SECURITIES PURCHASE AGREEMENT by and among CHINDEX INTERNATIONAL, INC. as the Company and INTERNATIONAL FINANCE CORPORATION as the Purchaser
Execution
Copy
THE
SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF
1933 (THE “ACT”), AND ARE PROPOSED TO BE ISSUED IN RELIANCE UPON THE SAFE HARBOR
PROVIDED BY REGULATION D AND/OR REGULATION S PROMULGATED UNDER THE ACT. SUCH
SECURITIES MAY NOT BE REOFFERED FOR SALE OR RESOLD OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S, PURSUANT TO AN
EFFECTIVE REGISTRATION UNDER THE ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM
REGISTRATION UNDER THE ACT.
by
and
among
CHINDEX
INTERNATIONAL, INC.
as
the
Company
and
INTERNATIONAL
FINANCE CORPORATION
as
the
Purchaser
Dated: December 10,
2007
This
Securities Purchase Agreement (this “Agreement”) is dated as of
December 10, 2007, by and between CHINDEX INTERNATIONAL, INC., a company
organized and existing under the laws of the State of Delaware of the United
States (the “Company”) and INTERNATIONAL FINANCE CORPORATION,
an international organization established by Articles of Agreement among its
Member Countries (the “Purchaser”).
WHEREAS,
the Company proposes to issue, and the Purchaser proposes to purchase,
US$10,000,000 of the Company’s Class A Common Stock upon the terms and subject
to the conditions of this Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and promises contained
herein and for other good and valuable consideration the receipt and adequacy
of
which are hereby acknowledged, the parties hereto agree as follows:
1. Definitions
For
all
purposes of this Agreement, except as otherwise expressly provided or unless
the
context otherwise requires the following terms shall have the meanings set
forth
below. Defined terms used but not otherwise defined herein shall have
the meanings given to such terms in the other sections of this
Agreement.
“Act”
means the Securities Act of 1933, as amended.
“Affiliate”
of any specified Person means:
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(a)
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any
other Person directly or indirectly controlling or controlled by
or under
direct or indirect common control with such specified Person,
or
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(b)
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any
other Person who is a director or executive officer
of:
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(1)
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such
specified Person,
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(2)
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any
Subsidiary of such specified Person,
or
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(3)
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any
Person described in clause (a)
above.
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For
the
purposes of this definition, “control” when used with respect to any Person,
means the direct or indirect ownership of in excess of 50% of the equity
interests in such Person or the power to direct or
influence the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.
“Agreement”
has the meaning given in the recitals.
“Applicable
Law” means, with respect to any Person or any property, any statute,
rule, regulation, law or ordinance, writs, or any judgment, decree, injunctions
or order applicable to such Person or such property.
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“Business
Day” means a day other than Saturday, Sunday or any day on which banks
located in New York and Hong Kong are authorized or obligated to
close.
“Charter
Documents” mean, with respect to a Person, its articles of
incorporation, certificate of incorporation, operating agreements, by-laws,
joint venture agreement or shareholder agreement (if applicable), or other
organizational documents of such Person.
“Clinics”
means Beijing United Family Jianguomen Clinic, Inc. (“北京和睦家建国门诊所有限公司” in
Chinese), Beijing United Family Clinic, Inc. (“北京市和睦家诊所有限责任公司” in
Chinese), Shanghai United Family Clinic, Inc. (“上海和美家诊所有限公司” in
Chinese).
“Closing”
has the meaning given in Section 4(a).
“Closing
Date” has the meaning given in Section 4(a).
“Commission”
means the U.S. Securities and Exchange Commission.
“Common
Stock” means shares of common stock of the Company, par value $0.01 per
share, divided into common stock (“Class A”) and class B common
stock (“Class B”) respectively.
“Company”
has the meaning given in the recitals.
“Disclosure
Schedule” has the meaning given in Section 5.
“Exchange
Act” means the Securities Exchange Act of 1934, as
amended.
“GAAP”
means United States generally accepted accounting principles applied on a
consistent basis during periods involved.
“Governmental
Authority” means any multinational, federal, state, national,
provincial, local or other governmental authority, governmental or regulatory
agency or body, court, commission, board, bureau, agency, legislative or
quasi-legislative body or instrumentality, arbitrator or self-regulatory
organization of applicable jurisdictions.
“Group
Companies” means Beijing Chindex Hospital Management Consulting Co.,
Ltd. (“北京美中互利医院管理咨询有限公司” in
Chinese), Beijing United Family Health Center (“北京和睦家妇婴医疗保健中心” in
Chinese), Shanghai United Family Hospital, Inc. (“上海和睦家医院有限公司” in
Chinese), Chindex Holdings International Trade (Tianjin) Co., Ltd. (“清达互利国际贸易（天津）有限公司” in
Chinese), Chindex Shanghai International Trading Company, Ltd. (“谦达国际贸易（上海）有限公司” in
Chinese), Chindex (Beijing) International Trading Co., Ltd. (“美中互利（北京）国际贸易有限公司” in
Chinese), the Clinics, the Company, and the Company’s other existing and future,
direct and indirect, Subsidiaries.
“JPM
Documents” means the Securities Purchase Agreement between the Company
and Magenta Magic Limited dated November 7, 2007, the Investor Rights Agreement
between the Company and Magenta Magic Limited dated November 13, 2007, the
Registration Rights Agreement between the Company and Magenta Magic Limited
dated November 13, 2007, the
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Company’s
Tranche B Convertible Notes due 2017 and the Company’s Tranche C Convertible
Notes due 2017.
“Lien”
means a mortgage, charge, pledge, lien, encumbrance, adverse claim, right of
first refusal, hypothecation, preferential arrangement or restriction of any
kind, including any restriction on the use, voting, transfer, receipt of income
or other attributes of ownership, or any other similar security interest or
agreement.
“Material
Adverse Effect” means a material adverse effect on the business,
management, operations or financial condition of the Company and its
Subsidiaries taken as a whole; provided that no change or effect arising out
of
or in connection with or resulting from any of the following shall be deemed,
either alone or in combination, to constitute or contribute to a Material
Adverse Effect: (i) general economic conditions or changes affecting any country
or market generally; (ii) conditions or fluctuations in financial markets in
any
jurisdiction; (iii) conditions affecting the entire medical products
distribution industry or the medical services industry generally in any
jurisdiction; or (iv) any action, change, effect, circumstance or condition
expressly required by or in connection with this Agreement or directly or
demonstrably attributable to the execution, performance or announcement of
this
Agreement or the transactions contemplated hereby.
“NASDAQ”
means The Nasdaq Stock Market, Inc.
“Permits”
means all material licenses, permits, certificates, consents, orders, approvals
and other authorizations presently required or necessary from all Governmental
Authorities.
“Person”
means any individual, corporation, company (including any limited liability
company), association, partnership, joint venture, trust, unincorporated
organization, government or any agency or political subdivision thereof, or
any
other entity.
“PFIC”
has the meaning given in Section 6(c).
“PRC”
means the People’s Republic of China, not including Taiwan, Hong Kong and
Macau.
“Preferred
Stock” has the meaning given in Section 5(b)(i).
“Proceeding”
means an action, claim, suit or demand before or brought by any Governmental
Authority.
“Purchase
Price” has the meaning given in Section 3(a).
“Purchaser”
has the meaning given in the recitals.
“Regulation
D” has the meaning given in Section 3(b).
“Regulation
S” has the meaning given in Section 3(b).
“SEC”
means the Securities and Exchange Commission of the United States.
“Securities”
means the Tranche A1 Shares.
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“Subsidiary”
means, (i) in respect of any Person, any corporation, company (including any
limited liability company), association, partnership, joint venture or other
business entity of which at least a majority of the total voting power or the
voting stock is at the time owned or controlled, directly or indirectly, by
such
Person, or (ii) in respect of the Company, without prejudice to the foregoing
entities under paragraph (i), any corporation, company (including any limited
liability company), association, partnership, joint venture or other business
entity from time to time organized and existing under the laws of the PRC whose
financial reporting is consolidated with the Company pursuant to GAAP in any
audited financial statements filed by the Company with the Commission in
accordance with the Exchange Act, including without limitation each
Clinic.
“Tranche
A1Shares” has the meaning given in Section
3(a).
“Transaction
Documents” means this Agreement and the Voting Agreement, or any of
them as the context may so require.
“US$”
means the lawful currency of the United States from time to time.
"Voting
Agreement" means the voting agreement to be entered into the holders of
Class B Common Stock with respect to the approval of this transaction, in the
form attached hereto as Exhibit A.
2. Rules
of Construction.
Unless
the context otherwise requires:
(a) a
term
has the meaning assigned to it;
(b) “or”
is
not exclusive;
(c) words
in
the singular include the plural, and in the plural include the
singular;
(d) all
references in this Agreement to “Sections”, “Exhibits” and other subdivisions
are to the designated Sections, Exhibits and subdivisions of this Agreement
as
originally executed;
(e) a
reference to any person is, where relevant, deemed to be a reference to or
to
include, as appropriate and expressly permitted under the Transaction Documents,
that person’s successors and assignees or transferees;
(f) the
words
“herein,” “hereof” and “hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular Section or other
subdivision;
(g) references
to a statute or statutory provision are to be construed as a reference to that
statute or statutory provision as it may be amended from time to time;
and
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(h) the
word
“knowledge” and other words of similar import used herein in respect of the
Company, any of its Subsidiaries and/or any of its Affiliates, unless the
context expressly states otherwise, means the actual knowledge after due inquiry
of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇.
3. Purchase
and Sale of Tranche A1 Shares.
(a) Subject
to the terms and conditions of this Agreement, the Company will issue and sell
to the Purchaser, and the Purchaser will purchase from the Company at the
Closing 359,195 shares of the Company’s Class A Common Stock (the
“Tranche A1 Shares”) at a purchase price of US$27.84 per share
for US$10,000,000 (“Purchase Price”).
(b) The
Purchaser understands that the Securities are being offered and sold to it
in
reliance on the safe harbor provided by Regulation D promulgated under the
Securities Act (“Regulation D”) and/or Rules 901 through 905 under the Act
(“Regulation S”) so that the registration requirements of the
Act do not apply and that the Company is relying on the truth and accuracy
of
the representations, warranties and agreements of the Purchaser set forth in
Section 7 of this agreement in relying on such safe harbor.
4. Closing
and Delivery.
(a) Upon
the terms and subject to the conditions set forth in this Agreement, the issue
and sale to the Purchaser of the Tranche A1 Shares under this Agreement (the
“Closing”) shall occur at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, or at such other place as the Company and the Purchaser
mutually
agree, at or about 10:00 a.m., New York City time, on the second Business Day
after all of the conditions set forth in Section 8 have been satisfied or,
in
the sole discretion of the Purchaser, waived or on such other time or Business
Day on or prior to January 31, 2008 as may be mutually agreed upon by the
Company and the Purchaser (the “Closing Date”). At
the Closing:
(i) The
Company shall
(1) deliver
to the Purchaser a share certificate or
certificates duly endorsed to the Purchaser representing the number of a Tranche
A1 Shares provided in Section 3(a);
(2) have
duly registered the name of the Purchaser with the Company’s transfer agent as
record owner of the number of Tranche A1 Shares sold to the Purchaser;
and
(3) deliver
to the Purchaser the Transaction Documents to
which it is a party duly executed by the Company.
(ii) The
Purchaser shall
(1) deliver
to the Company the purchase price in the
amount of US$10,000,000 for the Tranche A1 Shares pursuant to Section 3(a)
by
wire transfer of
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immediately
available funds to an account of the Company, which shall be designated by
the
Company at least two (2) Business Days prior to the Closing Date;
and
(2) deliver
to the Company the Transaction Documents to
which it is a party duly executed by the Purchaser.
5. Representations
and Warranties of the Company. Except as set forth in (i)
the Disclosure Schedule to be made part of this Agreement (“Disclosure
Schedule”) or (ii) any SEC Reports filed by the Company including the
exhibits incorporated by reference since March 31, 2007 and prior to the Closing
Date, which exceptions shall be deemed part of the representations and
warranties made hereunder, the Company represents and warrants to the Purchaser
the following as of the date of this Agreement, and such representations and
warranties shall be deemed to also be made as of the Closing Date (if different
from the date of this Agreement), provided that each representation or warranty
deemed to be made after the date of this Agreement shall be deemed to be made
by
reference to the facts and circumstances existing at the date on which such
representation or warranty is deemed to be made (except that, for the avoidance
of doubt, any representation or warranty that is expressed to be made by
reference to the facts and circumstances existing as at a specific date shall
be
made by reference to the facts and circumstances existing as at such specific
date);
(a) Organization,
Good Standing and Qualification. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has full corporate power and authority to conduct its business
as currently conducted. Each Group Company is
duly organized, validly existing and in good standing under the laws
of the jurisdiction(s) where it is organized and/or conducts its business,
and
has full corporate power and authority to conduct its business as currently
conducted. The Company is duly qualified to do business as a foreign
corporation and is in good standing in all jurisdictions in which the character
of the property owned or leased or the nature of the business transacted by
it
makes qualification necessary except where the failure to be so qualified would
not be reasonably expected to have a Material Adverse Effect. The
Charter Documents of each of the Subsidiaries organized and existing under
the
PRC laws are valid and have been duly approved or registered (as required)
by
competent PRC Governmental Authorities.
(b) Capitalization
and Voting Rights. All of the issued and outstanding shares of the
Company’s capital stock as of the Closing are duly authorized, validly issued,
fully paid and non-assessable, were issued in accordance with the registration
or qualification provisions of the Act, if applicable, and any relevant “blue
sky” laws of the United States, if applicable, or pursuant to valid exemptions
therefrom and were issued in compliance with other applicable laws (including,
without limitation, applicable PRC or Delaware laws, rules and regulations)
and
are not subject to any rescission right or put right on the part of the holder
thereof nor does any holder thereof have the right to require the Company to
repurchase such capital stock. The authorized capital stock of the Company
consists of shares of stock of all classes.
(i) The
authorized capital stock is divided into 28,700,000 shares of Common Stock,
$0.01 par value per share, including 3,200,000 shares designated as Class B
Common Stock, and 500,000 shares of Preferred Stock, $0.01 par value per share
(the
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“Preferred
Stock”). As of the date hereof, there were 7,049,437 shares
of Class A Common Stock issued and outstanding, 775,000 shares of Class B Common
Stock issued and outstanding and no shares of Preferred Stock issued and
outstanding. As of September 30, 2007, the Company (x) had reserved a
sufficient number of shares of Common Stock for issuance to employees, directors
and consultants pursuant to the Company’s 1994 Stock Option Plan, 2004 Stock
Incentive Plan and 2007 Stock Incentive Plan, of which approximately 321,334
shares of Class A Common Stock are subject to outstanding, unexercised options
as of such date and (y) has issued and outstanding warrants to purchase an
aggregate of 430,559 shares of Common Stock of the Company pursuant to the
2004
and 2005 Securities Purchase Agreements as filed in the related SEC
Reports. Other than as set forth above or as contemplated in the SEC
Reports or this Agreement, there are no other options, warrants, calls, rights,
commitments or agreements of any character to which any Group Company is a
party
or by which either any Group Company is bound or obligating any Group Company
to
issue, deliver, sell, repurchase or redeem, or cause to be issued, delivered,
sold, repurchased or redeemed, any shares of the capital stock of such Group
Company or obligating such Group Company to grant, extend or enter into any
such
option, warrant, call, right, commitment or agreement.
(ii) Voting
and Other Agreements. Except for the Voting Agreement and the JPM
Documents, the Company is not a party to any agreement, written or oral, and
there is no agreement, written or oral, with any Person that requires (x) the
voting or giving of written consents with respect to any security of the Company
(including, without limitation, any voting agreements, voting trust agreements,
shareholder agreements) or the voting by a director of the Company, (y) the
sale, transfer or other disposition with respect to any security of the Company
or (z) any restrictions with respect to the issuance or sale of any of the
Securities or the consummation of the transactions contemplated under the
Transaction Documents.
(c) Issuance
of Tranche A1 Shares. The issuance of the Tranche A1 Shares has been
duly and validly authorized by all necessary corporate and stockholder action,
and the Tranche A1 Shares, when issued and paid for pursuant to this Agreement,
will be validly issued, fully paid and non-assessable shares of Class A Common
Stock, free from all Liens and free of any restrictions on transfer other than
contemplated by the Transaction Documents and Applicable Law.
(d) Authorization;
Enforceability. The Company has all requisite corporate right, power
and authority to enter into each Transaction Document and to consummate the
transactions contemplated thereby. Each Transaction Document has been duly
executed and delivered by the Company and constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
the
enforcement of creditors’ rights generally and (ii) rights of acceleration, if
any, and the availability of equitable remedies may be limited by equitable
principles of general applicability (regardless of whether considered in a
Proceeding in equity or at law). Except for the JPM Documents, there are no
preemptive rights or rights of first refusal on behalf of any Person applicable
to the issuance of any of the Securities.
(e) No
Conflict; Governmental and Other Consents.
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(i) The
execution, delivery and performance by the Company of the Transaction Documents
and the consummation of the transactions contemplated thereby will not result
in
the violation of any Applicable Law or of any provision of the Certificate
of
Incorporation or Bylaws, each as amended to date, of the Company or any of
the
Group Companies, and will not conflict with, or result in a breach or violation
of, any of the terms or provisions of, or constitute (with due notice or lapse
of time or both) a default under, any lease, loan agreement, mortgage, security
agreement, trust indenture or other agreement or instrument to which the
Company, or any of the Group Company, is a party or by which it is bound or
to
which any of its properties or assets is subject, except for the JPM Documents,
nor result in the creation or imposition of any Lien upon any of the properties
or assets of the Company, or any of the Group Company except to the extent
that
any such violation conflict or breach would not be reasonably likely to have
a
Material Adverse Effect. Except for the JPM Documents, no holder of
any securities of the Company or any of its Subsidiaries has any rights
(“demand,” “piggyback” or otherwise) to have such securities registered by
reason of the intention to file, filing or effectiveness of a registration
statement pursuant to the Act and the rules and regulations promulgated
thereunder.
(ii) No
consent, approval, authorization or other order of any Governmental Authority
or
other third-party, except under the JPM Documents, is required to be
obtained by the Company in connection with the authorization, execution and
delivery of this Agreement or with the authorization, issue and sale of the
Securities hereunder, except such post-Closing filings as may be required to
be
made with the Commission, NASDAQ and with any state or foreign blue sky or
securities regulatory authority and the draft notice(s) filed under the NASDAQ
Marketplace Rule 4310, which is not in strict compliance with the notice period
requirements under Rule 4310.
(f) Accuracy
of Reports. All reports required to be filed by the Company within
the two years prior to the date of this Agreement (the “SEC
Reports”) under the Exchange Act have been filed with the Commission,
complied at the time of filing in all material respects with the requirements
of
their respective forms except for the absence of the 2005 IFC Facility from
the
exhibit of the relevant SEC Reports and, except to the extent amended, updated
or superseded by any subsequently filed report, were complete and correct in
all
material respects as of the dates at which the information was furnished, and
contained (as of such dates) no untrue statements of a material fact nor omitted
to state any material fact necessary in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
(g) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act of 2002. The Company is in compliance, in all material respects,
with all applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and all rules
and regulations promulgated thereunder.
(h) Compliance
with NASDAQ Listing Requirements. The Company is in compliance in all material
respects with all currently effective NASDAQ continued listing requirements
and
corporate governance requirements as applied to the Company, except for the
draft notice filed under the NASDAQ Marketplace Rule 4310, which is not in
strict compliance with the notice period requirements under Rule
4310. The Company’s Class A Common Stock is registered pursuant to
Section 12(g) of the Exchange Act and is listed on NASDAQ, trading
in
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the
Class
A Common Stock has not been suspended, and the Company has taken no action
designed to terminate, or likely to have the effect of terminating, the
registration of the Class A Common Stock under the Exchange Act or de-listing
the Class A Common Stock from NASDAQ.
(i) No
Registration. Assuming the accuracy of the representations and
warranties made by, and compliance with the covenants of, the Purchasers herein,
no registration of the Securities under the Act is required in connection with
the offer and sale of the Securities by the Company to the Purchasers as
contemplated by this Agreement.
(j) No
Stabilization. The Company has not and, no one acting on its behalf
has, (i) taken, directly or indirectly, any action designed to cause or to
result in, or that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security
of
any of the Group Companies to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or paid anyone any compensation
for
soliciting purchases of, the Tranche A1 Shares or (iii) paid or agreed to pay
to
any person any compensation for soliciting another to purchase any other
securities of the Group Companies.
6. Covenants
of the Company.
The
Company hereby covenants and agrees, and to the extent permitted by the
Applicable Law, agrees to cause each of other Group Companies to
undertake:
(a) During
the 90-days period commencing on the date hereof and prior to making any public
disclosure or filings as may be required by Applicable Laws with respect to
any
of the Transaction Documents and the transactions contemplated hereby and
thereby, to provide the Purchaser and its counsel with the reasonable
opportunity to review and comment on such public disclosure documents and
consider in good faith any comments received by the Purchaser or its
counsel.
(b) To
pay
all stamp, documentary and transfer taxes and other duties, if any, which may
be
imposed by any Governmental Authorities or any political subdivision thereof
or
taxing authority thereof or therein with respect to the initial issuance of
the
Tranche A1 Shares or the sale thereof to the Purchaser.
(c) During
the five-year period commencing on the date hereof, the Company will use its
commercially reasonable efforts not to become, and cause its Subsidiaries not
to
become, a “passive foreign investment company” within the meaning of Section
1297 of the Internal Revenue Code of 1986
(“PFIC”). If the Company has knowledge that it or
any of its Subsidiaries has become a PFIC, the Company will promptly notify
the
Purchaser and provide all information relating to the Company reasonably
requested by the Purchaser that is necessary for it to make a qualified electing
fund (QEF) election.
7. Purchaser’s
Representations, Warranties and Agreements.
(A) The
Purchaser represents and warrants to the Company that:
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(a) The
Purchaser is duly organized and validly existing under its formation
documents.
(b) The
Purchaser has all requisite power and authority to enter into this Agreement
and
to consummate the transactions contemplated hereby. This Agreement has been
duly
executed and delivered by the Purchaser and constitutes the legal, valid and
binding obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting the enforcement of creditors’ rights generally and (ii) rights of
acceleration, if any, and the availability of equitable remedies may be limited
by equitable principles of general applicability (regardless of whether
considered in a Proceeding in equity or at law).
(c) The
execution and delivery by the Purchaser of this Agreement and the consummation
of the transactions contemplated hereby will not result in the violation of
any
law, statute, rule, regulation, order, writ, injunction, judgment or decree
of
any court or Governmental Authority to or by which the Purchaser is
bound. No consent, approval, authorization or other order of any
Governmental Authority or other third-party is required to be obtained by the
Purchaser in connection with the authorization, execution and delivery of this
Agreement.
(d) Purchaser
and its officers and agents have incurred no obligation or liability, contingent
or otherwise, for brokerage or finders’ fees or agents’ commissions or other
similar payment in connection with this Agreement and will indemnify and hold
the Company harmless from any such payment alleged to be due by or through
Purchaser as a result of the action of Purchaser or its officers or
agents.
(e) The
Purchaser has sufficient knowledge and experience in financial, tax and business
matters to enable the Purchaser to utilize the information made available to
the
Purchaser in connection with the transactions contemplated hereby, to evaluate
the merits and risks of an investment in the Securities and to make an informed
investment decision with respect to an investment in the
Securities.
(f) The
Purchaser is not a “U.S. Person” (as defined in Rule 902 of Regulation S) and it
understands that no action has been or will be taken in any jurisdiction by
the
Company that would permit a public offering of the Securities in any country
or
jurisdiction where action for that purpose is required. The Purchaser
is not acquiring the Securities for the account or benefit of any U.S. Persons
except in accordance with exemption from registration requirements of the Act
below or in a transaction not subject thereto.
(g) The
Purchaser did not become aware of the Company or the Securities through any
form
of “directed selling efforts” (as defined in Rule 902 of Regulation S), general
solicitation or general advertising in violation of the Act has been or will
be
used nor will any offers by means of any directed selling efforts in the United
States be made by the Purchaser or any of its representatives in connection
with
the offer and sale of any of the Securities.
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(h) The
Purchaser is acquiring the Tranche A1 Shares for its own account and not with
a
view to the immediate resale or distribution thereof and has no present
intention of immediately selling or otherwise distributing such
shares. The Purchaser is an international organization established by
Articles of Agreement among its Member Countries, and an “accredited investor”
as such term is defined in Regulation D.
(B) The
Purchaser agrees with the Company as follows:
(a) The
Purchaser acknowledges that the Tranche A1 Shares are “restricted securities” as
defined in Rule 144 under the Act.
(b) The
Purchaser and the Company agree that the Company will refuse to register any
transfer to the Tranche A1 Shares not made in accordance with the provisions
of
Regulation S under the Act, pursuant to registration under the Act, or pursuant
to an available exemption from registration.
(c) The
Purchaser agrees to resell the Tranche A1 Shares only in accordance with the
provisions of Regulation S under the Act, pursuant to registration under the
Act, or pursuant to an available exemption from registration pursuant to the
Act.
(d) The
Purchaser acknowledges and agrees that all certificates representing the Tranche
A1 Shares will be endorsed with the following legend in accordance with
Regulations S under the Act:
“THE
SECURITIES REPRESENTED BY THE CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1993 (THE “ACT”), AND HAVE BEEN ISSUED IN RELIANCE UPON THE
SAFE HARBOR PROVIDED BY REGULATION D AND/OR REGULATION S PROMULGATED UNDER
THE
ACT. SUCH SECURITIES MAY NOT BE REOFFERED FOR SALE OR RESOLD OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S, PURSUANT
TO AN EFFECTIVE REGISTRATION UNDER THE ACT, OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE ACT.”
(e) The
Purchaser consents to the Company making a notation on its records and giving
instructions to any transfer agent of the Company in order to implement the
restrictions on transfer of the Securities set forth in this
Agreement.
8. Conditions
Precedent to the Obligation of the Purchaser to Purchasethe
Tranche A1 Shares.
The
Purchaser’s obligation to consummate the transactions as contemplated under this
Agreement is subject to the satisfaction or waiver, on or before the Closing,
of
each of the following conditions, to the extent applicable:
(a) All
the
representations and warranties regarding all Group Companies contained in each
Transaction Document shall be true and correct in all material respects as
of
11
the
date
hereof and at the Closing Date. The Company shall have performed,
satisfied and complied with, in all material respects to the Purchaser’s
satisfaction in its sole discretion, all covenants, agreements and conditions
required by the Transaction Documents to be performed, satisfied or complied
with by them at or prior to the Closing.
(b) No
injunction, restraining order or order of similar nature by a Governmental
Authority shall have been issued as of the Closing Date that would prevent
or
materially interfere with the consummation of the transactions contemplated
under the Transaction Documents; and no stop order suspending the qualification
or exemption from qualification of any of the Securities in any jurisdiction
shall have been issued and no Proceeding for that purpose shall have been
commenced or, to the knowledge of the Company, be pending or threatened as
of
the Closing Date.
(c) No
action
shall have been taken by any Governmental Authority and no Applicable Law shall
have been enacted, adopted or issued that would, as of the Closing Date, prevent
the consummation of the transactions contemplated under the Transaction
Documents.
(d) The
Company shall have obtained any and all approvals, consents and waivers
necessary for the consummation of the transactions contemplated under the
Transaction Documents as of Closing in accordance with the terms hereof,
including, but not limited to, all applicable Permits, authorizations, approvals
or consents of any Governmental Authority and the shareholders’ approval
required under NASDAQ Marketplace Rule 4350(i)(1)(D).
(e) The
Purchaser shall have received on the Closing Date:
(1) a
certificate dated the Closing Date, signed by the Chief Executive Officer of
the
Company on behalf of the Company to the effect that (w) the representations
and
warranties set forth in Section 5 are true and correct with the same force
and
effect as though expressly made at and as of the Closing Date, except for those
representations and warranties that speak as of a specified date, which shall
be
true and correct in all material respects on and as of such date, (x) the
Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing, and
(y)
the sale of any of the Tranche A1 Shares has not been enjoined (temporarily
or
permanently);
(2) a
certificate dated the Closing Date, signed by the Secretary of the Company,
including specimen signatures of those officers of the Company authorized to
sign the Transaction Documents, to which the Company is a party, on behalf
of
the Company, attaching true, complete and up to date copies of the certificate
of incorporation and by-laws of the Company, and attaching the certificate
of
good standing of the Company;
(3) the
opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, U.S. counsel to the Company, dated the
Closing Date, in the form attached hereto as Exhibit B; and
(4) a
release
and waiver, signed by JPMorgan Chase & Co., in the form attached hereto as
Exhibit D.
12
(5) payment
by wire transfer of immediately available funds of all fees,
expenses, and disbursement of legal counsel to the Purchaser in an aggregate
amount not exceeding $25,000 to the account designated by such
counsel.
(6) an
executed copy of the Voting Agreement signed by all holders of Class B Common
Stock.
(f) Prior
to
the Closing Date, there has been no change that would have resulted, or would
be
reasonably expected to result, in a Material Adverse Effect.
(g) Each
of
the Transaction Documents shall have been executed and delivered by all parties
thereto other than the Purchaser, and the Purchaser shall have received a fully
executed original (or clearly legible facsimile copy) of each Transaction
Document.
(h) None
of
the other parties to any of the Transaction Documents shall be in breach or
default under their respective obligations thereunder.
9. Termination.
(a) The
Purchaser may unilaterally terminate this Agreement at any time prior to the
Closing Date by written notice to the Company if any of the following has
occurred:
(i) at
any
time after January 31, 2008 if the Closing shall not have occurred on or before
such date and such failure to consummate is not caused by a breach of this
Agreement by the Purchaser; provided, however, that the
Company may by written notice to the Purchaser delivered on or before such
date
extend such date until February 28, 2008 if the failure of the Closing to have
occurred on or before January 31, 2008 shall have resulted from the failure
of
the condition set forth in Section 8(d); provided, further,
that the Purchaser may terminate this Agreement by written notice to the Company
on or after February 5, 2008 until the date on which any shareholder approvals
required under Section 8(d) are obtained;
(ii) the
failure of Company to satisfy the conditions contained in Section 8
on or prior to the Closing Date; or
(iii) suspension
of trading in the Class A Common Stock by NASDAQ or the suspension or limitation
of trading generally in securities on any national securities exchange (as
defined in the Securities Exchange Act of 1934) or any setting of limitations on
prices for securities on such exchange.
(b) The
Company may terminate this Agreement at any time prior to the Closing Date
by
written notice to the Purchaser at any time after January 31, 2008 if the
Closing shall not have occurred on or before such date and such failure to
consummate is not caused by a breach of this Agreement by the Company;
provided, however, that the Purchaser may by written notice to
the Company delivered on or before such date extend such date until February
28,
2008 if the failure of the Closing to have occurred on or before January 31,
2008 shall have resulted from the failure of the condition set forth in Section
8(d).
13
10. Survival
of Representations and Indemnities. The representations and
warranties and covenants of the Company set forth in this Agreement shall remain
operative and in full force and effect, and will survive
indefinitely.
11. Substitution
of Purchaser. The Purchaser shall have the right to
substitute any one of its Affiliates in the financial service industry as the
purchaser of the Tranche A1 Shares by written notice to the Company, which
notice shall be signed by both the Purchaser and such Affiliate and delivered
to
the Company at least three Business Days prior to the Closing, and shall contain
such Affiliate’s agreement to be bound by this Agreement and a confirmation by
such Affiliate of the accuracy with respect to it of the representations and
warranties set forth in Section 7. Upon receipt of such notice,
wherever the word “Purchaser” is used in this Agreement (other than in this
Section 11), such word shall be deemed to refer to such Affiliate in lieu of
the
original Purchaser. In the event that such Affiliate is so
substituted as the purchaser hereunder and such Affiliate thereafter transfers
to the original Purchaser all of the Tranche A1 Shares then held by such
Affiliate, upon receipt by the Company of notice of such transfer, wherever
the
word “Purchaser” is used in this Agreement (other than in this Section 11), such
word shall no longer be deemed to refer to such Affiliate, but shall refer
to
the original Purchaser, and the original Purchaser shall have all the rights
of
an original holder of the Tranche A1 Shares under this Agreement.
12. Miscellaneous.
(a) Notices
given pursuant to any provision of this Agreement shall be addressed as follows:
(i) if to the Company, to: Chindex International, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: Chief Executive
Officer, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇; and (ii)
if
to the Purchaser, to: International Finance Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇ ▇▇▇▇▇▇,
Director, Health and Education Department, with a copy to ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇’▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Fax: ▇▇▇ (▇▇) ▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq.
(b) This
Agreement has been and is made solely for the benefit of and shall be binding
upon the parties hereto as and to the extent provided in this Agreement, and
no
other Person shall acquire or have any right under or by virtue of this
Agreement.
(c) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.
(d) The
parties hereto each hereby waive (i) any right to trial by jury in any action,
Proceeding or counterclaim arising out of or relating to this Agreement, and
(ii) any objection which it may now or hereafter have to (A) the laying of
venue
of any suit, action or Proceeding arising out of or based upon this Agreement
or
the transactions contemplated hereby in any State or U.S. federal court in
The
City of New York and County of New York, and (B) the jurisdiction of such courts
in any such suit, action or Proceeding. This clause 12 (d) constitutes
a
14
waiver
of
the Purchaser’s immunity under Article VI, Section 3 of the Purchaser’s Articles
of Agreement (but only to the extent provided in this clause 12 (d)) that no
action may be brought against the Purchaser except in a court of competent
jurisdiction. Notwithstanding anything to the contrary, this clause 12(d) does
not constitute a waiver or relinquishment before any authority or court of
law
of any of is other privileges and immunities set forth in the Purchaser’s
Articles of Agreement, including without limitation (i) the immunity of all
of
the assets of the Purchaser from all forms of seizure, attachment or execution
before the delivery of final judgment against the Purchaser, (ii) the immunity
of all of the assets of the Purchaser from search, requisition, confiscation,
expropriation or any other forms of seizure by executive or legislative action,
(iii) the inviolability of the Purchaser’s archives and (iv) the freedom of the
Purchaser’s assets from restrictions of any nature.
(e) No
failure to exercise, and no course of dealing with respect to, and no delay
in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or remedy
hereunder preclude any other or further exercise thereof or the exercise of
any
other right, power or remedy.
(f) This
Agreement may be signed in various counterparts which together shall constitute
one and the same instrument. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature
is
executed) with the same force and effect as if such facsimile signature page
were an original thereof.
(g) The
headings in this Agreement are for convenience of reference only and shall
not
constitute part of this Agreement nor limit or otherwise affect the meaning
of
any provision of this Agreement.
(h) If
any
term, provision, covenant or restriction of this Agreement is held by a court
of
competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated, in each case to the extent permitted by Applicable Law, and
the
parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would
have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void
or
unenforceable, to the extent permitted by Applicable Law.
(i) This
Agreement may be amended, modified or supplemented, and waivers or consents
to
departures from the provisions hereof may be given; provided that the same
are
in writing and signed by all of the signatories hereto.
[Signature
Page(s) to Follow]
15
IN
WITNESS WHEREOF, the undersigned
have executed this Securities Purchase Agreement as of the date first written
above.
| CHINDEX INTERNATIONAL, INC. | |||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Title: Chief Executive Officer and President | |||
| INTERNATIONAL FINANCE CORPORATION | |||
|
|
By:
|
/s/ ▇▇▇ ▇▇▇▇▇▇ | |
| Name: ▇▇▇ ▇▇▇▇▇▇ | |||
| Title: Director, Health and Education Department | |||
Signature
Page to Purchase Agreement