Exhibit 1.1
MINDRAY MEDICAL INTERNATIONAL LIMITED
__________ AMERICAN DEPOSITARY SHARES
REPRESENTING
__________ CLASS A ORDINARY SHARES
(PAR VALUE HK$0.001 PER SHARE)
----------
FORM OF UNDERWRITING AGREEMENT
________________, 2006
Xxxxxxx Xxxxx (Asia) L.L.C.,
00xx Xxxxx, Xxxxxx Xxxx Xxxxxx,
0 Xxxxx'x Xxxx Xxxxxxx,
Xxxx Xxxx
UBS AG
52/F, 2 International Finance Centre,
0 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxx Xxxx
As Representatives of the several Underwriters named in Schedule I attached
hereto.
Ladies and Gentlemen:
Mindray Medical International Limited, an exempted company incorporated in
the Cayman Islands (the "Company"), proposes, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters named in
Schedule I attached hereto (the "Underwriters") an aggregate of _____ American
Depositary Shares representing _____ Class A ordinary shares, par value HK$0.001
per share (the "Ordinary Shares"), of the Company and, at the election of the
Underwriters, up to _____ additional American Depositary Shares representing
_____ Ordinary Shares, and the shareholders of the Company named in Schedule II
attached hereto (the "Selling Shareholders") propose, subject to the terms and
conditions stated herein, to sell to the Underwriters an aggregate of _____
American Depositary Shares representing _____ Ordinary Shares and, at the
election of the Underwriters, up to _____ additional American Depositary Shares
representing _____ Ordinary Shares. The aggregate of _____ American Depositary
Shares representing _____ Ordinary Shares to be sold by the Company and the
Selling Shareholders is herein called the "Firm ADSs", and the aggregate of
_____ American Depositary Shares representing _____ additional Ordinary Shares
to be sold by
the Company and the Selling Shareholders is herein called the "Optional ADSs".
The Firm ADSs and the Optional ADSs that the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called the "ADSs". The
Ordinary Shares represented by the Firm ADSs are hereinafter called the "Firm
Shares" and the Ordinary Shares represented by the Optional ADSs are hereinafter
called the "Optional Shares", and the Firm Shares and the Optional Shares are
herein collectively called the "Shares".
The ADSs are to be issued pursuant to a deposit agreement (the "Deposit
Agreement"), to be dated as of _____, 2006, among the Company, The Bank of New
York, as depositary (the "Depositary"), and holders from time to time of the
American Depositary Receipts (the "ADRs") issued by the Depositary and
evidencing the ADSs. Each ADS will initially represent the right to receive
_____ Ordinary Shares deposited pursuant to the Deposit Agreement.
The Company hereby acknowledges that, in connection with the proposed
offering of the ADSs, it has requested the Representatives to administer a
directed share program (the "Directed Share Program") under which up to _____
Firm ADSs, or 5% of the Firm ADSs to be purchased by the Underwriters (the
"Reserved ADSs"), shall be reserved for sale by the Representatives at the
initial public offering price to the Company's officers, directors, employees
and consultants and other persons having a relationship with the Company as
designated by the Company (the "Directed Share Participants") as part of the
distribution of the ADSs by the Underwriters, subject to the terms of this
Agreement, the applicable rules, regulations and interpretations of the National
Association of Securities Dealers, Inc. (the "NASD") and all other applicable
laws, rules and regulations. The number of ADSs available for sale to the
general public will be reduced to the extent that Directed Share Participants
purchase Reserved ADSs. The Underwriters may offer any Reserved ADSs not
purchased by Directed Share Participants to the general public on the same basis
as the other ADSs being issued and sold hereunder. The Company has supplied the
Representatives with the names, addresses and telephone numbers of the
individuals or other entities which the Company has designated to be
participants in the Directed Share Program. It is understood that any number of
those so designated to participate in the Directed Share Program may decline to
do so.
It is understood by all the parties that the Underwriters are offering ADSs
in the United States and internationally outside of the People's Republic of
China (the "PRC"), which, for purposes of this Agreement only, excludes Taiwan,
The Hong Kong Special Administrative Region and The Macau Special Administrative
Region.
1. (a) The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(i) A registration statement on Form F-1 (File No. 333-______)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the U.S. Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of
the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the U.S. Securities Act of 1933,
as amended (the "Act"), which became or will become effective upon
filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop
order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
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preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the Preliminary Prospectus relating to the Shares and the
ADSs that was included in the Registration Statement immediately prior
to the Applicable Time (as defined in Section 1(iii) hereof) is
hereinafter called the "Pricing Prospectus"; such final prospectus, in
the form first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the "Prospectus"; and any "issuer free writing
prospectus" as defined in Rule 433 under the Act relating to the
Shares and the ADSs is hereinafter called an "Issuer Free Writing
Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder, and
did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(iii) For the purposes of this Agreement, the "Applicable Time"
is __:__m (New York City time) on the date of this Agreement; the
Pricing Prospectus as supplemented by those Issuer Free Writing
Prospectuses and other documents listed in Schedule III attached
hereto, taken together (collectively, the "Pricing Disclosure
Package") as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each
Issuer Free Writing Prospectus listed in Schedule III attached hereto
does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken together
with the Pricing Disclosure Package as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to statements or omissions made in an Issuer Free
Writing Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and
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regulations of the Commission thereunder and do not and will not, as
of the applicable effective date as to the Registration Statement and
any amendment thereto and as of the applicable filing date as to the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company
by an Underwriter through the Representatives expressly for use
therein;
(v) A registration statement on Form F-6 (File No. 333-____) in
respect of the ADSs has been filed with the Commission; such
registration statement in the form heretofore delivered to you and,
excluding exhibits, to you for each of the other Underwriters, has
been declared effective by the Commission in such form; no other
document with respect to such registration statement has heretofore
been filed with the Commission; no stop order suspending the
effectiveness of such registration statement has been issued and, to
the best of the Company's knowledge after due inquiry, no proceeding
for that purpose has been initiated or threatened by the Commission
(the various parts of such registration statement, including all
exhibits thereto, each as amended at the time such part of the
registration statement became effective, being hereinafter called the
"ADS Registration Statement"); and the ADS Registration Statement when
it became effective conformed, and any further amendments thereto will
conform, in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, and did not,
as of the applicable effective date, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(vi) A registration statement on Form 8-A (File No. 000-____) in
respect of the registration of the Shares and the ADSs under the U.S.
Securities Exchange Act of 1934, as amended (the "Exchange Act"), has
been filed with the Commission; such registration statement in the
form heretofore delivered to you and, excluding exhibits, to you for
each of the other Underwriters, has been declared effective by the
Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the Commission;
no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or, to the best of the Company's knowledge after due
inquiry, threatened by the Commission (the various parts of such
registration statement, including all exhibits thereto, each as
amended at the time such part of the registration statement became
effective, being hereinafter called the "Form 8-A Registration
Statement"); and the Form 8-A Registration Statement when it became
effective conformed, and any further amendments thereto will conform,
in all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, and did not
and will not, as of the applicable effective date, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading;
(vii) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Pricing Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Pricing
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Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Pricing Prospectus, there
has not been any change in the capital stock, short-term debt or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect"), otherwise than as set forth or
contemplated in the Pricing Prospectus;
(viii) Each of the Company and its subsidiaries has good and
valid title to all real property and good and marketable title to all
personal property owned by them, in each case, free and clear of all
liens, encumbrances and defects except such as are described in the
Pricing Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed to
be made of such property by each of the Company and its subsidiaries;
and any real property and buildings held under lease the Company and
its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries;
(ix) The Company and its subsidiaries maintain insurance covering
their respective properties, operations, product liabilities,
personnel and businesses as the Company reasonably deems adequate;
such insurance insures against such losses and risks to an extent
which is adequate to protect the Company and its subsidiaries and
their respective businesses; all such insurance is fully in force on
the date hereof and will be fully in force at the time of purchase and
each additional time of purchase, if any; neither the Company nor any
of its subsidiaries has reason to believe that it will not be able to
renew any such insurance as and when such insurance expires; and there
is no material insurance claim made by or against the Company or any
of its subsidiaries, pending, outstanding, or to the best knowledge of
the Company after due inquiry, threatened, and no facts or
circumstances exist that would reasonably be expected to give rise to
any such claim and all due premiums in respect thereof have been paid;
(x) The Company has been duly incorporated and is validly
existing as a company in good standing under the laws of the Cayman
Islands, with power and authority (corporate and other) to own, lease
and operate its properties and conduct its business as described in
the Pricing Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and
each subsidiary of the Company has been duly incorporated or organized
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with power and authority
(corporate or other) to own, lease and operate its properties and
conduct its business as described in the Pricing Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except for the failure
to be so qualified in any such jurisdiction would reasonably be
expected to have a Material Adverse Effect;
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(xi) Neither the Company nor any of its subsidiaries has sent or
received any communication regarding termination of, or intent not to
renew, any of the material contracts or agreements referred to or
described in the Pricing Prospectus, the Prospectus or any Issuer Free
Writing Prospectus, or referred to or described in, or filed as an
exhibit to, the Registration Statement, and no such termination or
non-renewal has been threatened by the Company or any of its
subsidiaries or any other party to any such contract or agreement;
(xii) The Company and its subsidiaries have all necessary
licenses, franchises, concessions, consents, authorizations,
approvals, orders, certificates and permits of and from, and has made
all declarations and filings with, all governmental agencies to own,
lease, license and use its properties, assets and conduct its business
in the manner described in the Pricing Prospectus except where the
lack of which would not reasonably be expected to have a Material
Adverse Effect and such licenses, franchises, concessions, consents,
authorizations, approvals, orders, certificates or permits contain no
material restrictions or conditions not described in the Pricing
Prospectus; and except as described in the Pricing Prospectus, to the
best knowledge of the Company after due inquiry, neither the Company
nor any of its subsidiaries is aware that any regulatory body is
considering modifying, suspending or revoking any such licenses,
consents, authorizations, approvals, orders, certificates or permits,
and the Company and its subsidiaries are in compliance with the
provisions of all such licenses, consents, authorizations, approvals,
orders, certificates or permits;
(xiii) Neither the Company nor any of its subsidiaries is (A) in
breach of or in default under any laws, regulations, rules, orders,
decrees, guidelines or notices of the PRC, the Cayman Islands, the
British Virgin Islands (the "BVI") and any other jurisdiction where it
was incorporated or operates, (B) in breach of or in default under any
approval, consent, waiver, authorization, exemption, permission,
endorsement or license granted by any court or governmental agency or
body of any stock exchange authorities ("Governmental Agency") in the
PRC, the Cayman Islands, the BVI or any other jurisdiction where it
was incorporated or operates, (C) in violation of its constituent
documents or (D) in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound;
(xiv) The Company has an authorized and paid-in capitalization as
set forth in the Pricing Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and all of the issued
ordinary shares (consisting of Class A and Class B ordinary shares)
conform in all material respects to the description of the ordinary
shares contained in the Pricing Disclosing Package; and all of the
issued shares of capital stock of each of the subsidiaries of the
Company have been duly and validly authorized and issued, and are
fully paid and non-assessable; all of the issued shares of capital
stock of each of Greatest Elite Limited ("GEL") and Giant Glory
Investments Limited ("GGIL") are owned by the Company, free and clear
of all liens, encumbrances, equities or claims; GEL and GGIL own the
equity interest of Shenzhen Mindray Bio-Medical Electronics Co., Ltd.
("Shenzhen Mindray") in the percentages set forth in the Pricing
Prospectus under the caption "Our Corporate Structure", free and clear
of all liens, encumbrances, equities or claims; the holders of
outstanding ordinary shares are not entitled to preemptive or other
rights to acquire the
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Shares or the ADSs; there are no outstanding securities convertible
into or exchangeable for, or warrants, rights or options to purchase
from the Company, or obligations of the Company to issue, ordinary
shares or any other class of capital stock of the Company except as
described in the Pricing Prospectus under the captions
"Capitalization", "Management - 2006 Employee Share Incentive Plan"
and "Related Party Transactions"; the Shares, when issued and
delivered against payment therefor, may be freely deposited by the
Company and the Selling Shareholders with the Depositary against
issuance of ADRs evidencing ADSs; the ADSs, when issued and delivered
against payment thereof, will be freely transferable by the Company
and the Selling Shareholders to or for the account of the several
Underwriters and (to the extent described in the Pricing Prospectus)
the initial purchasers thereof; and there are no restrictions on
subsequent transfers of the ADSs under the laws of the Cayman Islands,
the PRC or the United States except as described in the Pricing
Prospectus under the captions "Description of Share Capital",
"Description of American Depositary Shares" and "Shares Eligible for
Future Sale";
(xv) Except as described in the Registration Statement (excluding
the exhibits thereto), the Pricing Prospectus and the Prospectus, (A)
no person has any preemptive rights, resale rights, rights of first
refusal or other rights to purchase any ordinary shares or shares of
any other capital stock of or other equity interests in the Company
and (B) no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and sale
of the ADSs;
(xvi) The Shares to be issued underlying the ADSs to be sold by
the Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable and will conform in all material respects to the
description of the ordinary shares contained in the Prospectus;
(xvii) All of the ordinary shares issuable upon the mandatory
conversion of the outstanding Convertible Redeemable Preference Shares
(the "Preferred Stock") as described in the Pricing Prospectus have
been duly authorized and reserved for issuance;
(xviii) Except as described in the Pricing Prospectus, there are
no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement, the ADS Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
(xix) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency,
reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(xx) The Deposit Agreement has been duly authorized and, when
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Depositary, will constitute a valid and
legally binding agreement of the Company, enforceable in accordance
with its terms, subject, as to enforceability, to bankruptcy,
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insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and upon issuance by the Depositary of ADRs evidencing
ADSs and the deposit of Shares in respect thereof in accordance with
the provisions of the Deposit Agreement, such ADRs will be duly and
validly issued and the persons in whose names the ADRs are registered
will be entitled to the rights specified therein and in the Deposit
Agreement; and the Deposit Agreement and the ADRs conform in all
material respects to the descriptions thereof contained in the
Prospectus;
(xxi) All dividends and other distributions declared and payable
on the shares of capital stock of the Company may under the current
laws and regulations of the Cayman Islands be paid to the Depositary,
and all such dividends and other distributions will not be subject to
withholding or other taxes under the laws and regulations of the
Cayman Islands and are otherwise free and clear of any other tax,
withholding or deduction in the Cayman Islands and without the
necessity of obtaining any consents, approvals, authorizations,
orders, registrations, clearances or qualifications of or with any
Governmental Agency having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties (hereinafter
referred to as "Governmental Authorizations") in the Cayman Islands;
(xxii) All dividends and other distributions declared and payable
on the shares of capital stock of each of GEL and GGIL may under the
current laws and regulations of the BVI be paid to the Company, and
all such dividends and other distributions will not be subject to
withholding or other taxes under the laws and regulations of the BVI
and are otherwise free and clear of any other tax, withholding or
deduction in the BVI and without the necessity of obtaining any
Governmental Authorization in the BVI;
(xxiii) Dividends declared with respect to after-tax retained
earnings on the equity interests of Shenzhen Mindray may under the
current laws and regulations of the PRC be paid to GEL and GGIL in
U.S. dollars, subject to the successful completion of PRC formalities
required for such remittances and all such dividends and other
distributions will not be subject to withholding or other taxes under
the laws and regulations of the PRC and are otherwise free and clear
of any other tax, withholding or deduction in the PRC, and without the
necessity of obtaining any Governmental Authorization in the PRC;
(xxiv) The issue and sale of the Shares to be sold by the Company
hereunder and the deposit of the Shares being deposited with the
Depositary against issuance of the ADRs evidencing the ADSs and the
compliance by the Company with all of the provisions of this Agreement
and the Deposit Agreement and the consummation of the transactions
herein and therein contemplated will not (A) conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for such
conflict, breaches, violations or defaults which, individually or in
the aggregate, would not reasonably be expected to have a Material
Adverse Effect, (B) result in any violation of the provisions of the
constituent documents of the Company or any of its subsidiaries or (C)
result in any violation of any statute or any order, rule or
regulation of any Governmental Agency having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets;
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(xxv) No consent, approval, authorization, order, registration,
clearance or qualification of or with any Governmental Agency is
required for the issue and sale of the Shares or the ADSs, for the
deposit of the Shares being deposited with the Depositary against
issuance of ADRs evidencing the ADSs to be delivered or the
consummation by the Company of the transactions contemplated by this
Agreement and the Deposit Agreement, except (A) the registration under
the Act of the Shares and the ADSs and listing of the Shares and the
ADSs on the New York Stock Exchange ("NYSE"), (B) such Governmental
Authorizations as have been duly obtained and are in full force and
effect and copies of which have been furnished to you and (C) such
Governmental Authorizations as may be required under state securities
or Blue Sky laws or any laws of jurisdictions outside the Cayman
Islands, the BVI and the United States in connection with the purchase
and distribution of the Shares and ADSs by or for the respective
accounts of the several Underwriters;
(xxvi) The ADSs have been approved for listing on the NYSE,
subject to notice of issuance;
(xxvii) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters to the government of the Cayman
Islands, the BVI or the PRC, or any political subdivision or taxing
authority thereof or therein in connection with: (A) the deposit with
the Depositary of the Shares by the Company against the issuance of
ADRs evidencing the ADSs, (B) the sale and delivery by the Company of
the Shares and the ADSs to or for the respective accounts of the
several Underwriters or (C) the sale and delivery by the Underwriters
of the Shares and the ADSs to the initial purchasers thereof in the
manner contemplated by this Agreement;
(xxviii) Neither the Company nor any of its subsidiaries has
taken, directly or indirectly, any action which was designed to or
which has constituted or which might reasonably be expected to cause
or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares
and the ADSs;
(xxix) The statements set forth in the Pricing Prospectus under
the captions "Description of Share Capital" and "Description of
American Depositary Shares", insofar as they purport to constitute a
summary of the terms of the ordinary shares and the ADSs,
respectively, and under the captions "Taxation" and "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are true, accurate, complete and fair
in all material respects;
(xxx) Other than as set forth in the Pricing Prospectus, there
are no legal, arbitration or governmental proceedings (including,
without limitation, governmental investigations and inquiries) pending
to which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries or the
Company's directors and executive officers named in the Pricing
Prospectus is the subject (A) that, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect; or
(B) that are required to be described in the Registration Statement or
the Pricing Prospectus and are not so described; and except as set
forth in the Pricing Prospectus and, to the Company's best knowledge
after due inquiry, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
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(xxxi) The Company is not and, after giving effect to the
offering and sale of the Shares and ADSs and the application of the
proceeds thereof, will not be an "investment company", as such term is
defined in the U.S. Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xxxii) Each of this Agreement and the Deposit Agreement is in
proper form to be enforceable against the Company in the Cayman
Islands in accordance with its terms; to ensure the legality,
validity, enforceability or admissibility into evidence in the Cayman
Islands of this Agreement or the Deposit Agreement, it is not
necessary that this Agreement or the Deposit Agreement be filed or
recorded with any court or other authority in the Cayman Islands or
that any stamp or similar tax in the Cayman Islands be paid on or in
respect of this Agreement, the Deposit Agreement or any other
documents to be furnished hereunder;
(xxxiii) The Registration Statement, the Pricing Prospectus, the
Prospectus, any Issuer Free writing Prospectus and the ADS
Registration Statement and the filing of the Registration Statement,
the Pricing Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and the ADS Registration Statement with the Commission have
been duly authorized by and on behalf of the Company, and the
Registration Statement and the ADS Registration Statement have been
duly executed pursuant to such authorization by and on behalf of the
Company;
(xxxiv) Except as described in the Pricing Prospectus, in each
case, (A) each of the Company and its subsidiaries owns, possesses,
licenses or has other rights to use the patents and patent
applications, copyrights, trademarks, service marks, trade names,
Internet domain names, technology, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary rights) and other
intellectual property necessary or used in any material respect to
conduct their business in the manner in which it is being conducted
and in the manner in which it is contemplated as set forth in the
Pricing Prospectus (collectively, the "Intellectual Property"); (B)
neither the material copyrights owned or licensed by the Company nor
any of its subsidiaries is unenforceable or invalid; (C) neither the
Company nor any of its subsidiaries has received any notice of
violation or conflict with (and neither the Company nor any of its
subsidiaries knows of any basis for violation or conflict with) rights
of others with respect to the Intellectual Property; (D) there are no
pending or, to the best knowledge of the Company after due inquiry,
threatened actions, suits, proceedings or claims by others that allege
the Company or any of its subsidiaries is infringing any patent, trade
secret, trademark, service xxxx, copyright or other intellectual
property or proprietary right; (E) the discoveries, inventions,
products or processes of the Company and its subsidiaries referenced
in the Pricing Prospectus, to the best knowledge of the Company after
due inquiry, do not violate or conflict with any intellectual property
or proprietary right of any third person, or any discovery, invention,
product or process that is the subject of a patent application filed
by any third person; and (F) the Company and its subsidiaries are not
in breach of, and have complied in all material respects with all
terms of, any license or other agreement relating to the Intellectual
Property; to the extent any Intellectual Property is sublicensed to
the Company or any of its subsidiaries by a third party, such
sublicensed rights shall continue in full force and effect if the
principal third party license terminates for any reason; and there are
no contracts or other documents related to the Intellectual Property
required to be described in or filed as an exhibit to the Registration
Statement other than those described in or filed as an exhibit to the
Registration Statement;
10
(xxxv) With respect to any of the Intellectual Property that was
assigned by Shenzhen Mindray Electronics Co., Ltd (Chinese Characters)
or Changrunda Electronics (Shenzhen) Co., Ltd. (Chinese Characters) to
Shenzhen Mindray, such Intellectual Property has been assigned solely
to Shenzhen Mindray, which assignment was either recorded in and
proclaimed by the PRC State Intellectual Property Office and/or other
relevant PRC intellectual property administrative authorities
(collectively, the "PRC Intellectual Property Authority") or other
foreign patent or trademark registration offices, as applicable, or
have been submitted for recording in the PRC Intellectual Property
Authority or other foreign patent or trademark registration offices,
as applicable; and such assignment is valid, binding and enforceable,
and all Government Authorizations in the PRC in respect of such
assignment have been obtained and are in full force and effect, and we
have no reason to believe that such assignment is invalid;
(xxxvi) The Company has not in the past been a Passive Foreign
Investment Company ("PFIC") within the meaning of Section 1297(a) of
the United States Internal Revenue Code of 1986, as amended, and is
not likely to become a PFIC;
(xxxvii) Except as described in the Registration Statement and
the Pricing Prospectus, the Company has not sold, issued or
distributed any shares during the six-month period preceding the date
hereof, including any sales pursuant to Rule 144A, Regulation D or
Regulation S promulgated under the Act, other than shares issued
pursuant to employee benefit plans, qualified share option plans or
other employee compensation plans or pursuant to outstanding options,
rights or warrants;
(xxxviii) The Company is a "foreign private issuer" within the
meaning of Rule 405 under the Act;
(xxxix) Deloitte Touche Tohmatsu, who have certified certain
financial statements of the Company and its subsidiaries, are
independent public accountants of the Company as required by the Act
and the rules and regulations of the Commission thereunder and are
independent in accordance with the requirements of the United States
Public Company Accounting Oversight Board;
(xl) Except as described in the Pricing Prospectus, no material
indebtedness (actual or contingent) and no material contract or
arrangement is outstanding between the Company or any of its
subsidiaries and any director or executive officer of the Company or
any of its subsidiaries or any person connected with such director or
executive officer (including his/her spouse, infant children, any
company or undertaking in which he/she holds a controlling interest);
(xli) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that: (A)
transactions are executed in accordance with management's general or
specific authorizations; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
generally accepted accounting principles in the United States ("US
GAAP"); (C) access to assets is permitted only in accordance with
management's general or specific authorization; (D) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate actions are taken with respect to
any differences; and
11
(E) the Company has made and kept books, records and accounts which,
in reasonable detail, accurately and fairly reflect the transactions
and dispositions of assets of such entity;
(xlii) The Company has established and maintains and evaluates
"disclosure controls and procedures" (as such term is defined in Rule
13a-15 and 15d-15 under the Exchange Act) and "internal control over
financial reporting" (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information relating
to the Company, including its subsidiaries, is made known to the
Company's chief executive officer and chief financial officer by
others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they were
established; the Company's independent auditors and the Audit
Committee of the Board of Directors of the Company have been advised
of: (A) all significant deficiencies, if any, in the design or
operation of internal controls which could adversely affect the
Company's ability to record, process, summarize and report financial
data; and (B) all fraud, if any, whether or not material, that
involves management or other employees who have a role in the
Company's internal controls; all material weaknesses, if any, in
internal controls have been identified to the Company's independent
auditors; such internal control over financial reporting has been
designed by the Company's chief executive officer and chief financial
officer, or under their supervision, to provide reasonable assurance
regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with US
GAAP; since the date of the most recent evaluation of such disclosure
controls and procedures and internal controls, there have been no
significant changes in internal controls or in other factors that
could significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material
weaknesses; and the Company has taken all necessary actions to ensure
that, upon and at all times after the filing of the Registration
Statement, the Company and its subsidiaries and their respective
officers and directors, in their capacities as such, will be in
compliance in all material respects with the applicable provisions of
the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act") and the
rules and regulations promulgated thereunder;
(xliii) Except as described in the Pricing Prospectus, neither
the Company nor any of its subsidiaries has any material obligation to
provide retirement, healthcare, death or disability benefits to any of
the present or past employees of the Company or any of its
subsidiaries, or to any other person;
(xliv) No material labor dispute, work stoppage, slow down or
other conflict with the employees of the Company or any of its
subsidiaries exists or, to the best knowledge of the Company after due
inquiry, is threatened;
(xlv) The section entitled "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Critical
Accounting Policies" in the Pricing Prospectus truly, accurately and
completely in all material respects describes: (A) accounting policies
which the Company believes are the most important in the portrayal of
the Company's financial condition and results of operations and which
require management's most difficult, subjective or complex judgments
("Critical Accounting Policies"); (B) judgments and uncertainties
affecting the application of Critical Accounting Policies; and (C) the
likelihood that materially different amounts would be reported under
different conditions or using different assumptions; and the Company's
Board of Directors and management have reviewed and agreed with the
selection, application and disclosure
12
of Critical Accounting Policies and have consulted with its legal
counsel and independent accountants with regard to such disclosure;
(xlvi) Since the date of the latest audited financial statements
included in the Pricing Prospectus, neither the Company nor any of its
subsidiaries has: (A) entered into or assumed any contract, (B)
incurred or agreed to incur any liability (including any contingent
liability) or other obligation, (C) acquired or disposed of or agreed
to acquire or dispose of any business or any other asset or (D)
assumed or acquired or agreed to assume or acquire any liabilities
(including contingent liabilities), that would, in any of clauses (A)
through (D) above, be material to the Company and its subsidiaries and
that are not otherwise described in the Pricing Prospectus;
(xlvii) The section entitled "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Liquidity
and Capital Resources" in the Pricing Prospectus accurately and fully
describes: (A) all material trends, demands, commitments, events,
uncertainties and risks, and the potential effects thereof, that the
Company believes would materially affect liquidity and are reasonably
likely to occur; and (B) all off-balance sheet transactions,
arrangements, and obligations, including, without limitation,
relationships with unconsolidated entities that are contractually
limited to narrow activities that facilitate the transfer of or access
to assets by the Company or any of its subsidiaries, such as
structured finance entities and special purpose entities
(collectively, "off-balance sheet arrangements") that are reasonably
likely to have a material effect on the liquidity of the Company or
any of its subsidiaries or the availability thereof or the
requirements of the Company or any of its subsidiaries for capital
resources;
(xlviii) No holder of any of the Shares or the ADSs after the
consummation of the transactions contemplated by this Agreement or the
Deposit Agreement is or will be subject to any personal liability in
respect of any liability of the Company by virtue only of its holding
of any such Shares or ADSs; and except as set forth in the Pricing
Prospectus, there are no limitations on the rights of holders of the
Shares or the ADSs to hold, vote or transfer their securities;
(xlix) The audited consolidated financial statements (and the
notes thereto) of the Company included in the Pricing Prospectus
fairly present in all material respects the consolidated financial
position of the Company as of the dates specified and the consolidated
results of operations and changes in consolidated financial position
of the Company for the periods specified, and such financial
statements have been prepared in conformity with US GAAP applied on a
consistent basis throughout the periods presented (other than as
described therein); the summary and selected consolidated financial
data and the preliminary unaudited financial results for the six
months ended June 30, 2006 included in the Pricing Prospectus present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited consolidated financial statements
included therein, subject, in the case of the preliminary unaudited
financial results, to the fact that such results are subject to
completion of the Company's normal period-end closing procedures and
review by the Company's independent accountants in accordance with
Statement of Auditing Standards No. 100;
(l) Under the laws of the Cayman Islands, each holder of ADRs
evidencing ADSs issued pursuant to the Deposit Agreement shall be
entitled, subject to the Deposit Agreement, to seek enforcement of its
rights through the Depositary or its nominee
13
registered as representative of the holders of the ADRs in a direct
suit, action or proceeding against the Company;
(li) All amounts payable by the Company in respect of the ADRs
evidencing the ADSs or the underlying Shares shall be made free and
clear of and without deduction for or on account of any taxes imposed,
assessed or levied by the Cayman Islands or any authority thereof or
therein (except such income taxes as may otherwise be imposed by the
Cayman Islands on payments hereunder to an Underwriter whose net
income is subject to tax by the Cayman Islands or withholding, if any,
with respect to any such income tax) nor are any taxes imposed in the
Cayman Islands on, or by virtue of the execution or delivery of, such
documents;
(lii) All returns, reports or filings which ought to have been
made by or in respect of the Company and its subsidiaries for taxation
purposes as required by the law of the jurisdictions where the Company
and its subsidiaries are incorporated, managed or engage in business
have been made and all such returns are correct and on a proper basis
in all material respects and are not the subject of any dispute with
the relevant revenue or other appropriate authorities except as may be
being contested in good faith and by appropriate proceedings; the
provisions included in the audited consolidated financial statements
as set out in the Pricing Prospectus included appropriate provisions
required under US GAAP for all taxation in respect of accounting
periods ended on or before the accounting reference date to which such
audited accounts relate for which the Company was then or might
reasonably be expected thereafter to become or have become liable; and
neither the Company nor any of its subsidiaries has received notice of
any tax deficiency with respect to the Company or any of its
subsidiaries;
(liii) The Company has provided or made available to you true,
correct, and complete copies of all documentation pertaining to any
extension of credit in the form of a personal loan made, directly or
indirectly, by the Company or any of its subsidiaries to any director
or executive officer of the Company; and since December 31, 2005, the
Company has not, directly or indirectly, including through any of its
subsidiaries: (A) extended credit, arranged to extend credit, or
renewed any extension of credit, in the form of a personal loan, to or
for any director or executive officer of the Company, or to or for any
family member or affiliate of any director or executive officer of the
Company; or (B) made any material modification, including any renewal
thereof, to any term of any personal loan to any director or executive
officer of the Company, or any family member or affiliate of any
director or executive officer, which loan was outstanding on December
31, 2005, that (x) is outstanding on the date hereof and (y)
constitutes a violation of any applicable law or regulation;
(liv) Any statistical and market-related data included in the
Pricing Prospectus and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent for the use of such data from
such sources to the extent required;
(lv) The application of the net proceeds from the offering of
ADSs, as described in the Prospectus, will not contravene any
provision of any current and applicable laws or the current
constituent documents of the Company or any of its subsidiaries or
contravene the terms or provisions of, or constitute a default under,
any material indenture, mortgage, deed of trust, loan agreement, note,
lease or other
14
agreement or instrument currently binding upon the Company or any of
its subsidiaries or any Governmental Authorization applicable to any
of the Company or any of its subsidiaries;
(lvi) There are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with the
issuance and sale of the ADSs;
(lvii) Under the laws of the Cayman Islands, the courts of the
Cayman Islands will recognize and give effect to the choice of law
provisions set forth in Section 15 hereof and enforce judgments of
U.S. courts obtained against the Company to enforce this Agreement;
under the laws of the PRC, the choice of law provisions set forth in
Section 15 hereof will be recognized by the courts of the PRC and any
judgment obtained in any New York Court (as defined in Section 8(d)
hereof) arising out of or in relation to the obligations of the
Company under this Agreement will be recognized in PRC courts subject
to the applicable provisions of the Civil Procedure Law of the PRC
relating to the enforceability of foreign judgments;
(lviii) To the best knowledge of the Company after due inquiry,
none of the Company, any of its subsidiaries, and any director,
officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any
corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expenses relating to a political activity; made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is
in violation of any provision of the U.S. Foreign Corrupt Practices
Act of 1977; or made any unlawful bribe, payoff, influence payment,
kickback, payment or rebate;
(lix) The descriptions of the events and transactions (the
"Restructuring") set forth in the Pricing Prospectus under the
captions "Our Corporate Structure" are accurate, complete and fair in
all material respects;
(lx) The Restructuring does not (A) contravene any provision of
applicable law or statute, rule or regulation of any Governmental
Agency having jurisdiction over the Company or any of its subsidiaries
or any of their properties (including but not limited to the Ministry
of Commerce, the State Administration of Industry and Commerce and the
State Administration of Foreign Exchange of the PRC), (B) contravene
the articles of association, business license or other constituent
documents of the Company or any of its subsidiaries, or (C) conflict
with or result in a breach of violation of any of the terms or
provisions of, or constitute a default under, any material license,
indenture, mortgage, deed of trust, loan agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject;
(lxi) All Governmental Authorizations required in connection with
the Restructuring have been made or unconditionally obtained in
writing, and no such Governmental Authorization has been withdrawn or
revoked or is subject to any condition precedent which has not been
fulfilled or performed;
15
(lxii) Each of the Company and its subsidiaries that were
incorporated outside of the PRC has taken, or is in the process of
taking, all reasonable steps to comply with, and to ensure compliance
by each of its shareholders, option holders, directors, officers,
employees and Directed Share Participants that is, or is directly or
indirectly owned or controlled by, a PRC resident or citizen with any
applicable rules and regulations of the relevant PRC government
agencies (including but not limited to the Ministry of Commerce, the
National Development and Reform Commission and the State
Administration of Foreign Exchange) relating to overseas investment by
PRC residents and citizens or overseas listing by offshore special
purpose vehicles controlled directly or indirectly by PRC companies
and individuals, such as the Company, (the "PRC Overseas Investment
and Listing Regulations"), including without limitation, requesting
each shareholder, option holder, director, officer, employees and
Directed Share Participants that is, or is directly or indirectly
owned or controlled by, a PRC resident or citizen to complete any
registration and other procedures required under applicable PRC
Overseas Investment and Listing Regulations;
(lxiii) (i) None of the Company's subsidiaries, affiliates,
employees, agents and directors and officers in the United States: (a)
does any business with or involving the government of, or any person
or project located in, any country targeted by any of the economic
sanctions promulgated by any Executive Order issued by the President
of the United States or administered by the United States Treasury
Department's Office of Foreign Assets Control (the "OFAC"); or (b)
supports or facilitates any such business or project, in each case
other than as permitted under such economic sanctions; (ii) the
Company is not controlled (within the meaning of the Executive Orders
or regulations promulgating such economic sanctions or the laws
authorizing such promulgation) by any such government or person; (iii)
the proceeds from the offering of the ADSs contemplated hereby will
not be used to fund any operations in, to finance any investments,
projects or activities in, or to make any payments to, any country, or
to make any payments to, or finance any activities with, any person
targeted by any of such economic sanctions; and (iv) the Company
maintains and has implemented adequate internal controls and
procedures to monitor and audit transactions that are reasonably
designed to detect and prevent any use of the proceeds from the
offering of the ADSs contemplated hereby that is inconsistent with any
of the Company's representations and obligations under clause (iii) of
this paragraph or in the Pricing Prospectus;
(lxiv) The Company and its subsidiaries and their respective
properties, assets and operations are in compliance with, and the
Company and each of its subsidiaries hold all permits, authorizations
and approvals required under Environmental Laws (as defined below)
except where the lack of which would not reasonably be expected to
have a Material Adverse Effect; there are no past, present or, to the
best knowledge of the Company after due inquiry, reasonably
anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the
Company or any subsidiary under, or to interfere with or prevent
compliance by the Company or any subsidiary with, Environmental Laws,
except as would not individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, neither the Company nor
any of its subsidiaries (A) is the subject of any investigation, (B)
has received any notice or claim, (C) is a party to or affected by any
pending or, to the Company's best knowledge after due inquiry,
threatened action, suit or proceeding, (D) is bound by any judgment,
decree or order or (E) has entered into any agreement, in each case
relating to any alleged violation
16
of any Environmental Law or any actual or alleged release or
threatened release or cleanup at any location of any Hazardous
Materials (as defined below) (as used herein, "Environmental Law"
means any national, provincial, municipal or other local or foreign
law, statute, ordinance, rule, regulation, order, notice, directive,
decree, judgment, injunction, permit, license, authorization or other
binding requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing,
generation, treatment, storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials, and
"Hazardous Materials" means any material (including, without
limitation, pollutants, contaminants, hazardous or toxic substances or
wastes) that is regulated by or may give rise to liability under any
Environmental Law);
(lxv) There are no affiliations or associations between any
member of the NASD and the Company; except as described in the
Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus, the Pricing Prospectus and the Prospectus,
there are no affiliations or associations between (A) any member of
the NASD and (B) any of the Company's officers, directors or 5% or
greater security holders or any beneficial owner of the Company's
unregistered equity securities that were acquired at any time on or
after the 180th day immediately preceding the date the Registration
Statement was initially filed with the Commission;
(lxvi) The Registration Statement, each Preliminary Prospectus,
the Pricing Prospectus, the Prospectus and each Issuer Free Writing
Prospectus comply, and any further amendments or supplements thereto
will comply, with any applicable laws or regulations of any
jurisdiction in which any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus or any Issuer Free Writing Prospectus is
distributed in connection with the Directed Share Program; and no
Governmental Authorization, other than those heretofore obtained, is
required in connection with the offering of the Reserved ADSs in any
jurisdiction where the Reserved ADSs are being offered;
(lxvii) The Company has not offered, or caused the Underwriters
to offer, ADSs to any person pursuant to the Directed Share Program
with the intent to influence unlawfully (i) a customer or supplier of
the Company or any of its subsidiaries to alter the customer's or
supplier's level or type of business with the Company or any of its
subsidiaries, or (ii) a trade journalist or publication to write or
publish favorable information about the Company or any of its
subsidiaries or any of their respective products or services";
(lxviii) There are no business relationships or related-party
transactions involving the Company or any of its subsidiaries or any
other person required to be described in the Registration Statement,
each Preliminary Prospectus, the Pricing Prospectus or the Prospectus
which have not been described as required;
(lxix) Each of the Company and each of the Company's directors
that signed the Initial Registration Statement is aware of and has
been advised as to, the content of the Rules on Mergers and
Acquisitions of Domestic Enterprises by Foreign Investors jointly
promulgated by the Ministry of Commerce, the State Assets Supervision
and Administration Commission, the State Tax Administration, the State
Administration of Industry and Commerce, the China Securities
Regulatory Commission ("CSRC") and the State Administration of Foreign
Exchange of the PRC on August 8, 2006 (the "M&A
17
Rules"), in particular the relevant provisions thereof which purport
to require offshore special purpose vehicles, or SPVs, formed for
listing purposes and controlled directly or indirectly by PRC
companies or individuals, to obtain the approval of the CSRC prior to
the listing and trading of their securities on an overseas stock
exchange; the Company has received legal advice specifically with
respect to the M&A Rules from its PRC counsel and the Company
understands such legal advice; and the Company has fully communicated
such legal advice from its PRC counsel to each of its directors that
signed the Initial Registration Statement and each director has
confirmed that he or she understands such legal advice;
(lxx) The issuance and sale of the Shares and the ADSs, the
listing and trading of the ADSs on the NYSE or the consummation of the
transactions contemplated by this Agreement, the Deposit Agreement and
the Power of Attorney is not and will not be, as of the date hereof or
at each Time of Delivery, adversely affected by the M&A Rules or any
official clarifications, guidance, interpretations or implementation
rules in connection with or related to the M&A Rules (collectively,
the "M&A Rules and Related Clarifications");
(lxxi) As of the date of the Pricing Prospectus and as of the
date here of, the M&A Rules did not and do not apply to the issuance
and sale of the Shares and the ADSs, the listing and trading of the
ADSs on the NYSE, or the consummation of the transactions
contemplated by this Agreement, the Deposit Agreement and the Power
of Attorney; and
(lxxii) The statements set forth in the Pricing Prospectus under
the captions "Risk Factors -- The approval of China Securities
Regulatory Commission, or the CSRC, may be required in connection with
this offering under a recently adopted PRC regulation; any requirement
to obtain prior CSRC approval could delay this offering and a failure
to obtain this approval, if required, could have a material adverse
effect on our business, operating results, reputation and trading
price of our ADSs, and may also create uncertainties for this
offering", when taken together with the statements under "Regulation
-- Regulation of Overseas Listings", are fair and accurate summaries
of the matters described therein, and nothing has been omitted from
such summaries which would make the same misleading in any material
respect.
In addition, any certificate signed by any officer of the Company or any of
its subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the ADSs shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each of the Underwriters.
(b) Each of the Selling Shareholders severally represents and warrants
as to and in respect of itself to, and agrees with, each of the Underwriters and
the Company that:
(i) Such Selling Shareholder, if an entity, has been duly
organized and is validly existing as a company or a limited
partnership, as the case may be, in good standing in its jurisdiction
of formation;
(ii) All Governmental Authorizations required for the deposit of
the Shares being deposited by such Selling Shareholder with the
Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at each Time of Delivery (as defined in Section 4 hereof),
for the sale and delivery of the ADSs to be sold by such Selling
Shareholder hereunder and for the execution and delivery by such
Selling Shareholder of this Agreement and the Power of Attorney
hereinafter referred to, and for the sale and delivery of the ADSs to
be sold by such Selling Shareholder hereunder, have been obtained; and
such Selling Shareholder has full right, power and authority to enter
into this Agreement and the Power of Attorney and to sell, assign,
transfer and deliver the ADSs to be sold by such Selling Shareholder
hereunder;
18
(iii) The sale of the ADSs to be sold by such Selling Shareholder
hereunder, the deposit of the Shares by such Selling Shareholder with
the Depositary against issuance of the ADRs evidencing the ADSs to be
delivered by such Selling Shareholder at each Time of Delivery and the
compliance by such Selling Shareholder with all of the provisions of
this Agreement, the Deposit Agreement and the Power of Attorney and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
material statute, indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which such Selling Shareholder is
a party or by which such Selling Shareholder is bound, or to which any
of the property or assets of such Selling Shareholder is subject, nor
will such action result in any violation of the provisions of the
constituent documents of such Selling Shareholder if such Selling
Shareholder is a corporation, the partnership agreement of such
Selling Shareholder if such Selling Shareholder is a partnership or
any statute or any order, rule or regulation of any Governmental
Agency having jurisdiction over such Selling Shareholder or the
property of such Selling Shareholder;
(iv) There are no affiliations or associations between any member
of the NASD and such Selling Shareholder, except as described in the
Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus, the Pricing Prospectus and the Prospectus;
none of the proceeds received by such Selling Shareholder from the
sale of the Shares and ADSs to be sold by such Selling Shareholder
hereunder will be paid to a member of the NASD or any affiliate of (or
person "associated with," as such terms are used in the Rules of the
NASD) such member;
(v) Such Selling Shareholder has, and immediately prior to each
Time of Delivery such Selling Shareholder will have, good and valid
title to the Shares to be represented by the ADSs to be sold by such
Selling Shareholder hereunder at such Time of Delivery, free and clear
of all liens, encumbrances, equities or claims; and, upon delivery of
the ADSs representing such Shares and payment therefor pursuant
hereto, good and valid title to such ADSs, free and clear of all
liens, encumbrances, equities or claims, will pass to the several
Underwriters;
(vi) Neither such Selling Shareholder nor any of its affiliates,
nor any person acting on its or their behalf has taken or will take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or the ADSs;
(vii) The sale of the Shares to be sold by such Selling
Shareholder pursuant to this Agreement is not prompted by any material
information concerning the Company or any of its subsidiaries which is
not set forth in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus, the Pricing Prospectus and the
Prospectus;
(viii) Such Selling Shareholder has not, prior to the execution
of this Agreement, offered or sold any Shares by means of any
"prospectus" (within the meaning of the Act), or used any "prospectus"
(within the meaning of the Act) in connection with the offer or sale
of the Shares and ADSs, in each case other than the then most recent
Preliminary Prospectus;
19
(ix) The Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus and the Prospectus complied and, as then amended or
supplemented, will comply with all applicable provisions of the Act
and the rules and regulations of the Commission thereunder; the
Registration Statement, as it relates to the Selling Shareholder, did
not, as of its effective time, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; at
no time during the period that begins on the earlier of the date of
such Preliminary Prospectus and the date such Preliminary Prospectus
was filed with the Commission and ends at the time of purchase did or
will any Preliminary Prospectus, as then amended or supplemented, as
such Preliminary Prospectus relates to such Selling Shareholder,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and at no time during such period did or will any
Preliminary Prospectus, as then amended or supplemented, together with
any combination of one or more of the then issued Issuer Free Writing
Prospectuses, if any, in each case as they relate to the Selling
Shareholder, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and at no time during the period that begins on the
earlier of the date of the Prospectus and the date the Prospectus is
filed with the Commission and ends at the later of the time of
purchase, the latest additional time of purchase, if any, and the end
of the period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of ADSs
did or will the Prospectus, as then amended or supplemented, as the
Prospectus relates to such Selling Shareholder, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and at no
time during the period that begins on the date of such Issuer Free
Writing Prospectus and ends at the time of purchase did or will any
Issuer Free Writing Prospectus, as such Issuer Free Writing Prospectus
relates to such Selling Shareholder, include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(x) The ADSs to be sold by such Selling Shareholder, when issued
and delivered against payment therefor, will be freely transferable by
the Selling Shareholders to or for the account of the several
Underwriters and (to the extent described in the Prospectus) the
initial purchasers thereof; and there are no restrictions on
subsequent transfers of such ADSs under the laws of the Cayman
Islands, the PRC or the United States except as described in the
Pricing Prospectus under the captions "Description of Share Capital",
"Description of American Depositary Shares" and "Shares Eligible for
Future Sale";
(xi) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the government of the Cayman Islands,
the BVI or the PRC, or any political subdivision or taxing authority
thereof or therein in connection with (A) the deposit with the
Depositary of the Shares by such Selling Shareholder against the
issuance of ADRs evidencing the ADSs to be sold by such Selling
Shareholder, (B) the sale and delivery by such Selling Shareholder of
the Shares and the ADSs to be sold by such Selling Shareholder to or
for
20
the respective accounts of the Underwriters or (C) the sale and
delivery by the Underwriters of the Shares and such ADSs to the
initial purchasers thereof;
(xii) All amounts payable by such Selling Shareholder under this
Agreement shall be made free and clear of and without deduction for or
on account of any taxes imposed, assessed or levied by the Cayman
Islands, the BVI or the PRC or any authority thereof or therein, nor
are any taxes imposed in the Cayman Islands, the BVI or the PRC on, or
by virtue of the execution of this Agreement or the sale and delivery
of the Shares and ADSs;
(xiii) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder, and is
enforceable against such Selling Shareholder in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; and to ensure the legality, validity,
enforceability or admissibility into evidence in the Cayman Islands,
the BVI or the PRC of this Agreement, it is not necessary that this
Agreement be filed or recorded with any court or other authority in
the Cayman Islands, the BVI or the PRC or that any stamp or similar
tax in the Cayman Islands, the BVI or the PRC be paid on or in respect
of this Agreement or any other documents to be furnished hereunder;
(xiv) Other than this Agreement, there are no contracts,
agreements or understandings between such Selling Shareholder and any
person that would give rise to a valid claim against such Selling
Shareholder or any Underwriter for a brokerage commission, finder's
fee or other like payment in connection with the offer and sale of the
Shares and the ADSs;
(xv) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-8BEN
(or other applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(xvi) Such Selling Shareholder has duly executed and delivered a
Power of Attorney (the "Power of Attorney"), in the form set forth in
Annex I attached hereto, appointing the persons indicated in Schedule
II attached hereto, and each of them, as such Selling Shareholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute
and deliver this Agreement on behalf of such Selling Shareholder, to
determine the purchase price to be paid by the Underwriters to the
Selling Shareholders as provided in Section 2 hereof, to authorize the
delivery of the Shares and ADSs to be sold by such Selling Shareholder
hereunder and otherwise to act on behalf of such Selling Shareholder
in connection with the transactions contemplated by this Agreement;
(xvii) The appointment by such Selling Shareholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent
irrevocable; the obligations of the Selling Shareholders hereunder
shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Shareholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee
or the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership or
21
corporation, or by the occurrence of any other event; if any
individual Selling Shareholder or any such executor or trustee should
die or become incapacitated, or if any such estate or trust should be
terminated, or if any such partnership or corporation should be
dissolved, or if any other such event should occur, before the
delivery of the Shares and ADSs hereunder, certificates representing
the Shares and ADSs shall be delivered by or on behalf of the Selling
Shareholders in accordance with the terms and conditions of this
Agreement; and actions taken by the Attorneys-in-Fact pursuant to the
Powers of Attorney shall be as valid as if such death, incapacity,
termination, dissolution or other event had not occurred, regardless
of whether or not the Attorneys-in-Fact, shall have received notice of
such death, incapacity, termination, dissolution or other event; and
(xviii) (i) Neither such Selling Shareholder nor any of its
subsidiaries, affiliates, employees, agents and directors and officers
in the United States: (a) does any business with or involving the
government of, or any person or project located in, any country
targeted by any of the economic sanctions promulgated by any Executive
Order issued by the President of the United States or administered by
the OFAC; or (b) supports or facilitates any such business or project,
in each case other than as permitted under such economic sanctions;
(ii) such Selling Shareholder is not controlled (within the meaning of
the Executive Orders or regulations promulgating such economic
sanctions or the laws authorizing such promulgation) by any such
government or person; and (iii) the proceeds received by such Selling
Shareholder from the sale of ADSs pursuant to this Agreement will not
be used to fund any operations in, to finance any investments,
projects or activities in, or to make any payments to, any country, or
to make any payments to, or finance any activities with, any person
targeted by any of such economic sanctions.
In addition, any certificate signed by any Selling Shareholders (or, with
respect to any Selling Shareholder that is not an individual, any officer of
such Selling Shareholder or of any of such Selling Shareholder's subsidiaries)
or by any representative of the Selling Shareholders and delivered to the
Underwriters or counsel for the Underwriters in connection with the offering of
the ADSs shall be deemed to be a representation and warranty by such Selling
Shareholder, as to matters covered thereby, to each of the Underwriters.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each Selling Shareholder agree, severally and not jointly, to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and each of the Selling Shareholders, at a
purchase price per ADS of US$____, the number of Firm ADSs (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Firm ADSs to be sold by the Company and each of the Selling
Shareholders as set forth opposite their respective names in Schedule II
attached hereto by a fraction, the numerator of which is the aggregate number of
Firm ADSs to be purchased by such Underwriter as set forth opposite the name of
such Underwriter in Schedule I attached hereto and the denominator of which is
the aggregate number of Firm ADSs to be purchased by all of the Underwriters
from the Company and all of the Selling Shareholders hereunder and (b) in the
event and to the extent that the Underwriters shall exercise the election to
purchase Optional ADSs as provided below, the Company and each Selling
Shareholder agree, severally and not jointly to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company and each of the Selling Shareholders, at the purchase
price per ADS set forth in clause (a) of this Section 2, that portion of the
number of Optional ADSs as to which such election shall have been exercised (to
be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional ADSs by a fraction the numerator of which is
the maximum number of Optional ADSs which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in
22
Schedule I attached hereto and the denominator of which is the maximum number of
Optional ADSs that all of the Underwriters are entitled to purchase hereunder.
The Company and each Selling Shareholder, as and to the extent indicated in
Schedule II attached hereto, hereby grant, severally and not jointly, to the
Underwriters the right to purchase at their election up to _________ Optional
ADSs, at the purchase price per ADS set forth in the paragraph above, for the
sole purpose of covering sales of shares in excess of the number of Firm ADSs.
Any such election to purchase Optional ADSs shall be made in proportion to the
maximum number of Optional ADSs to be sold by the Company and each Selling
Shareholder as set forth in Schedule II attached hereto initially with respect
to the Optional ADSs to be sold by the Company and then among the Selling
Shareholders in proportion to the maximum number of Optional ADSs to be sold by
each Selling Shareholder as set forth in Schedule II attached hereto. Any such
election to purchase Optional ADSs may be exercised only by written notice from
you to the Company, given within a period of 30 calendar days after the date of
this Agreement and setting forth the aggregate number of Optional ADSs to be
purchased and the date on which such Optional ADSs are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you, the Company and the Selling
Shareholders otherwise agree in writing, earlier than two or later than ten
business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm ADSs, the
several Underwriters propose to offer the Firm ADSs for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The ADSs to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' notice
to the Company and the Selling Shareholders prior to a Time of Delivery (as
defined below) (the "Notification Time"), shall be delivered by or on behalf of
the Company and the Selling Shareholders to the Representatives, through the
facilities of The Depository Trust Company ("DTC"), for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the account(s)
specified by the Company and the Selling Shareholders to the Representatives at
least forty-eight hours in advance of such Time of Delivery. The Company and the
Selling Shareholders will cause the certificates representing the ADSs to be
made available for checking at least twenty-four hours prior to the Time of
Delivery with respect thereto at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be, with respect to the Firm ADSs, 9:30 a.m., New York City time, on _________,
2006 or such other time and date as the Representatives and the Company may
agree upon in writing, and, with respect to the Optional ADSs, 9:30 a.m., New
York City time, on the date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional ADSs, or such other time and date as the Representatives and the
Company may agree upon in writing. Such time and date for delivery of the Firm
ADSs is herein called the "First Time of Delivery", such time and date for
delivery of the Optional ADSs, if not the First Time of Delivery, is herein
called the "Second Time of Delivery", and each such time and date for delivery
is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 8 hereof, including the cross-receipt
for the ADSs and any additional documents requested by the Underwriters pursuant
to Section 8(s) hereof, will be delivered at the offices of Xxxxxxxx & Xxxxxxxx
LLP, 00xx Xxxxx, Xxxx Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx (the "Closing Location"),
and the ADSs will be delivered as specified in Section (a) above, all at such
Time of Delivery. A meeting will be held at the Closing Location at 4:00 p.m.,
Hong Kong time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of
23
this Section 4, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any amendment or supplement to
the Prospectus has been filed and to furnish you copies thereof; to
file promptly all material required to be filed by the Company with
the Commission pursuant to Rule 433(d) under the Act; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or other prospectus in respect
of the ADSs, of the suspension of the qualification of the ADSs for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus or for additional information; in the event of
such request for amendment or supplement, to provide you and your
counsel copies of any proposed amendment or supplement for review and
comment a reasonable amount of time prior to any proposed filing and
to file no such amendment or supplement to which shall be disapproved
by you; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus
or other prospectus or suspending any such qualification, promptly to
use its best efforts to obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the ADSs for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the ADSs, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic
copies of the Prospectus in New York City in such quantities as you
may reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time prior to the expiration of nine months after the
time of issue of the Prospectus in connection with the offering or
sale of the ADSs and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when
24
such Prospectus (or in lieu thereof, the notice referred to in Rule
173(a) under the Act) is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus in order to comply with the Act, to notify
you and upon your request to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in
case any Underwriter is required to deliver a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) in
connection with sales of any of the ADSs at any time nine months or
more after the time of issue of the Prospectus, upon your request but
at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many written and electronic copies as you may request
of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(iv) To make generally available to its security holders as soon
as practicable, but in any event not later than sixteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), a consolidated earnings statement of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(v) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus (the "Lock-Up Period") not to offer, sell, contract to
sell, pledge, grant any option to purchase, purchase any option or
contract to sell, right or warrant to purchase, make any short sale,
file a registration statement with respect to, or otherwise dispose of
(including entering into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequence of
ownership interests), except as provided hereunder, (A) any ADSs or
ordinary shares or securities of the Company that are substantially
similar to the ADSs or ordinary shares, including but not limited to
any options or warrants to purchase ordinary shares or any securities
that are convertible into or exchangeable for, or that represent the
right to receive, ADSs or ordinary shares or any such substantially
similar securities; and (B) any ordinary shares of Company's
subsidiaries or depositary shares or depositary receipts representing
such ordinary shares, including but not limited to any securities that
are convertible into or exchangeable for or that represent the right
to receive such ordinary shares or such depositary shares or
depositary receipts or any such substantially similar securities,
without your prior written consent, except that the foregoing
restrictions shall not apply to: (1) the ADSs and the Ordinary Shares
underlying such ADSs to be sold under this Agreement and (2) grants of
options pursuant to the Company's employee incentive share plans
existing on the date of this Agreement of which the Representatives
have been advised in writing and which are described in the Pricing
Prospectus and the filing of a Registration Statement on Form S-8 by
the Company with the Commission with respect to the options granted
under such plans; provided, however, that if (1) during the last 17
days of the initial Lock-Up Period, the Company releases earnings
results or announces material news or a material event or (2) prior to
the expiration of the initial Lock-Up Period, the Company announces,
or if the Representatives determine, that it will release earnings
results during the 16-day period following the last day of the initial
Lock-Up Period, then in each case the Lock-Up Period will be
automatically extended until the expiration of the 18-day period
beginning on the date of release of the earnings results or the
announcement of the material news or material event, as applicable,
unless the Representatives waive, in
25
writing, such extension; and the Company will provide the
Representatives and each shareholder subject to the Lock-Up Period
pursuant to the lockup letters described in Section 8(q) with prior
notice of any such announcement that gives rise to an extension of the
Lock-Up Period;
(vi) During the Lock-Up Period, to cause each of its subsidiaries
not to offer, sell, contract to sell, pledge, grant any option to
purchase, purchase any option or contract to sell, right or warrant to
purchase, make any short sale, file a registration statement with
respect to, or otherwise dispose of (including entering into any swap
or other arrangement that transfers to another, in whole or in part,
any of the economic consequence of ownership interests), except as
provided hereunder and under this Agreement: (A) any ADSs or ordinary
shares or any securities of the Company that are substantially similar
to the ADSs or ordinary shares, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, ADSs or ordinary shares or any such
substantially similar securities; and (B) any ordinary shares of any
of the Company's subsidiaries or depositary shares or depositary
receipts representing such ordinary shares, including but not limited
to any securities that are convertible into or exchangeable for or
that represent the right to receive such ordinary shares or such
depositary shares or depositary receipts or any such substantially
similar securities, without your prior written consent; provided,
however, that if (1) during the last 17 days of the initial Lock-Up
Period, the Company releases earnings results or announces material
news or a material event or (2) prior to the expiration of the initial
Lock-Up Period, the Company announces, or if the Representatives
determine, that it will release earnings results during the 16-day
period following the last day of the initial Lock-Up Period, then in
each case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of
the earnings results or the announcement of the material news or
material event, as applicable, unless the Representatives waive, in
writing, such extension; and the Company will provide the
Representatives and each shareholder subject to the Lock-Up Period
pursuant to the lockup letters described in Section 8(q) with prior
notice of any such announcement that gives rise to an extension of the
Lock-Up Period;
(vii) To furnish to its shareholders within such period required
by the Exchange Act after the end of each fiscal year an annual report
(in English) (including a balance sheet and statements of income,
shareholders' equity and cash flows of the Company and its
consolidated subsidiaries prepared in conformity with US GAAP and
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), to make available to
its shareholders consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail;
(viii) During a period of three years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to shareholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any securities exchange on which any class of securities
of the Company is listed; provided, however, that the Company may
satisfy the requirements of this subsection by making any such
reports, communications or information publically available on its
website or the Commission's XXXXX Internet data base; and (ii) such
additional information
26
concerning the business and financial condition of the Company as you
may from time to time reasonably request (such financial statements to
be on a consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission);
(ix) To use the net proceeds received by it from the sale of the
ADSs pursuant to this Agreement in the manner specified in the Pricing
Prospectus and the Prospectus under the caption "Use of Proceeds" and
in compliance with any applicable laws, rules and regulations of any
Governmental Agency having jurisdiction over the Company or its
subsidiaries including, without limitation, the requirement to
repatriate the net proceeds received by it into the PRC under the
applicable regulations of the Ministry of Commerce and the State
Administration of Foreign Exchange of the PRC; the Company will not
use any of the proceeds from the offering of the ADSs contemplated
hereby to fund any operations in, to finance any investments, projects
or activities in, or to make any payments to, any country, or to make
any payments to, or finance any activities with, any person, targeted
by any of the economic sanctions promulgated by any Executive Order
issued by the President of the United States or administered by the
OFAC; and the Company will maintain and implement adequate internal
controls and procedures to monitor and audit transactions that are
reasonably designed to detect and prevent any use of the proceeds from
the offering of the ADSs contemplated hereby that is inconsistent with
any of the Company's representations and obligations under the
preceding sentence;
(x) Prior to each Time of Delivery to deposit Ordinary Shares
with the Depositary in accordance with the provisions of the Deposit
Agreement and otherwise to comply with the Deposit Agreement so that
ADRs evidencing ADSs will be executed (and, if applicable,
countersigned) and issued by the Depositary against receipt of such
Ordinary Shares and delivered to the Underwriters at such Time of
Delivery;
(xi) Not to (and to cause its affiliates not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which would reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company or
facilitate the sale or resale of the Shares and the ADSs;
(xii) To use its best efforts to include for listing the Shares
and ADSs on the NYSE;
(xiii) To file with the Commission such information on Form 20-F
as may be required by Rule 463 under the Act;
(xiv) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act;
(xv) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trademarks, servicemarks and corporate logo for use on the website, if
any, operated by such Underwriter for the purpose
27
of facilitating the on-line offering of the ADSs (the "License");
provided, however, that the License shall be used solely for the
purpose described above, is granted without any fee and may not be
assigned or transferred;
(xvi) To indemnify and hold each of the Underwriters harmless
against any documentary, stamp or similar issuance or transfer taxes,
duties or fees and any transaction levies, commissions or brokerage
charges, including any interest and penalties, which are or may be
required to be paid in connection with the creation, allotment,
issuance, offer and distribution of the Shares and ADSs to be sold by
the Company and the execution and delivery of this Agreement and the
Deposit Agreement;
(xvii) To comply with Rule 433(d) under the Act (without reliance
on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(xviii) Prior to each Time of Delivery, to issue no press release
or other communication directly or indirectly and hold no press
conferences with respect to the Company or any of its subsidiaries,
the financial condition, results of operations, business, properties,
assets, or liabilities of the Company or any of its subsidiaries, or
the offering of the ADSs, without your prior consent;
(xix) Prior to or concurrently with the First Time of Delivery,
to effect the conversion of all of the shares of Preferred Stock into
ordinary shares and to ensure that all such ordinary shares are duly
authorized, validly issued and fully paid and non-assessable prior to
or concurrently with the First Time of Delivery;
(xx) Not, at any time at or after the execution of this
Agreement, to, directly or indirectly, offer or sell any Shares or
ADSs by means of any "prospectus" (within the meaning of the Act), or
use any "prospectus" (within the meaning of the Act) in connection
with the offer or sale of the Shares or ADSs, in each case other than
the Prospectus; and
(xxi) To cause each Directed Share Participant to execute a
Lock-Up Agreement (as defined in Section 8(q) hereof) and otherwise to
cause the Reserved Shares to be restricted from sale, transfer,
assignment, pledge or hypothecation to such extent as may be required
by the NASD and its rules, and to direct the transfer agent to place
stop transfer restrictions upon such Reserved ADSs during the Lock-Up
Period or any such longer period of time as may be required by the
NASD and its rules; and to comply with all applicable securities and
other laws, rules and regulations in each jurisdiction in which the
Reserved ADSs are offered in connection with the Directed Share
Program.
(b) Each of the Selling Shareholders severally and not jointly agrees
with each of the Underwriters:
(i) During the Lock-Up Period, such Selling Shareholder will not
offer, sell, contract to sell, pledge, grant any option to purchase,
purchase any option or contract to sell, right or warrant to purchase,
make any short sale, file a registration statement with respect to, or
otherwise dispose of (including entering into any swap or other
arrangement that transfers to another, in whole or in part, any of the
economic consequence of ownership interests), except as provided
hereunder and under this Agreement: (A) any
28
ADSs or ordinary shares or any securities of the Company that are
substantially similar to the ADSs or Ordinary Shares, including but
not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, ADSs or
ordinary shares or any such substantially similar securities; and (B)
any ordinary shares of any of the Company's subsidiaries or depositary
shares or depositary receipts representing such ordinary shares,
including but not limited to any securities that are convertible into
or exchangeable for or that represent the right to receive such
ordinary shares or such depositary shares or depositary receipts or
any such substantially similar securities (in each case other than
pursuant to a bona fide gift by an individual to a donee or a sale or
transfer by an entity to an affiliate, provided that such donee or
affiliate agrees to be bound in writing by the restrictions set forth
therein), without your prior written consent; provided, however, that
if (1) during the last 17 days of the initial Lock-Up Period, the
Company releases earnings results or announces material news or a
material event or (2) prior to the expiration of the initial Lock-Up
Period, the Company announces, or if the Representatives determine,
that it will release earnings results during the 16-day period
following the last day of the initial Lock-Up Period, then in each
case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of
the earnings results or the announcement of the material news or
material event, as applicable, unless the Representatives waive, in
writing, such extension; and the Company will provide the
Representatives and each shareholder subject to the Lock-Up Period
pursuant to the lockup letters described in Section 8(q) with prior
notice of any such announcement that gives rise to an extension of the
Lock-Up Period;
(ii) Prior to each Time of Delivery, to deposit, or cause to be
deposited on their behalf, Ordinary Shares with the Depositary in
accordance with the provisions of the Deposit Agreement and otherwise
to comply with the Deposit Agreement so that ADRs evidencing ADSs will
be executed (and, if applicable, countersigned) and issued by the
Depositary against receipt of such Ordinary Shares and delivered to
the Underwriters at such Time of Delivery;
(iii) Not to (and to cause its affiliates not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company or
facilitate the sale or resale of the Shares or the ADSs;
(iv) To indemnify and hold each of the Underwriters harmless
against any documentary, stamp or similar issuance or transfer taxes,
duties or fees and any transaction levies, commissions or brokerage
charges, including any interest and penalties, which are or may be
required to be paid in connection with the creation, allotment,
issuance, offer and distribution of the Shares and ADSs to be sold by
such Selling Shareholder and the execution and delivery of this
Agreement;
(v) Not, at any time at or after the execution of this Agreement,
to offer or sell any Shares or ADSs by means of any "prospectus"
(within the meaning of the Act), or use any "prospectus" (within the
meaning of the Act) in connection with the offer or sale of the Shares
or ADSs, in each case other than the Prospectus;
(vi) To pay or cause to be paid all taxes, if any, on the
transfer and sale of the Shares and the ADSs being sold by such
Selling Shareholder;
29
(vii) To advise you promptly, and if requested by you, confirm
such advice in writing, so long as a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of
ADSs, of (A) any material change in the general affairs, management,
financial condition, results of operations or prospects of the Company
and its subsidiaries, (B) any change in information contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus and
any Issuer Free Writing Prospectuses, if any, relating to such Selling
Shareholder or (C) any new material information relating to the
Company or relating to any matter stated in the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Issuer
Free Writing Prospectuses, if any, which comes to the attention of
such Selling Shareholder; and
(viii) Not to use any of the proceeds received by such Selling
Shareholder from the sale of the ADSs pursuant to this Agreement to
fund any operations in, to finance any investments, projects or
activities in, or to make any payments to, any country, or to make any
payments to, or finance any activities with, any person, targeted by
any of the economic sanctions promulgated by any Executive Order
issued by the President of the United States or administered by the
OFAC, or in any manner that is not in compliance with applicable laws,
rules and regulations of any Governmental Agency having jurisdiction
over such Selling Shareholders including, without limitation, the
requirement for PRC residents or citizens to repatriate the net
proceeds received by such Selling Shareholders into the PRC under the
applicable regulation of the Ministry of Commerce and the State
Administration of Foreign Exchange of the PRC.
6. (a) The Company represents and agrees that, without the prior consent of
the Representatives, it has not made and will not make any offer relating to the
Shares and the ADSs that would constitute a "free writing prospectus" as defined
in Rule 405 under the Act; each Underwriter represents and agrees that, without
the prior consent of the Company and the Representatives, it has not made and
will not make any offer relating to the Shares and the ADSs that would
constitute a free writing prospectus; any such free writing prospectus the use
of which has been consented to by the Company and the Representatives is listed
on Schedule III attached hereto;
(b) The Company has complied and will comply with the requirements of
Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and
legending; and the Company represents that it has satisfied and agrees that it
will satisfy the conditions under Rule 433 under the Act to avoid a requirement
to file with the Commission any electronic road show; and
(c) The Company agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of which
such Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the Pricing Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives,
will prepare and furnish without charge to each Underwriter an Issuer Free
Writing Prospectus or other document which will correct such conflict, statement
or omission; provided, however, that this representation and warranty shall not
apply to any statements or omissions in an Issuer Free Writing Prospectus made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Representatives expressly for use therein.
30
7. The Underwriters will be responsible for all costs and expenses they
incur in connection with the transactions contemplated under this Agreement;
provided, however, that, promptly upon request, the Company and each of the
Selling Shareholders will, jointly and severally, reimburse all reasonable costs
and expenses incurred by the Underwriters in connection with the marketing of
the offering and sale of the ADSs to prospective investors, including, without
limitation, costs and expenses relating to road show presentations, travel,
accommodation and meal expenses and other road show expenses incurred by the
Underwriters. For the avoidance of doubt, the Company and the Selling
Shareholders will be responsible for all costs and expenses incurred by them in
connection with the offering of the ADSs and Ordinary Shares, including, among
others, (i) all cost and expenses in connection with the preparation, printing,
reproduction and filing of the registration statements and the prospectus
(including filing fees with the Commission and NASD), and the mailing and
delivering of copies thereof to the members of the underwriting syndicate and to
dealers, (ii) all the costs and expenses incurred by the officers of the Company
and any consultants engaged by the Company relating to or arising out of the
road show, including the cost of any aircraft chartered in connection with the
road show, and (iii) the Company's and the Selling Shareholders' own legal fees
and the costs of accountants (including the cost of audit and accounting
reports) and other advisers, (iv) all fees and expenses in connection with the
application for including the ADSs for listing on the NYSE and any registration
thereof under the Exchange Act, (v) the costs and expenses of qualifying the
ADSs for inclusion in the book-entry settlement system of the DTC, (vi) all
expenses and taxes arising as a result of the deposit by the Company and each of
the Selling Shareholders of the Shares with the Depositary and the issuance and
delivery of the ADRs evidencing ADSs in exchange therefor by the Depositary to
the Company, of the sale and delivery of the ADSs and the Shares by the Company
to or for the account of the Underwriters and of the sale and delivery of the
ADSs and the Shares by the Underwriters to each other and to the initial
purchasers thereof in the manner contemplated under this Agreement, including,
in any such case, any the Cayman Islands income, capital gains, withholding,
transfer or other tax asserted against an Underwriter by reason of the purchase
and sale of an ADS or a Share pursuant to this Agreement, (vii) the fees and
expenses of the Depositary as agreed by the Company and the Depositary and any
custodian appointed under the Deposit Agreement, other than the fees and
expenses to be paid by holders of ADRs (other than the Underwriters in
connection with the initial purchase of ADSs), (viii) the fees and expenses of
the Authorized Agent (as defined in Section 15 hereof), (ix) the cost of
preparing the ADRs; and (x) all other costs and expenses incident to the
performance of the Company's obligations hereunder which are not otherwise
specifically provided for in this Section.
8. The obligations of the Underwriters hereunder, as to the ADSs to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; all material required to be filed by the Company pursuant
to Rule 433(d) under the Act shall have been filed with the Commission within
the applicable time period prescribed for such filing by Rule 433; if the
Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus shall have been initiated
or threatened by the
31
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, United States counsel to the
Underwriters, shall have furnished to you such written opinion and letter, dated
such Time of Delivery, with respect to the matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Xxx Xx Law Offices, PRC counsel to the Underwriters, shall have
furnished to you such written opinion or opinions, dated such Time of Delivery,
with respect to the same matters covered in subsection (e) below as well as such
other related matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable
them to pass upon such matters;
(d) O'Melveny & Xxxxx LLP, United States counsel to the Company and
the Selling Shareholders, shall have furnished to you their written opinion,
dated such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) This Agreement has been duly executed and delivered by the
Company and each of the Selling Shareholders;
(ii) The Deposit Agreement has been duly executed and delivered
by the Company and, assuming due authorization, execution and delivery
by the Depositary, constitutes a valid and legally binding obligation
of the Company, enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by
general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law;
(iii) Upon due issuance by the Depositary of ADRs evidencing ADSs
against the deposit of Ordinary Shares in respect thereof in
accordance with the terms of the Deposit Agreement, such ADRs will be
duly and validly issued and will entitle the holders thereof to the
rights specified therein and in the Deposit Agreement;
(iv) Upon payment of the purchase price for the ADSs, and the
crediting of the ADSs to the Underwriters' accounts with DTC, Cede &
Co. or such other nominee designated by DTC, the Underwriters will
acquire a valid "security entitlement" (within the meaning of New York
Uniform Commercial Code Section 8-501) to such ADSs, and no action
based on an "adverse claim" (as defined in New York Uniform Commercial
Code Section 8-102) may be asserted against the Underwriters with
respect to such security entitlement if, at such time, the
Underwriters do not have notice of any adverse claim within the
meaning of New York Uniform Commercial Code Section 8-105;
(v) The execution and delivery by the Company of this Agreement
and the Deposit Agreement, the deposit of the Shares with the
Depositary against issuance of the ADRs evidencing the ADSs, the issue
and sale of the Shares and the ADSs being delivered at such Time of
Delivery, the compliance by the Company with this Agreement
32
and the Deposit Agreement and the consummation of the transactions
herein and therein contemplated will not (i) violate, breach, or
result in a default under any existing obligation of or restriction on
the Company or any of its subsidiaries under any agreement which has
been filed as an exhibit to the Registration Statement (each, a
"Company Agreement") or (ii) breach or otherwise violate any existing
obligation of or restriction on the Company or any of its subsidiaries
under any order, judgment or decree of any New York or U.S. federal
court or governmental authority binding on the Company and identified
to us in the Certificate of the Company dated __________, 2006
delivered to such counsel in connection herewith;
(vi) The execution and delivery by each Selling Shareholder of
this Agreement and the Power of Attorney, the deposit of the Shares
with the Depositary against issuance of the ADRs evidencing the ADSs,
the issue and sale of the Shares and the ADSs being delivered at such
Time of Delivery, the compliance by such Selling Shareholder with this
Agreement and the Power of Attorney and the consummation of the
transactions herein and therein contemplated will not (i) violate,
breach, or result in a default under any existing obligation of or
restriction on such Selling Shareholder under any agreement which has
been filed as an exhibit to the Registration Statement (each, a
"Selling Shareholder Agreement") or (ii) breach or otherwise violate
any existing obligation of or restriction on such Selling Shareholder
under any order, judgment or decree of any New York or U.S. federal
court or governmental authority binding on such Selling Shareholder
and identified to us in such Selling Shareholder's Certificate dated
__________, 2006;
(vii) The execution and delivery by each of the Company and each
of the Selling Shareholders of this Agreement, the execution and
delivery by the Company of the Deposit Agreement, the execution and
delivery by each of the Selling Shareholders of the Power of Attorney,
the performance by the Company of its obligations under this Agreement
and the Deposit Agreement and by each of the Selling Shareholders of
their respective obligations under this Agreement and the Power of
Attorney, and the consummation of the transactions contemplated to be
performed by the Company and each of the Selling Shareholders in this
Agreement and the Deposit Agreement and the Power of Attorney, as the
case may be, do not violate any current New York or federal statute or
regulation that we have, in the exercise of customary professional due
diligence, recognized as applicable to the Company or any of the
Selling Shareholders, as the case may be, or to the transactions of
the type contemplated by this Agreement, the Deposit Agreement and the
Power of Attorney;
(viii) No order, consent, permit or approval of any New York or
U.S. federal governmental authority is required on the part of the
Company or any Selling Shareholder for the issue and sale of the ADSs
or the consummation by the Company or such Selling Shareholder of the
transactions contemplated by this Agreement, the Deposit Agreement and
the Power of Attorney, except such as have been obtained under the Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the ADSs by
the Underwriters;
(ix) The statements set forth in the Prospectus under the caption
"Description of American Depositary Shares", insofar as they summarize
the terms of the Deposit Agreement and the ADSs, and under the
captions "Shares Eligible for Future Sale"
33
and "Underwriting", insofar as they summarize provisions of the laws
and documents referred to therein, are a fair summary thereof; and the
statements set forth in the Prospectus under the caption "Taxation",
insofar as they summarize the provisions of the laws referred to
therein, are a fair summary thereof;
(x) The Company is not, and after giving effect to the offering
and sale of the ADSs and the application of the proceeds thereof as
described in the Prospectus will not be, an investment company
required to register under the Investment Company Act;
(xi) The Registration Statement and the ADS Registration
Statement have been declared effective under the Act and, to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or the ADS Registration Statement has been
issued or threatened by the Commission;
(xii) Under the laws of the State of New York relating to
personal jurisdiction, the Company has, pursuant to Section 15 of this
Agreement and Section ____ of the Deposit Agreement, validly and
irrevocably submitted to the personal jurisdiction of any state or
federal court located in the Borough of Manhattan, The City of New
York, New York (each a "New York Court") in any action arising out of
or relating to this Agreement or the Deposit Agreement or the
transactions contemplated hereby or thereby, has validly and
irrevocably waived any objection to the venue of a proceeding in any
such court, and has validly and irrevocably appointed CT Corporation
System as its authorized agent for the purpose described in Section 15
hereof and Section ____ of the Deposit Agreement, and service of
process effected on such agent as set forth in Section 15 hereof or
Section ___ of the Deposit Agreement will be effective to confer valid
personal jurisdiction over the Company;
(xiii) Under the laws of the State of New York relating to
personal jurisdiction, each of the Selling Shareholders has, pursuant
to Section 15 of this Agreement, validly and irrevocably submitted to
the personal jurisdiction of any New York Court in any action arising
out of or relating to this Agreement or the transactions contemplated
hereby, has validly and irrevocably waived any objection to the venue
of a proceeding in any such court, and has validly and irrevocably
appointed CT Corporation System as its authorized agent for the
purpose described in Section 15 hereof, and service of process
effected on such agent as set forth in Section 15 hereof will be
effective to confer valid personal jurisdiction over such Selling
Shareholder;
(xiv) The Registration Statement, on each date it was filed, the
Preliminary Prospectus, as of its date, the Prospectus, as of its
date, and the ADS Registration Statement, on the date it was filed,
each appeared on its face to comply in all material respects with the
requirements of the Act and the rules and regulations thereunder (in
each case other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion); although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Pricing Disclosure Package or the
Prospectus, except for those referred to in the opinion in subsection
(ix) of this Section 8(d), nothing has come to such counsel's
attention that causes such counsel to believe that (a) any part of the
Registration Statement or any further amendment thereto (other than
the financial statements and other financial information contained
therein, as to which such counsel need express no opinion), at the
time such part or any further amendment thereto became effective,
contained an
34
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; (b) the Pricing Disclosure Package, as of the
Applicable Time and as of such Time of Delivery (other than the
financial statements and other financial information contained
therein, as to which such counsel need express no opinion), contained
any untrue statement of a material fact or omitted to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; (c) each Issuer Free Writing Prospectus listed on Schedule
III attached hereto contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; (d) the Prospectus, as of its date and as
of such Time of Delivery (other than the financial statements and
other financial information contained therein, as to which such
counsel need express no opinion), contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; or (e) the
ADS Registration Statement or any further amendments thereto (other
than the financial statements and other financial information contain
therein, as to which such counsel need express no opinion), at the
time the ADS Registration Statement or any further amendment thereto
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(xv) Except for the matters described in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, such
counsel has not given substantive attention on behalf of the Company
or any of its subsidiaries to, or represented the Company or any of
its subsidiaries in connection with, any actions, suits or proceedings
pending or threatened against the Company or any of its subsidiaries
before any court, arbitrator or governmental agency, which (x) seeks
to affect the enforceability of this Agreement or (y) seeks damages in
excess of US$1,000,000(such counsel may state that such counsel's
engagement is limited to specific matters as to which such counsel was
consulted by the Company or any of its subsidiaries); and
(xvi) Such counsel does not know of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement which is not filed as required.
In rendering such opinion, O'Melveny & Xxxxx LLP may state that they
express no opinion as to the laws of any jurisdiction outside the United States;
(e) King & Wood, PRC counsel to the Company and the Selling
Shareholders, shall have furnished to you such written opinion or opinions,
dated such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) Shenzhen Mindray has been duly organized and is validly
existing as a Sino-foreign joint stock company with limited liability
under the laws of the PRC and its business license is in full force
and effect; Shenzhen Mindray has been duly qualified as a foreign
invested enterprise; 79.0356% and 20.9642% of the equity interests of
Shenzhen Mindray are owned by GEL and GGIL, respectively, and to the
best of such counsel's knowledge after due inquiry, such equity
interests are free and clear of all liens, encumbrances, equities or
claims; the articles of association, the business license and
35
other constituent documents of Shenzhen Mindray comply with the
requirements of applicable laws of the PRC and are in full force and
effect; Shenzhen Mindray has full power and authority (corporate and
other) and all consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any
Governmental Agency having jurisdiction over Shenzhen Mindray or any
of its properties required for the ownership or lease of property by
it and the conduct of its business and has the legal right and
authority to own, use, lease and operate its assets and to conduct its
business in the manner presently conducted and as described in the
Prospectus;
(ii) Beijing Shen Mindray Medical Electronics Research Institute
Company Limited ("Mindray Beijing") has been duly organized and is
validly existing as a limited liability company under laws of the PRC
and its business license is in full force and effect; 99.9% the equity
interest of Mindray Beijing are owned by Shenzhen Mindray, and to the
best of such counsel's knowledge after due inquiry, such equity
interests are free and clear of all liens, encumbrances, equities or
claims; the articles of association, the business license and other
constituent documents of Mindray Beijing comply with the requirements
of applicable PRC Laws and are in full force and effect; all of the
issued shares of capital stock of Mindray Beijing have been duly and
validly authorized and issued and are fully paid and non-assessable;
Mindray Beijing has full power and authority (corporate and other) and
has all consents, approvals, authorizations, orders, registrations,
clearances and qualifications of or with any, Governmental Agency
having jurisdiction over Mindray Beijing or any of its properties
required for the ownership or lease of property by it and the conduct
of its business and has the legal right and authority to own, use,
lease and operate its assets and to conduct its business in the manner
presently conducted and as described in the Prospectus;
(iii) All of the issued shares of capital stock of Shenzhen
Mindray have been duly and validly authorized and issued and are fully
paid and non-assessable; Shenzhen Mindray has obtained all approvals,
authorizations, consents and orders, and has made all filings and
registrations, which are required under PRC laws and regulations for
the ownership interest by the GEL and GGIL of their respective equity
interest in Shenzhen Mindray; and there are no outstanding rights,
warrants or options to acquire, or instruments convertible into or
exchangeable for, nor any agreements or other obligations to issue or
other rights to convert any obligation into, any equity interest in
Shenzhen Mindray;
(iv) Shenzhen Mindray and Mindray Beijing have legal and valid
title to all of their respective properties and assets, in each case,
free and clear of all liens, charges, encumbrances, equities, claims,
defects, options and restrictions; each lease agreement to which
Shenzhen Mindray or Mindray Beijing is a party is duly executed and
legally binding; the leasehold interests of Shenzhen Mindray and
Beijing Mindray are fully protected by the terms of the lease
agreements, which are valid, binding and enforceable in accordance
with their respective terms under PRC law; and, to the best of such
counsel's knowledge after due inquiry, none of the Company, Shenzhen
Mindray and Mindray Beijing owns, operates, manages or has any other
right or interest in any other material real property of any kind,
except as described in the Pricing Prospectus;
(v) All Governmental Authorizations required under the laws and
regulations of the PRC in connection with the establishment of the
overseas subsidiaries of Shenzhen Mindray have been obtained, and none
of such Governmental Authorizations has been
36
withdrawn or is subject to any condition precedent which has not been
fulfilled or performed;
(vi) Shenzhen Mindray has the corporate power to enter into and
perform its obligations under each of the agreements (the
"Restructuring Agreements") entered into in connection with the
transactions as described in the Prospectus under the caption "Our
Corporate Structure" to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and
performance of, and has authorized, executed and delivered, each of
the Restructuring Agreements to which it is a party; and each of the
Restructuring Agreements to which Shenzhen Mindray is a party
constitutes a valid and legally binding obligation of Shenzhen
Mindray, enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(vii) The execution and delivery by Shenzhen Mindray of, and the
performance by Shenzhen Mindray of its obligations under, each of the
Restructuring Agreements to which it is a party and the consummation
by Shenzhen Mindray of the transactions contemplated therein will not:
(A) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which Shenzhen Mindray is a party or by which Shenzhen
Mindray is bound or to which any of the properties or assets of
Shenzhen Mindray is bound or to which any of the properties or assets
of Shenzhen Mindray is subject; (B) result in any violation of the
provisions of the articles of association, business license of
Shenzhen Mindray; or (C) result in any violation of any laws of the
PRC;
(viii) Each of the Restructuring Agreements is in proper legal
form under the laws of the PRC for the enforcement thereof against
each of the parties thereto in the PRC without further action by any
of the parties thereto; and to ensure the legality, validity,
enforceability or admissibility in evidence of each of the
Restructuring Agreements in the PRC, it is not necessary that any such
document be filed or recorded with any court or other authority in the
PRC or that any stamp or similar tax be paid on or in respect of any
of the Restructuring Agreements (in the case any such stamp or tax is
required, the Company or its relevant subsidiaries have duly paid the
stamp or tax as of the date hereof);
(ix) Each of Shenzhen Mindray and Mindray Beijing has all
necessary licenses, consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations
and filings with, all Governmental Agencies to own, lease, license and
use its properties, assets and conduct its business in the manner
described in the Prospectus and such licenses, consents,
authorizations, approvals, orders, certificates or permits contain no
materially burdensome restrictions or conditions not described in the
Prospectus; except as described in the Prospectus, neither Shenzhen
Mindray nor Mindray Beijing has any reason to believe that any
regulatory body is considering modifying, suspending or revoking any
such licenses, consents, authorizations, approvals, orders,
certificates or permits and each of Shenzhen Mindray or Mindray
Beijing is in compliance with the provisions of all such licenses,
consents, authorizations, approvals, orders, certificates or permits
in all material respects;
37
(x) All dividends and other distributions declared and payable
upon the equity interests in Shenzhen Mindray may under the current
laws and regulations of the PRC be paid to GEL and GGIL in Renminbi
that may be converted into U.S. dollars and freely transferred out of
the PRC, and all such dividends and other distributions are not and,
except as described in the Prospectus, will not be subject to
withholding or other taxes under the laws and regulations of the PRC
and, except as described in the Prospectus, are otherwise free and
clear of any other tax, withholding or deduction in the PRC, and
without the necessity of obtaining any Governmental Authorization in
the PRC;
(xi) To the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its subsidiaries is (A) in breach of or
in default under any laws, regulations, rules, orders, decrees,
guidelines or notices of the PRC, (B) in breach of or in default under
any approval, consent, waiver, authorization, exemption, permission,
endorsement or license granted by any Governmental Agency in the PRC,
(C) in violation of their respective constituent documents, business
licenses or permits or (D) in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(xii) The statements in the Prospectus under "Prospectus
Summary", "Risk Factors", "Our Corporate Structure", "Management's
Discussion and Analysis of Financial Condition and Results of
Operations", "Our Industry", "Business", "Regulation", "Management",
"Related Party Transactions", "Taxation" and "Enforcement of Civil
Liabilities" to the extent such statements relate to matters of PRC
law or regulation or to the provisions of documents therein described,
are true and accurate in all material respects, and nothing has been
omitted from such statements which would make the same misleading in
any material respect;
(xiii) Shenzhen Mindray is the exclusive owner of all right,
title and interest in and to the Intellectual Property, and the
Company or Shenzhen Mindray has a valid right to use the Intellectual
Property as currently used or as currently contemplated to be used by
the Company, in each case, as described in the Prospectus; any of the
Intellectual Property that was assigned by Shenzhen Mindray
Electronics Co., Ltd (Chinese Characters) or Changrunda Electronics
(Shenzhen) Co., Ltd. (Chinese Characters) to Shenzhen Mindray has been
assigned solely to Shenzhen Mindray, which assignment was either
recorded in and proclaimed by the PRC Intellectual Property Authority
or other foreign patent or trademark registration office, as
applicable, or have been submitted for recording in the PRC
Intellectual Property Authority or other foreign patent or trademark
registration office, as applicable; and such assignment is valid,
binding and enforceable, and all PRC governmental approvals in respect
of such assignment have been obtained and are in full force and
effect;
(xiv) To the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its subsidiaries is infringing,
misappropriating or violating any intellectual property right of any
third party in the PRC; and no Intellectual Property is subject to any
outstanding decree, order, injunction, judgment or ruling restricting
the use of such Intellectual Property in the PRC that would impair the
validity or enforceability of such Intellectual Property;
38
(xv) No security interests or other liens have been created with
respect to any of the Intellectual Property;
(xvi) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the government of the PRC or to any
political subdivision or taxing authority thereof or therein in
connection with (a) the deposit with the Depositary of Shares against
the issuance of ADRs evidencing the ADSs, (b) the sale and delivery by
the Company and the Selling Shareholders of the ADSs and the Shares to
or for the respective accounts of the Underwriters or (c) the sale and
delivery outside the PRC by the Underwriters of the ADSs and the
Shares to the initial purchasers thereof in the manner contemplated
herein;
(xvii) The irrevocable submission of each of the Company and the
Selling Shareholders to the jurisdiction of any New York Court, the
waiver by each of the Company and the Selling Shareholders of any
objection to the venue of a proceeding in a New York Court, the waiver
and agreement not to plead an inconvenient forum, the waiver of
sovereign immunity and the agreement of each of the Company and the
Selling Shareholders that this Agreement and Deposit Agreement shall
be construed in accordance with and governed by the laws of the State
of New York are legal, valid and binding under the laws of the PRC and
will be respected by PRC courts; service of process effected in the
manner set forth in this Agreement and the Deposit Agreement will be
effective, insofar as PRC law is concerned, to confer valid personal
jurisdiction over each of the Company and the Selling Shareholders;
and any judgment obtained in a New York Court arising out of or in
relation to the obligations of each of the Company and the Selling
Shareholders under this Agreement and the Deposit Agreement will be
recognized in PRC courts subject to the conditions described under the
caption "Enforceability of Civil Liabilities" in the Prospectus;
(xviii) The indemnification and contribution provisions set forth
in Section 9 hereof and Section ____ of the Deposit Agreement do not
contravene the public policy or laws of PRC;
(xix) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal, arbitration or
governmental proceedings pending to which the Company, Shenzhen
Mindray or Mindray Beijing is a party or of which any property of
Shenzhen Mindray or Mindray Beijing is the subject which, if
determined adversely to any of Shenzhen Mindray or Mindray Beijing
would individually or in the aggregate have a material adverse effect
on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company, Shenzhen
Mindray or Mindray Beijing; and, to the best of such counsel's
knowledge after due inquiry, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(xx) The issue and sale of the Shares and the ADSs being
delivered at such Time of Delivery and the deposit of the Shares with
the Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at such Time of Delivery and the compliance by the Company
with all of the provisions of this Agreement and the Deposit
Agreement, the compliance by each of the Selling Shareholders with all
of the provisions of this Agreement and the Power of Attorney, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or
39
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known
to such counsel to which Shenzhen Mindray or Mindray Beijing is a
party or by which Shenzhen Mindray or Beijing Mindray is bound or to
which any of the property or assets of Shenzhen Mindray or Beijing
Mindray is subject, nor will such action result in any violation of
the provisions of the articles of association, business license or any
other constituent documents of Shenzhen Mindray or Mindray Beijing or
any statute or any order, rule or regulation known to such counsel of
any Governmental Agency having jurisdiction over Shenzhen Mindray or
Mindray Beijing or any of their properties;
(xxi) No Governmental Authorization of or with any Governmental
Agency in the PRC is required for the issue and sale of the Shares and
the ADSs, the listing of the Shares and ADSs on the NYSE, the deposit
of the Shares with the Depositary against issuance of the ADRs
evidencing the ADSs to be delivered at such Time of Delivery or the
consummation of the transactions contemplated by the Underwriting
Agreement, the Deposit Agreement and the Power of Attorney; and the
issue and sale of the Shares and the ADSs being delivered at such Time
of Delivery and the deposit of the Shares with the Depositary against
issuance of the ADRs evidencing the ADSs to be delivered at such Time
of Delivery and the compliance by the Company with all of the
provisions of the Underwriting Agreement and the Deposit Agreement,
the compliance by each of the Selling Shareholders with all of the
provisions of the Underwriting Agreement and the Power of Attorney,
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any law or statute or any order, rule or regulation of any
Governmental Agency in the PRC;
(xxii) Neither Shenzhen Mindray nor Mindray Beijing is in
violation of its articles of association, business license or any
other constituent documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(xxiii) The application of the net proceeds to be received by the
Company from the sale of ADSs as contemplated by the Prospectus will
not contravene any provision of applicable PRC law, rule or
regulation, or the articles of association, the business or other
constituent documents of Shenzhen Mindray or contravene the terms or
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or
instrument binding upon Shenzhen Mindray, or any judgment, order or
decree of any Governmental Agency in the PRC;
(xxiv) The descriptions of the Restructuring set forth in the
Prospectus under the caption "Our Corporate Structure" are accurate,
complete and fair;
(xxv) The Restructuring does not (A) contravene any provision of
applicable law or statute, rule or regulation of any Governmental
Agency having jurisdiction over Shenzhen Mindray or Mindray Beijing or
any of their properties, including the PRC Overseas Investment and
Listing Regulations, (B) contravene the articles of association,
business license or other constituent documents of Shenzhen Mindray or
Mindray Beijing or (C) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any license, indenture, mortgage, deed of trust, loan
agreement,
40
note, lease or other agreement or instrument to which Shenzhen Mindray
or Mindray Beijing is a party or by which Shenzhen Mindray or Mindray
Beijing is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject;
(xxvi) All Governmental Authorizations required under the laws of
the PRC in connection with the Restructuring have been made or
unconditionally obtained in writing and are in full force and effect,
and no such Governmental Authorization has been withdrawn or revoked
or is subject to any condition precedent which has not been fulfilled
or performed;
(xxvii) Although such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, they have no reason
to believe that (a) any part of the Registration Statement or any
further amendment thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion), when such
part or amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; (b) the Pricing Disclosure Package, as of the Applicable
Time and as of such Time of Delivery, contained any untrue statement
of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; (c) each
Issuer Free Writing Prospectus listed on Schedule III attached hereto
conflicted with the information contained in the Registration
Statement, the Pricing Disclosure Package or the Prospectus and each
such Issuer Free Writing Prospectus, as supplemented by and taken
together with the Pricing Disclosure Package as of the Applicable Time
and as of such Time of Delivery, contained any untrue statement of a
material fact or omitted to state any material fact required necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; or (d) as of its date and
as of such Time of Delivery, the Prospectus or any further amendment
or supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained
or contains an untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; and
(xxviii) The entry into, and performance or enforcement of this
Agreement, the Deposit Agreement or the Power of Attorney in
accordance with its respective terms will not subject any of the
Underwriters or the Depositary to any requirement to be licensed or
otherwise qualified to do business in the PRC, nor will any
Underwriter or the Depositary be deemed to be resident, domiciled,
carrying on business through an establishment or place in the PRC or
in breach of any laws or regulations in the PRC by reason of entry
into, performance or enforcement of this Agreement, the Deposit
Agreement or the Power of Attorney.
In giving such opinion, such counsel may state that (A) with respect to all
matters of United States federal and New York State law they have relied upon
the opinions of United States counsel for the Company delivered pursuant to
paragraph (d) of this Section 8 and (B) with respect to all matters of Cayman
Islands and BVI law they have relied upon the opinions of Cayman Islands and BVI
counsel for the Company delivered pursuant to paragraph (f) of this Section 8;
41
(f) Xxxxxxx Xxxx & Xxxxxxx, Cayman Islands and BVI counsel for the
Company and the Selling Shareholders, shall have furnished to you their written
opinion, dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a company in good standing under the laws of the Cayman
Islands with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to acquire the ADSs to be deposited by the Company and the
Selling Shareholders or to be purchased from the Company and the
Selling Shareholders under this Agreement which have not been complied
with; the Shares to be deposited by the Company and the Selling
Shareholders may be freely deposited by the Company with the
Depositary against issuance of ADRs evidencing ADSs; and the ADSs and
the Shares to be sold by the Company and the Selling Shareholders are
freely transferable by the Company to or for the account of the
several Underwriters in the manner contemplated herein;
(iii) GEL has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the BVI; and all of its
issued shares of capital stock have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned directly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(iv) GGIL has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the BVI; and all of its
issued shares of capital stock have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned directly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(v) Each of the Selling Shareholders that is an entity has been
duly incorporated and is validly existing as a company in good
standing in its jurisdiction of incorporation;
(vi) To the best of such counsel's knowledge, after having
conducted a search of the register of writs and other originating
processes, and other than as set forth in the Prospectus, there are no
legal, arbitration or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by any Governmental
Agency or threatened by others;
42
(vii) Each of this Agreement and the Power of Attorney has been
duly authorized, executed and delivered by the Company and the Selling
Shareholders and constitutes a valid and legally binding agreement of
the Company and the Selling Shareholders enforceable in accordance
with its terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(viii) The Deposit Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles;
(ix) Each of this Agreement and the Deposit Agreement is in
proper form to be enforceable against the Company in the Cayman
Islands in accordance with its terms; to ensure the legality,
validity, enforceability or admissibility into evidence in the Cayman
Islands of this Agreement or the Deposit Agreement, it is not
necessary that this Agreement or the Deposit Agreement be filed or
recorded with any court or other authority in the Cayman Islands or
that any stamp or similar tax in the Cayman Islands be paid on or in
respect of this Agreement, the Deposit Agreement or any other
documents to be furnished hereunder or thereunder;
(x) The issue and sale of the Shares and the ADSs being delivered
at such Time of Delivery and the deposit of the Shares with the
Depositary against issuance of the ADSs evidencing the ADRs to be
delivered at such Time of Delivery and the compliance by the Company
with all of the provisions of this Agreement, and the Deposit
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company,
GEL or GGIL is a party or by which the Company, GEL or GGIL is bound
or to which any of the property or assets of the Company, GEL or GGIL
is subject, nor will such action result in any violation of the
provisions of the constituent documents of the Company or any statute
or any order, rule or regulation known to such counsel of any
Governmental Agency having jurisdiction over the Company, GEL or GGIL
or any of their respective properties;
(xi) The sale of the ADSs to be sold by the Selling Shareholders
hereunder and the compliance by the Selling Shareholders with all of
the provisions of this Agreement and the Power of Attorney and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any terms or provisions of,
or constitute a default under, any statute, indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to
such counsel to which a Selling Shareholder is a party or by which a
Selling Shareholder is bound, or to which any of the property or
assets of a Selling Shareholder is subject, nor will such action
result in any violation of the provisions of the constituent documents
of a Selling Shareholder or any order, rule or regulation known to
such counsel of any Governmental Agency having jurisdiction over a
Selling Shareholder or the property of a Selling Shareholder;
(xii) No Governmental Authorization of or with any Governmental
Agency in the Cayman Islands is required for the issue and sale of the
Shares and the ADSs, the
43
deposit of the Shares with the Depositary against issuance of the ADRs
evidencing the ADSs to be delivered at such Time of Delivery or the
consummation of the transactions contemplated by this Agreement and
the Deposit Agreement;
(xiii) Immediately prior to such Time of Delivery each Selling
Shareholder had good and valid title to the Shares and ADSs to be sold
at such Time of Delivery by such Selling Shareholder under this
Agreement, free and clear of all liens, encumbrances, equities or
claims, and full right, power and authority to sell, assign, transfer
and deliver the Shares and ADSs to be sold by such Selling Shareholder
hereunder and thereunder; and, upon delivery of the ADSs representing
such Shares and payment therefore pursuant to this Agreement, good and
valid title to such ADSs, free and clear of all liens, encumbrances,
equities or claims, will be transferred to each of the several
Underwriters;
(xiv) The statements set forth in the Prospectus under the
caption "Description of Share Capital", insofar as they purport to
constitute a summary of the terms of the ordinary shares are accurate,
complete and fair;
(xv) The statements set forth in the Prospectus under the caption
"Taxation - Cayman Islands Taxation", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair;
(xvi) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the Cayman Islands or to any
political subdivision or taxing authority thereof or therein in
connection with (A) the deposit with the Depositary of Shares by the
Company and the Selling Shareholders against the issuance of ADRs
evidencing the ADSs, (B) the sale and delivery by the Company of the
ADSs and the Shares to or for the respective accounts of the
Underwriters or (C) the sale and delivery outside the Cayman Islands
by the Underwriters of the ADSs and the Shares to the initial
purchasers thereof in the manner contemplated herein;
(xvii) Insofar as matters of the Cayman Islands law are
concerned, the Registration Statement and the filing of the
Registration Statement with the Commission have been duly authorized
by and on behalf of the Company; and the Registration Statement has
been duly executed pursuant to such authorization by and on behalf of
the Company;
(xviii) Each of the Company's agreement and the Selling
Shareholders' agreement to the choice of law provisions set forth in
Section 15 hereof will be recognized by the courts of the Cayman
Islands; the Company and the Selling Shareholders can xxx and be sued
in their own names under the laws of the Cayman Islands; the
irrevocable submission of the Company and the Selling Shareholders to
the exclusive jurisdiction of a New York Court, the waiver by the
Company and the Selling Shareholders of any objection to the venue of
a proceeding of a New York Court and the agreement of the Company and
the Selling Shareholders that this Agreement shall be governed by and
construed in accordance with the laws of the State of New York are
legal, valid and binding; service of process effected in the manner
set forth in Section 15 hereof will be effective, insofar as the law
of the Cayman Islands is concerned, to confer valid personal
jurisdiction over the Company and the Selling Shareholders; and
judgment obtained in a New York Court arising out of or in relation to
the obligations of the Company or a Selling Shareholder
44
under this Agreement would be enforceable against the Company or such
Selling Shareholder, respectively, in the courts of the Cayman
Islands;
(xix) The indemnification and contribution provisions set forth
in Section 9 hereof and Section ____ of the Deposit Agreement do not
contravene the public policy or laws of the Cayman Islands or the BVI;
(xx) All dividends and other distributions declared and payable
on the shares of capital stock of the Company may under the current
laws and regulations of the Cayman Islands be paid to the Depositary
and freely transferred out of the Cayman Islands, and all such
dividends and other distributions will not be subject to withholding
or other taxes under the laws and regulations of Cayman Islands and
are otherwise free and clear of any other tax, withholding or
deduction in the Cayman Islands and without the necessity of obtaining
any Governmental Authorization in the Cayman Islands;
(xxi) All dividends and other distributions declared and payable
on the shares of capital stock of each of GEL and GGIL may under the
current laws and regulations of the BVI be paid to the Company and
freely transferred out of the BVI, and all such dividends and other
distributions will not be subject to withholding or other taxes under
the laws and regulations of the BVI and are otherwise free and clear
of any other tax, withholding or deduction in the BVI and without the
necessity of obtaining any Governmental Authorization in the BVI; and
(xxii) None of the Company, GEL and GGIL is in violation of its
constituent documents or in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any license, indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound; the Restructuring does
not (A) contravene any provision of applicable Cayman Islands or BVI
law or statute, rule or regulation of any Governmental Agency having
jurisdiction over the Company, GEL or GGIL or any of their properties,
(B) contravene the articles of association, business license or other
constituent documents of the Company, GEL or GGIL, or (C) conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any license, indenture,
mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Company, GEL or GGIL is a party
or by which the Company, GEL or GGIL is bound or to which any of the
property or assets of the Company, GEL or GGIL is subject.
In giving such opinion, such counsel may state that (A) with respect to all
matters of United States federal and New York law they have relied upon the
opinions of United States counsel for the Company delivered pursuant to
paragraph (d) of this Section 8 and (B) with respect to all matters of PRC law
they have relied upon the opinions of PRC counsel for the Company delivered
pursuant to paragraph (e) of this Section 8;
(g) Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel for the Depositary, shall
have furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a valid and binding
agreement of the
45
Depositary enforceable against the Depositary in accordance with its
terms, except as enforcement of it may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or similar
laws of general application relating to or affecting creditors' rights
and by general principles of equity;
(ii) Upon execution and delivery by the Depositary of ADRs
evidencing the ADSs against the deposit of Shares in accordance with
the provisions of the Deposit Agreement, the ADRs will be duly and
validly issued and will entitle the holders thereof to the rights
specified therein and in the Deposit Agreement; and
(iii) The ADS Registration Statement has been filed and declared
effective and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the ADS Registration Statement or any
part thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Act and the
ADS Registration Statement, and each amendment as of their respective
effective dates, complied as to form in all material respects with the
requirements of the Act and the rules and regulations of the
Commission thereunder;
(h) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Deloitte Touche
Tohmatsu shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you, to the
effect set forth in Annex II attached hereto;
(i) No Preliminary Prospectus, Pricing Prospectus, Issuer Free Writing
Prospectus or Prospectus or amendment or supplement to the Registration
Statement, the Preliminary Prospectus, the Pricing Prospectus or the Prospectus
shall have been filed to which you shall have objected in writing;
(j) (A) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Pricing Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus, and (B) since the
respective dates as of which information is given in the Pricing Prospectus
there shall not have been any change in the share capital (other than pursuant
to the Company's employee share incentive plan existing on the date of this
Agreement of which the Representatives have been advised in writing and which
are described in the Pricing Prospectus), short- or long-term debt of the
Company or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (A) or
(B), is in your judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(k) All outstanding shares of Preferred Stock shall have been
converted into ordinary shares in accordance with the terms of the Preferred
Stock;
(l) On or after the Applicable Time there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on Nasdaq, the NYSE, Xxx Xxxxx
00
Xxxxxxxx xx Xxxx Xxxx Limited or the London Stock Exchange; (ii) a suspension or
material limitation in trading in the Company's securities on the NYSE; (iii) a
general moratorium on commercial banking activities in New York, London, Hong
Kong, the PRC or the Cayman Islands declared by the relevant authorities, or a
material disruption in commercial banking or securities settlement or clearance
services in the United States, the United Kingdom, Hong Kong, the PRC or the
Cayman Islands; (iv) a change or development involving a prospective change in
taxation affecting the Company, any of its subsidiaries or the Shares or the
ADSs or the transfer thereof; (v) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any Governmental
Agency materially affecting the business or operations of the Company or its
subsidiaries; (vi) the outbreak or escalation of hostilities or act of terrorism
involving the United States, the United Kingdom, Hong Kong, the PRC or the
Cayman Islands or the declaration by the United States, the United Kingdom, Hong
Kong, the PRC or the Cayman Islands of a national emergency or war; or (vii) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions or currency exchange rates or controls in the United
States, the United Kingdom, Hong Kong, the PRC, the Cayman Islands or elsewhere,
if the effect of any such event specified in clauses (v), (vi) or (vii), in the
sole judgment of the Representatives, makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares and the ADSs
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(m) The ADSs to be sold by the Company and the Selling Shareholders at
such Time of Delivery shall have been duly approved, subject to notice of the
issuance, for listing on the NYSE;
(n) The Depositary shall have furnished or caused to be furnished to
you at such Time of Delivery certificates satisfactory to you evidencing the
deposit with it of the Shares being so deposited against issuance of ADRs
evidencing the ADSs to be delivered by the Company and the Selling Shareholders
at such Time of Delivery, and the execution, countersignature (if applicable),
issuance and delivery of ADRs evidencing such ADSs pursuant to the Deposit
Agreement;
(o) Each party set forth in Annex III attached hereto shall have
entered into an agreement (each a "Lock-Up Agreement") whereby during the period
beginning from the date hereof and continuing to and including the date 180 days
after the date of the Prospectus, such party shall not, except as provided
hereunder offer, sell, contract to sell, pledge, grant any option to purchase,
purchase any option or contract to sell, right or warrant to purchase, make any
short sale, file a registration statement with respect to, or otherwise dispose
of (including entering into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequence of ownership
interests): (A) any ADSs or ordinary shares or any securities of the Company
that are substantially similar to the ADSs or ordinary shares, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, ADSs or ordinary shares or any such
substantially similar securities; and (B) any ordinary shares of any of the
Company's subsidiaries or depositary shares or depositary receipts representing
such ordinary shares, including but not limited to any securities that are
convertible into or exchangeable for or that represent the right to receive such
ordinary shares or such depositary shares or depositary receipts or any such
substantially similar securities (in each case other than pursuant to a transfer
to an affiliate, provided that such transfer is not a disposition for value and
such affiliate agrees to be bound in writing by the restrictions set forth
therein), without your prior written consent, except for ADSs and shares of
Common Stock represented thereby being sold hereunder (a form of such Lock-Up
Agreement is attached as Annex IV attached hereto);
(p) The Company shall have complied with the provisions of Section
5(a)(iii) hereof with respect to the furnishing of Prospectuses on the New York
Business Day next succeeding the date of this Agreement;
47
(q) At the First Time of Delivery, the Chief Financial Officer and
_______________________ of the Company shall have furnished to you an officers'
certificate, dated the date of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex I attached hereto;
(r) The Company and the Selling Shareholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and of the Selling Shareholders, respectively, satisfactory to
you as to the accuracy of the representations and warranties of the Company and
the Selling Shareholders, respectively, herein at and as of such Time of
Delivery, as to the performance by the Company and the Selling Shareholders of
all of their respective obligations hereunder to be performed at or prior to
such Time of Delivery, and as to such other matters as you may reasonably
request, including, without limitation, certificates of officers of the Company
satisfactory to you with respect to the memorandum and articles of association
and other organizational documents of the Company, all resolutions of the board
of directors of the Company and other corporate actions relating to this
Agreement and the authorization, issue and sale of the Shares and ADSs and the
incumbency and specimen signatures of signing officers, and the Company and the
Selling Shareholders shall have furnished or caused to be furnished certificates
as to the matters set forth in subsections (a), (j) and (k) of this Section, and
as to such other matters as you may reasonably request;
(s) There shall not be any litigation, proceedings, investigations,
processes for administrative sanctions or other actions initiated or threatened
by any Governmental Authority before any Governmental Agency, in each case with
due authority, against or involving any party hereto, in the PRC or elsewhere,
that seeks to declare non-compliance, unlawful or illegal, under PRC laws, rules
and regulations, the issuance and sales of the Shares and ADSs, the listing and
trading of the ADSs on the NYSE or the transactions contemplated by this
Agreement, the Deposit Agreement and the Power of Attorney; provided, that this
Section 8(s) shall not apply to (i) any such action initiated or threatened by
any such Governmental Authority before any such Governmental Agency seeking to
impose monetary fine or penalties the payment of which will not have a Material
Adverse Effect or (ii) a ratifying or post-listing filing with a Governmental
Authority, in each case in the reasonable judgment of the Representatives, that
will not create material pricing pressure or have an adverse impact on the
trading price of the ADSs (each, an "Excluded Event"); and
(t) There shall not be any adverse legislative or regulatory
developments related to the M&A Rules and Related Clarifications (other than an
Excluded Event) which in the sole judgment of the Representatives (after
consultation with the Company if practicable) would make it inadvisable to
proceed with the public offering or the delivery of the Shares and the ADSs
being delivered at such Time of Delivery on the terms and in the manner
contemplated in this Agreement (including any such development that results in
either PRC counsel to the Company or PRC counsel to the Underwriters not being
able to confirm, at such Time of Delivery, the respective opinions of such
counsel, each dated as of September 11, 2006, attached hereto as Annex VI to
this Agreement).
9. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the ADS Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus,
or any amendment or supplement thereto, any Issuer Free Writing Prospectus or
any "issuer information" filed or required to be filed pursuant to Rule 433(d)
under the Act, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) the Directed
Share Program, and will reimburse each Underwriter for any legal or other
expenses
48
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that (x) with respect to clause (i) of this paragraph, the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use therein and (y) with
respect to clause (ii) of this paragraph, the Company shall not be liable
insofar as such loss, damage, expense, liability or claim is finally judicially
determined to have resulted from the gross negligence or willful misconduct of
the Underwriters in conducting the Directed Share Program.
(b) Without limitation of and in addition to its obligations under the
other paragraphs of this Section 9, the Company agrees to indemnify, defend and
hold harmless Xxxxx Xxxxxxx & Co. (the "DSP Underwriter") and its partners,
directors and officers, and any person who controls the DSP Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the DSP Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim (i) arises out of or
is based upon (x) any of the matters referred to in clauses (i) through (ii) of
Section 9(a) hereof, or (y) any untrue statement or alleged untrue statement of
a material fact contained in any material prepared by or on behalf or with the
consent of the Company for distribution to Directed Share Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) is or was caused
by the failure of any Directed Share Participant to pay for and accept delivery
of Reserved Shares that the Directed Share Participant has agreed to purchase;
or (iii) otherwise arises out of or is based upon the Directed Share Program,
provided, however, that the Company shall not be responsible under this clause
(iii) for any loss, damage, expense, liability or claim that is finally
judicially determined to have resulted from the gross negligence or willful
misconduct of the DSP Underwriter in conducting the Directed Share Program.
Section 9(f) shall apply equally to any action brought against the DSP
Underwriter or any such person in respect of which indemnity may be sought
against the Company pursuant to the immediately preceding sentence, except that
the Company shall be liable for the expenses of one separate counsel (in
addition to any local counsel) for the DSP Underwriter and any such person,
separate and in addition to counsel for the persons who may seek indemnification
pursuant to Section 9(a) in any such action.
(c) Each of the Selling Shareholders will severally and not jointly
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus or any "issuer
information" filed or required to be filed pursuant to Rule 433(d) under the
Act, or arise out of or are based upon the omission
49
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred, in each case to the extent that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the ADS Registration Statement,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
such amendment or supplement, or any Issuer Free Writing Prospectus or any
"issuer information" filed or required to be filed pursuant to Rule 433(d) under
the Act in reliance upon and in conformity with written information furnished to
the Company or such Underwriter by such Selling Shareholder expressly for use
therein.
(d) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Shareholder against any losses, claims,
damages or liabilities to which the Company or such Selling Shareholder become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company and each Selling Shareholder for any legal or other
expenses reasonably incurred by the Company or such Selling Shareholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(e) Promptly after receipt by an indemnified party under subsection
(a), (b), (c) or (d) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
50
(f) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b), (c) or (d) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other from the offering of the ADSs. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (f) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Shareholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the U.S. Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or any Selling Shareholder on the one hand or the Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company, each
of the Selling Shareholders and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this subsection (g) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (g). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (g) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (g), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the ADSs underwritten by
it and distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (g) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(g) The obligations of the Company and the Selling Shareholders under
this Section 9 shall be in addition to any liability which the Company and the
respective Selling Shareholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act and to each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 shall
be in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of the
Company) and any Selling Shareholder and to each person, if any, who controls
the Company or any Selling Shareholder within the meaning of the Act.
51
10. (a) If any Underwriter shall default in its obligation to purchase the
ADSs which it has agreed to purchase hereunder at a Time of Delivery, you may in
your discretion arrange for you or another party or other parties to purchase
such ADSs on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such ADSs,
then the Company and the Selling Shareholders shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such ADSs on such terms. In the event
that, within the respective prescribed periods, you notify the Company and the
Selling Shareholders that you have so arranged for the purchase of such ADSs, or
the Company and the Selling Shareholders notify you that they have so arranged
for the purchase of such ADSs, you or the Company and the Selling Shareholders
shall have the right to postpone such Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such ADSs.
(b) If, after giving effect to any arrangements for the purchase of
the ADSs of a defaulting Underwriter or Underwriters by you, the Company and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the ADSs to be purchased at such Time of Delivery, then
the Company and the Selling Shareholders shall have the right to require each
non-defaulting Underwriter to purchase the number of ADSs which such Underwriter
agreed to purchase hereunder at such Time of Delivery and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the number of ADSs which such Underwriter agreed to purchase hereunder) of the
ADSs of such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the ADSs of a defaulting Underwriter or Underwriters by you, the Company and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased exceeds one-eleventh of the aggregate
number of all the ADSs to be purchased at such Time of Delivery, or if the
Company and the Selling Shareholders shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase ADSs of
a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase,
and of the Company and the Selling Shareholders to sell, the Optional ADSs)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Shareholders, except for the expenses to
be borne by the Company and the Selling Shareholders and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
11. The respective indemnities and contribution provisions in Section 9,
and the agreements, representations, warranties and other statements of the
Company, the Selling Shareholders and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any of the Selling Shareholders, or any officer or director or controlling
person of the Company, or any controlling person of any Selling Shareholder, and
shall survive delivery of and payment for the ADSs.
52
12. (a) This Agreement shall become effective when the parties hereto have
executed and delivered this Agreement.
(b) The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of the Representatives, if, at
the First Time of Delivery, any of the conditions set forth in Section 8 is not
satisfied.
(c) If the Representatives elect to terminate this Agreement as
provided in this Section 12, the Company, the Selling Shareholders and each
other Underwriter shall be notified promptly in writing.
(d) If this Agreement shall be terminated pursuant to Section 10
hereof, neither the Company nor any of the Selling Shareholders shall then be
under any liability to any Underwriter except as provided in Sections 7 and 9
hereof; but, if for any other reason, any ADSs are not delivered by or on behalf
of the Company and the Selling Shareholders as provided herein, the Company and
each of the Selling Shareholders will, upon the occurrence of any failure to
complete the sale and delivery of the ADSs, promptly (and, in any event, not
later than 30 days), jointly and severally, reimburse the Underwriters through
you for all out-of-pocket expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the ADSs not so delivered,
but the Company and the Selling Shareholders shall then be under no further
liability to any Underwriter in respect of the ADSs not so delivered except as
provided in Sections 7 and 9 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you. All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the Representatives at, in the case of
Xxxxxxx Xxxxx (Asia) L.L.C., 00xx Xxxxx, Xxxxxx Xxxx Xxxxxx, 0 Xxxxx'x Xxxx
Xxxxxxx, Xxxx Xxxx, facsimile number: (000) 0000-0000, Attention: Legal
Department and in the case of UBS AG, 52/F, 2 International Finance Centre, 0
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx, facsimile number: (000) 0000-0000,
Attention: Legal Department; if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to Mindray Medical Holdings Limited c/o
Shenzhen Mindray Bio-Medical Electronics Co., Ltd., Mindray Building, Keji 12th
Road South Hi-Tech Industrial Park, Nanshan, Shenzhen, 518057, People's Republic
of China; if to any Selling Shareholder shall be delivered or sent by mail,
telex or facsimile transmission to such Selling Shareholder c/o Shenzhen Mindray
Bio-Medical Electronics Co., Ltd., Mindray Building, Keji 12th Road South
Hi-Tech Industrial Park, Nanshan, Shenzhen, 518057, People's Republic of China,
Attention: __________________________, Attention: __________________________;
provided, however, that any notice to an Underwriter pursuant to Section 9(d)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Shareholders and, to the
extent provided in Sections 9 and 11 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Shareholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the ADSs from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
53
15. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company or the Selling Shareholder brought by
any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York Court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. Each of the
Company and the Selling Shareholders has appointed CT Corporation System, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as its authorized agent (the "Authorized
Agent") upon whom process may be served in any such action arising out of or
based on this Agreement or the transactions contemplated hereby which may be
instituted in any New York Court by any Underwriter or by any person who
controls any Underwriter, expressly consents to the jurisdiction of any such
court in respect of any such action, and waives any other requirements of or
objections to personal jurisdiction with respect thereto. Such appointment shall
be irrevocable. Each of the Company and the Selling Shareholders represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company and the
Selling Shareholders as the case may be.
16. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Shareholders, as
the case may be, will indemnify each Underwriter against any loss incurred by
such Underwriter as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (ii) the rate of exchange
at which an Underwriter is able to purchase United States dollars with the
amount of the judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and the Selling Shareholders and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
17. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18. Each of the Company and the Selling Shareholders acknowledges and
agrees that (i) the purchase and sale of the ADSs pursuant to this Agreement is
an arm's-length commercial transaction between the Company and such Selling
Shareholders, on the one hand, and the several Underwriters, on the other, (ii)
in connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company or any Selling Shareholder, (iii) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Company or such Selling
Shareholder with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company or any Selling Shareholder on other matters) or
any other obligation to the Company or such Selling Shareholder except the
obligations expressly set forth in this Agreement and (iv) each of the Company
and the Selling Shareholders has consulted its own legal and financial advisors
to the extent it deemed appropriate. Each of the Company and the Selling
Shareholders agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company or any Selling Shareholder, in
connection with such transaction or the process leading thereto.
54
19. This Agreement constitutes the entire agreement among the parties and
supersedes all prior agreements and understandings (whether written or oral)
among the Company, the Selling Shareholders and the Underwriters, or any of
them, with respect to the subject matter hereof.
20. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
21. Each of the Company, the Selling Shareholders and the Underwriters
irrevocably waives, to the fullest extent permitted by law, any and all rights
to trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
22. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
23. Notwithstanding anything herein to the contrary, each of the Company
and the Selling Shareholders is authorized to disclose to any persons the U.S.
Federal and State income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax
analyses) provided to the Company and the Selling Shareholders relating to that
treatment and structure, without the Underwriters imposing any limitation of any
kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the
extent necessary to enable any person to comply with securities laws. For this
purpose, "tax structure" is limited to any facts that may be relevant to that
treatment.
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Shareholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
the Selling Shareholders. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company and the Selling Shareholders for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
55
Very truly yours,
Mindray Medical International Limited
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
The Selling Shareholders named in
Schedule II attached hereto
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
As Attorney-in-Fact acting on behalf of
each of the Selling Shareholders named
in Schedule II attached hereto
Accepted as of the date hereof on behalf of each of the Underwriters
Xxxxxxx Xxxxx (Asia) L.L.C.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
UBS AG
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
56
SCHEDULE I
Exhibit 1.1
NUMBER OF OPTIONAL ADSS
TOTAL NUMBER OF FIRM TO BE PURCHASED IF
UNDERWRITER ADSS TO BE PURCHASED MAXIMUM OPTION EXERCISED
----------- -------------------- ------------------------
Xxxxxxx Sachs (Asia) L.L.C.........
UBS AG.............................
X.X. Xxxxxx Securities Inc.........
CIBC World Markets Corp............
First Shanghai Securities Limited..
Xxxxx Xxxxxxx & Co.................
-------------------- ------------------------
TOTAL
==================== ========================
SCH-I
SCHEDULE II
NUMBER OF OPTIONAL ADSS
TOTAL NUMBER OF FIRM TO BE SOLD IF MAXIMUM
ADSS TO BE SOLD OPTION EXERCISED
-------------------- -----------------------
The Company.......................................
The Selling Shareholders:
New Dragon (No. 12) Investments Limited........
Quiet Well Limited.............................
Able Choice Investments Limited................
Dragon City International Investment Limited...
Well Elite Group Limited.......................
-------------------- -----------------------
TOTAL
==================== =======================
SCH-II
SCHEDULE III
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure
Package:
(b) Materials other than the Pricing Prospectus that comprise the Pricing
Disclosure Package:
SCH-III
ANNEX I
FORM OF POWER OF ATTORNEY
MINDRAY MEDICAL INTERNATIONAL LIMITED
AMERICAN DEPOSITARY SHARES REPRESENTING CLASS A ORDINARY SHARES
(par value HK$0.001 per share)
IRREVOCABLE POWER OF ATTORNEY OF SELLING SHAREHOLDER
The undersigned is a shareholder of Mindray Medical International Limited,
an exempted company incorporated in the Cayman Islands (the "Company"). In
connection with the initial public offering of the American Depositary Shares
("ADSs"), each representing one Class A ordinary shares, par value HK$0.001 per
share ("Ordinary Shares"), of the Company (the "Offering"), the undersigned
understands that the undersigned and certain other shareholders of the Company
(the undersigned and such other shareholders being hereinafter referred to as
the "Selling Shareholders") propose to sell Ordinary Shares of the Company, in
the form of ADSs, to the several underwriters (the "Underwriters") named in the
Underwriting Agreement (as defined below), represented by Xxxxxxx Xxxxx (Asia)
L.L.C. and UBS AG (the "Representatives"), and that the Underwriters propose to
offer such ADSs to the public. The undersigned also understands that, in
connection with the public offering pursuant to the Underwriting Agreement, the
Company has filed a Registration Statement (the "Registration Statement") with
the United States Securities and Exchange Commission (the "Commission") to
register under the Securities Act of 1933, as amended (the "1933 Act"), the
Ordinary Shares to be sold in the form of ADSs by the Selling Shareholders.
1. In connection with the foregoing, the undersigned hereby irrevocably
appoints Xx. Xx Hang and Xx. Xxxxx I-Xxx Xxx, and either of them acting alone,
as the attorneys-in-fact (collectively the "Attorneys" and individually an
"attorney") of the undersigned, and agrees that the Attorneys, or either of them
acting alone, may also act as the attorneys-in-fact for any other Selling
Shareholder, with full power and authority in the name of, and for and on behalf
of, the undersigned:
(a) to do all things necessary to sell, assign, transfer and deliver
to the Underwriters up to the number (the "Maximum Number") of ADSs set
forth opposite the name of the undersigned at the end of this Power of
Attorney pursuant to the Underwriting Agreement;
(b) for the purpose of effecting such sale, to negotiate, execute,
deliver and perform the undersigned's obligations under (1) an underwriting
agreement (the "Underwriting Agreement") among the Company, the Selling
Shareholders and the Representatives, as representatives of the several
Underwriters named therein, (including the purchase price per ADS to be
paid by the Underwriters and the number (or method of determining the
number) of ADSs to be sold by the undersigned) as may be approved in the
sole discretion of the Attorneys, or either of them acting alone, such
approval to be conclusively evidenced by the execution and delivery of the
Underwriting Agreement by the Attorneys, or either of them acting alone;
and (2) an
ANNEX I
engagement letter, dated July 20, 2006 (the "Engagement Letter"), among the
Company, the Selling Shareholders and the Representatives.
(c) to execute and deliver any amendments, modifications or
supplements to the Underwriting Agreement and Engagement Letter, to amend,
modify or supplement any of the terms thereof including, without
limitation, the terms of the offering, provided, however that no such
amendment shall increase the number of the ADSs to be sold by the
undersigned to more than the Maximum Number in the aggregate;
(d) to take any and all steps deemed necessary by the Attorneys, or
either of them acting alone, in connection with the sale of the ADSs with
respect to (i) the transfer on the books of the Company of the Ordinary
Shares underlying the ADSs, or on the records of the transfer agent, if
applicable, in order to effect the sale to the Underwriters, (ii) the
payment, out of the proceeds of such sale, of any expenses that are to be
borne by the undersigned in connection with the offer, sale and delivery of
the ADSs or any transfer taxes payable in connection with the transfer of
the ADSs to the Underwriters and (iii) the transmission to or as directed
by the undersigned of the proceeds from the sale of the ADSs (after
deducting all amounts payable by the undersigned pursuant to this Power of
Attorney, the Underwriting Agreement and the Engagement Letter) and the
return to the undersigned of new certificates representing the excess, if
any, of the number of the Ordinary Shares over the number of the Ordinary
Shares underlying the ADSs sold to the Underwriters; to incur or authorize
the incurrence of any necessary or appropriate expense in connection with
the sale of the ADSs and to determine the amount of any transfer taxes;
(e) to join the Company in withdrawing the Registration Statement if
the Company should desire to withdraw such registration;
(f) to retain legal counsel in connection with any and all matters
referred to herein (which counsel may, but need not be, counsel for the
Company);
(g) to appoint an agent for service of process in the United States;
(h) to agree upon the allocation and to arrange payment therefor of
the expenses of the Offering (including, without limitation, the fees and
expenses of counsel referred to above) among the Company, the Underwriters
and the Selling Shareholders, including the undersigned;
(i) to authorize the appropriate book-entries, representing the
Ordinary Shares underlying the ADSs to be sold by the undersigned, if
applicable;
(j) to endorse with the registered seal of the undersigned on behalf
of the undersigned the certificate(s) representing the Ordinary Shares
underlying the ADSs, if applicable, to be sold by the undersigned, or a
transfer form or transfer forms attached to such certificate(s); and
(k) to make, execute, acknowledge and deliver all other contracts,
orders, receipts, notices, requests, instructions, certificates, letters
and other writings, including communications to
ANNEX I 2
the Commission (including a request or requests for acceleration of the
effective date of the Registration Statement) and state securities law
authorities, any amendments to the Underwriting Agreement, the Engagement
Letter or any agreement with the Company with regard to expenses, and
certificates and other documents required to be delivered by or on behalf
of the undersigned pursuant to the Underwriting Agreement or the Engagement
Letter, and specifically to execute on behalf of the undersigned stock
powers and transfer instructions relating to the Ordinary Shares underlying
the ADSs to be sold by the undersigned, and in general to do all things and
to take all action which the Attorneys, or either of them acting alone, may
consider necessary or proper in connection with, or to carry out and comply
with, all terms and conditions of the Underwriting Agreement and the
Engagement Letter and the aforesaid sale of ADSs to the several
Underwriters.
2. The undersigned hereby makes, at and as of the date of this Power of
Attorney, with and to the several Underwriters each of the representations,
warranties, covenants and agreements of the undersigned as a Selling Shareholder
set forth in the Underwriting Agreement, and all such representations,
warranties, covenants and agreements are incorporated by reference herein in
their entirety (the representations, warranties and agreements being subject,
however, to the exception that orders or other authorizations that may be
required under the 1933 Act in connection with the purchase and distribution by
the Underwriters of the ADSs to be sold by the undersigned have not yet been
obtained).
The undersigned further:
(a) represents and warrants to, and agrees with, the several
Underwriters that this Power of Attorney and the Engagement Letter have
been duly executed and delivered by or on behalf of the undersigned and
constitute valid and binding agreements of the undersigned in accordance
with their respective terms; and
(b) (i) confirms to the several Underwriters the accuracy of the
information concerning the undersigned and the undersigned's shareholding
in the Company as set forth in the Registration Statement and Pricing
Prospectus (as defined in the Underwriting Agreement), dated __________,
under the caption "Principal and Selling Shareholders", a copy of which is
publicly available on XXXXX, (ii) also confirms to the several Underwriters
the accuracy of the information concerning the undersigned contained or to
be contained in any selling shareholder's questionnaire or other written
document furnished by the undersigned to the Company for purposes of the
Registration Statement or any prospectus (preliminary or final) contained
therein or filed pursuant to Rule 424 under the 1933 Act or in any
amendment or supplement thereto (including any documents incorporated by
reference therein), and (iii) agrees with the Company and the several
Underwriters immediately to notify the Company and promptly (but in any
event within two business days thereafter) to confirm the same in writing
if, during the period or at the date(s) referred to in paragraph 4 hereof,
there should be any change affecting the accuracy of the above-mentioned
information, or if any subsequent version of such section of the prospectus
delivered to the undersigned should be inaccurate, and (iv) agrees with the
Company and the several Underwriters that for all purposes of the
representations, warranties, covenants and agreements incorporated by
reference herein from the Underwriting Agreement, delivery of this Power of
Attorney and the statements contained herein constitute (and in the absence
of any such notification as is referred to in subclause (iii) given prior
to the date on which the Underwriting Agreement is executed and delivered
by the undersigned will constitute on a
ANNEX I 3
continuing basis) written information furnished by the undersigned to the
Company for use in the Registration Statement and any such prospectus or
prospectus supplement, amendment or supplement.
3. This Power of Attorney and all authority conferred hereby are granted
and conferred subject to the interests of the Underwriters and the other Selling
Shareholders; and, in consideration of those interests and for the purpose of
completing the transactions contemplated by the Underwriting Agreement and this
Power of Attorney, this Power of Attorney and all authority conferred hereby, to
the extent enforceable by law, shall be deemed an agency coupled with an
interest and be irrevocable and not subject to termination by the undersigned or
by operation of law, whether by the death or incapacity of the undersigned or
any executor or trustee or the termination of any estate or trust or by the
dissolution or liquidation of any corporation or partnership or by the
occurrence of any other event, and the obligations of the Selling Shareholder
under the Underwriting Agreement similarly are not to be subject to termination.
If any such individual or any such executor or trustee should die or become
incapacitated or if any such estate or trust should be terminated or if any such
corporation or partnership should be dissolved or liquidated or if any other
such event should occur before the delivery of the ADSs to be sold by the
undersigned under the Underwriting Agreement, such ADSs shall be delivered by or
on behalf of the undersigned in accordance with the terms and conditions of the
Underwriting Agreement, and all other actions required to be taken under the
Underwriting Agreement shall be taken, and actions taken by the Attorneys, or
either of them acting alone, pursuant to this Power of Attorney shall be as
valid as if such death, incapacity, termination, dissolution, liquidation or
other event had not occurred, regardless of whether or not the Attorneys, or
either of them acting alone, shall have received notice of such death,
incapacity, termination, dissolution, liquidation or other event.
Notwithstanding the foregoing, if the Underwriting Agreement is not
executed and delivered on or prior to __________, 2006 then from and after
such date the undersigned shall have the power to revoke all authority hereby
conferred by giving written notice to each of the Attorneys that this Power of
Attorney has been terminated; subject, however, to all lawful action done or
performed by the Attorneys or either one of them, pursuant to this Power of
Attorney prior to the actual receipt of such notice.
4. The undersigned will immediately notify the Attorneys, the Company and
the Representatives of the occurrence of any event which shall cause the
representations and warranties contained herein not to be true and correct
during the period of the public offering of the ADSs or at each Time of Delivery
(as defined in the Underwriting Agreement) for the ADSs pursuant to the
Underwriting Agreement.
5. The undersigned ratifies all that the Attorneys shall do by virtue of
and in accordance with this Power of Attorney. All actions may be taken by
either of the Attorneys alone. In the event that any statement, request, notice
or instruction given by one Attorney shall be inconsistent with that given by
another, any such statement, request, notice or instruction from Xx. Xx Hang
shall prevail.
6. The undersigned agrees to hold the Attorneys, jointly and severally,
free and harmless from any and all loss, damage, liability or expense incurred
in connection herewith, including reasonable attorney's fees and costs, which
they, or either of them acting alone, may sustain as a result of any action
taken in good faith hereunder.
ANNEX I 4
7. In case any provision in this Power of Attorney shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
8. If the undersigned is (i) acting as trustee or in any fiduciary or
representative capacity, the undersigned has also delivered duly certified
copies of each trust agreement, will, letters testamentary or other instrument
pursuant to which the undersigned is authorized to act as a Selling Shareholder;
(ii) a corporation, the undersigned has also delivered or prior to the closing
date of the Offering will deliver (A) duly certified resolutions of its board of
directors authorizing it to enter into this Power of Attorney, the Underwriting
Agreement and the Engagement Letter and duly certified copies of such
corporation's memorandum of association, articles of association, by-laws,
certificate of incorporation or other organizational documents or (B) an
officer's certificate attesting to the authority of the signatories; (iii) a
partnership, the undersigned has also delivered extracts of any applicable
provisions of its partnership or limited liability company agreement (and
applicable provisions of the organizational documents or partnership
agreement(s) of the general partner(s) of such partnership) authorizing such
partnership to enter into this Power of Attorney, the Underwriting Agreement and
the Engagement Letter; (iv) a limited liability company, the undersigned has
also delivered extracts of any applicable provisions of its limited liability
company agreement (and applicable provisions of the organizational documents or
partnership or limited liability company agreement(s) of the manager(s) or
managing member(s) of such limited liability company) authorizing such limited
liability company to enter into this Power of Attorney, the Underwriting
Agreement and the Engagement Letter; or (v) any other type of entity, the
undersigned has also delivered extracts and certified copies of similar
documents authorizing such entity to enter into this Power of Attorney, the
Underwriting Agreement and the Engagement Letter.
9. The undersigned agrees to deliver such additional documentation
(including additional copies of the documentation referred to in the preceding
paragraph) as you, the Attorney, the Company or the Representatives or any of
their respective counsel may reasonably request to effectuate or confirm
compliance with any of the provisions hereof or of the Underwriting Agreement,
all of the foregoing to be in form and substance reasonably satisfactory in all
respects to the party requesting such documentation.
10. THIS POWER OF ATTORNEY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
ANNEX I 5
Dated: ___________________
Maximum number of ADSs to be sold:
____________________________ ADSs
Signature of Selling Shareholder:
-----------------------------------------
[Insert Full Name of Selling Shareholder]
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
NOTE: SELLING SHAREHOLDER'S SIGNATURE(S) ON THIS POWER OF ATTORNEY MUST BE
CERTIFIED BY XXXXX I-XXX XXX, OFFICER OF THE COMPANY.
Signature(s) certified by
By:
-------------------------------------
Name: Xxxxx I-Xxx Xxx
------------------------------------
You should sign in exactly the same manner as the Ordinary Shares of the
Company owned by you are registered and execute a separate Power of Attorney for
each different form in which shares are registered.
ANNEX I 6
ANNEX II
FORM OF COMFORT LETTER
Pursuant to Section 8(h) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Representatives and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations,
nothing came to their attention that cause them to believe that the
unaudited condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations;
(iii) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 8 and 11 of Form 20-F and
Regulation S-K;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus, inquiries
of officials of the Company and its subsidiaries responsible for financial
ANNEX I
and accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused them
to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived any unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or shareholders' equity or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in clause (E) there were any decreases in consolidated net revenues
or operating profit or the total or per share amounts of consolidated
net income or other items specified by the Representatives, or any
ANNEX II 2
increases in any items specified by the Representatives, in each case
as compared with the comparable period of the preceding year and with
any other period of corresponding length specified by the
Representatives, except in each case for decreases or increases which
the Prospectus discloses have occurred or may occur or which are
described in such letter; and
(vi) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraph (iii) above,
they have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards, with
respect to certain amounts, percentages and financial information specified
by the Representatives, which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the
Prospectus, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, and have compared
certain of such amounts, percentages and financial information with the
accounting records of the Company and its subsidiaries and have found them
to be in agreement.
ANNEX II 3
ANNEX III
PARTIES TO EXECUTE LOCK-UP AGREEMENT
Directors and Executive Officers
XU Xxxx
XX Xxxxxx
Xxxxx I-Xxx XXX
XXXX Qingtai
Xxxxxx XXX
Xxxxxx XXXXX
WU Xxxxx
XXXXX Xxxxxx
XXX Baiping
MU Xxxxx
Shareholders
New Dragon (No. 12) Investments Limited
Quiet Well Limited
Able Choice Investments Limited
Scien-Ray (BVI) Incorporated
Well Elite Group Limited
GS Capital Partners V Fund, L.P.
GS Capital Partners V Offshore Fund, L.P.
GS Capital Partners V Institutional, L.P.
GS Capital Partners V GmbH & Co. KG
Asiawell Holdings Limited
Dragon City International Investment Limited
Xxxx Xxx Finance Limited
Ideaport Technology Limited
Z&B Investment Co., Ltd.
Xxxxxx Roja Capital Limited
Happy Care Investments Limited
Good Dragon Investments Limited
Oriental Elite Investments Limited
ANNEX III 1
ANNEX IV
FORM OF LOCK-UP AGREEMENT
MINDRAY MEDICAL HOLDINGS LIMITED
LOCK-UP AGREEMENT
___________, 2006
Xxxxxxx Xxxxx (Asia) L.L.C.
68th Floor, Xxxxxx Kong Center
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
UBS AG
52/F, 2 International Finance Centre
0 Xxxxxxx Xxxxxx, Xxxxxxx
Xxxx Xxxx
As Representatives of the several Underwriters named in Schedule I attached
hereto.
Re: Mindray Medical Holdings Limited
Ladies and Gentlemen:
The undersigned understands that you, as representative (the
"Representative"), proposes to enter into an underwriting agreement, on behalf
of the several underwriters named in Schedule I to such agreement (collectively,
the "Underwriters"), with Mindray Medical Holdings Limited, a company
incorporated in the Cayman Islands (the "Company"), and the selling shareholders
(the "Selling Shareholders") and certain other parties named in such agreement,
providing for a public offering of American Depositary Shares ("ADSs")
representing Class A ordinary shares of the Company, par value HK$0.001 per
share, pursuant to a Registration Statement on Form F-1 (File No. 333-______)
and a Registration Statement on Form F-6 (File No. 333-______) to be filed with
the U.S. Securities and Exchange Commission (the "SEC").
In consideration of the agreement by the Underwriter to offer and sell the
ADSs, and of other good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the undersigned agrees that, during the period
beginning from the date of the final Prospectus covering the public offering of
the ADSs and continuing to and including the date 180 days after the date of
such final Prospectus (the "Lock-Up Period"), the undersigned will not offer,
sell, contract to sell, pledge, grant any option to purchase, purchase any
option or contract to sell, right or warrant to purchase, make any short sale,
file a registration statement with respect to, or otherwise dispose of
(including entering into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequence of ownership
interests): (A) any ADSs or ordinary shares or any securities of the Company
that are substantially similar to the ADSs or ordinary shares, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, ADSs or ordinary shares or any such
substantially similar securities; and (B) any ordinary shares of the Company's
subsidiaries or controlled affiliates or depositary shares or depositary
receipts representing such ordinary shares, including but not limited to any
securities that are
ANNEX IV 1
convertible into or exchangeable for or that represent the right to receive such
common shares or such depositary shares or depositary receipts or any such
substantially similar securities, whether now owned or hereinafter acquired,
owned directly by the undersigned (including holding as a custodian) or with
respect to which the undersigned has beneficial ownership within the rules and
regulations of the SEC (in each case other than pursuant to a transfer to an
affiliate, provided that such transfer is not a disposition for value and such
affiliate agrees to be bound in writing by the restrictions set forth herein),
without your prior written consent; provided, however, that if (1) during the
last 17 days of the initial Lock-Up Period, the Company releases earnings
results or announces material news or a material event or (2) prior to the
expiration of the initial Lock-Up Period, the Company announces, or if the
Representatives determine, that it will release earnings results during the
16-day period following the last day of the initial Lock-Up Period, then in each
case the Lock-Up Period will be automatically extended until the expiration of
the 18-day period beginning on the date of release of the earnings results or
the announcement of the material news or material event, as applicable, unless
the Representatives waive, in writing, such extension. The undersigned
understands that the Company will provide the Representatives and the
undersigned with prior notice of any such announcement that gives rise to an
extension of the Lock-Up Period.
The undersigned understands that the Company, the Selling Shareholders and
the Underwriters are relying upon this Lock-Up Agreement in proceeding toward
consummation of the offering. The undersigned further understands that this
Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's
heirs, legal representatives, successors, and assigns.
This Lock-Up Agreement shall terminate upon the expiration of the Lock-Up
Period or in the event that there is no delivery of, and payment for, the ADSs
pursuant to the underwriting agreement, upon 3 days' prior written notice of
such non-delivery and non-payment given by the undersigned to you.
Very truly yours,
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Exact Name of Shareholder
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Authorized Signature
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Title
ANNEX IV 2
ANNEX V
FORM OF OFFICERS' CERTIFICATE
MINDRAY MEDICAL INTERNATIONAL LIMITED
OFFICERS' CERTIFICATE
Each of the undersigned, Xxxxx I-Xxx Xxx, Chief Financial Officer and
director of Mindray Medical International Limited, an exempted company
incorporated in the Cayman Islands (the "Company")[, and [insert name], [insert
title] of the Company,] does hereby certify to Xxxxxxx Sachs (Asia) L.L.C. and
UBS AG, as Representative of the several Underwriters named in Schedule I to the
Underwriting Agreement, dated the date hereof, among the Company, the selling
shareholders named in the Scheduled II to the Underwriting Agreement, Xxxxxxx
Xxxxx (Asia) L.L.C. and UBS AG as Representative of the several Underwriters, in
connection with the Registration Statement on Form F-1 (File No.
333-__________), as amended or supplemented (the "Registration Statement") filed
by the Company with the U.S. Securities and Exchange Commission under the U.S.
Securities Act of 1933, as amended, that:
1. Each of the undersigned (i) has reviewed the Company's selected
historical consolidated financial information as of and for the years ended
December 31, 2001 and 2002 (collectively, the "Selected 2001 and 2002 Financial
Information") included in the Registration Statement under the caption "Selected
Consolidated Financial Information" and (ii) the Company's unaudited
consolidated financial statements as of and for the years ended December 31,
2001 and 2002 (the "2001 and 2002 Financial Statements").
2. To the best knowledge of the undersigned after due inquiry, the Selected
2001 and 2002 Financial Information are: (i) true and correct in all material
respects, and (ii) derived from the Company's 2001 and 2002 Financial
Statements, which have been derived from the Company's accounting records and
prepared in conformity with generally accepted accounting principles in the
United States applied on a basis substantially consistent with the Company's
audited consolidated financial statements included in the Registration
Statement.
This Officers' Certificate is being delivered to the Representatives to
assist them and the Underwriters in conducting and documenting their
investigations of the affairs of the Company in connection with the offering of
the securities covered by the Registration Statement.
ANNEX V 1
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated as of: __________, 2006
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Name: Xxxxx I-Xxx Xxx
Title: Chief Financial Officer
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Name:
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Title:
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ANNEX V 2
