period but not to exceed in any case sixty (60) calendar days. If the Register of Members shall be so closed for the purpose of determining those Members that are entitled to receive notice of, attend or vote at a meeting of Members such register shall be so closed for at least fourteen (14) calendar days (but not more than sixty (60) calendar days) immediately preceding such meeting and the record date for such determination shall be the date of the closure of the Register of Members, which such date shall not precede the date upon which the resolution fixing the record date is adopted by the Directors. The Directors shall prepare, or cause to be prepared, at least fourteen (14) days before every general meeting, a complete list of the Members entitled to vote at such meeting, arranged in alphabetical order, and showing the address of each Member and the number of shares registered in the name of each Member. Such list shall be open to the examination of any Member, for any purpose germane to the meeting, during ordinary business hours, for a period of at least fourteen (14) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any Member who is present.
14.2In 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 those Members that are entitled to receive notice of, attend or vote at a meeting of the Members and for the purpose of determining those Members that are entitled to receive payment of any dividend the Directors may, at or within ninety (90) calendar days prior to the date of declaration of such dividend, fix a subsequent date as the record date of such determination.
14.3If the Register of Members is not so closed and no record date is fixed for the determination of those Members entitled to receive notice of, attend or vote at a meeting of Members or those Members that are entitled to receive payment of a dividend, the record date for such determination of Members shall be at the close of business on the business day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. When a determination of those Members that are entitled to receive notice of, attend or vote at a meeting of Members has been made as provided in this Article, such determination shall apply to any adjournment thereof.
15GENERAL MEETINGS
15.1All general meetings of the Company other than annual general meetings shall be called extraordinary general meetings.
15.2The Company shall, in each year hold a general meeting as its annual general meeting at such time and place as may be determined by the Directors, and may also be convened by the Board on its own initiative.
15.3Extraordinary general meetings may be called by the Board or by the chairman of the Board. Such extraordinary general meetings shall be held at such time and place as may be determined by the Board.
15.4In the absence of a designation of the location of a general meeting, such meeting shall be held at the principal executive office of the Company.
15.5A person may participate at a general meeting by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other. Participation by a person in a general meeting in this manner is treated as presence in person at that meeting.
16NOTICE OF GENERAL MEETINGS
16.1At least fourteen (14) calendar days' notice (but not more than sixty (60) calendar days' notice) shall be given for any general 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, the matters that are intended to be presented, and, in the case of annual general meetings, the name of any nominee who the Directors intend to present for election, 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 Articles regarding general meetings have been complied with, be deemed to have been duly convened if it is so agreed:
(a)in the case of an annual general meeting by all the Members (or their proxies) entitled to attend and vote thereat; and
(b)in the case of an extraordinary general meeting by the Members (or their proxies) having a right to attend and vote at the meeting, together holding not less than a majority in par value of the shares giving that right.
16.2The notice convening an annual general meeting shall specify the meeting as such, and the notice convening a meeting to pass a Special Resolution shall specify the intention to propose the resolution as a Special Resolution. Notice of every general meeting shall be given to all Members other than such as, under the provisions hereof or the terms of issue of the shares they hold, are not entitled to receive such notice from the Company.
16.3Written notice of any general meeting shall be given either personally or by first-class mail or by telegraphic or other written communication. Notices not personally delivered shall be sent charges prepaid and shall be addressed to the Member at the address of that Member appearing on the books of the Company or given by the Member to the Company for the purpose of notice. Notice shall be deemed to have been given at the time when delivered personally or deposited in the mail or sent by telegram or other means of written communication. An affidavit of the mailing or other means of giving any notice of any general meeting, executed by the Secretary, Assistant Secretary or any transfer agent of the Company giving the notice, shall be prima facie evidence of the giving of such notice.
16.4In cases where instruments of proxy are sent out with notices, the accidental omission to send such instrument of proxy to, or the non-receipt of any such instrument of proxy by, any person entitled to receive notice shall not invalidate any resolution passed or any proceeding at any such meeting.
16.5No business may be transacted at any general meeting, other than business that is either (A) specified in the notice of meeting (or any supplement thereto) given by or at the direction of the Board (or any duly authorised committee thereof), (B) otherwise properly brought before an annual general meeting by or at the direction of the Board (or any duly authorised committee thereof) or (C) otherwise properly brought before an annual general meeting by any Member of the Company who (1) is a Member of record on both (x) the date of the giving of the notice by such Member provided for in this Article and (y) the record date for the determination of Members entitled to vote at such annual general meeting and (2) complies with the notice procedures set forth in this Article.
(a)In addition to any other applicable requirements, for business to be brought properly before an annual general meeting by a Member, such Member must have given timely notice thereof in proper written form to the Secretary of the Company.
(b)[Reserved.]
(c)All notices of meetings of the Members shall be sent or otherwise given in accordance with Article 16.5 hereof not less than fourteen (14) nor more than sixty (60) days before the date of the meeting. The notice shall specify the place, date and hour of the meeting and (i) in the case of an extraordinary general meeting, the purpose or purposes for which the meeting is called (no business other than that specified in the notice may be transacted) or (ii) in the case of the annual general meeting, those matters which the Board, at the time of giving the notice, intends to present for action by the members (but any proper matter may be presented at the meeting for such action). The notice of any meeting at which Directors are to be elected shall include the name of any nominee or nominees who, at the time of the notice, the Board intends to present for election.
(d)For matters other than for the nomination for election of a Director to be made by a Member of the Company, to be timely, such Member's notice shall be delivered to the Secretary at the principal executive offices of the Company at least forty-five (45) days prior to the date on which the Company first mailed proxy materials for the prior year's annual general meeting; provided, however, that if the Company's annual general meeting occurs on a date more than thirty (30) days earlier or later than the Company's prior year's annual general meeting, then the Board shall determine a date a reasonable period prior to the Company's annual general meeting by which date the Members notice must be delivered and publicize such date in a filing pursuant to the Exchange Act, or via press release. Such publication shall occur at least fourteen (14) days prior to the date set by the Board.
(e)To be in proper written form, a Member's notice to the Secretary must set forth as to such matter such Member proposes to bring before the annual general meeting (1) a brief description of the business desired to be brought before the annual general meeting and the reasons for conducting such business at the annual general meeting, (2) the name and address, as they appear on the Company's books, of the Member proposing such business and any Member Associated Person (as defined below), (3) the class or series and number of shares of the Company that are held of record or are beneficially owned by such Member or any Member Associated Person and any derivative positions held or
beneficially held by the Member or any Member Associated Person, (4) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on behalf of such Member or any Member Associated Person with respect to any securities of the Company, and a description of any other agreement, arrangement or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such Member or any Member Associated Person with respect to any securities of the corporation, (5) any material interest of the Member or a Member Associated Person in such business, and (6) a statement whether either such Member or any Member Associated Person will deliver a proxy statement and form of proxy to holders of at least the percentage of the Company's voting shares required under applicable law and the rules of the Designated Stock Exchange to carry the proposal. For purposes of this Article 16.5(e), a "Member Associated Person" of any Member shall mean (i) any person controlling, directly or indirectly, or acting in concert with, such Member, (ii) any beneficial owner of shares of the Company owned of record or beneficially by such Member and on whose behalf the proposal or nomination, as the case may be, is being made, or (iii) any person controlling, controlled by or under common control with such person referred to in the preceding clauses (i) and (ii).
(f)No business shall be conducted at the annual general meeting except business brought before the annual general meeting in accordance with the procedures set forth in this Article, provided, however, that once business has been properly brought before the annual general meeting in accordance with such procedures, nothing in this Article shall be deemed to preclude discussion by any Member of any such business. If the Chairperson of an annual general meeting determines that business was not properly brought before the annual general meeting in accordance with the foregoing procedures, the Chairperson shall declare to the meeting that the business was not properly brought before the meeting and such business shall not be transacted.
(g)In addition to any other applicable requirements, for a nomination for election of a Director to be made by a Member of the Company, such Member must (A) be a Member of record on both (x) the date of the giving of the notice by such Member provided for in this Article and (y) the record date for the determination of Members entitled to vote at such annual general meeting and (B) have given timely notice thereof in proper written form to the Secretary of the Company. If a Member is entitled to vote only for a specific class or category of directors at a meeting of the Members, such Member's right to nominate one or more persons for election as a director at the meeting shall be limited to such class or category of directors.
(h)To be timely for purposes of Article 16.5(g), a Member's notice shall be delivered to or mailed and received at the principal executive offices of the Company not less than one hundred twenty (120) days prior to the meeting; provided, however, that in the event less than one hundred thirty (130) days' notice or prior public disclosure of the date of the meeting is given or made to Members, notice by the Member to be timely must be so received not later than the close of business on the tenth (10th) day following the earlier of the day on which such notice of the date of the meeting was mailed or such public disclosure was made.
(i)To be in proper written form for purposes of Article 16.5(g), a Member's notice to the Secretary must be set forth (A) as to each person whom the Member proposes to nominate for election as a director (1) the name, age, business address and residence address of the person, (2) the principal occupation or employment of the person, (3) the class or series and number of shares of the Company, if any, which are owned beneficially or of record by the person and (4) any other information relating to the person that would be required to be disclosed pursuant to any applicable law and rules of the Designated Stock Exchange; and (B) as to the Member giving notice (1) the name and record address of such Member, (2) the class or series and number of shares of the Company which are owned beneficially or of record by such Member, (3) a description of all arrangements or understandings between such Member and each proposed nominee and any other person or persons (including their names) pursuant to which the nomination(s) are to be made by such Member, (4) a representation that such Member intends to appear in person or by proxy at the annual meeting to nominate the person(s) named in its notice and (5) any other information relating to such Member that would be required to be disclosed pursuant to any applicable law and rules of the Designated Stock Exchange. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
16.6No person shall be eligible for election as a director of the Company unless nominated in accordance with the procedures set forth in the Articles under this heading of "NOTICE OF GENERAL MEETINGS". If the Chairperson of an annual general meeting determines that a nomination was not made in accordance with the foregoing procedures, the Chairperson shall declare to the meeting that the nomination was defective and such defective nomination shall be disregarded. This Article shall not apply to any nomination of a director in an election in which only the holders of one or more series of Preferred Shares of the Company are entitled to vote (unless otherwise provided in the terms of such series of Preferred Shares).
16.7The accidental omission to give notice of a meeting to or the non-receipt of a notice of a meeting by any Member shall not invalidate the proceedings at any meeting.
17PROCEEDINGS AT GENERAL MEETINGS
17.1No business shall be transacted at any general meeting unless a quorum of Members is present at the time when the meeting proceeds to business. Members holding in aggregate not less than a majority of all voting share capital of the Company in issue present in person or by proxy and entitled to vote shall be a quorum for all purposes. A person may participate at a general meeting by conference telephone or other communications equipment by means of which all the persons participating in the meeting can communicate with each other. Participation by a person in a general meeting in this manner is treated as presence in person at that meeting. If, however, such quorum is not present or represented at any general meeting, then either (i) the Chairperson of the meeting or (ii) the Members entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting.
17.2When a meeting is adjourned to another time and place, unless these Articles of Association otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned
meeting the Company may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each Member of record entitled to vote at the meeting.
17.3A determination of the Members of record entitled to notice of or to vote at a general meeting shall apply to any adjournment of such meeting unless the Board of Directors fixes a new record date for the adjourned meeting, but the Board shall fix a new record date if the meeting is adjourned for more than thirty (30) days from the date set for the original meeting.
17.4The Chairperson of the Board of Directors shall preside as Chairperson at every general meeting of the Company. If at any meeting the Chairperson of the Board of Directors is not present within fifteen minutes after the time appointed for holding the meeting or is unwilling to act as Chairperson, the Directors present shall elect one of their number to Chairperson of the meeting or if all the Directors present decline to take the chair, the Members present shall choose one of their own number to be the Chairperson of the meeting.
17.5At any general meeting a resolution put to the vote of the meeting shall be decided on a poll.
17.6A poll shall be taken in such manner as the Chairperson directs, and the result of the poll shall be deemed to be the resolution of the meeting.
17.7In the case of an equality of votes, the Chairperson of the meeting shall not be entitled to a second or casting vote.
18VOTES OF MEMBERS
18.1Subject to any rights and restrictions for the time being attached to any class or classes or series of shares, every Member present in person and every person representing a Member by proxy at a general meeting of the Company shall have one vote for each share registered in such Member's name in the Register of Members. No cumulative voting shall be allowed.
18.2In the case of joint holders the vote of the senior who tenders a vote whether in person or by proxy shall be accepted to the exclusion of the votes of the joint holders and for this purpose seniority shall be determined by the order in which the names stand in the Register of Members.
18.3A Member of unsound mind, or in respect of whom an order has been made by any court having jurisdiction in lunacy, may vote on a poll by his committee, or other person in the nature of a committee appointed by that court, and any such committee or other person, may on a poll, vote by proxy.
18.4No Member shall be entitled to vote at any general meeting unless all sums presently payable by him in respect of shares in the Company have been paid.
18.5On a poll, votes may be given either personally or by proxy.
18.6The instrument appointing a proxy shall be in writing (whether by manual signature, typewriting, telegraphic transmission, telefacsimile or otherwise) under the hand of the appointor or of his attorney duly authorised in writing or, if the appointor is a corporation, either under seal or under
the hand of an officer or attorney duly authorized authorised in that behalf provided however, that a Member may also authorise the casting of a vote by proxy pursuant to telephonic or electronically transmitted instructions (including, without limitation, instructions transmitted over the internet) obtained pursuant to procedures approved by the Board which are reasonably designed to verify that such instructions have been authorised by such Member. A proxy need not be a Member of the Company. Notwithstanding the foregoing, no proxy shall be voted or acted upon after three (3) years from its date unless the proxy provides for a longer period.
18.7An instrument appointing a proxy may be in any usual or common form or such other form as the Directors may approve.
18.8The instrument appointing a proxy shall be deemed to confer authority to demand or join in demanding a poll.
19CORPORATIONS ACTING BY REPRESENTATIVES AT MEETING
19.1Any corporation which is a Member or a Director may by resolution of its directors or other governing body authorise such person as it thinks fit to act as its representative at any meeting of the Company or of any class or series of Members or of the Board of Directors or of a committee of Directors, and the person so authorised shall be entitled to exercise the same powers on behalf of the corporation which he represents as that corporation could exercise if it were an individual Member or Director.
20CLEARING HOUSES
20.1If a clearing house or depository (or its nominee) is a member of the Company it may, by resolution of its directors or other governing body or by power of attorney, authorise such person or persons as it thinks fit to act as its representative or representatives at any general meeting of the Company or at any general meeting of any class or series of members of the Company provided that, if more than one person is so authorised, the authorization shall specify the number and class or series of shares in respect of which each such person is so authorised. A person so authorised pursuant to this provision shall be entitled to exercise the same powers on behalf of the clearing house (or its nominee) which he represents as that clearing house (or its nominee) could exercise if it were an individual member of the Company holding the number and class or series of shares specified in such authorization.
21DIRECTORS
21.1There shall be a Board of Directors consisting of up to eight (8) Directors, as shall be fixed from time to time by the Directors. For the avoidance of doubt, the preceding sentence shall not limit the powers of the Directors to increase the number of Directors under Article 21.4. The Directors shall be elected or appointed in the first place by the subscribers to the Memorandum of Association or by a majority of them and thereafter by the Board, subject to Article 21.2.
21.2The Directors shall be divided into three (3) classes designated as Class I, Class II and Class III, respectively. Directors shall be assigned to each class in accordance with a resolution or resolutions adopted by the Board of Directors. At the 2018 annual general meeting of Members, the term of office of the Class I Directors shall expire and Class I Directors shall be elected for a
full term of three (3) years. At the 2019 annual general meeting of Members, the term of office of the Class II Directors shall expire and Class II Directors shall be elected for a full term of three (3) years. At the 2020 annual general meeting of Members, the term of office of the Class III Directors shall expire and Class III Directors shall be elected for a full term of three (3) years. At each succeeding annual general meeting of Members, Directors shall be elected for a full term of three (3) years to succeed the Directors of the class whose terms expire at such annual general meeting. Notwithstanding the foregoing provisions of this Article, each Director shall hold office until the expiration of his term, until his successor shall have been duly elected and qualified or until his earlier death, resignation or removal. No decrease in the number of Directors constituting the Board shall shorten the term of any incumbent Director.
21.3The Board of Directors shall have a Chairperson of the Board of Directors (the "Chairperson") elected and appointed by a majority of the Directors then in office. The Directors may also elect a Vice-Chairperson of the Board of Directors (the "Vice-Chairperson"). The Chairperson shall preside as Chairperson at every meeting of the Board of Directors. To the extent the Chairperson is not present at a meeting of the Board of Directors, the Vice-Chairperson, or in his absence, the attending Directors, may choose one Director to be the Chairperson of the meeting. The Chairperson's voting right as to the matters to be decided by the Board of Directors shall be the same as other Directors. In the case of an equality of votes, the Chairperson shall not have an additional tie-breaking vote.
21.4The Directors by the affirmative vote of a simple majority of the remaining Directors present and voting at a Board meeting, even if less than a quorum, or by a 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 vacancy on the Board or as an addition to the existing Board, subject to these Articles, applicable law and the listing rules of the Designated Stock Exchange. Any Director so appointed shall hold office until the next succeeding annual general meeting of Members or until his earlier death, resignation or removal. The Board may increase the number of Directors by the affirmative vote of simple majority of the Directors.
21.5Subject to Article 21.4, a Director may be removed from office for cause 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) by the affirmative vote of holders of at least 75% of the Company’s outstanding shares.
21.6A vacancy on the Board created by the removal of a Director under the provisions of these Articles may be filled by the election or appointment by Ordinary Resolution at the meeting at which such Director is removed or by the affirmative vote of a simple majority of the remaining Directors present and voting at a Board meeting, subject to these Articles, applicable law and the listing rules of the Designated Stock Exchange. Any Director so appointed shall hold office until the next succeeding annual general meeting of Members or until his earlier death, resignation or removal.
21.7The Board may, from time to time, and except as required by applicable law or the listing rules of the Designated Stock Exchange, adopt, institute, amend, modify or revoke the corporate governance policies or initiatives, which shall be intended to set forth the policies of the Company
and the Board on various corporate governance related matters, as the Board shall determine by resolution from time to time.
21.8A 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 all classes or series of shares of the Company.
22DIRECTORS' FEES AND EXPENSES
22.1The Directors may receive such remuneration as the Board may from time to time determine. The Directors may be entitled to be repaid all traveling, hotel and incidental expenses reasonably incurred or expected to be incurred by him in attending meetings of the Board or committees of the Board or general meetings or separate meetings of any class or series of shares or of debentures of the Company or otherwise in connection with the discharge of his duties as a Director.
22.2Any Director who, by request, goes or resides abroad for any purpose of the Company or who performs services which in the opinion of the Board go beyond the ordinary duties of a Director may be paid such extra remuneration (whether by way of salary, commission, participation in profits or otherwise) as the Board may determine and such extra remuneration shall be in addition to or in substitution for any ordinary remuneration provided for by or pursuant to any other Article.
23POWERS AND DUTIES OF DIRECTORS
23.1Subject to the provisions of the Statute, these Articles and to any resolutions made in a general meeting, the business of the Company shall be managed by the Directors, who may pay all expenses incurred in setting up and registering the Company and may exercise all powers of the Company. No resolution made by the Company in a general meeting shall invalidate any prior act of the Directors that would have been valid if that resolution had not been made.
23.2Subject to these Articles, the Directors may from time to time appoint any person, whether or not a director of the Company, to hold the office of the Chief Executive Officer as the Directors may think necessary for the administration of the Company, 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), and with such powers and duties as the Directors may think fit. The Chief Executive Officer may from time to time appoint any person to hold such office in the Company as he or she may think necessary for the administration of the Company, including without prejudice to the foregoing generality, the office of one or more Vice Presidents, Chief Financial Officer, Manager or Controller, and 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), and with such powers and duties as the Chief Executive Officer may think fit.
23.3The Directors may delegate any of their powers to committees consisting of such member or members of their body as they think fit; provided that any committee so formed shall include amongst its members at least two Directors unless otherwise required by applicable law, rules and regulations and the rules of the Designated Stock Exchange; provided further that no
committee shall have the power of authority to (a) recommend to the Members an amendment of these Articles of Association (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors as provided under the laws of the Cayman Islands, fix the designations and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Company or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Company); (b) adopt an agreement of merger or consolidation; (c) recommend to the Members the sale, lease or exchange of all or substantially all of the Company's property and assets; (d) recommend to the Members a dissolution of the Company or a revocation of a dissolution; (e) recommend to the Members an amendment of the Memorandum of Association of the Company; or (f) declare a dividend or authorize the issuance of Shares unless the resolution establishing such committee or the Memorandum or Articles of Association of the Company so provide. 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. The Directors may also delegate to any Director holding any executive office such of their powers as they consider desirable to be exercised by him or her. Any such delegation may be made subject to any conditions the Board may impose, and either collaterally with or to the exclusion of their own powers, and may be revoked or altered.
23.4The Directors may from time to time and at any time by power of attorney appoint any company, firm or person or body of persons, whether nominated directly or indirectly by the Directors, to be the attorney or attorneys of the Company for such purposes and with such powers, authorities and discretion (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 power of attorney may contain such provisions for the protection and convenience of persons dealing with any such attorney as the Directors may think fit, and may also authorise any such attorney to delegate all or any of the powers, authorities and discretion vested in him.
23.5The 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 following paragraphs shall be without prejudice to the general powers conferred by this paragraph.
23.6The 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 and may appoint any managers or agents of the Company and may fix the remuneration of any of the aforesaid.
23.7The 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 authorise 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 person so appointed and may annul or vary any such delegation, but no person dealing in good faith and without notice of any such annulment or variation shall be affected thereby.
23.8Any 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 to them.
23.9The Directors may exercise all the powers of the Company to borrow money and to mortgage or charge its undertaking, property and uncalled capital or any part thereof, to issue debentures, debenture stock and other securities whenever money is borrowed or as security for any debt, liability or obligation of the Company or of any third party.
24DISQUALIFICATION OF DIRECTORS
24.1Subject to these Articles, the office of Director shall be vacated, if the Director:
(a)becomes bankrupt or makes any arrangement or composition with his creditors;
(b)is found to be or becomes of unsound mind;
(c)resigns his office by notice in writing to the Company;
(d)is prohibited by applicable law or the Designated Stock Exchange from being a director;
(e)without special leave of absence from the Board, is absent from meetings of the Board for six consecutive months and the Board resolves that his office be vacated; or
(f)if he or she shall be removed from office pursuant to these Articles.
25PROCEEDINGS OF DIRECTORS
25.1Subject to these Articles, the Directors may meet together for the dispatch of business, adjourn, and otherwise regulate their meetings and proceedings as they think fit. Such meetings may be held at any place within or outside the Cayman Islands that has been designated by the Board of Directors. In the absence of such a designation, meetings of the Board of Directors shall be held at the principal executive office of the Company. Questions arising at any meeting of the Directors shall be decided by a majority of votes. In the case of an equality of votes, the Chairperson of the Board shall not have an additional tie-breaking vote.
25.2The Chairperson of the Board, the chief executive officer, the president, any vice president, the Secretary or any two Directors may, at any time summon a meeting of the Board by notice to each Director by telephone, facsimile, electronic email, telegraph or telex, during normal business hours, or by sending notice in writing to each Director by first class mail, charges prepaid, at least forty-eight hours before the date of the meeting, which notice shall set forth the general nature of the business to be considered unless notice is waived by all the Directors either at, before or after the meeting is held and provided further, if notice is given in person, by telephone, facsimile, electronic email, telegraph or telex, 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. The accidental omission to give notice of a meeting of the Board 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. Notice of a meeting need not be given to any Director (i) who signs a waiver of notice or a consent to holding the meeting or an approval of the minutes thereof, whether
before or after the meeting, or (ii) who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to such Directors. All such waivers, consents, and approvals shall be filed with the corporate records or made part of the minutes of the meeting. A waiver of notice need not specify the purpose of any regular or special meeting of the Board of Directors.
25.3A Director or Directors may participate in any meeting of the Board of Directors, or of any committee appointed by the Board of Directors of which such Director or Directors are members, by means of telephone or similar communication equipment by way of which all persons participating in such meeting can hear each other and such participation shall be deemed to constitute presence in person at the meeting.
25.4The quorum necessary for the transaction of the business of the Directors shall be a majority of the authorized number of Directors. For the avoidance of doubt, if at any time there is only a sole Director, the quorum shall be one (1) Director. Every act or decision done or made by a majority of the Directors present at a duly held meeting at which a quorum is present shall be regarded as the act of the Board of Directors, subject to the provisions of these Articles of Association and other applicable law.
25.5A meeting of the Directors may be held by means of telephone or teleconferencing or any other telecommunications facility provided that all participants are thereby able to communicate immediately by voice with all other participants.
25.6Subject to these Articles, a Director who is in any way, whether directly or indirectly, interested in a contract or proposed contract with the Company shall declare the nature of his interest at a meeting of the Directors. A general notice given to the Directors by any Director to the effect that he is a member of any specified company or firm and is to be regarded as interested in any contract which may thereafter be made with that company or firm shall be deemed a sufficient declaration of interest in regard to any contract so made. A Director may vote in respect of any contract or proposed contract or arrangement notwithstanding that he may be interested therein and if he does so his vote shall be counted and he may be counted in the quorum at any meeting of the Directors at which any such contract or proposed contract or arrangement shall come before the meeting for consideration.
25.7A Director may hold any other office or place of profit under the Company (other than the office of auditor) in conjunction with his office of Director for such period and on such terms (as to remuneration and otherwise) as the Directors may determine and no Director or intending Director shall be disqualified by his office from contracting with the Company either with regard to his tenure of any such other office or place of profit or as vendor, purchaser or otherwise, nor shall any such contract or arrangement entered into by or on behalf of the Company in which any Director is in any way interested, be liable to be avoided, nor shall any Director so contracting or being so interested be liable to account to the Company for any profit realized by any such contract or arrangement by reason of such Director holding that office or of the fiduciary relation thereby established. A Director, notwithstanding his interest, may be counted in the quorum present at any meeting whereat he or any other Director is appointed to hold any such office or place of profit under the Company or whereat the terms of any such appointment are arranged and he may vote on any such appointment or arrangement. Any Director who enters into a contract or arrangement or has a relationship that is
reasonably likely to be implicated under this Article or that would reasonably be likely to affect a Director's status as an "Independent Director" under applicable law or the rules of the Designated Stock Exchange shall disclose the nature of his or her interest in any such contract or arrangement in which he is interested or any such relationship.
25.8Any Director may act by himself or his firm in a professional capacity for the Company, and he or his firm shall be entitled to reasonable expense reimbursement consistent with the Company's policies in connection with such Directors service in his or her official capacity; provided that nothing herein contained shall authorise a Director or his firm to act as auditor to the Company.
25.9The Directors shall cause minutes to be made in books or loose-leaf folders provided for the purpose of recording:
(a)all appointments of officers made by the Directors;
(b)the names of the Directors present at each meeting of the Directors and of any committee of the Directors; and
(c)all resolutions and proceedings at all meetings of the Company, and of the Directors and of committees of Directors.
25.10When the Chairperson of a meeting of the Directors signs the minutes of such meeting the same shall be deemed to have been duly held notwithstanding that all the Directors have not actually come together or that there may have been a technical defect in the proceedings.
25.11A resolution signed by all the Directors shall be as valid and effectual as if it had been passed at a meeting of the Directors duly called and constituted. When signed a resolution may consist of several documents each signed by one or more of the Directors.
25.12The 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 may act for the purpose of increasing the number, or of summoning a general meeting of the Company, but for no other purpose.
25.13A committee appointed by the Directors may elect a Chairperson of its meetings. If no such Chairperson is elected, or if at any meeting the Chairperson is not present within five minutes after the time appointed for holding the same, the members present may choose one of their number to be Chairperson of the meeting.
25.14A committee appointed by the Directors may meet and adjourn as it thinks proper. Questions arising at any meeting shall be determined by a majority of votes of the committee members present and in case of an equality of votes the Chairperson shall not have a second or casting vote.
25.15Meetings and actions of committees of the Board of Directors shall be governed by, and held and taken in accordance with, the provisions of Article 25.1 (place of meetings), Article 25.2 (notice), Article 25.3 (telephonic meetings), and Article 25.4 (quorum), with such changes in the context of these Articles of Association as are necessary to substitute the committee and its members for
the Board of Directors and its members; provided, however, that the time of regular meetings of committees may be determined either by resolution of the Board of Directors or by resolution of the committee, that special meetings of committees may also be called by resolution of the Board of Directors, and that notice of special meetings of committees shall also be given to all alternate members, who shall have the right to attend all meetings of the committee. The Board of Directors may adopt rules for the government of any committee not inconsistent with the provisions of these Articles of Association.
25.16All acts done by any meeting of the Directors or of a committee of Directors, or by any person acting as a Director, shall, notwithstanding that it be afterwards discovered that there was some defect in the appointment of any such Director or person acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a Director.
26PRESUMPTION OF ASSENT
26.1A 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 his dissent or abstention shall be entered in the Minutes of the meeting or unless he shall file his written dissent or abstention from such action with the person acting as the Chairperson or Secretary of the meeting before the adjournment thereof or shall forward such dissent or abstention by registered post to such person immediately after the adjournment of the meeting. Such right to dissent or abstain shall not apply to a Director who voted in favour of such action.
27DIVIDENDS, DISTRIBUTIONS AND RESERVE
27.1Subject to any rights and restrictions for the time being attached to any class or classes or series of shares and these Articles, the Directors may from time to time declare dividends (including interim dividends) and other distributions on shares in issue and authorise payment of the same out of the funds of the Company lawfully available therefor. All dividends unclaimed for one (1) year after having been declared may be invested or otherwise made use of by the Board for the benefit of the Company until claimed. Any dividend unclaimed after a period of six (6) years from the date of declaration shall be forfeited and shall revert to the Company. The payment by the Board of any unclaimed dividend or other sums payable on or in respect of a share into a separate account shall not constitute the Company a trustee in respect thereof.
27.2The Directors may, before recommending or declaring any dividend, set aside out of the funds legally available for distribution such sums as they think proper as a reserve or reserves which shall, at the discretion of the Directors be applicable for meeting contingencies, or for equalizing dividends or for any other purpose to which those funds be properly applied and pending such application may, at the like discretion, either be employed in the business of the Company or be invested in such investments (other than shares of the Company) as the Directors may from time to time think fit. The Board shall establish an account to be called the "Share Premium Account" and shall carry to the credit of such account from time to time a sum equal to the amount or value of the premium paid on the issue of any share in the Company. Unless otherwise provided by the provisions of these Articles, the Board may apply the share premium account in any manner permitted by the Statute and the rules of the Designated Stock Exchange. The Company shall at
all times comply with the provisions of these Articles, the Statute and the rules of the Designated Stock Exchange in relation to the share premium account.
27.3Any dividend may be paid by cheque or warrant sent through the post to the registered address of the Member or person entitled thereto, or in the case of joint holders, to any one of such joint holders at his registered address or to such person and such address as the Member or person entitled, or such joint holders as the case may be, may direct. Every such cheque or warrant shall be made payable to the order of the person to whom it is sent or to the order of such other person as the Member or person entitled, or such joint holders as the case may be, may direct.
27.4The Directors when paying dividends to the Members in accordance with the foregoing provisions may make such payment either in cash or in specie.
27.5No dividend shall be paid otherwise than out of profits or, subject to the restrictions of the Statute, the share premium account.
27.6Subject to the rights of persons, if any, entitled to shares with special rights as to dividends, all dividends shall be declared and paid according to the amounts paid or credited as fully paid on the shares, but if and so long as nothing is paid up on any of the shares in the Company dividends may be declared and paid according to the amounts of the shares. No amount paid on a share in advance of calls shall, while carrying interest, be treated for the purposes of this Article as paid on the share.
27.7If several persons are registered as joint holders of any share, any of them may give effectual receipts for any dividend or other moneys payable on or in respect of the share.
27.8No dividend shall bear interest against the Company.
28BOOK OF ACCOUNTS
28.1The books of account relating to the Company's affairs shall be kept in such manner as may be determined from time to time by the Directors.
28.2The books of account shall be kept at such place or places as the Directors think fit, and shall always be open to the inspection of the Directors.
28.3Except as provided in Article 14.1, 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 by Ordinary Resolution.
28.4The accounts relating to the Company's affairs shall be audited in such manner and with such financial year end as may be determined from time to time by the Company by Ordinary Resolution or failing any such determination by the Directors or failing any determination as aforesaid shall not be audited.
29ANNUAL RETURNS AND FILINGS
29.1The Board shall make the requisite annual returns and any other requisite filings in accordance with the Statute.
30AUDIT
30.1The Directors may appoint an auditor of the Company who shall hold office until removed from office by a resolution of the Directors and may fix his or their remuneration.
30.2Every 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.
30.3Auditors shall, if so required by the Directors, make a report on the accounts of the Company during their tenure of office at the next annual general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an ordinary company, and at the next extraordinary general meeting following their appointment in the case of a company which is registered with the Registrar of Companies as an exempted company, and at any other time during their term of office, upon request of the Directors or any general meeting of the Members.
31THE SEAL
31.1The Seal of the Company shall not be affixed to any instrument except by the authority of a resolution of the Board of Directors, provided always that such authority may be given prior to or after the affixing of the Seal and if given after may be in general form confirming a number of affixings of the Seal. The Seal shall be affixed in the presence of any one or more persons as the Directors may appoint for the purpose and every person as aforesaid shall sign every instrument to which the Seal of the Company is so affixed in their presence.
31.2The Company may maintain a facsimile of its Seal in such countries or places as the Directors may appoint and such facsimile Seal shall not be affixed to any instrument except by the authority of a resolution of the Board of Directors provided always that such authority may be given prior to or after the affixing of such facsimile Seal and if given after may be in general form confirming a number of affixings of such facsimile Seal. The facsimile Seal shall be affixed in the presence of such person or persons as the Directors shall for this purpose appoint and such person or persons as aforesaid shall sign every instrument to which the facsimile Seal of the Company is so affixed in their presence of and the instrument signed by a Director or the Secretary (or an Assistant Secretary) of the Company or in the presence of any one or more persons as the Directors may appoint for the purpose.
31.3Notwithstanding the foregoing, a Director shall have the authority to affix the Seal, or the facsimile Seal, to any instrument for the purposes of attesting authenticity of the matter contained therein but which does not create any obligation binding on the Company.
32OFFICERS
32.1The Company shall have a President and Chief Executive Officer, Chief Operating Officer and Chief Financial Officer, and may have one or more Vice Presidents, a Manager or a Controller, appointed by the Directors; provided, however, that there may exist a vacancy in any such office from time to time because of death, resignation, removal, disqualification or any other cause which shall be filled by the Board of Directors as soon as reasonably practicable. The Directors 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 subscribe.
33REGISTER OF DIRECTORS AND OFFICERS
33.1The Company shall cause to be kept in one or more books at its office a Register of Directors and Officers in which there shall be entered the full names and addresses of the Directors and Officers and such other particulars as required by the Statute. The Company shall send to the Registrar of Companies in the Cayman Islands a copy of such register, and shall from time to time notify the said Registrar of any change that takes place in relation to such Directors and Officers as required by the Statute.
34CAPITALISATION OF PROFITS
34.1Subject to the Statute and these Articles, the Board may capitalize any sum standing to the credit of any of the Company's reserve accounts (including a share premium account or a 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 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 authorise 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.
35NOTICES
35.1Except as otherwise provided in these Articles, any notice or document may be served by the Company or by the person entitled to give notice to any Member either personally, by facsimile or by sending it through the post in a prepaid letter or via a recognised courier service, fees prepaid, addressed to the Member at his address as appearing in the Register of Members or, to the extent permitted by all applicable laws and regulations, by electronic means by transmitting it to any electronic number or address or website supplied by the member to the Company or by placing it on the Company's Website provided that, with respect to notification via electronic means or posting to Company's Website, the Company has obtained the Member's prior express positive confirmation in writing to receive or otherwise have made available to him notices in such
fashion. In the case of joint holders of a share, all notices shall be given to that one of the joint holders whose name stands first in the Register of Members in respect of the joint holding, and notice so given shall be sufficient notice to all the joint holders.
35.2Notices posted to addresses outside the Cayman Islands shall be forwarded by prepaid airmail.
35.3Any Member present, either personally or by proxy, at any meeting of the Company shall for all purposes be deemed to have received due notice of such meeting and, where requisite, of the purposes for which such meeting was convened.
35.4Any notice or other document, if served by (a) post, shall be deemed to have been served when the letter containing the same is posted and if served by courier, shall be deemed to have been served when the letter containing the same is delivered to the courier (in proving such service it shall be sufficient to prove that the letter containing the notice or document was properly addressed and duly posted or delivered to the courier), or (b) facsimile, shall be deemed to have been served upon confirmation of successful transmission, or (c) recognised delivery service, shall be deemed to have been served when the letter containing the same is delivered to the courier service and in proving such service it shall be sufficient to provide that the letter containing the notice or documents was properly addressed and duly posted or delivered to the courier or (d) electronic means as provided herein shall be deemed to have been served and delivered on the day on which it is successfully transmitted or at such later time as may be prescribed by any applicable laws or regulations.
35.5Any notice or document delivered or sent to any Member in accordance with the terms of these Articles shall notwithstanding that such Member be then dead or bankrupt, and whether or not the Company has notice of his death or bankruptcy, be deemed to have been duly served in respect of any share registered in the name of such Member as sole or joint holder, unless his name shall at the time of the service of the notice or document, have been removed from the Register of Members as the holder of the share, and such service shall for all purposes be deemed a sufficient service of such notice or document on all persons interested (whether jointly with or as claiming through or under him) in the share.
35.6Notice of every general meeting shall be given to:
(a)all Members who have supplied to the Company an address for the giving of notices to them, except that in case of joint holders, the notice shall be sufficient if given to the joint holder first named in the Register of Members;
(b)every person entitled to a share in consequence of the death or bankruptcy of a Member, who but for his death or bankruptcy would be entitled to receive notice of the meeting;
(c)the Auditors; and
(d)each Director.
35.7No other person shall be entitled to receive notices of general meetings.
36INFORMATION
36.1No Member shall be entitled to require discovery of any information in respect of any detail of the Company's trading or any information which is or may be in the nature of a trade secret or secret process which may relate to the conduct of the business of the Company and which in the opinion of the Board would not be in the interests of the members of the Company to communicate to the public.
36.2The Board shall be entitled to release or disclose any information in its possession, custody or control regarding the Company or its affairs to any of its members including, without limitation, information contained in the Register of Members and transfer books of the Company.
37INDEMNITY
37.1The Company shall indemnify every Director and officer of the Company or any predecessor to the Company (which for the avoidance of doubt, shall not include auditors of the Company), together with every former Director and former officer of the Company or any predecessor to the Company, and may indemnify any person (other than current and former Directors and officers) (any such Director, officer or other person, an "Indemnified Person"), out of the assets of the Company against any liability, including personal liability for breaches of fiduciary duty, action, proceeding, claim, demand, costs, damages or expenses, including legal expenses, whatsoever which they or any of them may incur as a result of any act or failure to act in carrying out their functions other than such liability (if any) that they may incur by reason of their own actual fraud or wilful default. No Indemnified Person shall be liable to the Company for any loss or damage incurred by the Company as a result (whether direct or indirect) of the carrying out of their functions unless that liability arises through the actual fraud or wilful default of such Indemnified Person. No person shall be found to have committed actual fraud or wilful default under this Article unless or until a court of competent jurisdiction shall have made a finding to that effect. Each Member agrees to waive any claim or right of action he or she might have, whether individually or by or in the right of the Company, against any Director on account of any action taken by such Director, or the failure of such Director to take any action in the performance of his or her duties with or for the Company; provided that such waiver shall not extend to any matter in respect of any fraud or wilful default which may attach to such Director.
37.2The Company shall advance to each Indemnified Person reasonable attorneys' fees and other costs and expenses incurred in connection with the defense of any action, suit, proceeding or investigation involving such Indemnified Person for which indemnity will or could be sought. In connection with any advance of any expenses hereunder, the Indemnified Person shall execute an undertaking to repay the advanced amount to the Company if it shall be determined by final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification pursuant to this Article. If it shall be determined by a final judgment or other final adjudication that such Indemnified Person was not entitled to indemnification with respect to such judgment, costs or expenses, then such party shall not be indemnified with respect to such judgment, costs or expenses and any advancement shall be returned to the Company (without interest) by the Indemnified Person.
37.3The Directors, on behalf of the Company, may purchase and maintain insurance for the benefit of any Director or other officer of the Company against any liability which, by virtue of any rule of
law, would otherwise attach to such person in respect of any negligence, default, breach of duty or breach of trust of which such person may be guilty in relation to the Company.
37.4Neither any amendment nor repeal of the Articles set forth under this heading of "INDEMNITY" (the "Indemnification Articles"), nor the adoption of any provision of the Company's Articles or Memorandum of Association inconsistent with the Indemnification Articles, shall eliminate or reduce the effect of the Indemnification Articles, in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for these Indemnification Articles, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
38FINANCIAL YEAR
38.1Unless the Directors otherwise prescribe, the financial year of the Company shall end on the last Friday of August in each year and shall begin on the following day in each year.
39WINDING UP
39.1If the Company shall be wound up the liquidator shall apply the assets of the Company in satisfaction of creditors' claims in such manner and order as such liquidator thinks fit. Subject to the rights attaching to any shares, in a winding up:
(a)if the assets available for distribution amongst the Members shall be insufficient to repay the whole of the Company's issued share capital, such assets shall be distributed so that, as nearly as may be, the losses shall be borne by the Members in proportion to the par value of the shares held by them; or
(b)if the assets available for distribution amongst the Members shall be more than sufficient to repay the whole of the Company's issued share capital at the commencement of the winding up, the surplus shall be distributed amongst the Members in proportion to the par value of the shares held by them at the commencement of the winding up subject to a deduction from those shares in respect of which there are monies due, of all monies payable to the Company for unpaid calls or otherwise.
39.2If the Company shall be wound up the liquidator may, subject to the rights attaching to any shares and with the sanction of a Special Resolution of the Company and any other sanction required by the Statute, divide amongst the Members in kind the whole or any part of the assets of the Company (whether such assets shall consist of property of the same kind or not ) and may for that purpose value any assets and determine how the division shall be carried out as between the Members or different classes or series of Members. The liquidator may, with the like sanction, vest the whole or any part of such assets in trustees upon such trusts for the benefit of the Members as the liquidator, with the like sanction, shall think fit, but so that no Member shall be compelled to accept any asset upon which there is a liability.
40AMENDMENT OF MEMORANDUM AND ARTICLES OF ASSOCIATION AND NAME OF COMPANY
40.1Subject to the Statute and these Articles, the Company may at any time and from time to time by Special Resolution alter, amend, change or repeal these Articles or the Memorandum of Association of the Company, in whole or in part, or change the name of the Company.
41REGISTRATION BY WAY OF CONTINUATION
41.1Subject to these Articles, the Company may by Special Resolution resolve to be registered by way of continuation in a jurisdiction outside the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing. In furtherance of a resolution adopted pursuant to this Article, the Directors may cause an application to be made to the Registrar of Companies to deregister the Company in the Cayman Islands or such other jurisdiction in which it is for the time being incorporated, registered or existing and may cause all such further steps as they consider appropriate to be taken to effect the transfer by way of continuation of the Company.
Exhibit 99.1
Press Release
FOR IMMEDIATE RELEASE
PENGUIN SOLUTIONS REPORTS FOURTH QUARTER AND
FULL YEAR FISCAL 2024 FINANCIAL RESULTS
SMART Global Holdings Is Now Penguin Solutions
Q4 FY24 Revenue Across All Business Segments Up Sequentially
Milpitas, Calif. – October 15, 2024 – Penguin Solutions, Inc. (“Penguin Solutions,” “we,” “us,” or the “Company”) (NASDAQ: PENG) today announced its new company name and reported financial results for the fourth quarter and full year fiscal 2024.
New Company Name and Ticker Symbol
The Company is pleased to announce the successful completion of its name change from SMART Global Holdings, Inc. to Penguin Solutions, Inc., a move that reflects the Company’s strategic transformation and evolving focus on key areas such as artificial intelligence (“AI”) infrastructure deployment, advanced memory enterprise solutions and high-performance computing. Effective today, the Company’s ordinary shares are trading under the new ticker symbol “PENG” on Nasdaq.
Fiscal 2024 Highlights
•Net sales of $1.2 billion versus $1.4 billion in fiscal year 2023
•GAAP gross margin of 29.1%, up 30 basis points versus fiscal year 2023
•Non-GAAP gross margin of 31.9%, up 20 basis points versus fiscal year 2023
•GAAP EPS of $(0.85) versus $0.15 in fiscal year 2023
•Non-GAAP EPS of $1.25 versus $2.52 in fiscal year 2023
Fourth Quarter Fiscal 2024 Highlights
•Net sales of $311 million, down 1.7% versus the year-ago quarter
•GAAP gross margin of 28.0%, down 90 basis points versus the year-ago quarter
•Non-GAAP gross margin of 30.9%, down 80 basis points versus the year-ago quarter
•GAAP EPS of $(0.46) versus $1.17 in the year-ago quarter
•Non-GAAP EPS of $0.37 versus $0.35 in the year-ago quarter
“We are pleased with our Q4 results, highlighted by our third consecutive quarter of sequential top line growth,” said Mark Adams, CEO of Penguin Solutions. “Our Company’s transition to Penguin Solutions reinforces our commitment to solving the complexities of AI infrastructure, managing our customers’ implementations with the design, build, deployment, and management of cutting-edge AI solutions,” concluded Adams.
Annual Financial Results
| | | | | | | | | | | | | | | | | | | | | | | |
| | GAAP (1) | | Non-GAAP (2) |
| (in thousands, except per share amounts) | FY24 | | FY23 | | FY24 | | FY23 |
| Net sales: | | | | | | | |
| Intelligent Platform Solutions | $ | 554,552 | | | $ | 749,708 | | | $ | 554,552 | | | $ | 749,708 | |
| Memory Solutions | 356,426 | | | 443,264 | | | 356,426 | | | 443,264 | |
| LED Solutions | 259,818 | | | 248,278 | | | 259,818 | | | 248,278 | |
| Total net sales | $ | 1,170,796 | | | $ | 1,441,250 | | | $ | 1,170,796 | | | $ | 1,441,250 | |
| | | | | | | |
| Gross profit | $ | 340,776 | | | $ | 415,171 | | | $ | 373,981 | | | $ | 456,578 | |
| Operating income | 18,295 | | | 8,745 | | | 120,257 | | | 179,794 | |
| Net income (loss) attributable to Penguin Solutions | (44,324) | | | 7,858 | | | 66,907 | | | 127,681 | |
| Diluted earnings (loss) per share | $ | (0.85) | | | $ | 0.15 | | | $ | 1.25 | | | $ | 2.52 | |
Quarterly Financial Results
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | GAAP (1) | | Non-GAAP (2) |
| (in thousands, except per share amounts) | Q4 FY24 | | Q3 FY24 | | Q4 FY23 | | Q4 FY24 | | Q3 FY24 | | Q4 FY23 |
| Net sales: | | | | | | | | | | | |
| Intelligent Platform Solutions | $ | 149,355 | | | $ | 144,968 | | | $ | 145,432 | | | $ | 149,355 | | | $ | 144,968 | | | $ | 145,432 | |
| Memory Solutions | 95,832 | | | 91,629 | | | 105,181 | | | 95,832 | | | 91,629 | | | 105,181 | |
| LED Solutions | 65,961 | | | 63,983 | | | 66,045 | | | 65,961 | | | 63,983 | | | 66,045 | |
| Total net sales | $ | 311,148 | | | $ | 300,580 | | | $ | 316,658 | | | $ | 311,148 | | | $ | 300,580 | | | $ | 316,658 | |
| | | | | | | | | | | |
| Gross profit | $ | 87,086 | | | $ | 88,906 | | | $ | 91,585 | | | $ | 96,007 | | | $ | 96,962 | | | $ | 100,300 | |
| Operating income (loss) | 8,791 | | | 11,511 | | | (1,639) | | | 33,739 | | | 33,325 | | | 30,295 | |
| Net income (loss) attributable to Penguin Solutions | (24,547) | | | 5,616 | | | 64,841 | | | 20,007 | | | 20,221 | | | 18,406 | |
| Diluted earnings (loss) per share | $ | (0.46) | | | $ | 0.10 | | | $ | 1.17 | | | $ | 0.37 | | | $ | 0.37 | | | $ | 0.35 | |
(1)GAAP represents U.S. Generally Accepted Accounting Principles.
(2)Non-GAAP represents GAAP excluding the impact of certain activities. Further information regarding the Company’s use of non-GAAP measures and reconciliations between GAAP and non-GAAP measures is included within this press release.
Business Outlook
As of October 15, 2024, Penguin Solutions is providing the following financial outlook for fiscal year 2025:
| | | | | | | | | | | | | | |
| | GAAP Outlook | Adjustments | Non-GAAP Outlook |
| Net sales | 15% YoY Growth +/- 5% | — | 15% YoY Growth +/- 5% |
| Gross margin | 30% +/- 1% | 2% | (A) | 32% +/- 1% |
| Operating expenses | $335 million +/- $15 million | ($60) million | (B)(C) | $275 million +/- $15 million |
| Diluted earnings per share | $0.30 +/- $0.20 | $1.40 | (A)(B)(C)(D) | $1.70 +/- $0.20 |
| Diluted shares | 56.3 million | — | 56.3 million |
| | | | | |
| Non-GAAP adjustments (in millions) | |
| (A) Share-based compensation and amortization of acquisition-related intangibles included in cost of sales | $ | 31 | |
| (B) Share-based compensation and amortization of acquisition-related intangibles included in R&D and SG&A | 48 | |
| (C) Other adjustments | 12 | |
| (D) Estimated income tax effects | (12) | |
| $ | 79 | |
Fourth Quarter and Full Year Fiscal 2024 Earnings Conference Call and Webcast Details
Penguin Solutions will hold a conference call and webcast to discuss the fourth quarter and full year fiscal 2024 results and related matters today, October 15, 2024, at 1:30 p.m. Pacific Time (4:30 p.m. Eastern Time). Interested parties may access the call by dialing +1-833-470-1428 in the United States or +1-929-526-1599 from international locations, using the access code 916986. The earnings presentation and a live webcast of the conference call can be accessed from the Company’s investor relations website (https://ir.penguinsolutions.com/investors/default.aspx) where they will remain available for approximately one year.
Use of Forward-Looking Statements
This press release contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, Section 21E of the Securities Exchange Act of 1934, as amended, and the Private Securities Litigation Reform Act of 1995. These statements include, but are not limited to, statements concerning or regarding future events and the future financial and operating performance of Penguin Solutions; statements regarding the extent and timing of and expectations regarding Penguin Solutions’ future revenues and expenses; statements regarding Penguin Solutions’ strategic transformation and priorities; statements regarding long-term effective tax rates; and statements regarding the business and financial outlook for the next fiscal year described under “Business Outlook” above.
These statements can be identified by the fact that they do not relate strictly to historical or current facts. Forward-looking statements often use words such as “anticipate,” “target,” “expect,” “estimate,” “intend,” “plan,” “goal,” “believe,” “could,” and other words of similar meaning. Forward-looking statements provide our current expectations or forecasts of future events, circumstances, results or aspirations and are subject to a number of significant risks, uncertainties and other factors, many of which are outside of our control, including but not limited to: global business and economic conditions and growth trends in technology industries (including trends and markets related to AI), our customer markets and various geographic regions; uncertainties in the geopolitical environment; the ability to manage our cost structure; disruptions in our operations or supply chain as a result of global pandemics or otherwise; changes in trade regulations or adverse developments in international trade relations and agreements; changes in currency exchange rates; overall information technology spending; appropriations for government spending; the success of our strategic initiatives including our rebranding and related strategy, any potential collaborations and additional investments in new products and additional capacity; acquisitions of companies or technologies and the failure to successfully integrate and operate them or customers’ negative reactions to them; issues, delays or complications in integrating the operations of Stratus
Technologies; failure to achieve the intended benefits of the sale of SMART Brazil and its business; limitations on or changes in the availability of supply of materials and components; fluctuations in material costs; the temporary or volatile nature of pricing trends in memory or elsewhere; deterioration in customer relationships; our dependence on a select number of customers and the timing and volume of customer orders; production or manufacturing difficulties; competitive factors; technological changes; difficulties with, or delays in, the introduction of new products; slowing or contraction of growth in the memory market, LED market or other markets in which we participate; changes to applicable tax regimes or rates; changes to the valuation allowance for our deferred tax assets, including any potential inability to realize these assets in the future; prices for the end products of our customers; strikes or labor disputes; deterioration in or loss of relations with any of our limited number of key vendors; the inability to maintain or expand government business; and the continuing availability of borrowings under term loans and revolving lines of credit and our ability to raise capital through debt or equity financings.
These and other risks, uncertainties and factors are described in greater detail under the sections titled “Risk Factors,” “Critical Accounting Estimates,” “Results of Operations,” “Quantitative and Qualitative Disclosures About Market Risk” and “Liquidity and Capital Resources” contained in our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q and our other filings with the U.S. Securities and Exchange Commission. In addition, such risks, uncertainties and factors as outlined above and in such filings do not constitute all risks, uncertainties and factors that could cause our actual results to be materially different from such forward-looking statements. Accordingly, investors are cautioned not to place undue reliance on any forward-looking statements. Any forward-looking statements that we make in this press release speak only as of the date of this press release. Except as required by law, we do not undertake to update the forward-looking statements contained in this press release to reflect the impact of circumstances or events that may arise after the date that the forward-looking statements were made.
Statement Regarding Use of Non-GAAP Financial Measures
This press release and the accompanying tables contain the following non-GAAP financial measures: non-GAAP gross profit, non-GAAP gross margin, non-GAAP operating expenses, non-GAAP operating income, non-GAAP effective tax rate, non-GAAP net income, non-GAAP weighted-average shares outstanding, non-GAAP diluted earnings per share and Adjusted EBITDA. Penguin Solutions management uses these non-GAAP measures to supplement Penguin Solutions’ financial results under GAAP. Management uses these measures to analyze its operations and make decisions as to future operational plans and believes that this supplemental non-GAAP information is useful to investors in analyzing and assessing the Company’s past and future operating performance. These non-GAAP measures exclude certain items, such as share-based compensation expense; amortization of acquisition-related intangible assets (consisting of amortization of developed technology, customer relationships and trademarks/trade names acquired in connection with business combinations); acquisition-related inventory adjustments; diligence, acquisition and integration expense; restructure charges; impairment of goodwill; changes in the fair value of contingent consideration; gains (losses) from changes in currency exchange rates; amortization of debt issuance costs; gain (loss) on extinguishment or prepayment of debt; other infrequent or unusual items and related tax effects and other tax adjustments. While amortization of acquisition-related intangible assets is excluded, the revenues from acquired companies is reflected in the Company’s non-GAAP measures and these intangible assets contribute to revenue generation. Management believes the presentation of operating results that exclude certain items provides useful supplemental information to investors and facilitates the analysis of the Company’s core operating results and comparison of operating results across reporting periods. Management also uses adjusted EBITDA, which represents GAAP net income (loss), adjusted for net interest expense; income tax provision (benefit); depreciation and amortization expense; share-based compensation expense; acquisition-related inventory adjustments; diligence, acquisition and integration expense; restructure charges; impairment of goodwill; changes in the fair value of contingent consideration; gain (loss) on extinguishment or prepayment of debt and other infrequent or unusual items.
In fiscal 2024, for our non-GAAP reporting, we began to utilize a long-term projected non-GAAP effective tax rate of 28%, which includes the tax impact of pre-tax non-GAAP adjustments and reflects currently available information as well as other factors and assumptions. While we expect to use this normalized non-GAAP effective tax rate through fiscal 2025, this long-term non-GAAP effective tax rate may be subject to change for a variety of reasons, including the rapidly evolving global tax environment, significant changes in our geographic earnings mix
or changes to our strategy or business operations. Our GAAP effective tax rate can vary significantly from quarter to quarter based on a variety of factors, including, but not limited to, discrete items which are recorded in the period they occur, the tax effects of certain items of income or expense, significant changes in our geographic earnings mix or changes to our strategy or business operations. We are unable to predict the timing and amounts of these items, which could significantly impact our GAAP effective tax rate, and therefore we are unable to reconcile our forward-looking non-GAAP effective tax rate measure to our GAAP effective tax rate.
Non-GAAP financial measures should not be considered as a substitute for, or superior to, measures of financial performance prepared in accordance with GAAP, as they exclude important information about Penguin Solutions’ financial results, as noted above. The presentation of these adjusted amounts varies from amounts presented in accordance with GAAP and therefore may not be comparable to amounts reported by other companies. In addition, adjusted EBITDA does not purport to represent cash flow provided by, or used for, operating activities in accordance with GAAP and should not be used as a measure of liquidity. Investors are encouraged to review the “Reconciliation of GAAP to Non-GAAP Measures” tables below.
About Penguin Solutions
The most exciting technological advancements are also the most challenging for companies to adopt. At Penguin Solutions, we support our customers in achieving their ambitions across our computing, memory, and LED lines of business. With our expert skills, experience, and partnerships, we turn our customers’ most complex challenges into compelling opportunities.
For more information, visit www.penguinsolutions.com.
Penguin Solutions, Inc.
Consolidated Statements of Operations
(In thousands, except per share amounts)
(Unaudited)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Three Months Ended | | Year Ended |
| | August 30,
2024 | | May 31,
2024 | | August 25,
2023 | | August 30,
2024 | | August 25,
2023 |
| Net sales: | | | | | | | | | |
Intelligent Platform Solutions | $ | 149,355 | | | $ | 144,968 | | | $ | 145,432 | | | $ | 554,552 | | | $ | 749,708 | |
Memory Solutions | 95,832 | | | 91,629 | | | 105,181 | | | 356,426 | | | 443,264 | |
LED Solutions | 65,961 | | | 63,983 | | | 66,045 | | | 259,818 | | | 248,278 | |
| Total net sales | 311,148 | | | 300,580 | | | 316,658 | | | 1,170,796 | | | 1,441,250 | |
| Cost of sales | 224,062 | | | 211,674 | | | 225,073 | | | 830,020 | | | 1,026,079 | |
| Gross profit | 87,086 | | | 88,906 | | | 91,585 | | | 340,776 | | | 415,171 | |
| | | | | | | | | |
| Operating expenses: | | | | | | | | | |
| Research and development | 19,941 | | | 19,681 | | | 20,883 | | | 81,537 | | | 90,565 | |
| Selling, general and administrative | 58,029 | | | 57,249 | | | 65,026 | | | 233,880 | | | 260,722 | |
| Impairment of goodwill | — | | | — | | | 1,534 | | | — | | | 19,092 | |
| Change in fair value of contingent consideration | — | | | — | | | 4,100 | | | — | | | 29,000 | |
| Other operating (income) expense | 325 | | | 465 | | | 1,681 | | | 7,064 | | | 7,047 | |
| Total operating expenses | 78,295 | | | 77,395 | | | 93,224 | | | 322,481 | | | 406,426 | |
| Operating income (loss) | 8,791 | | | 11,511 | | | (1,639) | | | 18,295 | | | 8,745 | |
| | | | | | | | | |
| Non-operating (income) expense: | | | | | | | | | |
| Interest expense, net | 5,403 | | | 6,167 | | | 9,183 | | | 28,378 | | | 36,421 | |
| Other non-operating (income) expense | 20,971 | | | 441 | | | (462) | | | 21,084 | | | 11,837 | |
| Total non-operating (income) expense | 26,374 | | | 6,608 | | | 8,721 | | | 49,462 | | | 48,258 | |
| Income (loss) before taxes | (17,583) | | | 4,903 | | | (10,360) | | | (31,167) | | | (39,513) | |
| | | | | | | | | |
| Income tax provision (benefit) | 6,209 | | | (1,323) | | | (75,890) | | | 10,618 | | | (49,203) | |
| Net income (loss) from continuing operations | (23,792) | | | 6,226 | | | 65,530 | | | (41,785) | | | 9,690 | |
| Net loss from discontinued operations | — | | | — | | | (205,685) | | | (8,148) | | | (195,384) | |
| Net income (loss) | (23,792) | | | 6,226 | | | (140,155) | | | (49,933) | | | (185,694) | |
| Net income attributable to noncontrolling interest | 755 | | | 610 | | | 689 | | | 2,539 | | | 1,832 | |
| Net income (loss) attributable to Penguin Solutions | $ | (24,547) | | | $ | 5,616 | | | $ | (140,844) | | | $ | (52,472) | | | $ | (187,526) | |
| | | | | | | | | |
| Basic earnings (loss) per share: | | | | | | | | | |
| Continuing operations | $ | (0.46) | | | $ | 0.11 | | | $ | 1.28 | | | $ | (0.85) | | | $ | 0.16 | |
| Discontinued operations | — | | | — | | | (4.05) | | | (0.15) | | | (3.94) | |
| $ | (0.46) | | | $ | 0.11 | | | $ | (2.77) | | | $ | (1.00) | | | $ | (3.78) | |
| | | | | | | | | |
| Diluted earnings (loss) per share: | | | | | | | | | |
| Continuing operations | $ | (0.46) | | | $ | 0.10 | | | $ | 1.17 | | | $ | (0.85) | | | $ | 0.15 | |
| Discontinued operations | — | | | — | | | (3.71) | | | (0.15) | | | (3.80) | |
| $ | (0.46) | | | $ | 0.10 | | | $ | (2.54) | | | $ | (1.00) | | | $ | (3.65) | |
| | | | | | | | | |
| Shares used in per share calculations: | | | | | | | | | |
| Basic | 53,071 | | | 52,570 | | | 50,807 | | | 52,428 | | | 49,566 | |
| Diluted | 53,071 | | | 54,283 | | | 55,523 | | | 52,428 | | | 51,322 | |
Penguin Solutions, Inc.
Reconciliation of GAAP to Non-GAAP Measures
(In thousands, except percentages)
(Unaudited)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Three Months Ended | | Year Ended |
| | August 30,
2024 | | May 31,
2024 | | August 25,
2023 | | August 30,
2024 | | August 25,
2023 |
| GAAP gross profit | $ | 87,086 | | | $ | 88,906 | | | $ | 91,585 | | | $ | 340,776 | | | $ | 415,171 | |
| Share-based compensation expense | 1,847 | | | 1,760 | | | 1,789 | | | 7,113 | | | 6,334 | |
| Amortization of acquisition-related intangibles | 5,909 | | | 5,909 | | | 5,876 | | | 23,656 | | | 25,661 | |
| Flow-through of inventory step up | — | | | — | | | — | | | — | | | 2,599 | |
| Cost of sales-related restructure | 865 | | | 387 | | | 1,050 | | | 2,136 | | | 6,813 | |
| Non-GAAP gross profit | $ | 96,007 | | | $ | 96,962 | | | $ | 100,300 | | | $ | 373,981 | | | $ | 456,578 | |
| | | | | | | | | | |
| GAAP gross margin | 28.0 | % | | 29.6 | % | | 28.9 | % | | 29.1 | % | | 28.8 | % |
| Effect of adjustments | 2.9 | % | | 2.7 | % | | 2.8 | % | | 2.8 | % | | 2.9 | % |
| Non-GAAP gross margin | 30.9 | % | | 32.3 | % | | 31.7 | % | | 31.9 | % | | 31.7 | % |
| | | | | | | | | |
| GAAP operating expenses | $ | 78,295 | | | $ | 77,395 | | | $ | 93,224 | | | $ | 322,481 | | | $ | 406,426 | |
| Share-based compensation expense | (8,512) | | | (9,432) | | | (7,785) | | | (36,047) | | | (32,894) | |
| Amortization of acquisition-related intangibles | (3,838) | | | (3,857) | | | (5,443) | | | (15,616) | | | (18,940) | |
| Diligence, acquisition and integration expense | (2,094) | | | (4) | | | (2,676) | | | (8,772) | | | (20,869) | |
| Impairment of goodwill | — | | | — | | | (1,534) | | | — | | | (19,092) | |
| Change in fair value of contingent consideration | — | | | — | | | (4,100) | | | — | | | (29,000) | |
| Restructure charge | (325) | | | (465) | | | (1,681) | | | (7,064) | | | (7,047) | |
| Other | (1,258) | | | — | | | — | | | (1,258) | | | (1,800) | |
| Non-GAAP operating expenses | $ | 62,268 | | | $ | 63,637 | | | $ | 70,005 | | | $ | 253,724 | | | $ | 276,784 | |
| | | | | | | | | | |
| GAAP operating income (loss) | $ | 8,791 | | | $ | 11,511 | | | $ | (1,639) | | | $ | 18,295 | | | $ | 8,745 | |
| Share-based compensation expense | 10,359 | | | 11,192 | | | 9,574 | | | 43,160 | | | 39,228 | |
| Amortization of acquisition-related intangibles | 9,747 | | | 9,766 | | | 11,319 | | | 39,272 | | | 44,601 | |
| Flow-through of inventory step up | — | | | — | | | — | | | — | | | 2,599 | |
| Cost of sales-related restructure | 865 | | | 387 | | | 1,050 | | | 2,136 | | | 6,813 | |
| Diligence, acquisition and integration expense | 2,094 | | | 4 | | | 2,676 | | | 8,772 | | | 20,869 | |
| Impairment of goodwill | — | | | — | | | 1,534 | | | — | | | 19,092 | |
| Change in fair value of contingent consideration | — | | | — | | | 4,100 | | | — | | | 29,000 | |
| Restructure charge | 325 | | | 465 | | | 1,681 | | | 7,064 | | | 7,047 | |
| Other | 1,558 | | | — | | | — | | | 1,558 | | | 1,800 | |
| Non-GAAP operating income | $ | 33,739 | | | $ | 33,325 | | | $ | 30,295 | | | $ | 120,257 | | | $ | 179,794 | |
Penguin Solutions, Inc.
Reconciliation of GAAP to Non-GAAP Measures
(In thousands, except per share amounts)
(Unaudited)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Three Months Ended | | Year Ended |
| | August 30,
2024 | | May 31,
2024 | | August 25,
2023 | | August 30,
2024 | | August 25,
2023 |
| GAAP net income (loss) attributable to Penguin Solutions | $ | (24,547) | | | $ | 5,616 | | | $ | 64,841 | | | $ | (44,324) | | | $ | 7,858 | |
| Share-based compensation expense | 10,359 | | | 11,192 | | | 9,574 | | | 43,160 | | | 39,228 | |
| Amortization of acquisition-related intangibles | 9,747 | | | 9,766 | | | 11,319 | | | 39,272 | | | 44,601 | |
| Flow-through of inventory step up | — | | | — | | | — | | | — | | | 2,599 | |
| Cost of sales-related restructure | 865 | | | 387 | | | 1,050 | | | 2,136 | | | 6,813 | |
| Diligence, acquisition and integration expense | 2,094 | | | 4 | | | 2,676 | | | 8,772 | | | 20,869 | |
| Impairment of goodwill | — | | | — | | | 1,534 | | | — | | | 19,092 | |
| Change in fair value of contingent consideration | — | | | — | | | 4,100 | | | — | | | 29,000 | |
| Restructure charge | 325 | | | 465 | | | 1,681 | | | 7,064 | | | 7,047 | |
| Amortization of debt issuance costs | 897 | | | 817 | | | 1,010 | | | 3,724 | | | 4,064 | |
| Loss (gain) on extinguishment or prepayment of debt | 21,646 | | | 792 | | | — | | | 22,763 | | | 15,924 | |
| Foreign currency (gains) losses | (1,072) | | | 606 | | | (276) | | | (830) | | | (221) | |
| Other | 1,558 | | | — | | | — | | | 1,558 | | | 1,800 | |
| Income tax effects | (1,865) | | | (9,424) | | | (79,103) | | | (16,388) | | | (70,993) | |
| Non-GAAP net income attributable to Penguin Solutions | $ | 20,007 | | | $ | 20,221 | | | $ | 18,406 | | | $ | 66,907 | | | $ | 127,681 | |
| | | | | | | | | |
| Weighted-average shares outstanding - Diluted: | | | | | | | | | |
| GAAP weighted-average shares outstanding | 53,071 | | | 54,283 | | | 55,523 | | | 52,428 | | | 51,322 | |
| Adjustment for dilutive securities and capped calls | 1,434 | | | (333) | | | (2,233) | | | 1,268 | | | (558) | |
| Non-GAAP weighted-average shares outstanding | 54,505 | | | 53,950 | | | 53,290 | | | 53,696 | | | 50,764 | |
| | | | | | | | | |
| Diluted earnings (loss) per share from continuing operations: | | | | | | | | | |
| GAAP diluted earnings (loss) per share | $ | (0.46) | | | $ | 0.10 | | | $ | 1.17 | | | $ | (0.85) | | | $ | 0.15 | |
| Effect of adjustments | 0.83 | | | 0.27 | | | (0.82) | | | 2.10 | | | 2.37 | |
| Non-GAAP diluted earnings per share | $ | 0.37 | | | $ | 0.37 | | | $ | 0.35 | | | $ | 1.25 | | | $ | 2.52 | |
| | | | | | | | | | |
| Net income (loss) attributable to Penguin Solutions | $ | (24,547) | | | $ | 5,616 | | | $ | 64,841 | | | $ | (44,324) | | | $ | 7,858 | |
| Interest expense, net | 5,403 | | | 6,167 | | | 9,183 | | | 28,378 | | | 36,421 | |
| Income tax provision (benefit) | 6,209 | | | (1,323) | | | (75,890) | | | 10,618 | | | (49,203) | |
| Depreciation expense and amortization of intangible assets | 15,381 | | | 15,525 | | | 18,830 | | | 65,716 | | | 71,632 | |
| Share-based compensation expense | 10,359 | | | 11,192 | | | 9,574 | | | 43,160 | | | 39,228 | |
| Flow-through of inventory step up | — | | | — | | | — | | | — | | | 2,599 | |
| Cost of sales-related restructure | 865 | | | 387 | | | 1,050 | | | 2,136 | | | 6,813 | |
| Diligence, acquisition and integration expense | 2,094 | | | 4 | | | 2,676 | | | 8,772 | | | 20,869 | |
| Impairment of goodwill | — | | | — | | | 1,534 | | | — | | | 19,092 | |
| Change in fair value of contingent consideration | — | | | — | | | 4,100 | | | — | | | 29,000 | |
| Restructure charge | 325 | | | 465 | | | 1,681 | | | 7,064 | | | 7,047 | |
| Loss on extinguishment of debt | 21,646 | | | 792 | | | — | | | 22,763 | | | 15,924 | |
| Other | 1,558 | | | — | | | — | | | 1,558 | | | 1,800 | |
| Adjusted EBITDA | $ | 39,293 | | | $ | 38,825 | | | $ | 37,579 | | | $ | 145,841 | | | $ | 209,080 | |
Penguin Solutions, Inc.
Consolidated Balance Sheets
(In thousands)
(Unaudited)
| | | | | | | | | | | |
| As of | August 30,
2024 | | August 25,
2023 |
| Assets | | | |
| Cash and cash equivalents | $ | 383,147 | | | $ | 365,563 | |
| Short-term investments | 6,337 | | | 25,251 | |
| Accounts receivable, net | 251,743 | | | 219,247 | |
| Inventories | 151,213 | | | 174,977 | |
| Other current assets | 75,264 | | | 51,790 | |
| Current assets of discontinued operations | — | | | 70,574 | |
| Total current assets | 867,704 | | | 907,402 | |
| Property and equipment, net | 106,548 | | | 118,734 | |
| Operating lease right-of-use assets | 60,349 | | | 68,444 | |
| Intangible assets, net | 121,454 | | | 160,185 | |
| Goodwill | 161,958 | | | 161,958 | |
| Deferred tax assets | 85,078 | | | 74,085 | |
| Other noncurrent assets | 71,415 | | | 15,150 | |
| Total assets | $ | 1,474,506 | | | $ | 1,505,958 | |
| | | |
| Liabilities and Equity | | | |
| Accounts payable and accrued expenses | $ | 219,090 | | | $ | 182,035 | |
| Current debt | — | | | 35,618 | |
| Deferred revenue | 63,954 | | | 48,096 | |
| Other current liabilities | 44,552 | | | 32,731 | |
| Acquisition-related contingent consideration | — | | | 50,000 | |
| Current liabilities of discontinued operations | — | | | 77,770 | |
| Total current liabilities | 327,596 | | | 426,250 | |
| Long-term debt | 657,347 | | | 754,820 | |
| Noncurrent operating lease liabilities | 60,542 | | | 66,407 | |
| Other noncurrent liabilities | 29,813 | | | 29,248 | |
| Total liabilities | 1,075,298 | | | 1,276,725 | |
| | | |
| Commitments and contingencies | | | |
| | | |
| Penguin Solutions shareholders’ equity: | | | |
| Preferred shares | — | | | — | |
| Ordinary shares | 1,807 | | | 1,726 | |
| Additional paid-in capital | 513,335 | | | 476,703 | |
| Retained earnings | 29,985 | | | 82,457 | |
| Treasury shares | (153,756) | | | (132,447) | |
| Accumulated other comprehensive income (loss) | 10 | | | (205,964) | |
| Total Penguin Solutions shareholders’ equity | 391,381 | | | 222,475 | |
| Noncontrolling interest in subsidiary | 7,827 | | | 6,758 | |
| Total equity | 399,208 | | | 229,233 | |
| Total liabilities and equity | $ | 1,474,506 | | | $ | 1,505,958 | |
Penguin Solutions, Inc.
Consolidated Statements of Cash Flows
(In thousands)
(Unaudited)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Three Months Ended | | Year Ended |
| August 30,
2024 | | May 31,
2024 | | August 25,
2023 | | August 30,
2024 | | August 25,
2023 |
| Cash flows from operating activities | | | | | | | | | |
| Net income (loss) | $ | (23,792) | | | $ | 6,226 | | | $ | (140,155) | | | $ | (49,933) | | | $ | (185,694) | |
| Net income (loss) from discontinued operations | — | | | — | | | (205,685) | | | (8,148) | | | (195,384) | |
| Net income (loss) from continuing operations | (23,792) | | | 6,226 | | | 65,530 | | | (41,785) | | | 9,690 | |
| Adjustments to reconcile net income (loss) from continuing operations to cash provided by (used for) operating activities | | | | | | | | | |
| Depreciation expense and amortization of intangible assets | 15,381 | | | 15,525 | | | 18,830 | | | 65,716 | | | 71,632 | |
| Amortization of debt issuance costs | 897 | | | 817 | | | 1,010 | | | 3,724 | | | 4,064 | |
| Share-based compensation expense | 10,359 | | | 11,192 | | | 9,574 | | | 43,160 | | | 39,228 | |
| Impairment of goodwill | — | | | — | | | 1,534 | | | — | | | 19,092 | |
| Change in fair value of contingent consideration | — | | | — | | | 4,100 | | | — | | | 29,000 | |
| Loss on extinguishment or prepayment of debt | 21,646 | | | 792 | | | — | | | 22,763 | | | 15,924 | |
| Deferred income taxes, net | (7,396) | | | (3,840) | | | (65,228) | | | (11,042) | | | (63,603) | |
| Other | 83 | | | (3,228) | | | 701 | | | (2,689) | | | 4,008 | |
| Changes in operating assets and liabilities: | | | | | | | | | |
| Accounts receivable | (39,901) | | | (42,124) | | | 3,007 | | | (32,495) | | | 162,515 | |
| Inventories | 26,086 | | | (4,535) | | | 28,564 | | | 23,765 | | | 95,217 | |
| Other assets | 14,801 | | | 15,424 | | | (290) | | | 9,098 | | | 6,767 | |
| Accounts payable and accrued expenses and other liabilities | (30,320) | | | 83,632 | | | (29,776) | | | 54,306 | | | (256,133) | |
| Payment of acquisition-related contingent consideration | — | | | — | | | — | | | (29,000) | | | (73,724) | |
| Net cash provided by (used for) operating activities from continuing operations | (12,156) | | | 79,881 | | | 37,556 | | | 105,521 | | | 63,677 | |
| Net cash provided by (used for) operating activities from discontinued operations | — | | | (101) | | | (757) | | | (28,336) | | | 40,710 | |
| Net cash provided by (used for) operating activities | (12,156) | | | 79,780 | | | 36,799 | | | 77,185 | | | 104,387 | |
| | | | | | | | | |
| Cash flows from investing activities | | | | | | | | | |
| Capital expenditures and deposits on equipment | (5,795) | | | (3,777) | | | (7,747) | | | (19,424) | | | (39,421) | |
| Acquisition of business, net of cash acquired | — | | | — | | | — | | | — | | | (213,073) | |
| Proceeds from maturities of investment securities | 7,525 | | | 9,915 | | | — | | | 39,395 | | | — | |
| Purchases of held-to-maturity investment securities | — | | | — | | | (25,015) | | | (19,503) | | | (25,015) | |
| Purchases of non-marketable investments | (10,000) | | | (1,000) | | | (4,150) | | | (11,000) | | | (4,150) | |
| Other | (8) | | | (518) | | | (195) | | | (1,272) | | | 475 | |
| Net cash provided by (used for) investing activities from continuing operations | (8,278) | | | 4,620 | | | (37,107) | | | (11,804) | | | (281,184) | |
| Net cash provided by (used for) investing activities from discontinued operations | — | | | 451 | | | (11,640) | | | 119,389 | | | (17,385) | |
| Net cash provided by (used for) investing activities | $ | (8,278) | | | $ | 5,071 | | | $ | (48,747) | | | $ | 107,585 | | | $ | (298,569) | |
Penguin Solutions, Inc.
Consolidated Statements of Cash Flows, Continued
(In thousands)
(Unaudited)
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | Three Months Ended | | Year Ended |
| August 30,
2024 | | May 31,
2024 | | August 25,
2023 | | August 30,
2024 | | August 25,
2023 |
| Cash flows from financing activities | | | | | | | | | |
| Repayments of debt | $ | (224,703) | | | $ | (75,000) | | | $ | (7,212) | | | $ | (351,337) | | | $ | (21,634) | |
| Payments to acquire ordinary shares | (3,318) | | | (2,129) | | | (7,788) | | | (21,309) | | | (24,671) | |
| Payment of acquisition-related contingent consideration | — | | | — | | | — | | | (21,000) | | | (28,100) | |
| Net cash paid for settlement and purchase of capped calls | (16,300) | | | — | | | — | | | (16,300) | | | (4,304) | |
| Distribution to noncontrolling interest | — | | | — | | | — | | | (1,470) | | | (2,009) | |
| Repayments of borrowings under line of credit | — | | | — | | | — | | | — | | | — | |
| Proceeds from debt | 192,694 | | | — | | | — | | | 192,694 | | | 295,287 | |
| Proceeds from issuance of ordinary shares | 1,745 | | | 3,817 | | | 34,615 | | | 9,809 | | | 43,045 | |
| Proceeds from borrowing under line of credit | — | | | — | | | — | | | — | | | — | |
| Payment of premium in connection with convertible note exchange | — | | | — | | | — | | | — | | | (14,141) | |
| Other | 2 | | | (1) | | | (487) | | | (582) | | | (6,252) | |
| Net cash provided by (used for) financing activities from continuing operations | (49,880) | | | (73,313) | | | 19,128 | | | (209,495) | | | 237,221 | |
| Net cash used for financing activities from discontinued operations | — | | | — | | | (426) | | | (606) | | | (805) | |
| Net cash provided by (used for) financing activities | (49,880) | | | (73,313) | | | 18,702 | | | (210,101) | | | 236,416 | |
| | | | | | | | | |
| Effect of changes in currency exchange rates | — | | | (76) | | | 2,035 | | | (1,256) | | | 4,765 | |
| Net increase (decrease) in cash, cash equivalents and restricted cash | (70,314) | | | 11,462 | | | 8,789 | | | (26,587) | | | 46,999 | |
| Cash, cash equivalents and restricted cash at beginning of period | 453,791 | | | 442,329 | | | 401,275 | | | 410,064 | | | 363,065 | |
| Cash, cash equivalents and restricted cash at end of period | $ | 383,477 | | | $ | 453,791 | | | $ | 410,064 | | | $ | 383,477 | | | $ | 410,064 | |
| | | | | |
| Investor Contact: | PR Contact: |
| Suzanne Schmidt | Valerie Sassani |
| Investor Relations | VP of Marketing and Communications |
| +1-510-360-8596 | +1-510-941-8921 |
ir@penguinsolutions.com | pr@penguinsolutions.com |
v3.24.3
Cover
|
Oct. 15, 2024 |
| Cover [Abstract] |
|
| Document Type |
8-K
|
| Document Period End Date |
Oct. 15, 2024
|
| Entity Registrant Name |
PENGUIN SOLUTIONS, INC.
|
| Entity File Number |
001-38102
|
| Entity Incorporation, State or Country Code |
E9
|
| Entity Tax Identification Number |
98-1013909
|
| Entity Address, Address Line One |
c/o Walkers Corporate Limited
|
| Entity Address, Address Line Two |
190 Elgin Avenue
|
| Entity Address, City or Town |
George Town, Grand Cayman
|
| Entity Address, Country |
KY
|
| Entity Address, Postal Zip Code |
KY1-9008
|
| City Area Code |
510
|
| Local Phone Number |
623-1231
|
| Written Communications |
false
|
| Soliciting Material |
false
|
| Pre-commencement Tender Offer |
false
|
| Pre-commencement Issuer Tender Offer |
false
|
| Title of 12(b) Security |
Ordinary shares, $0.03 par value per share
|
| Trading Symbol |
PENG
|
| Security Exchange Name |
NASDAQ
|
| Entity Emerging Growth Company |
false
|
| Entity Central Index Key |
0001616533
|
| Amendment Flag |
false
|
| Current Fiscal Year End Date |
--08-30
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