As filed with the Securities and Exchange Commission on August 2, 2017
|
|
|
No. 333-
|
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
|
|
Washington, D.C. 20549
|
|
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AMIRA
NATURE FOODS LTD
(Exact name of Registrant as Specified in Its Charter)
British Virgin Islands
(State or Other Jurisdiction
of Incorporation or Organization)
|
|
98-0536376
(I.R.S. Employer Identification No.)
|
29E, A.U. Tower
Jumeirah Lake Towers
Dubai, United Arab Emirates
Telephone: +97144357303
(Address and telephone number of Registrant’s principal executive offices)
Amira
I Grand Foods Inc
12 East 52nd Street, 7th Floor
New York, NY 10022
Telephone: +1-646-779-1984
Attention: Bruce Wacha, Chief Financial Officer
(Name, address, and telephone number of agent
for service)
Copies to:
Tim Cruickshank
Kirkland & Ellis LLP
601 Lexington Avenue
New York, New York 10022
(212) 446-4800
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration
Statement.
If only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
¨
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following
box.
x
If this Form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering.
¨
If this Form is a post-effective amendment filed
pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number
of the earlier effective registration statement for the same offering.
¨
If this Form is a registration statement pursuant
to General Instruction I.C. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
¨
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company
x
If an emerging growth company that prepares
its financial statements in accordance with U.S. GAAP, 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 7(a)(2)(B)
of the Securities Act.
x
† The term “new or revised financial
accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting
Standards Codification after April 5, 2012.
CALCULATION OF REGISTRATION FEE
|
Title of each class of securities
to be registered (1)
|
|
Amount
to be registered
(2)
|
|
|
Proposed maximum
offering price
per unit (2)
|
|
|
Proposed maximum
aggregate
offering price (2)(3)
|
|
|
Amount of
registration fee
|
|
Debt Securities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ordinary Shares
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred Shares
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warrants
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Subscription Rights
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Units
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
$
|
100,000,000
|
|
|
$
|
11,590
|
(4)
|
|
(1)
|
Securities registered hereunder may be sold separately, together or as units with other securities registered hereunder.
|
|
(2)
|
The amount to be registered, proposed maximum aggregate offering price per unit and proposed maximum aggregate offering price
of each class of securities will be determined from time to time by the Registrant in connection with the issuance by the Registrant
of the securities registered hereunder and is not specified as to each class of securities pursuant to the General Instruction
II.C. of Form F-3 under the Securities Act of 1933.
|
|
(3)
|
The Registrant is registering an indeterminate aggregate amount of securities of each identified class of securities up to
a proposed aggregate offering price of $100,000,000 which may be offered from time to time in unspecified numbers and at indeterminate
prices, and as may be issued upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder,
including under any applicable anti-dilution provisions.
|
|
(4)
|
Calculated pursuant to Rule 457(o) under the Securities Act.
|
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
|
The information in this prospectus is not complete
and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission
is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION DATED
AUGUST 2, 2017
$100,000,000
Amira Nature Foods Ltd
DEBT SECURITIES
ORDINARY SHARES
PREFERRED SHARES
WARRANTS
SUBSCRIPTION RIGHTS
UNITS
We may from time to time offer to sell our debt securities, ordinary
shares, preferred shares, warrants or subscription rights, as well as units that include any of these securities. The debt securities
may consist of debentures, notes or other types of debt. Our ordinary shares are listed on the New York Stock Exchange and under
the ticker symbol “ANFI.” The debt securities, preferred shares, warrants, rights and units may be convertible or exercisable
for ordinary shares or preferred shares.
We may offer and sell these securities to or through one or more
underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. These securities also may be resold
by security holders.
This prospectus may not be used to offer or sell any securities
unless accompanied by a prospectus supplement. We will provide specific terms of any securities to be offered in supplements to
this prospectus. You should read this prospectus and the applicable prospectus supplement carefully before you invest.
Investing in our securities involves risks. See “Risk
Factors” beginning on page 2 of our annual report on Form 20-F for the year ended March 31, 2016, which is incorporated by
reference herein.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete.
Any representation to the contrary is a criminal offense.
The date of this prospectus is .
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed
with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under the
shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings, up to a maximum
aggregate offering price of $100,000,000.
This prospectus only provides you with a general description of
the securities we may offer. Each time we sell securities described in the prospectus we will provide a supplement to this prospectus
that will contain specific information about the terms of that offering, including the specific amounts, prices and terms of the
securities offered. The prospectus supplement may also add, update or change information contained in this prospectus. You should
carefully read both this prospectus and any accompanying prospectus supplement or other offering materials, together with the additional
information described under the heading “Where You Can Find More Information.”
You should rely only on the information contained or incorporated
by reference in this prospectus, any applicable prospectus supplement and any related free writing prospectus that we may authorize
be provided to you. We have not authorized any other person to provide you with different information or additional information.
If anyone provides you with different, inconsistent or additional information, you should not rely on it. We are not making offers
to sell or solicitations to buy the securities in any jurisdiction in which an offer or solicitation is not authorized or in which
the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or
solicitation.
This prospectus and any accompanying prospectus supplement or other
offering materials do not contain all of the information included in the registration statement as permitted by the rules and regulations
of the SEC. We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) and, therefore, file reports and other information with the SEC. Statements contained in this prospectus and any accompanying
prospectus supplement or other offering materials about the provisions or contents of any agreement or other document are only
summaries. If SEC rules require that any agreement or document be filed as an exhibit to the registration statement, you should
refer to that agreement or document for its complete contents.
You should assume that the information in this prospectus, any applicable
prospectus supplement or any related free writing prospectus is accurate only as of the date on the front of the document and that
any information that we have incorporated by reference is accurate only as of the date of the document incorporated by reference,
regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus,
or any sale of a security.
SUMMARY
You should carefully read this entire prospectus and any applicable
prospectus supplement, including each of the documents incorporated herein and therein by reference, before making an investment
decision. Unless the context requires otherwise, when used in this prospectus, “we”, “us”, “our”,
“the Company”, “the Group”, “our Company” or “ANFI” are to Amira Nature Foods Ltd,
a British Virgin Islands business company, including its subsidiaries.
We are a leading global manufacturer, marketer and distributor of
branded packaged specialty rice and other related food products, with sales across five continents around the world. We generate
the majority of our revenue through the sale of Basmati rice, a premium long-grain variety of rice grown only in the geographically
indicated region of the Indian sub-continent, as well as other specialty rice. We sell our products under our flagship Amira brand,
as well as under other Company owned brands and third party brands. We have also developed a line of Amira branded products to
complement our packaged rice offerings, such as edible oils and organic products. We plan to further expand our Amira branded product
offering into other value add categories. We also sell other products such as wheat, barley, legumes and other produce to large
institutional customers. Our fourth generation leadership has built on a rich, century-old legacy and transformed Amira from a
local family-run business to a publicly-listed globally focused packaged food company with a global leadership position in the
high growth Basmati rice sector. Under our current leadership, we significantly expanded our footprint in India and internationally.
We completed an initial public offering (“IPO”) in October 2012 and our shares are listed on the New York Stock Exchange
with the stock symbol “ANFI”.
Our principal executive offices are located at 29E, A.U. Tower,
Jumeirah Lake Towers, Dubai, United Arab Emirates. Our telephone number at that address is + 971 4435 7303, and our web address
is
www.amira.net
.
Information contained on, or that can be accessed through, our website is not incorporated by reference
in this prospectus or any prospectus supplement and does not constitute part of this prospectus or any prospectus supplement.
RISK FACTORS
An investment in our securities involves a high degree of risk.
You should carefully consider the risk factors incorporated by reference from our most recent Annual Report on Form 20-F and the
other information contained in this prospectus or any applicable prospectus supplement, as updated by our subsequent filings with
the SEC, pursuant to Sections 13(a), 14 or 15(d) of the Exchange Act, which are incorporated herein by reference, before buying
our securities. For more information see “Where You Can Find More Information” and “Incorporation of Certain
Documents By Reference.”
SPECIAL NOTE
REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, the registration statement of which it forms a
part, each prospectus supplement and the documents incorporated by reference into these documents contain statements of a forward-looking
nature. These statements are made under the “safe harbor” provisions of the U.S. Private Securities Litigation Reform
Act of 1995. You can identify these forward-looking statements by words or phrases such as “may,” “will,”
“expect ,” “anticipate,” “aim,” “estimate,” “intend,” “plan,”
“believe,” “is/are likely to,” “future” or other similar expressions. We have based these forward-looking
statements largely on our current expectations and projections about future events and financial trends that we believe may affect
our financial condition, results of operations, business strategy and financial needs. These forward-looking statements include,
but are not limited to:
|
·
|
our goals and strategies;
|
|
·
|
our future business development, results of operations and financial condition;
|
|
·
|
our ability to protect our intellectual property rights;
|
|
·
|
projected revenue, profits, adjusted profits, EBITDA, adjusted EBITDA, earnings, adjusted earnings and other estimated financial
information;
|
|
·
|
our ability to maintain strong relationships with our customers and suppliers;
|
|
·
|
the continued application of the proceeds from our initial public offering;
|
|
·
|
governmental policies regarding our industry; and
|
|
·
|
the impact of legal proceedings.
|
Factors that might cause actual results to differ include, but are
not limited to, those discussed in our most recent Annual Report on Form 20-F, which is incorporated by reference herein. Readers
are cautioned not to place undue reliance on any forward-looking statements contained herein, which reflect management’s
opinions only as of the date hereof. Except as required by law, we undertake no obligation to revise or publicly release the results
of any revision to any forward-looking statements. You are advised, however, to consult any additional disclosures we have made
or will make in our reports to the SEC on Forms 20-F and 6-K. All subsequent written and oral forward-looking statements attributable
to us or persons acting on our behalf are expressly qualified in their entirety by the cautionary statements contained in this
prospectus.
USE OF PROCEEDS
Unless otherwise set forth in a prospectus supplement, we intend
to use the net proceeds of any offering of securities for working capital and other general corporate purposes, which may include
the repayment or refinancing of outstanding indebtedness and the financing of future acquisitions. We may have significant discretion
in the use of any net proceeds. The net proceeds may be invested temporarily in interest-bearing accounts and short-term interest-bearing
securities until they are used for their stated purpose. We may provide additional information on the use of the net proceeds from
the sale of the offered securities in an applicable prospectus supplement relating to the offered securities.
RATIO OF EARNINGS
TO FIXED CHARGES
The following table sets forth our historical ratio of earnings
to fixed charges for the periods indicated:
For the year ended March 31,
|
2013
|
|
2014
|
|
2015
|
|
2016
|
|
2017
|
2.31:1
|
|
3.05:1
|
|
2.89:1
|
|
2.46:1
|
|
2.24:1
|
Because we have not issued any preferred shares to date, the ratios
of earnings to fixed charges and preferred stock dividend requirements are identical to the ratios shown above.
For the purposes
of the calculation of our historical ratio of earnings to fixed charges, earnings has been calculated in accordance with SEC rules.
Accordingly, no adjustment for one-time expenses, non-cash stock compensation expense or IPO-related expenses has been made.
DESCRIPTION
OF DEBT SECURITIES
The debt securities will have the terms described in this prospectus
unless the prospectus supplement describes different terms.
Each series of debt securities will be issued under an indenture
between us and a trustee to be named therein. The trustee will serve two principal roles:
|
·
|
the trustee can enforce your rights against us if an Event of Default described below occurs; and
|
|
·
|
the trustee performs various administrative duties.
|
The following description is a summary of selected provisions relating
to the debt securities and the indenture. We have filed the form of indenture as an exhibit to the registration statement of which
this prospectus is a part. When debt securities are offered in the future, the prospectus supplement will explain the particular
terms of those securities and the extent to which these general provisions may apply. Capitalized terms used in the summary have
the meanings specified in the indenture.
General
The debt securities will be senior debt securities. The indenture
does not limit the total principal amount of debt securities that we can issue. We may issue the debt securities in one or more
series as we may authorize from time to time. In addition, we may “reopen” a previous issue of debt securities by issuing
additional debt securities of that series.
A prospectus supplement and a supplemental indenture (or resolutions
of our board of directors in lieu of a supplemental indenture) relating to any series of debt securities being offered will include
specific terms relating to the offering. These terms will include some or all of the following:
|
·
|
the title of the debt securities;
|
|
·
|
any limit on the total principal amount of the debt securities;
|
|
·
|
the dates on which the principal and premium, if any, of the debt securities will be payable;
|
|
·
|
the interest rate (or method of determining the rate) that the debt securities will bear, the interest payment dates for the
debt securities and the record dates for determination of the holders to whom interest is payable;
|
|
·
|
the place where we will pay principal, premium and interest on the debt securities;
|
|
·
|
any optional redemption periods and prices and any specific terms or conditions related to optional redemptions;
|
|
·
|
whether the debt securities are convertible or exchangeable into other securities;
|
|
·
|
any sinking fund or other provisions that would obligate us to repurchase or otherwise redeem the debt securities;
|
|
·
|
the denominations in which we will issue the debt securities, if other than $1,000 and any integral multiple thereof;
|
|
·
|
the manner in which we will determine the amounts of principal, premium or interest payments on the debt securities if these
amounts may be determined by reference to an index;
|
|
·
|
the currency in which we will pay principal, premium and interest on the debt securities if other than the United States dollar;
|
|
·
|
if other than the entire principal amount, the portion of the principal amount of the debt securities (a) payable if the maturity
of the debt securities is accelerated or (b) provable in bankruptcy;
|
|
·
|
any provisions relating to any security provided for the debt securities;
|
|
·
|
any changes in or additions to the Events of Default (as defined below);
|
|
·
|
whether we will issue the debt securities in the form of global securities and the terms and conditions of the global securities;
|
|
·
|
any changes or additions to the covenants; and
|
|
·
|
any other terms of the debt securities.
|
We may issue debt securities at a discount below their stated principal
amount. Even if we do not issue the debt securities below their stated principal amount, for United States federal income tax purposes
the debt securities may be deemed to have been issued with a discount because of certain interest payment characteristics. We will
describe in a prospectus supplement the United States federal income tax considerations applicable to debt securities issued at
a discount or deemed to be issued at a discount. We will also describe in a prospectus supplement any special United States federal
income tax considerations or other restrictions or terms applicable to the debt securities being issued, including, as applicable,
securities issuable in bearer form, offered exclusively to foreigners or denominated in a foreign currency.
We may issue debt securities in fully registered form without coupons
or in a form registered as to principal only with coupons or in bearer form with coupons. Unless specified in the prospectus supplement,
the debt securities will be in fully registered form without coupons. In addition, we may issue debt securities in the form of
one or more global securities as described below.
Registration, Transfer and Payment
Principal of, premium, if any, and interest, if any, on fully registered
securities will be payable at the place or places we designate for such purpose, or we may pay interest by check mailed to the
persons in whose names the securities are registered at the close of business on the day or days specified in the prospectus supplement
accompanying this prospectus. The principal of, premium, if any, and interest, if any, on debt securities in other forms will be
payable in the manner and at the place we designate as specified in the applicable prospectus supplement.
You may present fully registered securities for transfer or exchange
at the corporate trust office of the trustee or any other office or agency we maintain for that purpose, without the payment of
any service charge except for any tax or governmental charge incidental to the transfer or exchange. Provisions for the transfer
or exchange of securities in other forms will be set forth in the applicable prospectus supplement.
Global Securities
We may issue the debt securities in whole or in part in the form
of one or more global securities. A global security is a security, typically held by a depositary, that represents the beneficial
interests of a number of purchasers of such security. We will deposit global securities with the depositary identified in the prospectus
supplement. Unless it is exchanged in whole or in part for debt securities in definitive form, a global certificate may generally
be transferred only as a whole to certain nominees of the depositary or to a successor depositary or nominee of a successor depositary.
We will describe the specific terms of the depositary arrangement
with respect to a series of debt securities in a prospectus supplement. We expect that the following provisions will generally
apply to our depositary arrangements.
Ownership of beneficial interests in a global security will be limited
to “participants” or persons that may hold interests through participants. The term “participants” means
institutions that have established accounts with the depositary or its nominee. Upon the issuance of a global security, and the
deposit of the global security with or on behalf of the depositary, the depositary will credit, on its book-entry registration
and transfer system, the respective principal amounts of the debt securities represented by the global security to the accounts
of participants. The underwriters or agents participating in the distribution of the debt securities will designate the accounts
to be credited. If we offer and sell the debt securities directly or through agents, either we or our agents will designate the
accounts. Ownership of beneficial interests in the global security will be shown on, and the transfer of that ownership will be
effected only through, records maintained by the depositary and its participants. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of the securities. Such laws may impair the ability to transfer beneficial interests
in a global security.
Principal of, any premium on and any interest payments on debt securities
represented by a global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee
as the registered owner of the global security. We and the trustee will treat the depositary or its nominee as the sole owner or
holder of the debt securities represented by a global security for all purposes, including for paying principal, premium and interest.
Except as set forth below, owners of beneficial interests in a global security will not:
|
·
|
be entitled to have the debt securities represented by the global security registered in their names;
|
|
·
|
receive or be entitled to receive physical delivery of the debt securities in definitive form; or
|
|
·
|
be considered the owners or holders of the debt securities.
|
Therefore, we and the trustee do not have any direct responsibility
or liability for the payment of principal of, premium, if any, on or interest, if any, on any debt securities represented by a
global security to owners of beneficial interests in the global security.
We expect that the depositary or its nominee, upon receipt of any
payments, will on the same date credit participants’ accounts with payments in amounts proportionate to their respective
beneficial interests in the principal amount of the global security as shown on the depositary’s or its nominee’s records.
We also expect that payments by participants to owners of beneficial interest in the global security will be governed by standing
instructions and customary practices, as is the case with the securities held for the accounts of customers registered in “street
names” and will be the responsibility of these participants and will not be the responsibility of the depositary or its nominee,
the trustee or us. We or the trustee are responsible only for paying principal, premium, if any, and interest, if any, to the depositary
or its nominee. The depositary or its nominee and the direct and indirect participants are responsible for disbursing these payments
to the owners of beneficial interests in the global securities.
If the depositary is at any time unwilling or unable to continue
as depositary and a successor depositary is not appointed by us within ninety days, we will issue individual debt securities in
exchange for the global security. In addition, we may at any time in our sole discretion determine not to have any of the debt
securities of a series represented by global securities and, in such event, will issue debt securities of such series in exchange
for the global security.
Neither we, nor the trustee or any paying agent will have any responsibility
or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the global
security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests. No such person
will be liable for any delay by the depositary or any of its participants in identifying the owners of beneficial interests in
a global security, and we, the trustee and any paying agent may conclusively rely on instructions from the depositary or its nominee
for all purposes.
Conversion or Exchange Rights
The terms, if any, on which a series of debt securities may be convertible
into or exchangeable for ordinary shares or other of our securities will be detailed in the applicable prospectus supplement. The
terms will include provisions as to whether conversion or exchange is mandatory, at the option of the holder, or at our option,
and may include provisions pursuant to which the number of shares of our ordinary shares or other of our securities to be received
by the holders of the series of debt securities would be subject to adjustment.
Consolidation, Merger or Sale
The indenture provides that, except as otherwise provided in any
prospectus supplement, we may consolidate with or merge into any other person or convey, transfer or lease our properties and assets
substantially as an entirety to another person, if among other things:
|
·
|
the resulting, surviving or transferee person (if other than us) assumes all our obligations under the debt securities and
the indenture; and
|
|
·
|
we or such successor person is not immediately thereafter in default under the indenture.
|
Upon the assumption our obligations by such a person upon the sale
of all or substantially all the assets in compliance with the indenture, we shall be discharged from all obligations under the
debt securities and the indenture. Although such transactions are permitted under the indenture, certain of the foregoing transactions
could constitute a “change in control,” as described in any prospectus supplement, permitting each holder to require
us to purchase the debt securities of such holder as described in any prospectus supplement.
Modification and Waiver
The indenture (including the terms and conditions of the debt securities)
may be modified or amended by us and the trustee, with respect to any series of debt securities, without the consent of the holder
of such series of debt securities, for the purposes of, among other things:
|
·
|
adding to our covenants for the benefit of the holders of the debt securities of such series;
|
|
·
|
surrendering any right or power conferred upon us in respect of such series;
|
|
·
|
providing for the assumption of our obligations to the holders of the debt securities of such series in the case of a permitted
merger, consolidation, conveyance, transfer or lease;
|
|
·
|
complying with the requirements of the SEC in connection with the registration of the debt securities of such series under
the Securities Act and the qualification of the indenture under the Trust Indenture Act, provided that such modification or amendment
does not, in the good faith opinion of our board of directors and the trustee, adversely affect the interests of the holders of
the debt securities of such series in any material respect; and
|
|
·
|
curing any ambiguity or correcting or supplementing any defective provision contained in the indenture; provided that such
modification or amendment does not materially adversely affect the interests of the holders of the debt securities of such series.
|
|
·
|
Modifications and amendments to the indenture or to the terms and conditions of the debt securities of such series may also
be made, and past defaults by us may be waived, either:
|
|
·
|
with the written consent of the holders of at least a majority in aggregate principal amount at maturity of the debt securities
of such series at the time outstanding; or
|
|
·
|
by the adoption of a resolution at a meeting of holders by at least a majority in aggregate principal amount at maturity of
the debt securities of such series represented at such meeting.
|
However, no such modification, amendment or waiver may, without
the written consent or the affirmative vote of the holder of each debt security so affected:
|
·
|
change the stated maturity of such debt security;
|
|
·
|
reduce the principal amount at maturity, redemption price or purchase price on such debt security;
|
|
·
|
change the currency of payment of such debt security or interest thereon;
|
|
·
|
reduce the percentage in aggregate principal amount at maturity of any debt security outstanding necessary to modify or amend
the indenture or to waive any past default; or
|
|
·
|
impair the right to institute suit for the enforcement
of any payment with respect to such debt security.
|
Events of Default
Unless we provide otherwise in the applicable prospectus supplement,
the indenture provides that the following are “Events of Default” with respect to any series of the debt securities
issued thereunder:
|
·
|
default in the payment of the principal of (or premium, if any, on) any debt security of such series when and as the same shall
become due and payable;
|
|
·
|
default for 30 days in the payment of any installment of interest on any debt security of such series when and as the same
shall become due and payable;
|
|
·
|
default in the making or satisfaction of any sinking fund payment when the same shall become due and payable on the terms of
any debt securities of such series;
|
|
·
|
default for 60 days after notice in the performance of any other covenant in respect of the debt securities of such series
contained in the indenture;
|
|
·
|
certain events of bankruptcy, insolvency or reorganization; or
|
|
·
|
any other event of default described in the prospectus supplement for such series.
|
An Event of Default with respect to any particular series of debt
securities issued under an indenture does not necessarily constitute an Event of Default with respect to any other series of debt
securities issued under such indenture. The trustee may withhold notice to the holders of any debt securities of any default (except
in the payment of principal or interest) if it considers such withholding is in the interests of such holders.
Unless we provide otherwise in the applicable prospectus supplement,
if an Event of Default with respect to any series of debt securities shall have occurred and be continuing, the trustee or the
holders of not less than 25% in aggregate principal amount of such series of debt securities may declare the principal of all the
debt securities of such series to be due and payable immediately; provided, however, that subject to certain conditions, any such
declaration and its consequences may be rescinded and annulled by the holders of not less than a majority in aggregate principal
amount of the debt securities of such series.
The indenture will require us to file annually with the trustee
a certificate, signed by a specified officer, stating whether or not such officer has obtained knowledge of any default by us in
the performance, observance or fulfillment of any condition or covenant of such indenture, and, if so, specifying each such default
and the nature thereof.
Subject to provisions relating to its duties in case of a default,
a trustee shall be under no obligation to exercise any of its rights or powers under the indenture at the request, order or direction
of any holders, unless the holders shall have offered to such trustee reasonable indemnity.
Subject to such provisions for indemnification, the holders of a
majority in principal amount of the debt securities of any series may direct the time, method and place of conducting any proceeding
or any remedy available to the appropriate trustee, or exercising any trust or power conferred upon such trustee, with respect
to the debt securities of such series.
Satisfaction and Discharge of the Indenture; Defeasance
With certain exceptions, we may satisfy and discharge its obligations
under the indenture with respect to any series of debt securities:
|
·
|
by delivering to the trustee for cancellation all outstanding debt securities of such series or by depositing with the trustee
cash or securities (as applicable under the terms of the indenture) sufficient to pay and discharge the entire indebtedness evidenced
by the outstanding debt securities of such series that have not then been delivered to the trustee for cancellation when or after
such securities have become due and payable; and
|
|
·
|
by paying all other sums payable by the us under the indenture with respect to the debt securities of such series.
|
Under federal income tax law as of the date of this prospectus,
such deposit and discharge may be treated as a disposition of the related debt securities. Each holder might be required to recognize
gain or loss equal to the difference between the holder’s cost or other tax basis in the debt securities and the amount of
cash plus the fair market value of any property received upon such disposition. Holders might be required to include as income
a different amount than would be includable without the discharge. Prospective investors are urged to consult their own tax advisors
as to the tax consequences of a discharge, including the applicability and effect of tax laws other than the federal income tax
law.
A series of debt securities may have no conditions for defeasance
or may have additional or different conditions for defeasance as described in the applicable prospectus supplement.
Governing Law
The indenture and the debt securities will be governed by the laws
of the State of New York, and for all purposes shall be construed in accordance with the laws of the State of New York without
regard to conflicts of laws principles thereof.
DESCRIPTION
OF SHARE CAPITAL
General
Amira is a BVI business company (company number 1696278) incorporated
on February 20, 2012 and our affairs are governed by the provisions of our memorandum and articles of association, as amended and
restated from time to time, the BVI Business Companies Act, 2004 (as amended), or the BVI Act, and the common law of the BVI.
Our memorandum and articles of association authorize the issuance
of an unlimited number of ordinary shares, $0.001 par value per share, and an unlimited number of preferred shares, $0.001 par
value per share.
The following description of our share capital is qualified in its
entirety by reference to our memorandum and articles of association, which has been filed as an exhibit to the registration statement
of which this prospectus is a part.
Memorandum and Articles of Association
Registered Office
- Our registered office is at the
offices of Intertrust Corporate Services (BVI) Limited, Ritter House, Wickhams Cay II,, Road Town, Tortola VG 1110, British Virgin
Islands.
Objects and Purposes, Register and Shareholders
- Our
objects and purposes are unlimited. Our register of shareholders is maintained by our transfer agent, Continental Stock & Trust
Company. Under the BVI Act, a BVI company may treat the registered holder of a share as the only person entitled to (a) exercise
any voting rights attaching to the share, (b) receive notices, (c) receive a distribution in respect of the share and (d) exercise
other rights and powers attaching to the share. Consequently, as a matter of BVI law, where a shareholder’s shares are registered
in the name of a nominee such as Cede & Co, the nominee is entitled to receive notices, receive distributions and exercise
rights in respect of any such ordinary shares registered in its name. The beneficial owners of the ordinary shares registered in
a nominee’s name are therefore reliant on their contractual arrangements with the nominee in order to receive notices and
dividends and ensure the nominee exercises voting rights in respect of the ordinary shares in accordance with their directions.
Directors’ Powers
- under the BVI Act, subject
to any limitations in a company’s memorandum and articles of association, a company’s business and affairs are managed
by, or under the supervision of, its directors, and directors generally have all powers necessary to manage a company. A director
must disclose any interest he has on any proposal, arrangement or contract not entered into in the ordinary course of business
and on usual terms and conditions. An interested director may vote on a transaction in which he has an interest. The directors
may cause us to borrow money or mortgage or charge our property or uncalled capital, to issue debentures, debenture stock and other
securities whenever money is borrowed or as security for any debt, liability or obligation of us or any third party.
Rights, Preferences and Restrictions of Ordinary Shares
-
Subject to certain restrictions, our directors may authorize dividends at such time and in such amount as they determine. Each
ordinary share is entitled to one vote. There are no cumulative voting rights. In the event of a liquidation or winding up of the
company, our shareholders are entitled to share ratably in all assets remaining available for distribution to them after payment
of liabilities and after provision is made for each class of shares, if any, having preference over the ordinary shares. There
are no sinking fund provisions applicable to our ordinary shares. Holders of our ordinary shares have no pre-emptive rights. Subject
to the provisions of the BVI Act, we may repurchase our ordinary shares in certain circumstances.
Rights Preferences and Restrictions of Preferred Shares
-
Our memorandum and articles of association authorizes our board of directors to create and to issue up to five classes of preferred
shares without shareholder approval with such designation, rights and preferences as may be determined by our board of directors.
We have five classes of preferred shares to give us flexibility as to the terms on which each class is issued since, under BVI
law, all shares of a single class must be issued with the same rights and obligations. Our board of directors is empowered, without
shareholder approval, to issue such preferred shares with dividend, liquidation, redemption, voting or other rights which could
harm the voting power or other rights of the holders of ordinary shares or another class of preferred shares. Although we do not
currently intend to issue any preferred shares, we may do so in the future.
Variation of the Rights of Shareholders
- As permitted
by the BVI Act and our memorandum of association, we may vary the rights attached to any class of shares only with the consent
of not less than a majority of the votes of shareholders of that class who being so entitled attend and vote at the meeting of
that class, except where a greater majority is required under our memorandum and articles of association or the BVI Act. A greater
majority is required in relation to a scheme of arrangement and may be required in relation to a plan of arrangement. For these
purposes, the creation, designation or issuance of preferred shares with rights and privileges ranking equal to or in priority
to an existing class of ordinary or preferred shares is deemed not to be a variation of the rights of such existing class and may
be effected by resolution of directors without shareholder approval.
Shareholder Meetings
- Our directors may call a meeting
of shareholders whenever they see fit. Our shareholders may requisition our directors to hold a meeting upon the written request
of shareholders entitled to exercise at least 30% of the voting rights. Under BVI law, the memorandum and articles of association
may be amended to decrease but not increase the required percentage to call a meeting above 30%. At least ten days’ and not
more than 120 days’ notice of such meeting is required. A meeting of shareholders held in contravention of this notice requirement
is valid if shareholders holding not less than a 90% majority of the total number of ordinary shares entitled to vote on all matters
to be considered at the meeting have waived notice of the meeting and for this purpose presence at the meeting is deemed to constitute
a waiver. A majority of the shares entitled to vote at the meeting, present in person or by proxy, forms a quorum.
Our memorandum and articles of association establish advance notice
procedures with respect to shareholder proposals and the nomination of candidates for election as directors, other than nominations
made by or at the direction of the board of directors or a committee of the board of directors. However, our memorandum and articles
of association may have the effect of precluding the conduct of certain business at a meeting if the proper procedures are not
followed. Any proposed business other than the nomination of persons for election to our board of directors must constitute a proper
matter for shareholder action pursuant to the notice of meeting delivered to us. For notice to be timely, it must be received by
our secretary not later than 90 nor earlier than 120 calendar days prior to the first anniversary of the previous year’s
annual meeting (or if the date of the annual meeting is advanced more than 30 calendar days or delayed by more than 60 calendar
days from such anniversary date, not later than 90 nor earlier than 120 calendar days prior to such meeting or the 10th calendar
day after public disclosure of the date of such meeting is first made). These provisions may also discourage or deter a potential
acquirer from conducting a solicitation of votes from other shareholders to elect the acquirer’s own slate of directors or
otherwise attempting to obtain control of our company.
Our memorandum and articles of association provide that we will
hold an annual shareholders’ meeting during each fiscal year, as required by the rules of the New York Stock Exchange.
Dividends
- Subject to the BVI Act and our memorandum
and articles of association, our directors may declare dividends at a time and amount they think fit if they are satisfied, on
reasonable grounds, that, immediately after distribution of the dividend, the value of our assets will exceed our liabilities and
we will be able to pay our debts as they fall due. There is no further BVI restriction on the amount of funds which may be distributed
by us by dividend, including all amounts paid by way of the subscription price for shares regardless of whether such amounts may
be wholly or partially treated as share capital or share premium under certain accounting principles. Shareholder approval is not
required to pay dividends under BVI law. No dividend shall carry interest against us.
Rights of Non-Resident or Foreign Shareholders and Disclosure
of Substantial Shareholdings
- There are no limitations imposed by our memorandum and articles of association on the rights
of non-resident or foreign shareholders to hold or exercise voting rights on our shares. In addition, there are no provisions in
our memorandum and articles of association governing the ownership threshold above which shareholder ownership must be disclosed.
Untraceable Shareholders
- Under our memorandum and
articles of association, we are entitled to sell any shares of a shareholder who is untraceable, as long as: (a) all checks, not
being less than three in total number, for any sums payable in cash to the holder of such shares have remained uncashed for a period
of 12 years; (b) we have not during that time or before the expiry of the three-month period referred to in (c) below received
any indication of the existence of the shareholder or person entitled to such shares by death, bankruptcy or operation of law;
and (c) upon expiration of the 12-year period, we have caused an advertisement to be published in newspapers, giving notice of
our intention to sell these shares, and a period of three months or such shorter period has elapsed since the date of such advertisement.
The net proceeds of any such sale shall belong to us, and when we receive these net proceeds we shall become indebted to the former
shareholder for an amount equal to such net proceeds.
Transfer of Shares
- Subject to any applicable restrictions
set forth in our memorandum and articles of association, any of our shareholders may transfer all or any of his or her shares by
an instrument of transfer in the usual or common form or in any other form which our directors may approve. Our memorandum and
articles of association also state that shares may be transferred by means of a system utilized for the purposes of holding and
transferring ordinary shares, or a “Relevant System,” and that the operator of the Relevant System (and any other person
necessary to ensure the Relevant System is effective to transfer Shares) shall act as agent of the Shareholders for the purposes
of the transfer of any Shares transferred by means of the Relevant System.
Anti-takeover Provisions
- Some provisions of our memorandum
and articles of association may discourage, delay or prevent a change in control of our company or management that shareholders
may consider favorable, including but not limited to provisions that:
|
·
|
authorize our board of directors without shareholder approval to issue preferred shares in one or more series and to designate
the price, rights, preferences, privileges and restrictions of such preferred shares by amending the memorandum and articles of
association;
|
|
·
|
require advance notice requirements from shareholders nominating directors for election at a shareholder meeting;
|
|
·
|
prohibit shareholders from acting by written consent;
|
|
·
|
prohibit shareholders from cumulating votes in the election of directors; and
|
|
·
|
enable directors to be removed by shareholders only for cause.
|
Summary of Certain Significant Provisions of BVI Law
As noted below, the BVI Act differs from laws applicable to U.S.
corporations and their shareholders. Set forth below is a summary of some of the other significant provisions of the BVI Act applicable
to us.
Mergers, Consolidations and Similar Arrangements
-
The BVI Act provides for mergers as that expression is understood under U.S. corporate law. Under the BVI Act, two or more companies
may either merge into one of such existing companies, or the surviving company, or consolidate with both existing companies ceasing
to exist and forming a new company, or the consolidated company. The procedure for a merger or consolidation between the company
and another company (which need not be a BVI company, and which may be the company's parent, but need not be) is set out in the
BVI Act. The directors of the BVI company or BVI companies which are to merge or consolidate must approve a written plan of merger
or consolidation which must also be approved by a resolution of a majority of the shareholders who are entitled to vote and actually
vote at a quorate meeting of shareholders or by written resolution of the shareholders of the BVI company or BVI companies which
are to merge. A foreign company which is able under the laws of its foreign jurisdiction to participate in the merger or consolidation
is required by the BVI Act to comply with the laws of that foreign jurisdiction in relation to the merger or consolidation. The
company must then execute articles of merger or consolidation, containing certain prescribed details. The plan and articles of
merger or consolidation are then filed with the Registrar of Corporate Affairs in the BVI, or the Registrar. The Registrar then
registers the articles of merger or consolidation and any amendment to the memorandum and articles of the surviving company in
a merger or the memorandum and articles of association of the new consolidated company in a consolidation and issue a certificate
of merger or consolidation (which is conclusive evidence of compliance with all requirements of the BVI Act in respect of the merger
or consolidation). The merger is effective on the date that the articles of merger are registered with the Registrar or on such
subsequent date, not exceeding thirty days, as is stated in the articles of merger or consolidation.
As soon as a merger becomes effective: (a) the surviving company
or consolidated company (so far as is consistent with its amended memorandum and articles, as amended or established by the articles
of merger or consolidation) has all rights, privileges, immunities, powers, objects and purposes of each of the constituent companies;
(b) the amended memorandum and articles of any surviving company are automatically amended to the extent, if any, that changes
to its amended memorandum and articles are contained in the articles of merger; (c) assets of every description, including choses-in-action
and the business of each of the constituent companies, immediately vest in the surviving company or consolidated company; (d) the
surviving company or consolidated company is liable for all claims, debts, liabilities and obligations of each of the constituent
companies; (e) no conviction, judgment, ruling, order, claim, debt, liability or obligation due or to become due, and no cause
existing, against a constituent company or against any shareholder, director, officer or agent thereof, is released or impaired
by the merger; and (f) no proceedings, whether civil or criminal, pending at the time of a merger by or against a constituent company,
or against any shareholder, director, officer or agent thereof, are abated or discontinued by the merger; but: (i) the proceedings
may be enforced, prosecuted, settled or compromised by or against the surviving company or consolidated company or against the
shareholder, director, officer or agent thereof; as the case may be; or (ii) the surviving company or consolidated company may
be substituted in the proceedings for a constituent company.
The Registrar shall strike off the register of companies each constituent
company that is not the surviving company in the case of a merger and all constituent companies in the case of a consolidation.
If the directors determine it to be in the best interests of the
company, it is also possible for a merger to be approved as a court approved plan of arrangement or scheme or arrangement in accordance
with the BVI Act. The convening of the necessary shareholders meetings and subsequently the arrangement must be authorized by the
BVI court. A scheme of arrangement requires the approval of 75% of the shareholders of each class who vote in person or by proxy
at meetings of the holders of each class. If the effect of the scheme is different in relation to different shareholders, it may
be necessary for them to vote separately in relation to the scheme, with it being required to secure the requisite approval level
of each separate voting group. Under a plan of arrangement, a BVI court may determine what shareholder approvals are required and
the manner of obtaining the approval.
Continuation into a Jurisdiction Outside the BVI
-
The BVI Act and our memorandum and articles of association provide that the company may by a resolution of directors or by a resolution
of shareholders continue as a company incorporated under the laws of a jurisdiction outside the BVI in the manner provided under
those laws. Where a company is continued under the laws of a jurisdiction outside the BVI, (a) the company continues to be liable
for all of its claims, debts, liabilities and obligations that existed prior to its continuation, (b) no conviction, judgment,
ruling, order, claim, debt, liability or obligation due or to become due, and no cause existing, against the company or against
any shareholder, director, officer or agent thereof, is released or impaired by its continuation as a company under the laws of
the jurisdiction outside the BVI, (c) no proceedings, whether civil or criminal, pending by or against the company, or against
any shareholder, director, officer or agent thereof, are abated or discontinued by its continuation as a company under the laws
of the jurisdiction outside the BVI, but the proceedings may be enforced, prosecuted, settled or compromised by or against the
company or against the shareholder, director, officer or agent thereof, as the case may be; and (d) service of process may continue
to be effected on the registered agent of the company in the BVI in respect of any claim, debt, liability or obligation of the
company during its existence as a company under the BVI Act.
Poison Pill Defenses
- Under the BVI Act, there are
no provisions which specifically prevent the issuance of preferred shares or any such other "poison pill" measures. The
memorandum and articles of association of the company authorize the directors to issue preferred shares. Therefore, the directors
without the approval of the holders of ordinary shares may issue preferred shares that have characteristics that may be deemed
to be anti-takeover. Additionally, such a designation of shares may be used in connection with plans that are poison pill plans.
However, as noted above under the BVI Act, a director in the exercise of his powers and performance of his duties is required to
act honestly and in good faith in what the director believes to be the best interests of the company.
Directors
- Our directors are appointed by resolution
of shareholders to hold office until their successors are elected and qualified, or until their earlier death, resignation or removal.
The directors may by resolution of directors appoint a replacement director to fill a casual vacancy arising on the removal, resignation,
disqualification or death of any director or to fill newly created vacancies resulting from an increase in the authorized number
of directors.
Our memorandum and articles of association prohibit cumulative voting
for such elections.
There are no share ownership qualifications for directors.
Meetings of our board of directors may be convened at any time deemed
necessary by any of our directors. A meeting of our board of directors will be competent to make lawful and binding decisions if
at least a majority of the directors are present or represented. At any meeting of our directors, each director, whether by his
or her presence or by his or her alternate, is entitled to one vote. Questions arising at a meeting of our board of directors are
required to be decided by simple majority votes of the directors present or represented at the meeting. In the case of an equality
of votes, the chairman of the meeting shall have a second or deciding vote. Our board of directors also may pass resolutions without
a meeting by unanimous written consent.
Indemnification of Directors
- Our memorandum and articles
of association provide that, subject to certain limitations, the company may indemnify its directors and officers against all expenses,
including legal fees, and against all judgments, fines and amounts paid in settlement and reasonably incurred in connection with
legal, administrative or investigative proceedings.
Such indemnification may only take place if the person acted honestly
and in good faith with a view to the best interests of the company and, in the case of criminal proceedings, the person had no
reasonable cause to believe that their conduct was unlawful. The decision of the directors as to whether the person acted honestly
and in good faith and with a view to the best interests of the company and as to whether the person had no reasonable cause to
believe that his conduct was unlawful is, in the absence of fraud, sufficient for the purposes of the memorandum and articles of
association, unless a question of law is involved. The termination of any proceedings by any judgment, order, settlement, conviction
or the entering of a nolle prosequi does not, by itself, create a presumption that the person did not act honestly and in good
faith and with a view to the best interests of the company or that the person had reasonable cause to believe that his conduct
was unlawful.
Directors and Conflicts of
Interest
- Pursuant to the BVI Act and the company's memorandum and articles of association, a director of a company who
has an interest in a transaction and who has declared such interest to the other directors, may:
|
a)
|
vote on a matter relating to the transaction;
|
|
b)
|
attend a meeting of directors at which a matter relating to the transaction arises and be included among the directors present
at the meeting for the purposes of a quorum; and
|
|
c)
|
sign a document on behalf of the company, or do any other
thing in his capacity as a director, that relates to the transaction.
|
Shareholders' Suits
- The enforcement of the company's
rights will ordinarily be a matter for its directors.
In certain limited circumstances, a shareholder has the right to
seek various remedies against the company in the event the directors are in breach of their duties under the BVI Act. Pursuant
to Section 184B of the BVI Act, if a company or director of a company engages in, or proposes to engage in, conduct that contravenes
the provisions of the BVI Act or the memorandum or articles of association of the company, the BVI Court may, on application of
a shareholder or director of the company, make an order directing the company or director to comply with, or restraining the company
or director from engaging in conduct that contravenes the BVI Act or the memorandum or articles.
Furthermore, pursuant to section 184I(1) of the BVI Act a shareholder
of a company who considers that the affairs of the company have been, are being or are likely to be, conducted in a manner that
is, or any acts of the company have been, or are likely to be oppressive, unfairly discriminatory, or unfairly prejudicial to him
in that capacity, may apply to the BVI Court for an order which, inter alia, can require the company or any other person to pay
compensation to the shareholders.
The BVI Act provides for a series of remedies available to shareholders.
Where a company incorporated under the BVI Act conducts some activity which breaches the BVI Act or the company's memorandum and
articles of association, the court can issue a restraining or compliance order. Under the BVI Act, a shareholder of a company may
bring an action against the company for breach of a duty owed by the company to him as a shareholder. A shareholder also may, with
the permission of the BVI court, bring an action or intervene in a matter in the name of the company, in certain circumstances.
Such actions are known as derivative actions. As noted above, the BVI court may only grant permission to bring a derivative action
where the following circumstances apply:
|
·
|
the company does not intend to bring, diligently continue or defend or discontinue proceedings; and
|
|
·
|
it is in the interests of the company that the conduct of the proceedings not be left to the directors or to the determination
of the shareholders as a whole.
|
When considering whether to grant leave, the BVI court is also required
to have regard to the following matters:
|
·
|
whether the shareholder is acting in good faith;
|
|
·
|
whether a derivative action is in the company's best interests, taking into account the directors' views on commercial matters;
|
|
·
|
whether the action is likely to proceed;
|
|
·
|
the costs of the proceedings; and
|
|
·
|
whether an alternative remedy is available.
|
Any shareholder of a company may apply to BVI court under the Insolvency
Act, 2003 of the BVI, or the Insolvency Act, for the appointment of a liquidator to liquidate the company and the court may appoint
a liquidator for the company if it is of the opinion that it is just and equitable to do so.
Appraisal Rights
- The BVI Act provides that any shareholder
of a company is entitled to payment of the fair value of his shares upon dissenting from any of the following: (a) a merger if
the company is a constituent company, unless the company is the surviving company and the shareholder continues to hold the same
or similar shares; (b) a consolidation if the company is a constituent company; (c) any sale, transfer, lease, exchange or other
disposition of more than 50% in value of the assets or business of the company if not made in the usual or regular course of the
business carried on by the company but not including: (i) a disposition pursuant to an order of the court having jurisdiction in
the matter, (ii) a disposition for money on terms requiring all or substantially all net proceeds to be distributed to the shareholders
in accordance with their respective interest within one year after the date of disposition, or (iii) a transfer pursuant to the
power of the directors to transfer assets for the protection thereof; (d) a compulsory redemption of 10%, or fewer of the issued
shares of the company required by the holders of 90%, or more of the shares of the company pursuant to the terms of the Act; and
(e) an arrangement, if permitted by the BVI court.
Generally any other claims against a company by its shareholders
must be based on the general laws of contract or tort applicable in the BVI or their individual rights as shareholders as established
by the company's memorandum and articles of association. There are common law rights for the protection of shareholders that may
be invoked, largely derived from English common law. Under the general English company law known as the rule in Foss v. Harbottle,
a court will generally refuse to interfere with the management of a company at the insistence of a minority of its shareholders
who express dissatisfaction with the conduct of the company's affairs by the majority or the board of directors. However, every
shareholder is entitled to seek to have the affairs of the company conducted properly according to law and the constituent documents
of the corporation. As such, if those who control the company have persistently disregarded the requirements of company law or
the provisions of the company's memorandum and articles of association, then the courts may grant relief. Generally, the areas
in which the courts will intervene are the following:
|
·
|
a company is acting or proposing to act illegally or beyond the scope of its authority;
|
|
·
|
the act complained of, although not beyond the scope of the authority, could only be effected if duly authorized by more than
the number of votes which have actually been obtained;
|
|
·
|
the individual rights of the plaintiff shareholder have been infringed or are about to be infringed; or
|
|
·
|
those who control the company are perpetrating a "fraud on the minority."
|
Share Repurchases and Redemptions
- As permitted by
the BVI Act and our memorandum and articles of association, shares may be repurchased, redeemed or otherwise acquired by us. Depending
on the circumstances of the redemption or repurchase, our directors may need to determine that immediately following the redemption
or repurchase we will be able to satisfy our debts as they fall due and the value of our assets exceeds our liabilities. Our directors
may only exercise this power on our behalf, subject to the BVI Act, our memorandum and articles of association and to any applicable
requirements imposed from time to time by the SEC, the New York Stock Exchange or any other stock exchange on which our securities
are listed.
Inspection of Books and Records
- Under the BVI Act,
shareholders of the general public, on payment of a nominal fee, can obtain copies of the public records of a company available
at the office of the Registrar which will include the company's certificate of incorporation, its memorandum and articles of association
(with any amendments) and records of license fees paid to date and will also disclose any articles of dissolution, articles of
merger and a register of charges given by the company if the company has elected to file such a register.
Under the BVI Act, a shareholder
of a BVI company is entitled, on giving written notice to the company, to inspect:
|
a)
|
the memorandum and articles of association;
|
|
b)
|
the register of shareholders;
|
|
c)
|
the register of directors; and
|
|
d)
|
the minutes of meetings and resolutions of shareholders and of those classes of shares of which he is a shareholder.
|
In addition, a shareholder may make copies of or take extracts from
the documents and records referred to in a) through d) above.
However, subject to the memorandum and articles of association,
the directors may, if they are satisfied that it would be contrary to the company's interests to allow a shareholder to inspect
any document, or part of any document, specified in b), c) or d) above, refuse to permit the shareholder to inspect the document
or limit the inspection of the document, including limiting the making of copies or the taking of extracts from the records.
Where a company fails or refuses to permit a shareholder to inspect
a document or permits a shareholder to inspect a document subject to limitations, that shareholder may apply to the court for an
order that he should be permitted to inspect the document or to inspect the document without limitation.
Dissolution; Winding Up
- As permitted by the BVI Act
and our memorandum and articles of association, we may be voluntarily liquidated under Part XII of the BVI Act by resolution of
directors and resolution of shareholders if we have no liabilities or we are able to pay our debts as they fall due.
We also may be wound up in circumstances where we are insolvent
in accordance with the terms of the Insolvency Act.
Anti-Money Laundering Laws
- In order to comply with
legislation or regulations aimed at the prevention of money laundering we are required to adopt and maintain anti-money laundering
procedures, and may require subscribers to provide evidence to verify their identity. Where permitted, and subject to certain conditions,
we also may delegate the maintenance of our anti-money laundering procedures (including the acquisition of due diligence information)
to a suitable person. We reserve the right to request such information as is necessary to verify the identity of a subscriber.
In the event of delay or failure on the part of the subscriber in producing any information required for verification purposes,
we may refuse to accept the application, in which case any funds received will be returned without interest to the account from
which they were originally debited.
If any person resident in the BVI knows or suspects that another
person is engaged in money laundering or terrorist financing and the information for that knowledge or suspicion came to their
attention in the course of their business the person will be required to report his belief or suspicion to the Financial Investigation
Agency of the BVI, pursuant to the Proceeds of Criminal Conduct Act 1997 (as amended). Such a report shall not be treated as a
breach of confidence or of any restriction upon the disclosure of information imposed by any enactment or otherwise.
Exchange controls
- We know of no BVI laws, decrees,
regulations or other legislation that limit the import or export of capital or the payment of dividends to shareholders holders
who do not reside in the BVI.
Material Differences in BVI Law and our Memorandum and Articles
of Association and Delaware Law
Our corporate affairs are governed by our memorandum and articles
of association and the provisions of applicable BVI law, including the BVI Act and BVI common law. The BVI Act differs from laws
applicable to U.S. corporations and their stockholders. The following table provides a comparison between certain statutory provisions
of the BVI Act (together with the provisions of our memorandum and articles of association) and the Delaware General Corporation
Law relating to shareholders' rights.
BVI
|
|
Delaware
|
Shareholder Meetings
|
|
|
Held at a time and place as determined by the directors
|
|
May be held at such time or place as designated in the charter or the by-laws, or if not so designated, as determined by the board of directors
|
|
|
|
May be held inside or outside the BVI
|
|
May be held inside or outside Delaware
|
|
|
|
Under our memorandum and articles of association, a copy of the notice of any meeting shall be given not fewer than ten days and not more than 120 days before the date of the proposed meeting to those persons whose names appear in the register of shareholders on the date the notice is given and are entitled to vote at the meeting.
|
|
Whenever shareholders are required to take any action at a meeting, a written notice of the meeting shall be given which shall state the place, if any, date and hour of the meeting, and the means of remote communication, if any
|
|
|
|
Shareholder’s Voting Rights
|
|
|
|
Any person authorized to vote may be represented at a meeting by a proxy who may speak and vote on behalf of the shareholder
|
|
Any person authorized to vote may authorize another person or persons to act for him by proxy
|
|
|
|
Quorum is fixed by our memorandum and articles of association, to consist of the holder or holders present in person or by proxy entitled to exercise at least a majority in aggregate of the voting rights of the classes or series of shares entitled to vote as a class or series thereon
|
|
The charter or bylaws may specify the number to constitute a quorum but in no event shall a quorum consist of less than one-third of shares entitled to vote at a meeting. In the absence of such specifications, a majority of shares shall constitute a quorum
|
Under our memorandum and articles of association, subject to any rights or restrictions attached to any shares, at any general meeting on a show of hands every shareholder who is present in person (or, in the case of a shareholder being a corporation, by its duly authorized representative) or by proxy shall have one vote and on a poll every shareholder present in person (or, in the case of a shareholder being a corporation, by its duly appointed representative) or by proxy shall have one vote for each share which such shareholder is the holder. Voting at any meeting of the shareholders is by show of hands unless a poll is demanded. A poll may be demanded by shareholders present in person or by proxy if the shareholder disputes the outcome of the vote on a proposed resolution and the chairman shall cause a poll to be taken.
|
|
|
|
|
|
Changes in the rights attaching to any class of shares as set forth in the memorandum and articles of association require approval of not less than a majority of the issued and outstanding shares of that class who are entitled to attend and vote at the meeting of the class, except where a greater percentage is required under our memorandum and articles of association or the BVI Act, provided that for these purposes the creation, designation or issue of preferred shares with rights and privileges ranking in priority or equal to an existing class of preferred or ordinary shares shall be deemed not to be a variation of the rights of such existing class.
|
|
Except as provided in the charter documents, changes in the rights of shareholders as set forth in the charter documents require approval of a majority of its shareholders
|
|
|
|
Our memorandum and articles of association prohibit cumulative voting in the election of directors
|
|
The memorandum and articles of association may provide for cumulative voting
|
|
|
|
All other matters to be decided upon by the shareholders require a majority vote of shareholders who being so entitled attend and vote at the general meeting, unless the BVI Act requires a higher majority. Our memorandum and articles of association also may be amended by resolution of directors without shareholder approval, including to create the rights, preferences, designations and limitations attaching to any blank check preferred shares.
|
|
|
|
|
|
Directors
|
|
|
|
Board must consist of at least one member
|
|
Board must consist of at least one member
|
|
|
|
Maximum and minimum number of directors can be changed by a resolution of directors
|
|
Number of board members shall be fixed by the by-laws, unless the charter fixes the number of directors, in which case a Change in the number shall be made only by amendment of the charter
|
|
|
|
Directors are appointed by resolution of shareholders to hold office until their successors are elected and qualified, or until their earlier death, resignation or removal. The directors may by resolution of directors appoint a replacement director to fill a casual vacancy arising on the removal, resignation, disqualification or death of any director or to fill newly created vacancies resulting from an increase in the authorized number of directors (as described under “Directors” above). However, the directors may by resolution appoint a replacement director to fill a casual vacancy arising on the resignation, disqualification or death of a director. The replacement director will then hold office until the next annual general meeting
|
|
|
Directors do not have to be independent
|
|
Directors do not have to be independent
|
|
|
|
Fiduciary Duties
|
|
|
|
Directors and officers owe fiduciary duties at both common law and under statute as follows:
|
|
Directors and officers must act in good faith, with the care of a prudent person, and in the best interest of the corporation.
|
|
|
|
Duty to act honestly and in good faith in what the director believes to be in the best interests of the company;
|
|
Directors and officers must refrain from self-dealing, usurping corporate opportunities and receiving improper personal benefits.
|
|
|
|
Duty to exercise powers for a proper purpose and directors shall not act, or agree to act, in a matter that contravenes the BVI Act or the memorandum and articles of association;
|
|
|
|
|
|
Duty to exercise the care, diligence and skill that a responsible
director would exercise in the circumstances taking into account, without limitation:
·
the
nature of the company;
·
the
nature of the decision; and
·
the
position of the director and the nature of the responsibilities undertaken by him.
|
|
|
|
|
|
The BVI Act provides that, a director of a company shall, immediately after becoming aware of the fact that he is interested in a transaction entered into, or to be entered into, by the company, discloses the interest to the board of the company. However, the failure of a director to disclose that interest does not affect the validity of a transaction entered into by the director or the company, so long as the transaction was not required to be disclosed because the transaction is between the company and the director himself and is in the ordinary course of business and on usual terms and conditions. Additionally, the failure of a director to disclose an interest does not affect the validity of the transaction entered into by the company if (a) the material facts of the interest of the director in the transaction are known by the shareholders and the transaction is approved or ratified by a resolution of shareholders entitled to vote at a meeting of shareholders or (b) the company received fair value for the transaction.
|
|
Directors may vote on a matter in which they have an interest so long as the director has disclosed any interests in the transaction.
|
|
|
|
Pursuant to the BVI Act, and the
company’s memorandum and articles of association, so long as a director has disclosed any interests in a transaction entered
into or to be entered into by the company to the board he/she may:
·
vote
on a matter relating to the transaction;
·
attend
a meeting of directors at which a matter relating to the transaction arises and be included among the directors present at the
meeting for the purposes of a quorum; and
|
|
Directors may vote on a matter in which they have an interest so long as the director has disclosed any interests in the transaction.
|
·
sign a document on behalf of the company, or do any other thing in his capacity as a director, that relates to the transaction.
|
|
|
|
|
Shareholder’s Derivative Actions
|
|
|
|
Generally speaking, the company is the proper plaintiff in any action. A shareholder may, with the permission of the BVI court, bring an action or intervene in a matter in the name of the company, in certain circumstances. Such actions are known as derivative actions. The BVI court may only grant permission to bring a derivative action where the following circumstances apply:
|
|
In any derivative suit instituted by a shareholder of a corporation, it shall be averred in the complaint that the plaintiff was a shareholder of the corporation at the time of the transaction of which he complains or that such stockholder’s stock thereafter devolved upon such stockholder by operation of law.
|
|
|
|
·
the company does not intend to bring, diligently continue or defend or discontinue the proceedings; and
|
|
Complaint shall set forth with particularity the efforts of the plaintiff to obtain the action by the board or the reasons for not making such effort.
|
|
|
|
·
it is in the interests of the company that the conduct of the proceedings not be left to the directors or to the determination of the shareholders as a whole.
|
|
Such action shall not be dismissed or compromised without the approval of the Chancery Court.
|
|
|
|
When considering whether to grant
leave, the BVI Court is also required to have regard to the following matters:
·
whether
the shareholder is acting in good faith;
·
whether
a derivative action is in the interests of the company, taking into account the directors’ views on commercial matters;
·
whether
the action is likely to succeed;
·
the
costs of the proceedings in relation to the relief likely to be obtained; and
·
whether
another alternative remedy to the derivative action is available.
|
|
If we were a Delaware corporation, a shareholder whose shares were canceled in connection with our dissolution, would not be able to bring a derivative action against us after the ordinary shares have been cancelled.
|
DESCRIPTION
OF WARRANTS
We may issue warrants for the purchase of ordinary shares, preferred
shares or debt securities. We may issue warrants independently or together with any offered securities. The warrants may be attached
to or separate from those offered securities. We will issue the warrants under one or more warrant agreements to be entered into
between us and a warrant agent to be named in the applicable prospectus supplement. The warrant agent will act solely as our agent
in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or
beneficial owners of warrants.
The prospectus supplement relating to any warrants that we may offer
will contain the specific terms of the warrants. These terms may include the following:
|
·
|
the title of the warrants;
|
|
·
|
the price or prices at which the warrants will be issued;
|
|
·
|
the designation, amount and terms of the securities for which the warrants are exercisable;
|
|
·
|
the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants
issued with each other security;
|
|
·
|
the aggregate number of warrants;
|
|
·
|
any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise
price of the warrants;
|
|
·
|
the price or prices at which the securities purchasable upon exercise of the warrants may be purchased;
|
|
·
|
if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be
separately transferable;
|
|
·
|
a discussion of any material U.S. federal income tax considerations applicable to the exercise of the warrants;
|
|
·
|
the date on which the right to exercise the warrants will commence, and the date on which the right will expire;
|
|
·
|
the maximum or minimum number of warrants that may be exercised at any time;
|
|
·
|
information with respect to book-entry procedures, if any; and
|
|
·
|
any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
|
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase
for cash the amount of ordinary shares, preferred shares or debt securities at the exercise price stated or determinable in the
applicable prospectus supplement for the warrants. Warrants may be exercised at any time up to the close of business on the expiration
date shown in the applicable prospectus supplement, unless otherwise specified in such prospectus supplement. After the close of
business on the expiration date, unexercised warrants will become void. Warrants may be exercised as described in the applicable
prospectus supplement. When the warrant holder makes the payment and properly completes and signs the warrant certificate at the
corporate trust office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as possible,
forward the ordinary shares, preferred shares or debt securities that the warrant holder has purchased. If the warrant holder exercises
the warrant for less than all of the warrants represented by the warrant certificate, we will issue a new warrant certificate for
the remaining warrants.
The description in the applicable prospectus supplement of any warrants
we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable warrant agreement
and warrant certificate, which will be filed with the SEC if we offer warrants. For more information on how you can obtain copies
of any warrant certificate or warrant agreement if we offer warrants, see “Where You Can Find More Information”. We
urge you to read the applicable warrant certificate, the applicable warrant agreement and any applicable prospectus supplement
in their entirety.
DESCRIPTION
OF SUBSCRIPTION RIGHTS
We may issue subscription rights to purchase ordinary shares, preferred
shares, debt securities or other securities of the Company. We may issue subscription rights independently or together with any
other offered security, which may or may not be transferable by the securityholder. In connection with any offering of subscription
rights, we may enter into a standby arrangement with one or more underwriters or other purchasers pursuant to which the underwriters
or other purchasers may be required to purchase any securities remaining unsubscribed for after such offering.
The prospectus supplement relating to any subscription rights we
may offer will contain the specific terms of the subscription rights. These terms may include the following:
|
·
|
the price, if any, for the subscription rights;
|
|
·
|
the exercise price payable for each ordinary share, preferred share, debt securities or other securities upon the exercise
of the subscription rights;
|
|
·
|
the number of subscription rights issued to each securityholder;
|
|
·
|
the number and terms of each ordinary share, preferred share, debt securities or other securities which may be purchased per
each subscription right;
|
|
·
|
the extent to which the subscription rights are transferable;
|
|
·
|
any provisions for adjustment of the number or amount of securities receivable upon exercise of the subscription rights or
the exercise price of the subscription rights;
|
|
·
|
any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise
of the subscription rights;
|
|
·
|
the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights
shall expire;
|
|
·
|
the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities;
and
|
|
·
|
if applicable, the material terms of any standby underwriting or purchase arrangement entered into by us in connection with
the offering of subscription rights.
|
The description in the applicable prospectus supplement of any subscription
rights we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable subscription
rights certificate or subscription rights agreement, which will be filed with the SEC if we offer subscription rights. For more
information on how you can obtain copies of any subscription rights certificate or subscription rights agreement if we offer subscription
rights, see “Where You Can Find More Information”. We urge you to read the applicable subscription rights certificate,
the applicable subscription rights agreement and any applicable prospectus supplement in their entirety.
DESCRIPTION
OF UNITS
As specified in the applicable prospectus supplement, we may issue
units consisting of one or more debt securities, ordinary shares, preferred shares, warrants, subscription rights or any combination
of such securities. In addition, the prospectus supplement relating to units will describe the terms of any units we issue, including
as applicable:
|
·
|
the designation and terms of the units and the securities included in the units;
|
|
·
|
any provision for the issuance, payment, settlement, transfer or exchange of the units;
|
|
·
|
the date, if any, on and after which the units may be transferred separately;
|
|
·
|
whether we will apply to have the units traded on a securities exchange or securities quotation system;
|
|
·
|
any material United States federal income tax consequences; and
|
|
·
|
how, for United States federal income tax purposes, the purchase price paid for the units is to be allocated among the component
securities.
|
The description in the applicable prospectus supplement of any units
we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable unit certificate
or unit agreement, which will be filed with the SEC if we offer units. For more information on how you can obtain copies of any
unit certificate or unit agreement if we offer units, see “Where You Can Find More Information”. We urge you to read
the applicable unit certificate, the applicable unit agreement and any applicable prospectus supplement in their entirety.
PLAN OF DISTRIBUTION
We may offer and sell the securities
being offered hereby in one or more of the following ways from time to time:
|
·
|
to underwriters or dealers for resale to the public or to institutional investors;
|
|
·
|
directly to institutional investors;
|
|
·
|
directly to a limited number of purchasers or to a single purchaser;
|
|
·
|
through agents to the public or to institutional investors; or
|
|
·
|
through a combination of any of these methods of sale.
|
The prospectus supplement with respect
to each series of securities will state the terms of the offering of the securities, including:
|
·
|
the offering terms, including the name or names of any underwriters, dealers or agents;
|
|
·
|
the purchase price of the securities and the net proceeds to be received by us from the sale;
|
|
·
|
any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
|
|
·
|
any public offering price;
|
|
·
|
any discounts or concessions allowed or reallowed or paid to dealers; and
|
|
·
|
any securities exchange on which the securities may be
listed.
|
If we use underwriters or dealers in
the sale, the securities will be acquired by the underwriters or dealers for their own account and may be resold from time to time
in one or more transactions, including:
|
·
|
privately negotiated transactions;
|
|
·
|
at a fixed public offering price or prices, which may be changed;
|
|
·
|
in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act;
|
|
·
|
at prices related to prevailing market prices; or
|
Any initial public offering price and any discounts
or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale of any securities, the securities
may be offered either to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters.
Generally, the underwriters’ obligations to purchase the securities will be subject to certain conditions precedent. The
underwriters will be obligated to purchase all of the securities if they purchase any of the securities.
If indicated in an applicable prospectus supplement,
we may sell the securities through agents from time to time. The applicable prospectus supplement will name any agent involved
in the offer or sale of the securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts
basis for the period of its appointment. We may authorize underwriters, dealers or agents to solicit offers by certain purchasers
to purchase the securities from us at the public offering price set forth in the applicable prospectus supplement pursuant to delayed
delivery contracts providing for payment and delivery on a specified date in the future. The delayed delivery contracts will be
subject only to those conditions set forth in the applicable prospectus supplement, and the applicable prospectus supplement will
set forth any commissions we pay for solicitation of these delayed delivery contracts.
Offered securities may also be offered and sold,
if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase, in accordance with
a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their
own accounts or as agents for us. Any remarketing firm will be identified and the terms of its agreements, if any, with us and
its compensation will be described in the applicable prospectus supplement.
Agents, underwriters and other third parties
described above may be entitled to indemnification by us against certain civil liabilities under the Securities Act, or to contribution
with respect to payments which the agents or underwriters may be required to make in respect thereof. Agents, underwriters and
such other third parties may be customers of, engage in transactions with, or perform services for us in the ordinary course of
business.
Each series of securities will be a new issue of securities and
will have no established trading market, other than our ordinary stock, which is listed on the New York Stock Exchange. Unless
otherwise indicated in the applicable prospectus supplement any ordinary sold will be listed on the New York Stock Exchange, upon
official notice of issuance. The securities other than the ordinary shares may or may not be listed on a national securities exchange
and no assurance can be given that there will be a secondary market for any such securities or liquidity in the secondary market
if one develops. Any underwriters to whom securities are sold by us for public offering and sale may make a market in the securities,
but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
TAXATION
The material BVI and U.S. federal income tax consequences relating
to the purchase, ownership and disposition of any of the securities offered by this prospectus will be set forth in the prospectus
supplement offering those securities.
LEGAL MATTERS
Certain matters
of U.S. federal and New York law will be passed upon for us by Kirkland & Ellis LLP, New York, New York. Unless otherwise indicated
in the applicable prospectus supplement, certain legal matters with respect to the laws of the British Virgin Islands will be passed
upon for us by Walkers, Tortola, British Virgin Islands.
EXPERTS
Our audited consolidated financial statements in this prospectus
and elsewhere in the registration statement have been included in reliance upon the report of ASA & Associates LLP, independent
registered public accountants, upon the authority of said firm as experts in accounting and auditing in giving said report.
ENFORCEABILITY
OF CIVIL LIABILITIES
Amira is incorporated in the BVI and our primary operating subsidiary,
Amira India, is incorporated in India. The majority of our directors and executive officers are not residents of the United States
and substantially all of our assets and the assets of such persons are located outside the United States. As a result, it may not
be possible for you to effect service of process within the United States upon such persons or us. In addition, you may be unable
to enforce judgments obtained in courts of the United States against such persons outside the jurisdiction of their residence,
including judgments predicated solely upon U.S. securities laws.
There is uncertainty as to whether the courts in the BVI would enforce
judgments obtained in the United States against us or our directors or executive officers, as well as the experts named herein,
based on the civil liability provisions of the securities laws of the United States or allow actions in the BVI against us or our
directors or executive officers based only upon the securities laws of the United States. Further, foreign judgments may not be
given effect to by a BVI court where it would be contrary to public policy in the BVI or to the extent that they constitute the
payment of an amount which is in the nature of a penalty and not in the nature of liquidated damages. In addition, no claim may
be brought in the BVI or India against us or our directors and officers, as well as the experts named herein, in the first instance
for a violation of U.S. federal securities laws because these laws have no extraterritorial application under BVI or Indian law
and do not have force of law in the BVI or India.
In addition to and irrespective of jurisdictional issues, neither
the BVI nor Indian courts will enforce a provision of the U.S. federal securities laws that is either penal in nature or contrary
to public policy. An action brought pursuant to a public or penal law, the purpose of which is the enforcement of a sanction, power
or right at the instance of the state in its sovereign capacity, is unlikely to be entertained by BVI or Indian courts. An award
of punitive damages under a U.S. court judgment based upon U.S. federal securities law is likely to be construed by BVI and Indian
courts to be penal in nature and therefore unenforceable in both the BVI and India. Specified remedies available under the laws
of U.S. jurisdictions, including specified remedies under U.S. federal securities laws, would not be available under BVI or Indian
law or enforceable in a BVI or Indian court, if they are considered to be contrary to BVI or Indian public policy (as the case
may be).
Section 44A of the Indian Code of Civil Procedure, 1908, as amended,
or the Civil Procedure Code, provides that where a foreign judgment has been rendered by a superior court in any country or territory
outside of India which the Government of India has by notification declared to be a reciprocating territory, such foreign judgment
may be enforced in India by proceedings in execution as if the judgment had been rendered by an appropriate court in India. However,
the enforceability of such judgments is subject to the exceptions set forth in Section 13 of the Civil Procedure Code. This section,
which is the statutory basis for the recognition of foreign judgments, states that a foreign judgment is conclusive as to any matter
directly adjudicated upon except:
|
·
|
where the judgment has not been pronounced by a court of competent jurisdiction;
|
|
·
|
where the judgment has not been given on the merits of the case;
|
|
·
|
where the judgment appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal
to recognize the law of India in cases where such law is applicable;
|
|
·
|
where the proceedings in which the judgment was obtained were opposed to natural justice;
|
|
·
|
where the judgment has been obtained by fraud; or
|
|
·
|
where the judgment sustains a claim founded on a breach of any law in force in India.
|
India is not a signatory to the "Convention on the Recognition
and Enforcement of Foreign Judgments in Civil and Commercial Matters" or any other international treaty in relation to the
recognition or enforcement of foreign judgments. Section 44A of the Civil Code provides that where a foreign judgment has been
rendered by a superior court in any country or territory outside India which the Government of India has declared to be a reciprocating
territory, it may be enforced in India as if the judgment had been rendered in India. The United States has not been declared by
the Government of India to be a reciprocating territory for the purposes of Section 44A of the Civil Procedure Code. If a judgment
of a foreign court is not enforceable under Section 44A of the Civil Procedure Code as described above, it may be enforced in India
only by a suit filed upon the judgment, subject to Section 13 of the Civil Procedure Code, and not by proceedings in execution.
Accordingly, a judgment of a court in the United States may be enforced only by filing a fresh suit on the basis of the judgment
and not by proceedings in execution.
The suit must be brought in India within three years from the date
of the judgment in the same manner as any other suit filed to enforce a civil liability in India. It is difficult to predict whether
a suit brought in an Indian court will be disposed of in a timely manner or be subject to untimely delay. Furthermore, it is unlikely
that an Indian court would enforce a foreign judgment if it viewed the amount of damages awarded as excessive or inconsistent with
public policy or practice in India.
A party seeking to enforce a foreign judgment in India is required
to obtain prior approval from the Reserve Bank of India under the Foreign Exchange Management Act, 1999, as amended, or FEMA, to
repatriate any amount recovered pursuant to such enforcement. Any judgment in a foreign currency would be converted into Indian
Rupees on the date of judgment and not on the date of payment.
There is no statutory enforcement in the BVI of judgments obtained
in the United States; however, the courts of the BVI will in certain circumstances recognize such a foreign judgment and treat
it as a cause of action in itself which may be sued upon as a debt at common law so that no retrial of the issues would be necessary
provided that:
|
·
|
the U.S. court issuing the judgment had jurisdiction in the matter and the company either submitted to such jurisdiction or
was resident or carrying on business within such jurisdiction and was duly served with process;
|
|
·
|
is final and for a liquidated sum;
|
|
·
|
the judgment given by the U.S. court was not in respect of penalties, taxes, fines or revenue obligations of the company;
|
|
·
|
in obtaining judgment there was no fraud on the part of the person in whose favor judgment was given or on the part of the
court;
|
|
·
|
recognition and enforcement of the judgment in the BVI would not be contrary to public policy; and
|
|
·
|
the proceedings pursuant to which judgment was obtained were not contrary to natural justice.
|
In appropriate circumstances, the BVI court may give effect in the
BVI to other kinds of final foreign judgments such as declaratory orders, orders for performance of contracts and injunctions.
WHERE YOU CAN
FIND MORE INFORMATION
The documents incorporated by reference into this prospectus are
available from us upon request. We will provide a copy of any and all of the information that is incorporated by reference in this
prospectus, without charge, upon written or oral request. If you would like to obtain this information from us, please direct your
request, either in writing or by telephone, to:
Bruce Wacha
Chief Financial Officer
12 East 52nd Street, 7th Floor
New York, NY 10022
Telephone: +1-646-779-1984
We are subject to the information and periodic reporting requirements
of the Exchange Act applicable to foreign private issuers and will fulfill the obligations with respect to those requirements by
filing reports with the SEC. These periodic reports and other information may be inspected and copied at the SEC’s Public
Reference Room at 100 F. Street, N.E., Washington, D.C. 20549. Copies of these materials can also be obtained by mail at prescribed
rates from the Public Reference Room of the SEC, 100 F. Street, N.E., Washington, D.C. 20549. You may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC maintains an internet site that contains reports,
proxy and information statements and other information regarding the Company and other issuers that file electronically with the
SEC. The address of the SEC internet site is
www.sec.gov
. This information is also available on our website at
www.amira.net
.
As a foreign private issuer, we will be exempt from the rules under
the Exchange Act related to the furnishing and content of proxy statements, and our officers, directors and principal shareholders
will be exempt from the reporting and short-swing profit recovery provisions contained in Section 16 of the Exchange Act relating
to their purchases and sales of ordinary shares. In addition, we will not be required under the Exchange Act to file annual, quarterly
and current reports and financial statements with the SEC as frequently or as promptly as United States companies whose securities
are registered under the Exchange Act. However, we intend to file with the SEC, within 120 days after the end of each fiscal year,
an annual report on Form 20-F containing financial statements audited by an independent public accounting firm. We also intend
to furnish a semi-annual report on Form 6-K containing unaudited interim financial information for the first half of each fiscal
year.
INCORPORATION
OF INFORMATION BY REFERENCE
The SEC allows us to “incorporate by reference” into
this prospectus, and any accompanying prospectus supplement, the information we have filed with the SEC. This means that we can
disclose important information by referring you to those documents. The information incorporated by reference is considered to
be a part of this prospectus, and information that we file later with the SEC prior to the termination of this offering will also
be deemed to be incorporated by reference into this prospectus and to be a part hereof from the date of filing of such documents
and will automatically update and supersede previously filed information, including information contained in this document.
We incorporate by reference into this prospectus and any accompanying
prospectus supplement the following documents that we have filed with the SEC:
|
·
|
Annual Report on Form 20-F for the fiscal year ended March 31, 2017, filed with the SEC on July 31, 2017; and
|
|
·
|
Registration Statement on Form 8-A, filed with the SEC on October 4, 2012.
|
Copies of these filings are available free of charge by writing
to Amira Foods Inc, Attention: Bruce
Wacha, Chief Financial Officer, 12 East 52nd Street, 7th Floor, New York, NY 10022.
We are also incorporating by reference all subsequent annual reports
on Form 20-F that we file with the SEC and certain reports on Form 6-K that we furnish to the SEC between the date that we initially
file the registration statement to which this prospectus relates and the termination of the offering of the securities (if they
state that they are incorporated by reference into this prospectus). In all cases, you should rely on the later information over
different information included in this prospectus.
Any statement made in this prospectus concerning the contents of
any contract, agreement or other document is only a summary of the actual document. You may obtain a copy of any document summarized
in this prospectus at no cost by writing to or telephoning us at the address and telephone number given above. Each statement regarding
a contract, agreement or other document is qualified in its entirety by reference to the actual document.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 8. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our memorandum and articles of association provide that, subject
to certain limitations, the company may indemnify its directors and officers against all expenses, including legal fees, and against
all judgments, fines and amounts paid in settlement and reasonably incurred in connection with legal, administrative or investigative
proceedings. Such indemnification may only take place if the person acted honestly and in good faith with a view to the best interests
of the company and, in the case of criminal proceedings, the person had no reasonable cause to believe that their conduct was unlawful.
The decision of the directors as to whether the person acted honestly and in good faith and with a view to the best interests of
the company and as to whether the person had no reasonable cause to believe that his conduct was unlawful and is, in the absence
of fraud, sufficient for the purposes of the memorandum and articles of association, unless a question of law is involved. The
termination of any proceedings by any judgment, order, settlement, conviction or the entering of a
nolle prosequi
does not,
by itself, create a presumption that the person did not act honestly and in good faith and with a view to the best interests of
the company or that the person had reasonable cause to believe that his conduct was unlawful.
We have entered, and expect to continue to enter, into agreements
to indemnify our directors, executive officers and other employees as determined by our board of directors. With specified exceptions,
these agreements provide for indemnification for related expenses including, among other things, attorneys' fees, judgments, fines
and settlement amounts incurred by any of these individuals in any action or proceeding. We believe that the provisions in our
memorandum and articles of association, indemnification agreements, and officers' and directors' liability insurance described
in further detail below are necessary to attract and retain talented and experienced officers and directors.
Our memorandum and articles of association permit us to purchase
and maintain insurance on behalf of any officer or director who at the request of the company is or was serving as a director or
officer of, or in any other capacity is or was acting for, another company or a partnership, joint venture, trust or other enterprise,
against any liability asserted against the person and incurred by the person in that capacity, whether or not the company has or
would have had the power to indemnify the person against the liability as provided in the memorandum and articles of association.
We maintain standard policies of insurance under which coverage is provided (1) to our directors and officers against loss rising
from claims made by reason of breach of duty or other wrongful act, and (2) to the registrant with respect to payments which may
be made by the registrant to such officers and directors pursuant to the above indemnification provision or otherwise as a matter
of law.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have
been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and
is theretofore unenforceable.
ITEM 9. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference
herein:
|
1.1
|
Form of Underwriting Agreement**
|
|
4.1
|
Amended and Restated Memorandum and Articles of Association(1)
|
|
4.2
|
Certificate of Name Change(1)
|
|
4.3
|
Specimen Preferred Share Certificate and Form of Certificate
of Designation, Preferences and Rights with respect to any series of Preferred Shares issued hereunder**
|
|
4.6
|
Form of Subscription Rights Agreement**
|
|
4.7
|
Form of Warrant Agreement**
|
|
4.8
|
Form of Share Purchase Contract**
|
|
4.9
|
Form of Unit Agreement**
|
|
5.2
|
Opinion of Kirkland & Ellis LLP*
|
|
12.1
|
Statement regarding Computation of Ratio of Earnings to
Fixed Charges*
|
|
23.1
|
Consent of ASA Associates LLP*
|
|
23.2
|
Consent of Walkers (included in Exhibit 5.1)*
|
|
23.3
|
Consent of Kirkland & Ellis LLP (included in Exhibit
5.2)*
|
|
24.1
|
Power of Attorney of certain directors and officers of
the Registrant (included in signature page of this Registration Statement)*
|
|
25.1
|
Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of designated trustee under the Indenture**
|
|
**
|
To be filed by amendment to the Registration Statement or incorporated by reference from documents filed or to be filed with
the SEC under the Exchange Act.
|
|
(1)
|
Incorporated by reference to the Registration Statement on Form F-1, as amended, initially filed with the Securities and Exchange
Commission on August 29, 2012 (File No.: 333-183612).
|
ITEM 10. UNDERTAKINGS.
|
(a)
|
The undersigned Registrant hereby undertakes:
|
|
(1)
|
To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
|
|
(i)
|
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
|
|
(ii)
|
To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange
Commission (the “Commission”), pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than a 20-percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective registration statement;
|
|
(iii)
|
To include any material information with respect to the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration Statement;
|
Provided
,
however
, that:
Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the registration statement is on Form F-3 and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section
13 or section 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) that are incorporated by
reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
the registration statement.
|
(2)
|
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial
bona fide
offering thereof.
|
|
(3)
|
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
|
|
(4)
|
To file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of
Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act need not be furnished,
provided
that the registrant includes in the prospectus,
by means of a post-effective amendment, financial statements required pursuant to this paragraph and other information necessary
to ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding
the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Securities Act or Rule 3-19 of Regulation S-K if such financial
statements and information are contained in periodic reports filed with or furnished to the Commission by the registrant pursuant
to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the Form F-3.
|
|
(5)
|
That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser:
|
|
(i)
|
Each prospectus filed by the registrant pursuant to Rule 424 (b)(3) shall be deemed to be part of this Registration Statement
as of the date the filed prospectus was deemed part of and included in the registration statement; and
|
|
(ii)
|
Each prospectus required to be filed pursuant to Rule 424 (b)(2), or (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing
the information required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration
statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract
of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Provided
,
however
, that no statement made
in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the registration statement or made in any such document immediately prior
to such effective date.
|
|
(6)
|
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities: The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if
the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
|
(i)
|
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
|
|
(ii)
|
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
|
|
(iii)
|
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
|
|
(iv)
|
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
|
|
(7)
|
That, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial
bona fide
offering thereof.
|
|
(8)
|
That, for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
|
|
(9)
|
That, for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
|
|
(b)
|
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion
of the Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will
be governed by the final adjudication of such issue.
|
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe it meets all of the requirements for filing on Form F-3 and has duly caused
this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in New York, New York, on August 2, 2017.
|
AMIRA NATURE FOODS LTD
|
|
|
|
|
By:
|
/s/ Bruce C. Wacha
|
|
|
Name: Bruce C. Wacha
|
|
|
Title: Chief Financial Officer
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Karan A. Chanana and Bruce C. Wacha or either of them, his true and lawful attorney-in-fact
and agents, with full power of substitution and resubstitution, for him and in his or her name, place and stead, in any and all
capacities, to sign any and
all
amendments (including post-effective amendments) to this registration
statement, and to sign any related registration statement filed pursuant to Rule 462 under the Security Act. and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the SEC, granted unto said attorney-in-fact and agents,
full power and authority to do and to perform each and every act and thing required and necessary to be done in and about the premises,
as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact
and agents, or any of them or their substitutes or substitutes, could lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities indicated on August 2,
2017.
/s/ Karan A. Chanana
|
|
Chief Executive Officer, Chairman
and
Director
|
Karan A. Chanana
|
|
(Principal Executive Officer)
|
|
|
|
/s/ Bruce C. Wacha
|
|
Chief Financial Officer and Director
|
Bruce C. Wacha
|
|
(Principal Financial and Accounting Officer)
|
|
|
|
/s/ Neal Cravens
|
|
Director
|
Neal Cravens
|
|
|
|
|
|
/s/ Shiv Surinder Kumar
|
|
Director
|
Shiv Surinder Kumar
|
|
|
|
|
|
/s/ Harash Pal Sethi
|
|
Director
|
Harash Pal Sethi
|
|
|
Amira I Grand Foods Inc
|
|
Authorized Representative In The United States
|
By:
|
/s/ Bruce Wacha
|
|
|
Name:
|
Bruce Wacha
|
|
|
Title:
|
Chief Financial Officer
|
|
|
EXHIBIT INDEX
The following exhibits are filed herewith or incorporated by reference
herein:
|
1.1
|
Form of Underwriting Agreement**
|
|
4.1
|
Amended and Restated Memorandum and Articles of Association(1)
|
|
4.2
|
Certificate of Name Change(1)
|
|
4.3
|
Specimen Preferred Share Certificate and Form of Certificate
of Designation, Preferences and Rights with respect to any series of Preferred Shares issued hereunder**
|
|
4.6
|
Form of Subscription Rights Agreement**
|
|
4.7
|
Form of Warrant Agreement**
|
|
4.8
|
Form of Share Purchase Contract**
|
|
4.9
|
Form of Unit Agreement**
|
|
5.2
|
Opinion of Kirkland & Ellis LLP*
|
|
12.1
|
Statement regarding Computation of Ratio of Earnings to
Fixed Charges*
|
|
23.1
|
Consent of ASA Associates LLP*
|
|
23.2
|
Consent of Walkers (included in Exhibit 5.1)*
|
|
23.3
|
Consent of Kirkland & Ellis LLP (included in Exhibit
5.2)*
|
|
24.1
|
Power of Attorney of certain directors and officers of
the Registrant (included in signature page of this Registration Statement)*
|
|
25.1
|
Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939, as amended, of designated trustee under the Indenture**
|
|
**
|
To be filed by amendment to the Registration Statement or incorporated by reference from documents filed or to be filed with
the SEC under the Exchange Act.
|
|
(1)
|
Incorporated by reference to the Registration Statement on Form F-1, as amended, initially filed with the Securities and Exchange
Commission on August 29, 2012 (File No.: 333-183612).
|
Amira Nature Foods (NYSE:ANFI)
Historical Stock Chart
From Mar 2024 to Apr 2024
Amira Nature Foods (NYSE:ANFI)
Historical Stock Chart
From Apr 2023 to Apr 2024