Camelot Information Systems Inc. 13,333,334 American Depositary Shares Representing Four Ordinary Shares (no par value per share) Underwriting Agreement
Exhibit 1.1
13,333,334 American Depositary Shares
Representing
Four Ordinary Shares
(no par value per share)
Representing
Four Ordinary Shares
(no par value per share)
, 2010
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68th Floor, ▇▇▇▇▇▇ Kong Center,
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68th Floor, ▇▇▇▇▇▇ Kong Center,
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Barclays Capital Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
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As Representatives of the several Underwriters
named in Schedule I attached hereto.
named in Schedule I attached hereto.
Ladies and Gentlemen:
Camelot Information Systems Inc., a company limited by shares and incorporated in the British
Virgin Islands (the “Company”), proposes, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the “Underwriters”) an
aggregate of 9,166,667 American Depositary Shares, representing 36,666,668 ordinary shares, no par
value per share (the “Ordinary Shares”), of the Company, and the shareholders of the Company named
in Schedule II hereto (the “Selling Shareholders”) propose, subject to the terms and
conditions stated herein, to sell to the Underwriters an aggregate of 4,166,667 American Depositary
Shares representing 16,666,668 Ordinary Shares and, at the election of the Underwriters, up to an
additional 2,000,000 American Depositary Shares representing 8,000,000 Ordinary Shares. The
aggregate of 13,333,334 American Depositary Shares representing 53,333,336 Ordinary Shares to be
sold by the Company and the Selling Shareholders is herein called the “Firm ADSs”, and the
aggregate of an additional 2,000,000 American Depositary Shares representing 8,000,000 Ordinary
Shares to be sold, at the election of the Underwriters, by 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 July [•], 2010, among the Company, Citibank, N.A., 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 four Ordinary Shares
deposited pursuant to the Deposit Agreement.
The Company hereby acknowledges that, as part of the proposed offering of the ADSs, it has
requested one of the Underwriters (the “DSP Underwriter”) to administer a directed share program
(the “Directed Share Program”) under which up to [•] Firm ADSs, or [•]% of the Firm ADSs to be
purchased by the Underwriters (the “Reserved ADSs”), shall be reserved for sale by the DSP
Underwriter at the initial public offering price to the persons 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
Financial Industry Regulatory Authority (the “FINRA”) 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 DSP Underwriter
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.
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. 333-167791) in respect of the
Shares has been filed with the U.S. Securities and Exchange Commission (the “Commission”)
(the initial registration statement filing, together will all pre-effective amendments
thereto, collectively, the “Initial Registration Statement”); 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
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amendment thereto or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or, to the Company’s knowledge after
due inquiry, threatened by the Commission (any 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 ADSs that
was included in the Registration Statement immediately prior to the Applicable Time (as
defined in Section 1(a)(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”; any “issuer free writing prospectus” as defined in
Rule 433 under the Act relating to the Shares and ADSs is hereinafter called an “Issuer
Free Writing Prospectus”); and any “bona fide electronic roadshow” as defined in Rule
433(h)(5) under the Securities Act that has been made available without restriction to any
person is hereinafter called a “broadly available roadshow”);
(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, and each broadly available roadshow, if any,
when considered together with the Pricing Prospectus, 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
(Eastern standard time) on the date of this Agreement. The Pricing Prospectus, as
supplemented by the pricing information, Issuer Free Writing Prospectuses and other
documents listed in Schedule III(b) 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
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the light of the circumstances under which they were made, not misleading; and each
Issuer Free Writing Prospectus listed on Schedule III 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 and the Prospectus will conform, in
all material respects to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable effective date as to
each part of 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. 333-167821) 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 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. 001-34797) in respect of the
registration of the Shares and ADSs under the U.S. Securities Exchange
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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 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, taken as a whole, 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 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
share capital, 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, results of operations or prospects 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) The Company has been duly incorporated and is validly existing as a corporation
in good standing under the laws of the British Virgin 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 and in good
standing under the laws of its jurisdiction of incorporation or organization, 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
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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;
(ix) Each of the Company and its subsidiaries listed in Schedule IV hereto
(such subsidiaries, collectively, the “Subsidiaries”) has good and marketable title to all
personal property owned by it, including all Intellectual Properties (defined below), and
has good and valid title to all real property or the beneficial interests in and the right
to transfer, lease and mortgage the land use rights and building ownership rights over all
of the real properties as owned by it, in each case free and clear of all liens, charges,
encumbrances, and defects, except such as are described in the Pricing Prospectus and the
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 except as described in the Registration Statement, the Pricing
Prospectus and the Prospectus (A) each lease to which any of the Company or its
Subsidiaries is a party, is legal, valid, binding and enforceable in accordance with its
terms, and no material default (or event which with notice or lapse of time, or both, would
constitute a default) by the Company or any of its Subsidiaries has occurred or is
continuing under any such lease; (B) the use of any premises occupied by the Company or any
of its Subsidiaries is in accordance with that provided in the lease, land use rights,
tenancy, license, concession or agreement relating to such occupation and each of the
Company and its Subsidiaries has observed and performed the terms and conditions thereof on
the part of the tenant to be observed and performed; and (C) none of the Company and its
Subsidiaries has received any claim for liabilities in respect of any properties previously
occupied by it or which it owned or held any interests in, including, without limitation,
leasehold premises assigned, surrendered or otherwise disposed of;
(x) The Company and its subsidiaries, taken as a whole, maintain insurance covering
their properties, operations, personnel and businesses as the Company and its subsidiaries,
taken as a whole, reasonably deem adequate in accordance with customary industry practice;
such insurance insures against such losses and risks to an extent which is adequate to
protect the Company and its subsidiaries and their businesses, taken as a whole; all such
insurance is fully in force; all due premiums in respect of such insurance have been paid;
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, taken
as a whole, pending, outstanding, or to the Company’s knowledge after due inquiry,
threatened, and no facts or circumstances exist which would reasonably be expected to give
rise to any such claim;
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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, 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, any of its subsidiaries or,
to the Company’s knowledge after due inquiry, any other party to any such contract or
agreement;
(xii) Except as described in the Registration Statement, the Pricing Prospectus and
the Prospectus, the Company and its subsidiaries, taken as a whole, have all necessary
licenses, franchises, concessions, consents, authorizations, approvals, orders,
certificates and permits of and from, and have made all declarations and filings with, all
governmental agencies to own, lease, license and use its properties, assets and conduct
their businesses in the manner described in the Pricing Prospectus, and such licenses,
franchises, concessions, consents, authorizations, approvals, orders, certificates or
permits contain no material restrictions or conditions not described in the Pricing
Prospectus; neither the Company nor any of its subsidiaries is aware of or has a reasonable
basis to believe 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) Except as described in the Registration Statement, the Pricing Prospectus and
the Prospectus, 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 British Virgin Islands, Taiwan, Japan or Hong Kong, 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, governmental agency or body of any stock exchange authority (each, a
“Governmental Agency”) in the PRC, the British Virgin Islands, Taiwan, Japan, Hong Kong or
any other jurisdiction where it was incorporated or operates; (C) in violation of its
constitutive or organizational documents; or (D) in default in the performance or
observance of any 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, except in the case of (D)
above, where any such default would not, individually or in the aggregate, have a Material
Adverse Effect;
(xiv) The Company has the authorized and paid-in capitalization as set forth in the
Pricing Prospectus and all of the issued share capital of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable and conform to the
description thereof contained in the Pricing Disclosure Package and the Prospectus; and all
of the issued share capital of each subsidiary of the Company have been duly and validly
authorized
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and issued, are fully paid and non-assessable and are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims; 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, Shares, ADSs or any
other class of share capital of the Company or any of its significant subsidiaries (as
defined in Rule 405 under the Act); 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 therefor, will be freely transferable by the Company and the Selling
Shareholders to or for the account of the several Underwriters and the initial purchasers
thereof; and there are no restrictions on subsequent transfers of the Shares or the ADSs
under the laws of the PRC, the British Virgin Islands, or the United States except as
described in the Pricing Prospectus and the Prospectus;
(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 Shares, ADSs
or any other share capital of or other equity interests in the Company or any of its
subsidiaries 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 Shares and the ADSs;
(xvi) The Shares to be issued underlying the ADSs to be sold by the Company and the
Selling Shareholders 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 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 Series A Preferred Shares and Series B Preferred Shares (collectively, the
“Preferred Shares”) as described in the Pricing Prospectus have been duly authorized and
reserved for issuance; and, prior to or concurrently with the First Time of Delivery (as
defined in Section 4 hereof), all of the shares of Preferred Shares will be converted into
Ordinary Shares and all such Ordinary Shares will be duly authorized, validly issued and
fully paid and non-assessable;
(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;
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(xix) This Agreement has been duly authorized, executed and delivered by the Company
and each of the Subsidiaries and constitutes a valid and legally binding agreement of the
Company and each of the Subsidiaries, 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, 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) Except as described in the Registration Statement, the Pricing Prospectus and
the Prospectus, all dividends and other distributions declared and payable on the Shares
may under the current laws and regulations of the British Virgin 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 British Virgin Islands and
are otherwise free and clear of any other tax, withholding or deduction in the British
Virgin 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 British Virgin Islands;
(xxii) All dividends and other distributions declared and payable on the share capital
of Triumph Consulting & Service Co., Ltd. may under the current laws and regulations of the
British Virgin Islands be paid to its shareholders, and all such dividends and other
distributions will not be subject to withholding or other taxes under the laws and
regulations of the British Virgin Islands and are otherwise free and clear of any other
tax, withholding or deduction in the British Virgin Islands and without the necessity of
obtaining any Governmental Authorization in the British Virgin Islands;
(xxiii) Except as described in the Registration Statement, the Pricing Prospectus and
the Prospectus, all dividends and other distributions declared and payable on the share
capital of any of Taiwan Camelot Information Inc., VLife Technology Co., Ltd., Harmonation
Inc. and Hwawei Digital Financial Technologies Co., Ltd. may under the current laws and
regulations of Taiwan be
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paid to their shareholders, and all such dividends and other distributions will not be
subject to withholding or other taxes under the laws and regulations of Taiwan and are
otherwise free and clear of any other tax, withholding or deduction in Taiwan and without
the necessity of obtaining any Governmental Authorization in Taiwan;
(xxiv) All dividends and other distributions declared and payable on the share capital
of any of Camelot Japan Co., Ltd. and Entoh Digital Co., Ltd. may under the current laws
and regulations of Japan be paid to their shareholders, and all such dividends and other
distributions will not be subject to withholding or other taxes under the laws and
regulations of Japan and are otherwise free and clear of any other tax, withholding or
deduction in Japan and without the necessity of obtaining any Governmental Authorization in
Japan;
(xxv) All dividends and other distributions declared and payable on the share capital
of Kings Consulting Services Limited may under the current laws and regulations of Hong
Kong be paid to their shareholders, and all such dividends and other distributions will not
be subject to withholding or other taxes under the laws and regulations of Hong Kong and
are otherwise free and clear of any other tax, withholding or deduction in Hong Kong and
without the necessity of obtaining any Governmental Authorization in Hong Kong;
(xxvi) Except as described in the Pricing Prospectus and the Prospectus, all dividends
and other distributions declared and payable on the share capital of any of Asialink
Information Technologies (Shanghai) Co., Ltd., Bayshore Consulting & Services Co., Ltd.,
Beijing Agree Technology Development Co., Ltd., Beijing Camelot Technology Co., Ltd.,
Beijing Heng En Technology Co., Ltd., Beijing Red River Valley Information Technology Co.,
Ltd., Beijing Tansun Software Technology Co., Ltd., Beijing Yinfeng Technology Development
Co., Ltd., Camelot Information Technology. Co., Ltd., Dalian Yuandong Digital Co., Ltd.,
Beijing Faceita Information System Ltd., Jiaxing Camelot Software Co. Ltd., Kunshan Kesuo
Information Consulting Co., Ltd., Nanjing Camelot Information Systems Engineering Co. Ltd.,
Shanghai Agree Technology Development Co., Ltd., Shanghai Camelot Information Technology
Co., Ltd, Shanghai Camelot Software Co., Ltd., VLife Technology (Shang Hai) Co., Ltd.,
Xiamen Tansun Software Technology Development Co., Ltd., Yantai Q.B. Eleven Outsourcing
Service Company and Zhuhai Agree Technology Co., Ltd. (collectively, the “PRC
Subsidiaries”) may under the current laws and regulations of the PRC be freely transferred
out of the PRC and may be paid in U.S. dollars, 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;
(xxvii) (a) The issue and sale of the Shares represented by ADSs, the deposit of the
Shares with the Depositary against issuance of the ADRs evidencing the ADSs and the
execution and delivery of this Agreement and the Deposit Agreement and the compliance by
the Company with this Agreement
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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, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company
and any of its subsidiaries pursuant to, 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, (B) result in
any violation of the provisions of the constitutive or organizational documents of the
Company or any subsidiary 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;
(b) The execution and delivery of this Agreement and the compliance by the
Subsidiaries with this Agreement and the consummation of the transactions herein
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, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the Company
and any of its subsidiaries pursuant to, 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, (B) result in
any violation of the provisions of the constitutive or organizational documents of the
Company or any of the 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;
(xxviii) No consent, approval, authorization, order, registration, clearance or
qualification of or with any Governmental Authorization is required for the issue and sale
of the Shares or the ADSs, for the deposit of the Shares with the Depositary against
issuance of ADRs evidencing the ADSs to be delivered or the consummation by the Company and
the Subsidiaries of the transactions contemplated by this Agreement and the Deposit
Agreement, except (A) the registration under the Act of the Shares and ADSs and listing of
the ADSs on the New York Stock Exchange, (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 PRC, the British Virgin Islands,
Taiwan, Japan, Hong Kong and the United States in connection with the purchase and
distribution of the Shares represented by ADSs by or for the respective accounts of the
several Underwriters;
(xxix) The ADSs have been approved for listing on the New York Stock Exchange, subject
only to notice of issuance;
11
(xxx) 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, the British Virgin Islands, Taiwan, Japan, Hong Kong 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 represented by
ADSs to or for the respective accounts of the several Underwriters or (C) the sale and
delivery by the Underwriters of the Shares represented by ADSs to the initial purchasers
thereof in the manner described in this Agreement and the Pricing Prospectus;
(xxxi) 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 represented by
ADSs:
(xxxii) The statements set forth in the Pricing Prospectus and 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
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
accurate, complete and fair;
(xxxiii) Other than as set forth in the Pricing Prospectus, there are no legal,
arbitration or governmental proceedings (including, without limitation, governmental
investigations or inquiries) pending to which the Company, any of its subsidiaries or the
Company’s directors and executive officers is a party or a subject 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 have a Material Adverse Effect; or that are
required to be described in the Registration Statement, Pricing Prospectus and Prospectus
and are not so described; and, to the best of the Company’s knowledge after due inquiry, no
such proceedings are threatened or contemplated by governmental authorities or threatened
by others;
(xxxiv) The Company is not and, after giving effect to the offering and sale of the
Shares represented by 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”);
(xxxv) At the time of filing the Initial Registration Statement the Company was not
and is not an “ineligible issuer,” as defined under Rule 405 under the Act;
(xxxvi) Each of this Agreement and the Deposit Agreement is in proper form to be
enforceable against the Company in the British Virgin Islands in accordance with its terms,
subject to bankruptcy, insolvency, reorganization
12
and similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles; to ensure the legality, validity, enforceability or
admissibility into evidence in the British Virgin 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 British Virgin Islands or that any stamp
or similar tax in the British Virgin Islands be paid on or in respect of this Agreement,
the Deposit Agreement or any other documents to be furnished hereunder;
(xxxvii) The Registration Statement, the Pricing Prospectus, the Prospectus, any
Issuer Free Writing Prospectus, the Form 8-A Registration Statement and the ADS
Registration Statement and the filing of the Registration Statement, the Pricing
Prospectus, the Prospectus, any Issuer Free Writing Prospectus, the Form 8A Registration
Statement and the ADS Registration Statement with the Commission have been duly authorized
by and on behalf of the Company, and the Registration Statement, the Form 8-A Registration
Statement and the ADS Registration Statement have been duly executed pursuant to such
authorization by and on behalf of the Company;
(xxxviii) There are no contacts or documents which are required to be described in the
Registration Statement and the Pricing Prospectus or to be filed as exhibits to the
Registration Statement which have not be so described and filed as required;
(xxxix) 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 all
patents and patent applications, copyrights, trademarks, service marks, trade names,
Internet domain names, technology, and/or know-how (including trade secrets and other
unpatented and/or unpatentable proprietary rights) (collectively, “Intellectual Property”)
that are necessary or used in any material respect to conduct each of their respective
businesses 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; (B) all material copyrights and
patents owned or licensed by the Company and its subsidiaries are valid, enforceable and
not subject to any ongoing or, to the Company’s best knowledge after due inquiry,
threatened interference, reexamination, judicial or administrative proceeding pertaining to
validity, enforceability or scope; (C) neither the Company nor any of its subsidiaries has
received any notice alleging infringement, violation or conflict with (and neither the
Company nor any of its subsidiaries knows of any basis for alleging infringement, violation
or conflict with) the Intellectual Property rights of any third party by the Company, its
subsidiaries, or their products; (D) there are no pending or, to the Company’s best
knowledge after due inquiry, threatened actions, suits, proceedings or claims that allege
the Company or any of its subsidiaries is infringing or has infringed any Intellectual
Property right of any third party; (E) to the Company’s knowledge after due inquiry, the
discoveries, inventions, products or processes of the Company and its subsidiaries
referenced in the Pricing Prospectus, do not violate or conflict with any Intellectual
Property right of any third party including
13
any discovery, invention, product or process that is the subject of a patent
application filed by any third party; 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; (G) neither the Company nor any of its subsidiaries is a party to
any non-competition or other similar restriction agreement or arrangement relating to any
business or service anywhere in the world; and (H) each of the Company and its subsidiaries
has taken all necessary and appropriate steps to protect and preserve the confidentiality
of applicable Intellectual Property (“Confidential Information”). All use or disclosure of
Confidential Information owned by the Company or its subsidiaries by or to a third party
has been pursuant to a written agreement between the Company, its subsidiaries and such
third party. All use or disclosure of Confidential Information not owned by the Company or
its subsidiaries has been pursuant to the terms of a written agreement between the Company,
its subsidiaries, and the owner of such Confidential Information, or is otherwise lawful;
(xl) The Company has not been and, except as disclosed in the Registration Statement,
the Pricing Prospectus and the Prospectus, does not expect to be 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 the Company will use its best efforts to
avoid becoming a PFIC in the future;
(xli) Except as described in 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;
(xlii) The Company is a “foreign private issuer” within the meaning of Rule 405 under
the Act;
(xliii) 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); and there are no material
relationships or transactions between the Company or any of its subsidiaries on the one
hand
14
and its affiliates, officers and directors or their shareholders, customers or
suppliers on the other hand except as disclosed in the Pricing Prospectus;
(xliv) Deloitte Touche Tohmatsu CPA Ltd., who have certified certain financial
statements of the Company and its subsidiaries, are independent public accountants as
required by the Act and the rules and regulations of the Commission thereunder and are
independent in accordance with the requirements of the U.S. Public Company Accounting
Oversight Board;
(xlv) Except as described in the Registration Statement, the Pricing
Prospectus and the Prospectus, 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 (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;
(xlvi) 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 as appropriate to allow timely decisions regarding required
disclosure, and such disclosure controls and procedures are effective to perform the
functions for which they are designed; 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 latest audited financial statements included in the
Pricing Prospectus, there have been no significant changes in such internal controls or in
other factors that could significantly affect internal controls, including any corrective
actions with regard
15
to significant deficiencies and material weaknesses other than those corrective
actions described in the Registration Statement, the Pricing Prospectus and the Prospectus;
except as described in the Registration Statement, the Pricing Prospectus and the
Prospectus, the Company’s independent accountants have not notified the Company of any
“reportable conditions” (as that term is defined under standards established by the
American Institute of Certified Public Accountants) in the Company’s internal accounting
controls, or other weaknesses or deficiencies in the design or operation of the Company’s
internal accounting controls, that have materially affected, or are reasonably likely to
materially affect, the Company’s internal control over financial reporting, or could
adversely affect the Company’s ability to record, process, summarize and report financial
data consistent with the assertions of the Company’s management in the financial
statements; 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
(the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”) and the rules and regulations promulgated thereunder;
(xlvii) The statements set forth in the Pricing Prospectus under the caption
“Management’s Discussion and Analysis of Financial Condition and Results of Operations —
Internal Control Over Financial Reporting” are true, accurate and fair summaries in all
material respects;
(xlviii) 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;
(xlix) 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 Company’s knowledge
after due inquiry, is threatened;
(l) The section entitled “Management’s Discussion and Analysis of Financial Condition
and Results of Operations — Critical Accounting Policies” in the Pricing Prospectus truly
and accurately 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 of Critical Accounting
Policies and have consulted with its legal counsel and independent accountants with regard
to such disclosure;
(li) Since the date of the latest audited financial statements included in the Pricing
Prospectus, neither the Company nor any of its subsidiaries has: (A)
16
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, taken as a whole, and that are not otherwise described in the Pricing
Prospectus;
(lii) 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 fairly 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;
(liii) Except as disclosed in the Pricing Prospectus, none of the Company or any of
its subsidiaries is engaged in any material transactions with its directors, officers,
management, shareholders, or any other affiliate, including any person who formerly held a
position as directors, officers, managers and/or shareholders, on terms that are not
available from unrelated third parties on an arm’s-length basis;
(liv) The descriptions of the acquisitions made by the Company and its subsidiaries
(the “Acquisitions”) set forth in the Pricing Prospectus under the captions “Our History
and Corporate Structure”, “Risk Factors — Risk Relating to Our Business”, “Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and “Business”
are true and correct in all material respects;
(lv) Each of the documents or agreements, as amended, as the case may be, executed by
the Company in connection with the Acquisitions (collectively, the “Acquisitions
Documents”) has been duly authorized, executed and delivered by or on behalf of the Company
and its subsidiaries, and constitutes a valid and legally binding agreement of the Company
and its subsidiaries, 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;
(lvi) The Acquisitions and the execution, delivery and performance of the Acquisitions
Documents by the Company and its subsidiaries do not (A) conflict
17
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 subsidiary or by which the
Company or any subsidiary is bound or to which any of the property or assets of the Company
or any subsidiary is subject, (B) result in any violation of the provisions of the articles
of association, business license or other constituent documents of the Company or any
subsidiary 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 subsidiary, except
in the case of (A) above, where any such conflict, breach or violation would not,
individually or in the aggregate, have a Material Adverse Effect;
(lvii) All consents, approvals, authorizations, orders, registrations and
qualifications required in connection with the Acquisitions and the execution, delivery and
performance of the Acquisitions Documents have been made or unconditionally obtained in
writing; and no such consent, approval, authorization, order, registration or qualification
has been withdrawn or is subject to any condition precedent which has not been fulfilled or
performed;
(lviii) No holder of any of the Shares or the ADSs after the consummation of the
transactions contemplated by this Agreement and 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;
(lix) The audited and unaudited consolidated financial statements (and the notes
thereto) of the Company included in the Registration Statement, Pricing Prospectus and
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 the 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 unaudited quarterly financial
information included in the Registration Statement, Pricing Prospectus and 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;
(lx) Under the laws of the British Virgin 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
18
Depositary or its nominee registered as representative of the holders of the ADRs in a
direct suit, action or proceeding against the Company;
(lxi) All amounts payable by the Company in respect of the ADRs evidencing the ADSs or
the Shares shall be made free and clear of and without deduction for or on account of any
taxes imposed, assessed or levied by the British Virgin Islands or any authority thereof or
therein (except such income taxes as may otherwise be imposed by the British Virgin Islands
on payments hereunder to an Underwriter whose net income is subject to tax by the British
Virgin Islands or withholding, if any, with respect to any such income tax) nor are any
taxes imposed in the British Virgin Islands on, or by virtue of the execution or delivery
of, such documents;
(lxii) Each of the Company and its subsidiaries has paid all taxes required to be paid
and 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 in which 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; all taxes and other assessments of a similar nature (whether
imposed directly or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such authorities have been paid
in full; the provisions included in the audited and unaudited 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 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;
(lxiii) 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 or any of its Subsidiaries; and since December
31, 2009, none of the Company or any of its subsidiaries has, 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 any of its Subsidiaries, or to or for any family
member or affiliate of any director or executive officer of the Company or any of its
subsidiaries; 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 of its
Subsidiaries, or any family member or affiliate of any director or executive officer, which
loan was outstanding on December 31, 2009, that (x) is outstanding on the date hereof and
(y) constitutes a violation of any applicable law or regulation; for the avoidance of
19
doubt, “personal loan”, as used in this clause (lxiii), shall not include any cash
advances made by the Company in the ordinary course of its business for travel and other
incidental expenses of the Company’s directors, officers and employees;
(lxiv) Any statistical and market-related data included in the Pricing Prospectus and
Prospectus are based on or derived from sources that the Company reasonably 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;
(lxv) The application of the net proceeds from the offering of ADSs, as described in
the Pricing Prospectus, will not (A) contravene any provision of any current and applicable
laws or the current constituent documents of the Company or any of its subsidiaries, (B)
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
currently binding upon the Company or any of its subsidiaries or (C) contravene or violate
the terms or provisions of any Governmental Authorization applicable to any of the Company
or any of its subsidiaries;
(lxvi) 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 Shares represented by ADSs;
(lxvii) Under the laws of the British Virgin Islands, the courts of the British Virgin
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 state
or federal court located in the Borough of Manhattan, The City of New York, New York (each,
a “New York Court”) 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;
(lxviii) 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 to any government official or any entity or other person,
including without
20
limitation any director, officer, employee, agent or associate of any
company or entity which has or had a business relationship with the Company;
(lxix) The operations of the Company and its subsidiaries are and have been conducted
at all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended,
the money laundering statutes of all jurisdictions, the rules and regulations thereunder
and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the “Money Laundering Laws”); and no
action, suit or proceeding by or before any court or governmental agency, authority or body
or any arbitrator or non-governmental authority involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the best of the
Company’s knowledge after due inquiry, threatened;
(lxx) The descriptions of the events and transactions set forth in the Pricing
Prospectus in the section entitled “Our History and Corporate Structure” are accurate,
complete and fair in all material respects; and each of the events and transactions set
forth therein has been duly authorized and 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 China Securities Regulatory
Commission, the State Administration of Industry and Commerce and the State Administration
of Foreign Exchange, the State Administration of Taxation and their respective local
counterparts in the PRC), (B) contravene the articles of association, business license or
other constitutive documents of the Company or any of its subsidiaries, 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 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, or (D) result in
any liability or charge on the part of the Company or any of its subsidiaries, except in
the case of (C) and (D) above, where any such conflict, breach, violation, default,
liability or charge would not, individually or in the aggregate, have a Material Adverse
Effect;
(lxxi) The issuance and sale of the Shares represented by ADSs, the listing and
trading of the ADSs on the New York Stock Exchange 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 (as defined in Section 4
hereof), adversely affected by the State Administration of Foreign Exchange of the PRC on
August 8, 2006 (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”);
21
(lxxii) Each of the Company and its subsidiaries that were incorporated outside of the
PRC has complied with, and ensured 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 China Securities Regulatory Commission (the “CSRC”), the National
Development and Reform Commission and the State Administration of Foreign Exchange)
relating to overseas investment by PRC residents and citizens or the repatriation of the
proceeds from overseas offering and 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;
(lxxiii) The statements set forth in the Pricing Prospectus under the captions “Risk
Factors — Risks Related to Doing Business in China — The approval of the China Securities
Regulatory Commission, or the CSRC, may be required in connection with this offering under
recently adopted PRC regulation; any requirement to obtain prior CSRC approval could delay
this offering and a failure to obtain this approval could materially and adversely affect
our business, operating results, reputation and ADSs’ trading price and may also create
uncertainties for this offering; such regulation also establishes more complex procedures
for acquisitions conducted by non-PRC investors which could make it more difficult to
pursue growth through acquisitions.” and “Chinese Government Regulations — Regulation on
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;
(lxxiv) (A) None of the Company or its subsidiaries, affiliates, employees, agents
and directors and officers: (i) does or plans to conduct or otherwise get involved with 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 (ii) supports or facilitates
or plans to support or facilitate or otherwise get involved with any such business or
project, in each case other than as permitted under such economic sanctions; (B) 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; (C) the proceeds from the offering of the Shares represented by ADSs
contemplated hereby will not be used to fund any operations in, to finance any investments,
projects or activities
22
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 (D) 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 Shares represented by ADSs contemplated hereby that is
inconsistent with any of the Company’s representations and obligations under clause (C) of
this paragraph or in the Registration Statement, Pricing Prospectus and Prospectus;
(lxxv) 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);
there are no past, present or, to the Company’s knowledge 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; 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 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);
(lxxvi) Neither the Company nor any of its subsidiaries has entered into any
memorandum of understanding, letter of intent, definitive agreement or any similar
agreements with respect to a merger or consolidation or a material acquisition or
disposition of assets, technologies, business units or businesses that would be required to
be described in the Pricing Prospectus but which have not been described;
(lxxvii) Except as described in the Pricing Prospectus, there are no affiliations or
associations between any member of the FINRA and the Company; there are no affiliations or
associations between (A) any member of the FINRA and (B) any of the Company’s officers,
directors or 5% or greater
security holders or any
23
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;
(lxxviii) The Registration Statement, Pricing Prospectus, 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, Pricing Prospectus, 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;
(lxxix) The Company has not offered, or caused the Underwriters to offer, Shares or
ADSs to any person pursuant to the Directed Share Program with the intent to influence
unlawfully (A) 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 (B) 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;
(lxxx) 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, Pricing Prospectus and Prospectus which have not been described as
required; and
(lxxxi) Each “forward-looking statement” (within the meaning of Section 27A of the Act
or Section 21E of the Exchange Act) contained in the Registration Statement, the Pricing
Prospectus, the Prospectus and each Issuer Free Writing Prospectus, if any, has been made
or reaffirmed with a reasonable basis and in good faith.
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 Shares and 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 and not jointly represents and warrants as to
and in respect of itself to, and agrees with, each of the Underwriters 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 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 Shares represented by ADSs to be sold by such Selling Shareholder hereunder
and for the execution and
delivery by such Selling Shareholder of this Agreement, the Power of Attorney
24
(solely
with respect to ▇▇▇▇▇▇ Brothers Offshore Partners Ltd. in the case of the Power of
Attorney) and the Custody Agreement hereinafter referred to, and for the sale and delivery
of the Shares represented by 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, the Power of Attorney (solely with respect to ▇▇▇▇▇▇ Brothers Offshore
Partners Ltd. in the case of the Power of Attorney) and the Custody Agreement and to sell,
assign, transfer and deliver the Shares represented by ADSs to be sold by such Selling
Shareholder hereunder;
(iii) The sale of the Shares represented by 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, the Power of Attorney
(solely with respect to ▇▇▇▇▇▇ Brothers Offshore Partners Ltd. in the case of the Power of
Attorney) and the Custody 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 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 court or Governmental Agency having jurisdiction over such
Selling Shareholder or the property of such Selling Shareholder;
(iv) There are no affiliations or associations between any participating member of the
FINRA and such Selling Shareholder; and none of the proceeds received by such Selling
Shareholder from the sale of the Shares represented by ADSs to be sold by such Selling
Shareholder hereunder will be paid to a participating member of the FINRA or any affiliate
of (or person “associated with,” as such terms are used in the rules of the FINRA) such
member; provided, that “participating member”, as used in this clause (iv), shall have the
meaning ascribed to such term in FINRA Rule 5110;
(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;
25
(vi)
Neither such Selling Shareholder nor any of its affiliates over whom
such Selling Shareholder possesses the power to directly control
(whether through the ownership of voting securities or by contract)
the management and policies of such 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 represented by ADSs 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 Pricing 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 represented by ADSs, in each case other than the then most recent Preliminary
Prospectus;
(ix) The Registration Statement, Pricing Prospectus and 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 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, 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,
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 Shares or ADSs did or will the Prospectus, as then amended
or supplemented, 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 include an untrue statement of a
26
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; provided, however, that the representations and warranties in this paragraph
shall apply only to statements or omissions made in the Registration Statement, the Pricing
Prospectus or the Prospectus, or any amendment or supplement thereto, in reliance upon and
in conformity with written information furnished to the Company or the Representatives by a
Selling Shareholder.
(x) The Shares represented by ADSs to be sold by such Selling Shareholder, when issued
and delivered against payment therefore, will be freely transferable by such Selling
Shareholder 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 Shares and ADSs under the laws of Bermuda (in the case of
▇▇▇▇▇▇ Brothers Offshore Partners Ltd.), the Cayman Islands (in the case of Citigroup
Venture Capital International Growth Partnership, L.P. and Citigroup Venture Capital
International Co-Investment, L.P.), the British Virgin Islands 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 Bermuda (in the case of ▇▇▇▇▇▇ Brothers Offshore Partners Ltd.), the Cayman
Islands (in the case of Citigroup Venture Capital International Growth Partnership, L.P.
and Citigroup Venture Capital International Co-Investment, L.P.), the PRC, the British
Virgin Islands 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
represented by ADSs to be sold by such Selling Shareholder to or for the respective
accounts of the Underwriters or (C) the sale and delivery by the Underwriters of the Shares
represented by 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 Bermuda (in the case of ▇▇▇▇▇▇ Brothers Offshore Partners Ltd.), the
Cayman Islands (in the case of Citigroup Venture Capital International Growth Partnership,
L.P. and Citigroup Venture Capital International Co-Investment, L.P.), the PRC, the British
Virgin Islands or any authority thereof or therein, nor are any taxes imposed in Bermuda
(in the case of ▇▇▇▇▇▇ Brothers Offshore Partners Ltd.), the Cayman Islands (in the case of
Citigroup Venture Capital International Growth Partnership, L.P. and Citigroup Venture
Capital International Co-Investment,
27
L.P.), the PRC or the British Virgin Islands on, or by virtue of the execution of this
Agreement or the sale and delivery of the Shares represented by ADSs;
(xiii) Each of this Agreement, the Custody Agreement and the Power of Attorney (solely
with respect to ▇▇▇▇▇▇ Brothers Offshore Partners Ltd. in the case of the Power of
Attorney) 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 Bermuda (in the case of ▇▇▇▇▇▇
Brothers Offshore Partners Ltd.), the Cayman Islands (in the case of Citigroup Venture
Capital International Growth Partnership, L.P. and Citigroup Venture Capital International
Co-Investment, L.P.), the PRC or the British Virgin Islands of this Agreement, it is not
necessary that this Agreement, the Custody Agreement or the Power of Attorney (solely with
respect to ▇▇▇▇▇▇ Brothers Offshore Partners Ltd. in the case of the Power of Attorney) be
filed or recorded with any court or other authority in Bermuda (in the case of ▇▇▇▇▇▇
Brothers Offshore Partners Ltd.), the Cayman Islands (in the case of Citigroup Venture
Capital International Growth Partnership, L.P. and Citigroup Venture Capital International
Co-Investment, L.P.), the PRC or the British Virgin Islands or that any stamp or similar
tax in Bermuda (in the case of ▇▇▇▇▇▇ Brothers Offshore Partners Ltd.), the Cayman Islands
(in the case of Citigroup Venture Capital International Growth Partnership, L.P. and
Citigroup Venture Capital International Co-Investment, L.P.), the PRC or the British Virgin
Islands 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 represented
by ADSs;
(xv) Certificates in negotiable form representing all of the Shares represented by
ADSs to be sold by such Selling Shareholder hereunder have been placed in custody under a
Custody Agreement (the “Custody Agreement”), in the form heretofore furnished to you, duly
executed and delivered by such Selling Shareholder with the Company, as custodian (the
“Custodian”), and, in the case of ▇▇▇▇▇▇ Brothers Offshore Partners Ltd., 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 such Selling Shareholder as provided in Section 2 hereof, to
authorize the
28
delivery of the Shares represented by 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 and the Custody Agreement;
(xvi) The Shares represented by the certificates held in custody for such Selling
Shareholder under the Custody Agreement are subject to the interests of the Underwriters
hereunder and thereunder; the arrangements made by such Selling Shareholder for such
custody and the appointment by such Selling Shareholder, in the case of ▇▇▇▇▇▇ Brothers
Offshore Partners Ltd., of the Attorneys-in-Fact by the Power of Attorney, are to that
extent irrevocable; the obligations of such Selling Shareholder hereunder shall not be
terminated by operation of law, whether by the death or incapacity of such 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 corporation, or by
the occurrence of any other event; if such 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 represented by ADSs hereunder,
certificates representing the Shares and ADSs shall be delivered by or on behalf of such
Selling Shareholder in accordance with the terms and conditions of this Agreement and of
the Custody Agreement; and actions taken by the Attorneys-in-Fact pursuant to the Powers of
Attorney (solely with respect to ▇▇▇▇▇▇ Brothers Offshore Partners Ltd.) shall be as valid
as if such death, incapacity, termination, dissolution or other event had not occurred,
regardless of whether or not the Custodian, the Attorneys-in-Fact or any of them, shall
have received notice of such death, incapacity, termination, dissolution or other event;
and
(xvii)
(A) Neither such Selling Shareholder, nor any of its affiliates
over whom such Selling Shareholder possesses the power to directly
control (whether through the ownership of voting securities or by
contract) and oversee compliance of such affiliates’ OFAC
controls and policies, nor any of such Selling Shareholder’s
employees, agents and directors officers: (i) does or
plans to conduct or otherwise get involved with 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 (ii) supports or facilitates or plans to support or
facilitate or otherwise get involved with any such business or project, in each case other
than as permitted under such economic sanctions; (B) 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 (C) the proceeds received by such Selling Shareholder from the sale of Shares
represented by 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.
29
In addition, any certificate signed by any Selling Shareholder (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 Shares and 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 the Underwriters 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 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.
Each Selling Shareholder, as and to the extent indicated in Schedule II attached
hereto, hereby grants, severally and not jointly, to the Underwriters the right to purchase at
their election up to 2,000,000 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 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 and each
Selling Shareholder, given within a period of 30 calendar days after the date of this Agreement,
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
30
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’ prior notice to the Company and the Selling Shareholders, 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 accounts specified by each of the Company and the
Selling Shareholders to the Representatives at least forty-eight hours in advance. The Company and
the Selling Shareholders will cause the certificates representing the Shares and ADSs to be made
available for checking and packaging at least twenty-four hours prior to each Time of Delivery (as
defined below) 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 , 2010 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, the Company and the Selling Shareholder 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 hereof, will be delivered at the
offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the “Closing Location”), and the ADSs will be delivered at the Designated
Office, 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 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 City are generally authorized or obligated by law or
executive order to close.
5. (a) The Company agrees with each of the Underwriters:
31
(i) To prepare the Prospectus in a form approved by you (such approval not to be
unreasonably withheld) 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 with 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 Shares and ADSs, of
the suspension of the qualification of the Shares and 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 or the 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 for 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, to promptly 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 Shares and 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 Shares and 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 Shares and 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
32
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 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 Shares
represented by 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 reasonably
request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(iv) To furnish to you one copy for each Representative and one copy for United States
counsel to the Underwriters of the Registration Statement, as initially filed with the
Commission, and of all amendments thereto (including all exhibits thereto and sufficient
copies of the foregoing (other than exhibits) for distribution of a copy to each of the
other Underwriters;
(v) To furnish to you as early as practicable prior to each Time of Delivery, a copy
of the latest available unaudited interim and monthly consolidated financial statements, if
any, of the Company and its subsidiaries which have been read by the Company’s independent
public accountants, as stated in their letter to be furnished pursuant to Section 8(h)
hereof;
(vi) To make generally available to its securityholders 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), an 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);
(vii) 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, grant any 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
33
Shares or ADSs 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 (in each case other than pursuant to employee stock
option plans existing on the date of this Agreement and which are described in the Pricing
Prospectus), 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 15-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 Company will provide the
Representatives and each shareholder subject to the Lock-up Period pursuant to the lockup
letters described in Section 8(s) with prior notice of any such announcement that gives
rise to an extension of the Lock-up Period; the restrictions in this Section 5(a)(vii)
shall not apply to (i) the Shares represented by ADSs to be sold hereunder; (ii) Shares
represented by ADSs issued by the Company upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and disclosed in the Pricing
Prospectus; (iii) options to purchase Shares represented by ADSs granted pursuant to the
Company’s Amended and Restated 2006 Equity Incentive Plan, as it exists on the date of this
Agreement, (iv) the filing with the Commission of the Registration Statement on Form S-8
(or on any successor form thereto) relating to Shares represented by ADSs or securities
granted pursuant to the Company’s Amended and Restated 2006 Equity Incentive Plan, as it
exists on the date of this Agreement;
(viii) 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, grant any 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
34
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 15-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(s) with prior
notice of any such announcement that gives rise to an extension of the Lock-Up Period;
(ix) 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 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;
(x) Upon your written request, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders of the Company, and to
deliver to you, to the extent not otherwise accessible through the Commission’s website
(▇▇▇▇://▇▇▇.▇▇▇.▇▇▇), (i) as soon as they are available to the general public, 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; and (ii)
such additional information made generally available to the public 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);
(xi) Prior to each Time of Delivery to deposit 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 Shares and delivered to
the Underwriters at such Time of Delivery;
35
(xii) 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 represented by ADSs;
(xiii) To use its best efforts to include the ADSs for listing on the New York Stock
Exchange;
(xiv) To file with the Commission such information on Form 20-F as may be required by
Rule 463 under the Act;
(xv) 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;
(xvi) 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 of
facilitating the on-line offering of the Shares and 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;
(xvii) 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;
(xviii) 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;
(xix) 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
Shares and ADSs, without prior consent of the Representatives;
(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 the ADSs, in each case other than the Prospectus;
36
(xxi) Not to facilitate any shareholder’s conversion of Ordinary Share to ADSs during
the Lock-Up Period and not to release the Depositary from the obligations set forth in, or
otherwise amend, terminate or fail to enforce, the Depositary Agreement without the consent
of the Representatives;
(xxii) Use its reasonable efforts to procure its shareholders who are PRC residents to
comply with any applicable registrations or approvals required by State Administration of
Foreign Exchange of the PRC; and
(xxiii) 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”. 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. 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.
(b) Each of the Selling Shareholders agrees, with respect to itself only, 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, or
grant any 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 herein: (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 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
37
announces, or if the Representatives determine, that it will release earnings results
during the 15-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 Selling
Shareholder 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, 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 represented by 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 the 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 represented by ADSs being sold by such Selling Shareholder;
(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 Shares represented by ADSs, of (A) the best of its knowledge, 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) to the
38
best of its knowledge, 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;
(viii) Not to use any of the proceeds received by such Selling Shareholder from the
sale of the Shares represented by 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 Shareholder including, without limitation, the requirement
for PRC residents or citizens to repatriate the net proceeds received by such Selling
Shareholder into the PRC under the applicable regulation of the Ministry of Commerce and
the State Administration of Foreign Exchange of the PRC; and
(ix) 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 the
Representatives 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).]
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 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 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 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
39
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 the Representatives expressly for use therein.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel
and accountants in connection with the registration of the Shares and the ADSs and all other
expenses in connection with the preparation, printing, reproduction and filing of the Registration
Statement, the ADS Registration Statement, the Form 8-A Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus, any Issuer Free Writing Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters,
this Agreement, the Deposit Agreement, any dealer agreements, any powers of attorney, any closing
documents (including any compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares and ADSs; (iii) all expenses in connection with
the qualification of the Shares and ADSs for offering and sale under the laws of the jurisdictions
as provided in Section 5(a)(ii) hereof, including the fees and disbursements of counsel for the
Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv)
all fees and expenses in connection with listing the ADSs on the New York Stock Exchange; (v) the
filing fees incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required review by the FINRA of the terms of the sale of the Shares
represented by ADSs, including the fees and disbursements of counsel for the Underwriters in
connection with such FINRA matters; (vi) the fees and disbursements of any transfer agent or
registrar for the ADSs; (vii) all the costs and expenses relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the ADSs to prospective
investors and the Underwriters’ sales forces, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations, travel, accommodation and meal expenses, and other
road show expenses incurred by the officers of the Company and any such consultants, and the cost
of any aircraft chartered in connection with the road show; (viii) the costs and expenses of
qualifying the ADSs for inclusion in the book-entry settlement system of the DTC; (ix) 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,
40
including, in any such case, any British Virgin 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; (x) 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); (xi) the fees and expenses of the
Authorized Agent (as defined in Section 16 hereof), provided that each Selling Shareholder shall
pay its respective fees and expenses for, and relating to, its authorized agent upon whom process
may be served in any action arising out of or based on this Agreement or the transactions
contemplated hereby; (xii) the cost of preparing the ADRs and (xiii) 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 Shares and 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)(i) 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 Commission;
and all requests for additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel to the Underwriters, shall have furnished
to you such written opinion and letter dated such Time of Delivery, in form and substance
satisfactory to you, and such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(c) Junhe Law Offices, PRC counsel to the Underwriters, shall have furnished to you such
written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to
you, and such counsel shall have received such papers
41
and information as they may reasonably request to enable them to pass upon such matters;
(d) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel to the Company shall
have furnished to you their written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, substantially to the effect set forth in Annex VI-A attached
hereto;
(e) Shearman & Sterling, United States counsel to Citigroup Venture Capital International
Growth Partnership, L.P. and Citigroup Venture Capital International Co-Investment, L.P., shall
have furnished to you their written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, substantially to the effect set forth in Annex VI-B attached
hereto;
(f) ▇▇▇▇▇▇ and ▇▇▇▇▇▇, Cayman Islands counsel to Citigroup Venture Capital International
Growth Partnership, L.P. and Citigroup Venture Capital International Co-Investment, L.P., shall
have furnished to you their written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, substantially to the effect set forth in Annex VI-C attached
hereto;
(g) ▇▇▇▇▇ Day, United States counsel to ▇▇▇▇▇▇ Brothers Offshore Partners Ltd., shall have
furnished to you their written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, substantially to the effect set forth in Annex VI-D attached
hereto;
(h) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Bermuda counsel to ▇▇▇▇▇▇ Brothers Offshore Partners Ltd.,
shall have furnished to you their written opinion, dated such Time of Delivery, in form and
substance satisfactory to you, substantially to the effect set forth in Annex VI-E
attached hereto;
(i) Jingcheng Tongda & ▇▇▇▇, PRC counsel to the Company, shall have furnished to you such
written opinion or opinions, dated such Time of Delivery, in form and substance satisfactory to
you, substantially to the effect set forth in Annex V attached hereto;
(j) ▇▇▇▇▇▇ and Calder, the British Virgin Islands counsel to the Company, shall have
furnished to you their written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, substantially to the effect set forth in Annex VII attached hereto;
(k) LCS & Partners, Taiwan counsel to the Company, shall have furnished to you their
written opinion, dated such Time of Delivery, in form and substance satisfactory to you,
substantially to the effect set forth in Annex VIII attached hereto;
(l) Atsumi & Partners, Japan counsel to the Company, shall have furnished to you their
written opinion, dated such Time of Delivery, in form and substance satisfactory to you,
substantially to the effect set forth in Annex IX attached hereto;
(m) Pun & Associates, Hong Kong counsel to the Company, shall have furnished to you their
written opinion, dated such Time of Delivery, in form and substance satisfactory to you,
substantially to the effect set forth in Annex X attached hereto;
42
(n) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇ LLP, counsel to the Depositary, shall have furnished to
you their written opinion, dated such Time of Delivery, in form and substance satisfactory to
you, substantially to the effect set forth in Annex XI attached hereto;
(o) 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 date on which the first sale of ADSs is confirmed if such
date is not the same as the date of this Agreement, 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 CPA Ltd 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 XII hereto;
(p) 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;
(q) (i) 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 (ii) 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, 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 (i) or (ii),
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 ADSs representing the Shares being
delivered at such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
(r) 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 the NASDAQ Global
Market, the New York Stock Exchange, The Stock Exchange of Hong Kong 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
or the PRC 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 British Virgin 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
43
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 British Virgin
Islands or the declaration by the United States, the United Kingdom, Hong Kong, the PRC or the
British Virgin 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 or the PRC, 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 ADSs being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(s) The FINRA shall have confirmed in writing that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and arrangements;
(t) The ADSs to be sold by the Company and the Selling Shareholders at such Time of
Delivery shall have been duly listed on the New York Stock Exchange, subject to notice of
issuance;
(u) 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;
(v) Each party set forth in Annex II attached hereto shall have entered into an
agreement (each a “Lock-Up Agreement”) in the form
attached as Annex III hereto;
(w) 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;
(x) At each Time of Delivery, as the case may be, the Chief Financial Officer of the
Company shall have furnished to you an officer’s certificate, dated the date of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in Annex IV
attached hereto;
(y) 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, as applicable, 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, as applicable, 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
44
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, as applicable, shall have furnished or caused to be furnished
certificates as to the matters set forth in subsections (a), (q) and (z) of this Section and as
to such other matters as you may reasonably request;
(z) There shall not be any litigation, proceedings, investigations, processes for
administrative sanctions or other actions initiated or threatened by any Governmental Agency
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 represented by ADSs,
the listing and trading of the ADSs on the New York Stock Exchange or the transactions
contemplated by this Agreement, the Deposit Agreement and the Power of Attorney (solely with
respect to ▇▇▇▇▇▇ Brothers Offshore Partners Ltd. in the case of the Power of Attorney);
(aa) There shall not be any adverse legislative or regulatory developments related to the
M&A Rules and Related Clarifications which in the sole judgment of the Representatives would
make it inadvisable to proceed with the public offering or the delivery of the Shares and 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, on the date of the Prospectus at a
time prior to the execution of this Agreement and at such Time of Delivery, the respective
opinions of such counsel, dated as of July [•], 2010;
(bb) All outstanding Preferred Shares have been converted into Ordinary Shares in
accordance with the terms of the Preferred Shares; and
(cc) (A) The Custody Agreement shall have been executed by each of the Selling Shareholders
or Attorneys in Fact on behalf of the Selling Shareholders and (B) certificates in negotiable
form representing all of the Shares to be represented by ADSs to be sold at such Time of
Delivery by each of the Selling Shareholders shall have been placed in custody under the Custody
Agreement, duly executed and delivered by such Selling Shareholder to the Custodian, at or prior
to the date at least one business day prior to such Time of Delivery.
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 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, the Pricing Disclosure Package 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
45
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, 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; provided, however, that 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.
(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 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 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 will not be liable under
this clause (iii) for any such loss, damage, expense, liability or claim that has been finally
judicially determined to have resulted from the willful misconduct or gross negligence of the DSP
Underwriter.
(c) Each of the Selling Shareholders (i) 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 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 that such untrue statement or alleged untrue
46
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 or the Underwriters by a Selling
Shareholder expressly for use therein; provided, however, the
liability of a Selling Shareholder pursuant to this subsection (b)
shall not exceed the aggregate proceeds received from the sale of
Shares represented by ADSs by such Selling Shareholder pursuant to
this Agreement; and (ii) 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.
(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 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, 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 or the Selling
Shareholders 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 and 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 the 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 (who 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
47
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.
(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
Shares and 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 (e) 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
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. Each of the
Company, the Selling Shareholders and the Underwriters agrees that it would not be just and
equitable if contribution pursuant to this subsection (f) 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 (f). 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
(f) 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 (f), 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
48
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 (f) to contribute are several in proportion to their
respective underwriting obligations and not joint. Each Selling Shareholder’s obligations in this
subsection (f) to contribute are several, and are not joint, with the other Selling Shareholders or
the Company, and a Selling Shareholder’s obligations in this subsection (f) to contribute shall not exceed the aggregate proceeds received from the sale
of Shares represented by ADSs by such Selling Shareholder pursuant to this Agreement.
(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 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.
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 and 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
49
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 and 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 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 or the Company or the Selling Shareholders, except for the expenses to be borne by the
Company, 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 of the Company, or any controlling person of any Selling Shareholder, and shall
survive delivery of and payment for the ADSs.
12. 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 Shares or the ADSs, promptly (and, in any event, not later than 30 days), severally but not
jointly, 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 Shares or 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 Shares or the ADSs not so delivered except as provided in Sections 7
and 9 hereof.
13. [Reserved.]
50
14. 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇ (Asia) L.L.C., 68th Floor, ▇▇▇▇▇▇ Kong Center, 2
Queen’s Road Central, Hong Kong, Attention: Legal Department (facsimile ▇(▇▇▇) ▇▇▇▇-▇▇▇▇), and, in
the case of Barclays Capital Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Attention: Syndicate Registration (facsimile: ▇▇ ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of any
notice pursuant to Section 9, to the Director of Litigation, Office of the General Counsel,
Barclays Capital Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇; if to the Company
shall be delivered or sent by mail, telex or facsimile transmission to the address of the Company
set forth in the Registration Statement, Attention: Mr. Yiming Ma; if to the Selling Shareholders
shall be delivered or sent by mail, telex or facsimile transmission to: (i) Citigroup Venture
Capital International Asia Limited, 26/F, Two Exchange Square, Connaught Road, Central, Hong Kong,
Attention: ▇▇ ▇▇▇▇ Min and ▇▇▇▇ ▇▇▇ (facsimile: ▇(▇▇▇) ▇▇▇▇-▇▇▇▇), in the case of Citigroup Venture
Capital International Growth Partnership, L.P. and Citigroup Venture Capital International
Co-Investment, L.P. and (ii) ▇▇▇▇▇▇ Brothers Asia Limited, 26/F, Two International Finance Centre,
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇ (facsimile: ▇(▇▇▇) ▇▇▇▇-▇▇▇▇), in the
case of ▇▇▇▇▇▇ Brothers Offshore Partners Ltd.; provided, however, that any notice to an
Underwriter pursuant to Section 9(c) 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; provided, however, that notices under Section 5(vii) hereof 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 ▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Control Room, and Barclays Capital Inc, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Attention: Control Room. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
15. 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.
16. Each of the parties hereto irrevocably (i) agrees that any legal suit, action or
proceeding against the Company or the Selling Shareholders 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
51
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 irrevocably waives any immunity to jurisdiction to which it
may otherwise be entitled or become entitled (including sovereign immunity, immunity to
pre-judgment attachment, post-judgment attachment and execution) in any legal suit, action or
proceeding against it arising out of or based on this Agreement or the transactions contemplated
hereby which is instituted in any New York Court or in any competent court in the British Virgin
Islands. Each of the Company and the Selling Shareholders has appointed CT Corporation System, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, 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.
17. 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, severally but not
jointly, 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.
18. 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.
19. Each of the Company and the Selling Shareholders acknowledges and agrees that (i) the
purchase and sale of the Shares represented by 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
52
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.
20. 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.
21. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York.
22. Each of the Company, the Selling Shareholders and each of the Underwriters hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial
by jury in any legal proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
23. 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.
24. 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 ▇▇▇▇▇▇ Brothers
Offshore Partners Ltd. 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 five
counterparts hereof, and upon the acceptance hereof by you, on behalf of
53
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.
[Remainder of page intentionally left blank]
54
| Very truly yours, Camelot Information Systems Inc. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Citigroup Venture Capital International Growth Partnership, L.P. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Citigroup Venture Capital International Co-Investment, L.P. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ▇▇▇▇▇▇ Brothers Offshore Partners Ltd. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| As Attorney-in-Fact acting on behalf of ▇▇▇▇▇▇ Brothers Offshore Partners Ltd. |
||||
55
Accepted as of the date hereof on behalf of each of the Underwriters:
| ▇▇▇▇▇▇▇ Sachs (Asia) L.L.C. | Barclays Capital Inc. | |||||||||
By:
|
By: | |||||||||
| Title: | Title: | |||||||||
56
SCHEDULE I
| Number of | ||||||||
| Optional | ||||||||
| ADSs to be | ||||||||
| Purchased if | ||||||||
| Total Number of | Maximum | |||||||
| Firm ADSs | Option | |||||||
| Underwriter | to be Purchased | Exercised | ||||||
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C |
||||||||
Barclays Capital Inc. |
||||||||
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company, L.L.C |
||||||||
▇▇▇▇▇ and Company, LLC |
||||||||
▇▇▇▇▇▇▇▇▇▇▇ & Co. Inc. |
||||||||
Total |
||||||||
SCHEDULE II
Selling Shareholders
Citigroup Venture Capital International Growth Partnership, L.P.
Citigroup Venture Capital International Co-Investment, ▇.▇.
▇▇▇▇▇▇ Brothers Offshore Partners Ltd.
SCHEDULE III
| (a) | Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package: | |
| [The Free Writing Prospectus filed by the Company with the Commission on [•], 2010] | ||
| (b) | Materials and information other than the Pricing Prospectus that comprise the Pricing Disclosure Package: | |
| Pricing Information: US$[•] per ADS |
SCHEDULE IV
| Jurisdiction of | ||
| Subsidiary | Establishment | |
Konwell Technologies Ltd. |
BVI | |
Triumph Consulting & Services Co., Ltd. |
BVI | |
Kings Consulting Services Limited |
Hong Kong | |
King’s Trading Co |
Hong Kong | |
Camelot Japan Co., Ltd. |
Japan | |
Entoh Digital Co., Ltd. |
Japan | |
Asialink Information Technologies (Shanghai) Co., Ltd. |
PRC | |
Bayshore Consulting & Services Co., Ltd. |
PRC | |
Beijing Agree Technology Development Co., Ltd. |
PRC | |
Beijing Camelot Technology Co., Ltd. |
PRC | |
Beijing Heng En Technology Co., Ltd. |
PRC | |
Beijing Red River Valley Information Technology Co., Ltd. |
PRC | |
Beijing Tansun Software Technology Co., Ltd. |
PRC | |
Beijing Yinfeng Technology Development Co., Ltd. |
PRC | |
Camelot Information Technology. Co., Ltd. |
PRC | |
Dalian Yuandong Digital Co., Ltd. |
PRC | |
Beijing Faceita Information System Ltd. |
PRC | |
Jiaxing Camelot Software Company Limited |
PRC | |
Kunshan Kesuo Information Consulting Co., Ltd. |
PRC | |
Nanjing Camelot Information Systems Engineering Co. Ltd. |
PRC | |
Shanghai Agree Technology Development Co., Ltd. |
PRC | |
Shanghai Camelot Information Technology Co., Ltd |
PRC | |
Shanghai Camelot Software Co., Ltd. |
PRC | |
VLife Technology (Shang Hai) Co., Ltd. |
PRC | |
Xiamen Tansun Software Technology Development Co., Ltd. |
PRC | |
Yantai Q.B. Eleven Outsourcing Service Company |
PRC | |
Zhuhai Agree Technology Co., Ltd. |
PRC |
| Jurisdiction of | ||
| Subsidiary | Establishment | |
Vlife International Corp. Ltd. |
Samoa | |
Harmonation Inc. |
Taiwan | |
Hwawei Digital Financial Technologies Co., Ltd. |
Taiwan | |
Taiwan Camelot Information Inc. |
Taiwan | |
VLife Technology Co., Ltd. |
Taiwan |
ANNEX I
Power of Attorney
ANNEX II
Parties to Execute Lock-up Agreement
Citigroup Venture Capital International Growth Partnership, L.P.
Citigroup Venture Capital International Co-Investment, L.P.
IBM WTC Asia Investment LLC
▇▇▇▇▇▇ Brothers Offshore Partners Ltd.
Benefit Overseas LTD.
Dreams Power Ltd.
MOLINE WORLDWIDE TRADE INC.
iWincon, Inc.
CFM Fund I
ROVE HOLDER LTD
▇▇▇ ▇▇▇▇▇▇▇
CFM Fund II
▇▇▇▇▇ ▇▇▇▇▇
Boya Group Co., Ltd.
▇▇▇▇▇▇▇ ▇▇▇▇
Titan I Venture
YanYin ▇▇▇▇
▇▇▇▇ Bo
Ever Smooth Corporate Ltd.
THUNDER MAKER INVESTMENT CO., LTD.
CHARLOTTE INVEST & TRADE LIMITED
Shin FANG
FUNDERS HOLDINGS LTD
FOVERAN FINANCE INC.
▇▇▇▇▇, ▇▇▇-▇▇▇
HELSTON INVESTORS INC.
TE-▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ SHOU
SLIGO DEVELOPMENT CORP.
Shuo QUN Co., Ltd.
Wu Zheng
Citigroup Venture Capital International Co-Investment, L.P.
IBM WTC Asia Investment LLC
▇▇▇▇▇▇ Brothers Offshore Partners Ltd.
Benefit Overseas LTD.
Dreams Power Ltd.
MOLINE WORLDWIDE TRADE INC.
iWincon, Inc.
CFM Fund I
ROVE HOLDER LTD
▇▇▇ ▇▇▇▇▇▇▇
CFM Fund II
▇▇▇▇▇ ▇▇▇▇▇
Boya Group Co., Ltd.
▇▇▇▇▇▇▇ ▇▇▇▇
Titan I Venture
YanYin ▇▇▇▇
▇▇▇▇ Bo
Ever Smooth Corporate Ltd.
THUNDER MAKER INVESTMENT CO., LTD.
CHARLOTTE INVEST & TRADE LIMITED
Shin FANG
FUNDERS HOLDINGS LTD
FOVERAN FINANCE INC.
▇▇▇▇▇, ▇▇▇-▇▇▇
HELSTON INVESTORS INC.
TE-▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ SHOU
SLIGO DEVELOPMENT CORP.
Shuo QUN Co., Ltd.
Wu Zheng
F-1
ANNEX III
Form of Lock-Up Agreement
July ___, 2010
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C.
68th Floor, ▇▇▇▇▇▇ Kong Center
2 Queen’s Road Central
Hong Kong
68th Floor, ▇▇▇▇▇▇ Kong Center
2 Queen’s Road Central
Hong Kong
Barclays Capital Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
As representatives of the several Underwriters named
in Schedule I of the Underwriting
Agreement (as defined herein)
in Schedule I of the Underwriting
Agreement (as defined herein)
Re: Camelot Information Systems Inc. — Lock-Up Agreement
Ladies and Gentlemen:
The undersigned understands that you, as representatives (the “Representatives”) of the
several Underwriters named in Schedule 1 attached hereto, propose to enter into an underwriting
agreement (the “Underwriting Agreement”) on behalf of the several underwriters named in
Schedule I to such agreement (collectively, the “Underwriters”), with Camelot Information
Systems Inc., a company incorporated in the British Virgin Islands (the “Company”), the Selling
Shareholders and certain other parties named in such agreement, providing for a public offering of
American Depositary Shares (the “ADSs”) representing ordinary shares of the Company, no par value
per share (the “Ordinary Shares”), pursuant to a Registration Statement on Form F-1 (File No.
333-167791) and a Registration Statement on Form F-6 (File No. 333-167821) to be filed with the
U.S. Securities and Exchange Commission (the “SEC”).
In consideration of the agreement by the Underwriters 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 specified in the following paragraph (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, grant any 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
F-2
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 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 (collectively the “Undersigned’s Shares”). The foregoing restriction is expressly agreed
to preclude the undersigned from engaging in any hedging or other transaction which is designed to
or which reasonably could be expected to lead to or result in a sale or disposition of the
Undersigned’s Shares even if such Shares would be disposed of by someone other than the
undersigned. Such prohibited hedging or other transactions would include without limitation any
short sale or any purchase, sale or grant of any right (including without limitation any put or
call option) with respect to any of the Undersigned’s Shares or with respect to any security that
includes, relates to, or derives any significant part of its value from such Shares.
The initial Lock-Up Period will commence on the date of this Lock-Up Agreement and continue
for 180 days after the public offering date set forth on the final prospectus used to sell the
Shares (the “Public Offering Date”) pursuant to the Underwriting Agreement; 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 that it will release earnings results during the 15-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 Representative and each Selling Shareholder with prior notice of any such announcement
that gives rise to an extension of the Lock-Up Period.
The undersigned hereby acknowledges that the Company has agreed in the Underwriting Agreement
to provide written notice of any event that would result in an extension of the Lock-Up Period
pursuant to the previous paragraph to the undersigned (in accordance with Section 12 of the
Underwriting Agreement) and agrees that any such notice properly delivered will be deemed to have
been given to, and received by, the undersigned. The undersigned hereby further agrees that, prior
to engaging in any transaction or taking any other action that is subject to the terms of this
Lock-Up Agreement during the period from the date of this Lock-Up Agreement to and including the
34th day following the expiration of the initial Lock-Up Period, it will give notice thereof to the
Company and will not consummate such transaction or take any such action unless it has received
written confirmation from the
F-3
Company that the Lock-Up Period (as such may have been extended pursuant to the previous
paragraph) has expired.
Notwithstanding the foregoing, the undersigned may transfer the Undersigned’s Shares (i) as a
bona fide gift or gifts, provided that the donee or donees thereof agree to be bound in writing by
the restrictions set forth herein, (ii) to any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, provided that the trustee of the trust
agrees to be bound in writing by the restrictions set forth herein, and provided further that any
such transfer shall not involve a disposition for value, or (iii) with the prior written consent of
the Representatives on behalf of the Underwriters. For purposes of this Lock-Up Agreement,
“immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than
first cousin. In addition, notwithstanding the foregoing, if the undersigned is a corporation, the
corporation may transfer the share capital of the Company to any wholly-owned subsidiary of such
corporation; provided, however, that in any such case, it shall be a condition to
the transfer that the transferee execute an agreement stating that the transferee is receiving and
holding such share capital subject to the provisions of this Agreement and there shall be no
further transfer of such share capital except in accordance with this Agreement, and provided
further that any such transfer shall not involve a disposition for value. The undersigned now has,
and, except as contemplated by clause (i), (ii), or (iii) above, for the duration of this Lock-Up
Agreement will have, good and marketable title to the Undersigned’s Shares, free and clear of all
liens, encumbrances, and claims whatsoever. The undersigned also agrees and consents to the entry
of stop transfer instructions with the Company’s transfer agent and registrar and the depositary
for the ADSs against the transfer of the Undersigned’s Shares except in compliance with the
foregoing restrictions.
The undersigned understands that the Company 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.
Very truly yours,
Exact Name of Shareholder
Authorized Signature
Exact Name of Shareholder
Authorized Signature
Title
F-4
ANNEX IV
Officer’s Certificate
F-5
ANNEX V
Opinion of PRC Counsel to the Issuer
F-6
ANNEX VI-A
Opinion of U.S. Counsel to the Company
F-7
ANNEX VI-B
Opinion of U.S. Counsel to
Citigroup Venture Capital International Growth Partnership, L.P. and
Citigroup Venture Capital International Co-Investment, L.P.,
as Selling Shareholders
Citigroup Venture Capital International Growth Partnership, L.P. and
Citigroup Venture Capital International Co-Investment, L.P.,
as Selling Shareholders
▇-▇
▇▇▇▇▇ ▇▇-▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Counsel to
Citigroup Venture Capital International Growth Partnership, L.P. and
Citigroup Venture Capital International Co-Investment, L.P.,
as Selling Shareholders
Citigroup Venture Capital International Growth Partnership, L.P. and
Citigroup Venture Capital International Co-Investment, L.P.,
as Selling Shareholders
F-9
ANNEX VI-D
Opinion of U.S. Counsel to
▇▇▇▇▇▇ Brothers Offshore Partners Ltd.,
as Selling Shareholder
▇▇▇▇▇▇ Brothers Offshore Partners Ltd.,
as Selling Shareholder
▇-▇▇
▇▇▇▇▇ ▇▇-▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Counsel to
▇▇▇▇▇▇ Brothers Offshore Partners Ltd.,
as Selling Shareholder
▇▇▇▇▇▇ Brothers Offshore Partners Ltd.,
as Selling Shareholder
F-11
ANNEX VII
Opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇
F-12
ANNEX VIII
Opinion of Taiwan Counsel to the Issuer
F-13
ANNEX IX
Opinion of Japan Counsel to the Company
▇-▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Counsel to the Company
F-15
ANNEX XI
Opinion of Counsel to the Depositary
F-16
ANNEX XII
Comfort Letter
F-17