Exhibit 1.1
MINDRAY MEDICAL INTERNATIONAL LIMITED
11,282,003 AMERICAN DEPOSITARY SHARES
REPRESENTING
11,282,003 CLASS A ORDINARY SHARES
(PAR VALUE HK$0.001 PER SHARE)
----------
FORM OF UNDERWRITING AGREEMENT
_____________, 2007
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C.,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇ of America
UBS AG
52/F, Two International Finance Centre,
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇
As Representatives of the several Underwriters named in Schedule I attached
hereto.
Ladies and Gentlemen:
The shareholders named in Schedule II attached hereto (the "Selling
Shareholders") of Mindray Medical International Limited, an exempted company
incorporated in the Cayman Islands (the "Company"), propose, subject to the
terms and conditions stated herein, to sell to the underwriters named in
Schedule I attached hereto (the "Underwriters") an aggregate of 11,282,003
American Depositary Shares representing 11,282,003 Class A ordinary shares, par
value HK$0.001 per share (the "Ordinary Shares"), of the Company and, at the
election of the Underwriters, up to 1,692,300 additional American Depositary
Shares representing 1,692,300 Ordinary Shares. The aggregate of 11,282,003
American Depositary Shares representing 11,282,003 Ordinary Shares to be sold by
the Selling Shareholders is herein called the "Firm ADSs", and the aggregate of
1,692,300 American Depositary Shares representing 1,692,300 additional Ordinary
Shares to be sold 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"), dated as of September 29, 2006, among the Company, The Bank of New
York, as depositary (the "Depositary"), and holders from time to time of the
American Depositary Receipts (the "ADRs") issued by the Depositary and
evidencing the ADSs. Each ADS will initially represent the right to receive one
Ordinary Share deposited pursuant to the Deposit Agreement.
It is understood by all the parties that the Underwriters are offering ADSs
in the United States and internationally outside of the People's Republic of
China (the "PRC"), which, for purposes of this Agreement only, excludes Taiwan,
The Hong Kong Special Administrative Region and The Macau Special Administrative
Region.
1. (a) Each of the Company and, with respect to Sections 1(a)(ii)
through1(a)(vi) hereof, each of the Selling Shareholders jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form F-1 (File No. 333-_________)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the U.S. Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of
the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the U.S. Securities Act of 1933,
as amended (the "Act"), which became or will become effective upon
filing, no other document with respect to the Initial Registration
Statement has heretofore been filed with the Commission; and no stop
order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for
that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Registration Statement at the time it was declared
effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the Preliminary Prospectus relating to the Shares and the
ADSs that was included in the Registration Statement immediately prior
to the Applicable Time (as defined in Section 1(iii) hereof) is
hereinafter called the "Pricing Prospectus"; such final prospectus,
2
in the form first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the "Prospectus"; and any "issuer free writing
prospectus" as defined in Rule 433 under the Act relating to the
Shares and the ADSs is hereinafter called an "Issuer Free Writing
Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder, and
did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(iii) For the purposes of this Agreement, the "Applicable Time"
is ___ p.m. (New York City time) on the date of this Agreement; the
Pricing Prospectus as supplemented by those Issuer Free Writing
Prospectuses and other documents listed in Schedule III attached
hereto, taken together (collectively, the "Pricing Disclosure
Package") as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each
Issuer Free Writing Prospectus listed in Schedule III attached hereto
does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken together
with the Pricing Disclosure Package as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty
shall not apply to statements or omissions made in an Issuer Free
Writing Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein;
3
(v) A registration statement on Form F-6 (File No. 333-137373) in
respect of the ADSs has been filed with the Commission; such
registration statement in the form heretofore delivered to you and,
excluding exhibits, to you for each of the other Underwriters, has
been declared effective by the Commission in such form; no other
document with respect to such registration statement has heretofore
been filed with the Commission; no stop order suspending the
effectiveness of such registration statement has been issued and, to
the best of the Company's knowledge after due inquiry, no proceeding
for that purpose has been initiated or threatened by the Commission
(the various parts of such registration statement, including all
exhibits thereto, each as amended at the time such part of the
registration statement became effective, being hereinafter called the
"ADS Registration Statement"); and the ADS Registration Statement when
it became effective conformed, and any further amendments thereto will
conform, in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, and did not,
as of the applicable effective date, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(vi) A registration statement on Form 8-A (File No. 001-33036) in
respect of the registration of the Shares and the ADSs under the U.S.
Securities Exchange Act of 1934, as amended (the "Exchange Act"), has
been filed with the Commission; such registration statement in the
form heretofore delivered to you and, excluding exhibits, to you for
each of the other Underwriters, has been declared effective by the
Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the Commission;
no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or, to the best of the Company's knowledge after due
inquiry, threatened by the Commission (the various parts of such
registration statement, including all exhibits thereto, each as
amended at the time such part of the registration statement became
effective, being hereinafter called the "Form 8-A Registration
Statement"); and the Form 8-A Registration Statement when it became
effective conformed, and any further amendments thereto will conform,
in all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder, and did not
and will not, as of the applicable effective date, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading;
(vii) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Pricing Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Pricing Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Pricing Prospectus, there has not been any change in
the capital stock, short-term debt or long-term debt of the Company or
any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole (a
4
"Material Adverse Effect"), otherwise than as set forth or
contemplated in the Pricing Prospectus;
(viii) Each of the Company and its subsidiaries has good and
valid title to all real property and good and marketable title to all
personal property owned by them, in each case, free and clear of all
liens, encumbrances and defects except such as are described in the
Pricing Prospectus or such as do not materially affect the value of
such property and do not interfere with the use made and proposed to
be made of such property by each of the Company and its subsidiaries;
and any real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries;
(ix) The Company and its subsidiaries maintain insurance covering
their respective properties, operations, product liabilities,
personnel and businesses as the Company reasonably deems adequate;
such insurance insures against such losses and risks to an extent
which is adequate to protect the Company and its subsidiaries and
their respective businesses; all such insurance is fully in force on
the date hereof and will be fully in force at the time of purchase and
each additional time of purchase, if any; neither the Company nor any
of its subsidiaries has reason to believe that it will not be able to
renew any such insurance as and when such insurance expires; and there
is no material insurance claim made by or against the Company or any
of its subsidiaries, pending, outstanding, or to the best knowledge of
the Company after reasonable inquiry, threatened, and no facts or
circumstances exist that would reasonably be expected to give rise to
any such claim and all due premiums in respect thereof have been paid;
(x) The Company has been duly incorporated and is validly
existing as a company in good standing under the laws of the Cayman
Islands, with power and authority (corporate and other) to own, lease
and operate its properties and conduct its business as described in
the Pricing Prospectus, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; and
each subsidiary of the Company has been duly incorporated or organized
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation, with power and authority
(corporate or other) to own, lease and operate its properties and
conduct its business as described in the Pricing Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except for the failure
to be so qualified in any such jurisdiction would reasonably be
expected to have a Material Adverse Effect;
(xi) Neither the Company nor any of its subsidiaries has sent or
received any written communication regarding termination of, or intent
not to renew, any of the material contracts or agreements specifically
referred to or described in the Pricing Prospectus, the Prospectus or
any Issuer Free Writing Prospectus, or specifically referred to or
described
5
in, or filed as an exhibit to, the Registration Statement, and no such
termination or non-renewal has been threatened by the Company or any
of its subsidiaries or, to the best knowledge of the Company, any
other party to any such contract or agreement;
(xii) The Company and its subsidiaries have all necessary
licenses, franchises, concessions, consents, authorizations,
approvals, orders, certificates and permits of and from, and has made
all declarations and filings with, all governmental agencies to own,
lease, license and use its properties, assets and conduct its business
in the manner described in the Pricing Prospectus except where the
lack of which would not reasonably be expected to have a Material
Adverse Effect and such licenses, franchises, concessions, consents,
authorizations, approvals, orders, certificates or permits contain no
material restrictions or conditions not described in the Pricing
Prospectus; and except as described in the Pricing Prospectus, to the
best knowledge of the Company, neither the Company nor any of its
subsidiaries is aware that any regulatory body is considering
modifying, suspending or revoking any such licenses, consents,
authorizations, approvals, orders, certificates or permits, and the
Company and its subsidiaries are in compliance with the provisions of
all such licenses, consents, authorizations, approvals, orders,
certificates or permits, except where such non-compliance would not
reasonably be expected to have a Material Adverse Effect;
(xiii) Neither the Company nor any of its subsidiaries is (A) in
breach of or in default under any laws, regulations, rules, orders,
decrees, guidelines or notices of the PRC, the Cayman Islands, the
British Virgin Islands (the "BVI") and any other jurisdiction where it
was incorporated or operates, (B) in breach of or in default under any
approval, consent, waiver, authorization, exemption, permission,
endorsement or license granted by any court or governmental agency or
body of any stock exchange authorities ("Governmental Agency") in the
PRC, the Cayman Islands, the BVI or any other jurisdiction where it
was incorporated or operates, (C) in violation of its constituent
documents or (D) in default in the performance or observance of any
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 where such default would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect;
(xiv) The Company has an authorized and paid-in capitalization as
set forth in the Pricing Prospectus, and all of the issued shares of
capital stock of the Company, including the Shares underlying the ADSs
to be sold by the Selling Shareholders to the Underwriters hereunder,
have been duly and validly authorized and issued, are fully paid and
non-assessable and all of the issued ordinary shares (consisting of
Class A and Class B ordinary shares) conform in all material respects
to the description of the ordinary shares contained in the Pricing
Prospectus; and all of the issued shares of capital stock of each of
the subsidiaries of the Company have been duly and validly authorized
and issued, and are fully paid and non-assessable; all of the issued
shares of capital stock of each of Greatest Elite Limited ("GEL") and
Giant Glory Investments Limited ("GGIL") are owned by the Company,
free and clear of all liens, encumbrances, equities or claims; GEL and
GGIL own the equity interest of Shenzhen Mindray Bio-Medical
Electronics Co., Ltd. ("Shenzhen Mindray") in the percentages set
forth in the Pricing Prospectus under the caption "Our
6
Corporate Structure", free and clear of all liens, encumbrances,
equities or claims; the holders of outstanding ordinary shares are not
entitled to preemptive or other rights to acquire the Shares or the
ADSs; there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, ordinary shares or
any other class of capital stock of the Company except as described in
the Pricing Prospectus under the captions "Capitalization",
"Management - 2006 Employee Share Incentive Plan" and "Related Party
Transactions"; the Shares, when issued and delivered against payment
therefor, may be freely deposited by the Company and the Selling
Shareholders with the Depositary against issuance of ADRs evidencing
ADSs; the ADSs, when issued and delivered against payment thereof,
will be freely transferable by the Company and the Selling
Shareholders to or for the account of the several Underwriters and (to
the extent described in the Pricing Prospectus) the initial purchasers
thereof; and there are no restrictions on subsequent transfers of the
ADSs under the laws of the Cayman Islands, the PRC or the United
States except as described in the Pricing Prospectus under the
captions "Description of Share Capital", "Description of American
Depositary Shares" and "Shares Eligible for Future Sale";
(xv) Except as described in the Registration Statement (excluding
the exhibits thereto), the Pricing Prospectus and the Prospectus, (A)
no person has any preemptive rights, resale rights, rights of first
refusal or other rights to purchase any ordinary shares or shares of
any other capital stock of or other equity interests in the Company
and (B) no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and sale
of the ADSs;
(xvi) 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;
(xvii) This Agreement has been duly authorized, executed and
delivered by the Company;
(xviii) The Deposit Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with its
terms, subject, as to 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 Pricing
Prospectus and the Prospectus;
7
(xix) All dividends and other distributions declared and payable
on the shares of capital stock of the Company may under the current
laws and regulations of the Cayman Islands be paid to the Depositary,
and all such dividends and other distributions will not be subject to
withholding or other taxes under the laws and regulations of the
Cayman Islands and are otherwise free and clear of any other tax,
withholding or deduction in the Cayman Islands and without the
necessity of obtaining any consents, approvals, authorizations,
orders, registrations, clearances or qualifications of or with any
Governmental Agency having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties (hereinafter
referred to as "Governmental Authorizations") in the Cayman Islands;
(xx) All dividends and other distributions declared and payable
on the shares of capital stock of each of GEL and GGIL may under the
current laws and regulations of the BVI be paid to the Company, and
all such dividends and other distributions will not be subject to
withholding or other taxes under the laws and regulations of the BVI
and are otherwise free and clear of any other tax, withholding or
deduction in the BVI and without the necessity of obtaining any
Governmental Authorization in the BVI;
(xxi) Other than as set forth in the Pricing Prospectus,
dividends declared with respect to after-tax retained earnings on the
equity interests of Shenzhen Mindray may under the current laws and
regulations of the PRC be paid to GEL and GGIL in U.S. dollars,
subject to the successful completion of PRC formalities required for
such remittances and all such dividends and other distributions will
not be subject to withholding or other taxes under the laws and
regulations of the PRC and are otherwise free and clear of any other
tax, withholding or deduction in the PRC, and without the necessity of
obtaining any Governmental Authorization in the PRC;
(xxii) The sale of the Shares to be sold by the Selling
Shareholders hereunder, the deposit of the Shares being deposited with
the Depositary against issuance of the ADRs evidencing the ADSs, the
compliance by the Company with all of the provisions of this Agreement
and the Deposit Agreement and the consummation of the transactions
herein and therein contemplated will not (A) conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or assets
of the Company or any of its subsidiaries is subject, except for such
conflict, breaches, violations or defaults which, individually or in
the aggregate, would not reasonably be expected to have a Material
Adverse Effect, (B) result in any violation of the provisions of the
constituent documents of the Company or any of its subsidiaries or (C)
result in any violation of any statute or any order, rule or
regulation of any Governmental Agency having jurisdiction over the
Company or any of its subsidiaries or any of their properties or
assets;
(xxiii) No consent, approval, authorization, order, registration,
clearance or qualification of or with any Governmental Agency is
required for the sale of the Shares or the ADSs, for the deposit of
the Shares being deposited with the Depositary against issuance of
ADRs evidencing the ADSs to be delivered or for the consummation by
the
8
Company of the transactions contemplated by this Agreement and the
Deposit Agreement, except (A) the registration under the Act of the
Shares and the ADSs and listing of the Shares and the ADSs on the New
York Stock Exchange ("NYSE"), (B) such Governmental Authorizations as
have been duly obtained and are in full force and effect and copies of
which have been furnished to you and (C) such Governmental
Authorizations as may be required under state securities or Blue Sky
laws or any laws of jurisdictions outside the Cayman Islands, the BVI
and the United States in connection with the purchase and distribution
of the Shares and ADSs by or for the respective accounts of the
several Underwriters;
(xxiv) The Shares and the ADSs have been approved for listing on
the NYSE, subject to official notice of issuance, and all issued and
outstanding American Depositary Shares representing the Ordinary
Shares are duly listed on the NYSE;
(xxv) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the government of the Cayman Islands,
the BVI, the State of Delaware, the United States, the Federal
Republic of Germany or the PRC, or any political subdivision or taxing
authority thereof or therein in connection with: (A) the deposit with
the Depositary of the Shares by the Selling Shareholders against the
issuance of ADRs evidencing the ADSs, (B) the sale and delivery by the
Selling Shareholders of the Shares and the ADSs to or for the
respective accounts of the several Underwriters or (C) the sale and
delivery by the Underwriters of the Shares and the ADSs to the initial
purchasers thereof in the manner contemplated by this Agreement;
(xxvi) Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares and the ADSs;
(xxvii) The statements set forth in the Pricing Prospectus under
the captions "Description of Share Capital" and "Description of
American Depositary Shares", insofar as they purport to constitute a
summary of the terms of the ordinary shares and the ADSs,
respectively, and under the captions "Taxation" and "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are true, accurate, complete and fair
in all material respects;
(xxviii) 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 or any of its subsidiaries or the Company's
directors and executive officers named in the Pricing Prospectus is a
party or of which any property of the Company or any of its
subsidiaries is the subject (A) that, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect; or
(B) that are required to be described in the Registration Statement or
the Pricing Prospectus and are not so described; and except as set
forth in the Pricing Prospectus and, to the Company's
9
best knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xxix) The Company is not and, after giving effect to the
offering and sale of the Shares and ADSs and the application of the
proceeds thereof, will not be an "investment company", as such term is
defined in the U.S. Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xxx) Each of this Agreement and the Deposit Agreement is in
proper form to be enforceable against the Company in the Cayman
Islands in accordance with its terms; to ensure the legality,
validity, enforceability or admissibility into evidence in the Cayman
Islands of this Agreement or the Deposit Agreement, it is not
necessary that this Agreement or the Deposit Agreement be filed or
recorded with any court or other authority in the Cayman Islands or
that any stamp or similar tax in the Cayman Islands be paid on or in
respect of this Agreement, the Deposit Agreement or any other
documents to be furnished hereunder;
(xxxi) The Registration Statement, the Pricing Prospectus, the
Prospectus, any Issuer Free Writing Prospectus and the ADS
Registration Statement and the filing of the Registration Statement,
the Pricing Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and the ADS Registration Statement with the Commission have
been duly authorized by and on behalf of the Company, and the
Registration Statement and the ADS Registration Statement have been
duly executed pursuant to such authorization by and on behalf of the
Company;
(xxxii) 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 intellectual property necessary or
used in any material respect to conduct their business in the manner
in which it is being conducted and in the manner in which it is
contemplated as set forth in the Pricing Prospectus, including but not
limited to the patents and patent applications, copyrights,
trademarks, service marks, trade names, Internet domain names,
technology, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary rights) (collectively, the
"Intellectual Property"); (B) neither the material copyrights owned or
licensed by the Company nor any of its subsidiaries is unenforceable
or invalid; (C) neither the Company nor any of its subsidiaries has
received any notice of violation or conflict with (and neither the
Company nor any of its subsidiaries knows of any basis for violation
or conflict with) rights of others with respect to the Intellectual
Property; (D) there are no pending or, to the best knowledge of the
Company, threatened actions, suits, proceedings or claims by others
that allege the Company or any of its subsidiaries is infringing any
patent, trade secret, trademark, service ▇▇▇▇, copyright or other
intellectual property or proprietary right, except where the actions,
suits, proceedings or claims would not, individually or in the
aggregate, have a Material Adverse Effect; (E) the discoveries,
inventions, products or processes of the Company and its subsidiaries
referenced in the Pricing Prospectus, to the best knowledge of the
Company after reasonable inquiry, do not violate or conflict with any
intellectual property or proprietary right of any third person, or any
discovery, invention, product or process that is the subject of a
patent application filed by any third person; and (F) the Company and
its subsidiaries are not in breach of any
10
terms of, any license or other agreement relating to the Intellectual
Property, except where such breach would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
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;
(xxxiii) With respect to any of the Intellectual Property that
was assigned by Shenzhen Mindray Electronics Co., Ltd. (Chinese
Characters) or Changrunda Electronics (Shenzhen) Co., Ltd. (Chinese
Characters) to Shenzhen Mindray, such Intellectual Property has been
assigned solely to Shenzhen Mindray, which assignment was either
recorded in and proclaimed by the PRC State Intellectual Property
Office and/or other relevant PRC intellectual property administrative
authorities (collectively, the "PRC Intellectual Property Authority")
or other foreign patent or trademark registration offices, as
applicable, or have been submitted for recording in the PRC
Intellectual Property Authority or other foreign patent or trademark
registration offices, as applicable; and such assignment is valid,
binding and enforceable, and all Government Authorizations in the PRC
in respect of such assignment have been obtained and are in full force
and effect, and we have no reason to believe that such assignment is
invalid;
(xxxiv) The Company has not in the past been a Passive Foreign
Investment Company ("PFIC") within the meaning of Section 1297(a) of
the United States Internal Revenue Code of 1986, as amended, and is
not likely to become a PFIC;
(xxxv) Except as described in the Registration Statement and the
Pricing Prospectus, the Company has not sold, issued or distributed
any shares during the six-month period preceding the date hereof,
including any sales pursuant to Rule 144A, Regulation D or Regulation
S promulgated under the Act, other than shares issued pursuant to
employee benefit plans, qualified share option plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants;
(xxxvi) The Company is a "foreign private issuer" within the
meaning of Rule 405 under the Act;
(xxxvii) At the time of filing the Initial Registration
Statement, the Company was not an "ineligible issuer", as defined in
Rule 405 under the Act;
(xxxviii) Deloitte Touche Tohmatsu CPA Ltd., who have certified
certain financial statements of the Company and its subsidiaries, are
independent public accountants of the Company as required by the Act
and the rules and regulations of the Commission thereunder and are
independent in accordance with the requirements of the Public Company
Accounting Oversight Board (United States);
(xxxix) Except as described in the Pricing Prospectus, no
material indebtedness (actual or contingent) and no material contract
or arrangement is outstanding between the Company or any of its
subsidiaries and any director or executive officer of the Company or
any of its subsidiaries or any person connected with such director or
executive officer
11
(including his/her spouse, infant children, any company or undertaking
in which he/she holds a controlling interest);
(xl) 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;
(xli) The Company has established and maintains and evaluates a
system of internal control over financial reporting (as such term is
defined in Rule 13a-15(f) of the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the
Company's principal executive officer and principal 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;
the Company's internal control over financial reporting is effective
and the Company is not aware of any material weaknesses in its
internal control over financial reporting; all material weaknesses, if
any, in the Company's internal control over financial reporting have
been identified to the Company's independent auditors; since the date
of the latest audited financial statements included in the Prospectus
there has been no change in the Company's internal control over
financial reporting or in other factors that could significantly
affect internal controls, including any corrective actions with regard
to significant deficiencies and material weaknesses, and, except as
described in the Pricing Prospectus, the Company's independent
accountants have not notified the Company of any "reportable
condition" (as that term is defined under standards established by the
American Institute of Certified Public Accountants) in the Company's
internal accounting controls, or any other weakness or deficiency in
the design or operation of the Company's internal accounting controls,
that has materially affected, or is 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 the Company and its
subsidiaries and their respective officers and directors, in their
capacities as such, are in compliance in all material respects with
the applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act") and the rules and regulations promulgated
thereunder. The Company has established and maintains and evaluates
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) of the Exchange Act) that comply with the requirements of
the Exchange Act, such disclosure controls and procedures have been
designed to ensure that material information relating to the Company
and it subsidiaries is made known to the Company's principal executive
officer and principal financial officer by others within those
entities; and such disclosure controls and procedures are effective to
perform the functions for which they were established;
12
(xlii) 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;
(xliii) No material labor dispute, work stoppage, slow down or
other conflict with the employees of the Company or any of its
subsidiaries exists or, to the best knowledge of the Company after
reasonable inquiry, is threatened;
(xliv) The section entitled "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Critical
Accounting Policies" in the Pricing Prospectus truly, accurately and
completely in all material respects describes: (A) accounting policies
which the Company believes are the most important in the portrayal of
the Company's financial condition and results of operations and which
require management's most difficult, subjective or complex judgments
("Critical Accounting Policies"); (B) judgments and uncertainties
affecting the application of Critical Accounting Policies; and (C) the
likelihood that materially different amounts would be reported under
different conditions or using different assumptions; and the Company's
Board of Directors and management have reviewed and agreed with the
selection, application and disclosure of Critical Accounting Policies
and have consulted with its legal counsel and independent accountants
with regard to such disclosure;
(xlv) Since the date of the latest audited financial statements
included in the Pricing Prospectus, neither the Company nor any of its
subsidiaries has: (A) entered into or assumed any contract, (B)
incurred or agreed to incur any liability (including any contingent
liability) or other obligation, (C) acquired or disposed of or agreed
to acquire or dispose of any business or any other asset or (D)
assumed or acquired or agreed to assume or acquire any liabilities
(including contingent liabilities), that would, in the case of any of
clauses (A) through (D) above, be material to the Company and its
subsidiaries and that are not otherwise described in the Pricing
Prospectus;
(xlvi) The section entitled "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Liquidity and
Capital Resources" in the Pricing Prospectus accurately and fully
describes: (A) all material trends, demands, commitments, events,
uncertainties and risks, and the potential effects thereof, that the
Company believes would materially affect liquidity and are reasonably
likely to occur; and (B) all off-balance sheet transactions,
arrangements, and obligations, including, without limitation,
relationships with unconsolidated entities that are contractually
limited to narrow activities that facilitate the transfer of or access
to assets by the Company or any of its subsidiaries, such as
structured finance entities and special purpose entities
(collectively, "off-balance sheet arrangements") that are reasonably
likely to have a material effect on the liquidity of the Company or
any of its subsidiaries or the availability thereof or the
requirements of the Company or any of its subsidiaries for capital
resources;
(xlvii) No holder of any of the Shares or the ADSs after the
consummation of the transactions contemplated by this Agreement or the
Deposit Agreement is or will be subject to any personal liability in
respect of any liability of the Company by virtue only of its
13
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;
(xlviii) (x) The audited consolidated financial statements (and
the notes thereto) of the Company included in the Pricing Prospectus
fairly present in all material respects the consolidated financial
position of the Company as of the dates specified and the consolidated
results of operations and changes in consolidated financial position
of the Company for the periods specified, and such financial
statements have been prepared in conformity with US GAAP applied on a
consistent basis throughout the periods presented (other than as
described therein); the summary and selected consolidated financial
data and the preliminary unaudited financial results for the nine
months ended September 30, 2006 included in the Pricing Prospectus
present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited consolidated financial
statements included therein, subject, in the case of the preliminary
unaudited financial results, to the fact that such results are subject
to completion of the Company's normal period-end closing procedures
and review by the Company's independent accountants in accordance with
Statement of Auditing Standards No. 100; and (y) the financial
information of the Company included under "Prospectus Summary --
Selected Estimated Results for the Year Ended December 31, 2006" in
the Pricing Prospectus will not differ in any material respect from
the corresponding amounts to be included by the Company in its annual
report on Form 20-F for the fiscal year ended December 31, 2006 and
has been derived from the unaudited consolidated financial statements
of the Company as of December 31, 2006 and for the fiscal year ended
December 31, 2006; and such unaudited consolidated financial
statements have been derived from the Company's accounting records and
prepared in conformity with US GAAP and on a basis consistent with the
Company's audited consolidated financial statements included in the
Pricing Prospectus and include all adjustments, consisting only of
normal recurring adjustments, necessary in the opinion of the
management of the Company to provide a fair presentation of the
results for such period presented;
(xlix) Under the laws of the Cayman Islands, each holder of ADRs
evidencing ADSs issued pursuant to the Deposit Agreement shall be
entitled, subject to the Deposit Agreement, to seek enforcement of its
rights through the Depositary or its nominee registered as
representative of the holders of the ADRs in a direct suit, action or
proceeding against the Company;
(l) All amounts payable by the Company in respect of the ADRs
evidencing the ADSs or the underlying Shares shall be made free and
clear of and without deduction for or on account of any taxes imposed,
assessed or levied by the Cayman Islands or any authority thereof or
therein (except such income taxes as may otherwise be imposed by the
Cayman Islands on payments hereunder to an Underwriter whose net
income is subject to tax by the Cayman Islands or withholding, if any,
with respect to any such income tax) nor are any taxes imposed in the
Cayman Islands on, or by virtue of the execution or delivery of, such
documents;
14
(li) All returns, reports or filings which ought to have been
made by or in respect of the Company and its subsidiaries for taxation
purposes as required by the law of the jurisdictions where the Company
and its subsidiaries are incorporated, managed or engage in business
have been made and all such returns are correct and on a proper basis
in all material respects and are not the subject of any dispute with
the relevant revenue or other appropriate authorities except as may be
being contested in good faith and by appropriate proceedings; the
provisions included in the audited consolidated financial statements
as set out in the Pricing Prospectus included appropriate provisions
required under US GAAP for all taxation in respect of accounting
periods ended on or before the accounting reference date to which such
audited accounts relate for which the Company was then or might
reasonably be expected thereafter to become or have become liable; and
neither the Company nor any of its subsidiaries has received notice of
any tax deficiency with respect to the Company or any of its
subsidiaries;
(lii) The Company has provided or made available to you true,
correct, and complete copies of all documentation pertaining to any
extension of credit in the form of a personal loan made, directly or
indirectly, by the Company or any of its subsidiaries to any director
or executive officer of the Company; and since December 31, 2005, the
Company has not, directly or indirectly, including through any of its
subsidiaries: (A) extended credit, arranged to extend credit, or
renewed any extension of credit, in the form of a personal loan, to or
for any director or executive officer of the Company, or to or for any
family member or affiliate of any director or executive officer of the
Company; or (B) made any material modification, including any renewal
thereof, to any term of any personal loan to any director or executive
officer of the Company, or any family member or affiliate of any
director or executive officer, which loan was outstanding on December
31, 2005, that (x) is outstanding on the date hereof and (y)
constitutes a violation of any applicable law or regulation;
(liii) Any statistical and market-related data included in the
Pricing Prospectus and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent for the use of such data from
such sources to the extent required;
(liv) The application of the net proceeds from the offering of
ADSs, as described in the 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 material 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;
(lv) There are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim
against the Company or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with the issuance and
sale of the ADSs;
15
(lvi) Under the laws of the Cayman Islands, the courts of the
Cayman Islands will recognize and give effect to the choice of law
provisions set forth in Section 15 hereof and enforce judgments of
U.S. courts obtained against the Company to enforce this Agreement;
under the laws of the PRC, the choice of law provisions set forth in
Section 15 hereof will be recognized by the courts of the PRC and any
judgment obtained in any New York Court (as defined in Section 8(d)
hereof) arising out of or in relation to the obligations of the
Company under this Agreement will be recognized in PRC courts subject
to the applicable provisions of the Civil Procedure Law of the PRC
relating to the enforceability of foreign judgments;
(lvii) To the best knowledge of the Company after reasonable
inquiry, none of the Company, any of its subsidiaries, and any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries, has used
any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expenses relating to a political activity; made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is
in violation of any provision of the U.S. Foreign Corrupt Practices
Act of 1977; or made any unlawful bribe, payoff, influence payment,
kickback, payment or rebate;
(lviii) The descriptions of the events and transactions (the
"Restructuring") set forth in the Pricing Prospectus under the caption
"Our Corporate Structure" are accurate, complete and fair in all
material respects;
(lix) The Restructuring does not (A) contravene any provision of
applicable law or statute, rule or regulation of any Governmental
Agency having jurisdiction over the Company or any of its subsidiaries
or any of their properties (including but not limited to the Ministry
of Commerce, the State Administration of Industry and Commerce and the
State Administration of Foreign Exchange of the PRC), (B) contravene
the articles of association, business license or other constituent
documents of the Company or any of its subsidiaries, or (C) conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material license,
indenture, mortgage, deed of trust, loan agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject;
(lx) All Governmental Authorizations required in connection with
the Restructuring have been made or unconditionally obtained in
writing, and no such Governmental Authorization has been withdrawn or
revoked or is subject to any condition precedent which has not been
fulfilled or performed;
(lxi) Each of the Company and its subsidiaries that were
incorporated outside of the PRC has taken, or is in the process of
taking, reasonable steps to comply with, and to ensure compliance by
each of its shareholders, option holders, directors, officers and
employees that is, or is directly or indirectly owned or controlled
by, a PRC resident or citizen with any applicable rules and
regulations of the relevant PRC government agencies (including but not
limited to the Ministry of Commerce, the National Development and
Reform Commission and the State Administration of Foreign Exchange)
relating to
16
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 and employee 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;
(lxii) (i) None of the Company's subsidiaries, affiliates,
employees, agents and directors and officers in the United States: (a)
does any business with or involving the government of, or any person
or project located in, any country targeted by any of the economic
sanctions promulgated by any Executive Order issued by the President
of the United States or administered by the United States Treasury
Department's Office of Foreign Assets Control (the "OFAC"); or (b)
supports or facilitates any such business or project, in each case
other than as permitted under such economic sanctions; (ii) the
Company is not controlled (within the meaning of the Executive Orders
or regulations promulgating such economic sanctions or the laws
authorizing such promulgation) by any such government or person; (iii)
the Company will not, directly or indirectly, use or facilitate the
use of any of the proceeds from the sale 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 such economic sanctions; and (iv) the Company maintains and
has implemented adequate internal controls and procedures to monitor
and audit transactions that are reasonably designed to detect and
prevent any use of funds that is inconsistent with any of the
Company's representations and obligations under clause (iii) of this
paragraph or in the Pricing Prospectus;
(lxiii) The Company and its subsidiaries and their respective
properties, assets and operations are in compliance with, and the
Company and each of its subsidiaries hold all permits, authorizations
and approvals required under Environmental Laws (as defined below)
except where the lack of which would not reasonably be expected to
have a Material Adverse Effect; there are no past, present or, to the
best knowledge of the Company after reasonable inquiry, reasonably
anticipated future events, conditions, circumstances, activities,
practices, actions, omissions or plans that could reasonably be
expected to give rise to any material costs or liabilities to the
Company or any subsidiary under, or to interfere with or prevent
compliance by the Company or any subsidiary with, Environmental Laws,
except as would not individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, neither the Company nor
any of its subsidiaries (A) is the subject of any investigation, (B)
has received any notice or claim, (C) is a party to or affected by any
pending or, to the Company's best knowledge after reasonable 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
17
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);
(lxiv) There are no affiliations or associations between any
member of the National Association of Securities Dealers, Inc.
("NASD") and the Company; except as described in the Registration
Statement (excluding the exhibits thereto), each Preliminary
Prospectus, the Pricing Prospectus and the Prospectus, there are no
affiliations or associations between (A) any member of the NASD and
(B) any of the Company's officers, directors or 5% or greater security
holders or any beneficial owner of the Company's unregistered equity
securities that were acquired at any time on or after the 180th day
immediately preceding the date the Initial Registration Statement was
filed with the Commission;
(lxv) There are no business relationships or related-party
transactions involving the Company or any of its subsidiaries or any
other person required to be described in the Registration Statement,
each Preliminary Prospectus, the Pricing Prospectus or the Prospectus
which have not been described as required;
(lxvi) Each of the Company and each of the Company's directors
that signed the Initial Registration Statement is aware of and has
been advised as to, the content of the Rules on Mergers and
Acquisitions of Domestic Enterprises by Foreign Investors jointly
promulgated by the Ministry of Commerce, the State-Owned Assets
Supervision and Administration Commission, the State Tax
Administration, the State Administration of Industry and Commerce, the
China Securities Regulatory Commission ("CSRC") and the State
Administration of Foreign Exchange of the PRC on August 8, 2006 (the
"M&A Rules"), in particular the relevant provisions thereof which
purport to require offshore special purpose vehicles, or SPVs, formed
for listing purposes and controlled directly or indirectly by PRC
companies or individuals, to obtain the approval of the CSRC prior to
the listing and trading of their securities on an overseas stock
exchange; the Company has received legal advice specifically with
respect to the M&A Rules from its PRC counsel and the Company
understands such legal advice; and the Company has fully communicated
such legal advice from its PRC counsel to each of its directors that
signed the Initial Registration Statement and each director has
confirmed that he or she understands such legal advice;
(lxvii) The sale of the Shares and the issuance and sale of the
ADSs, the listing and trading of the ADSs on the NYSE or the
consummation of the transactions contemplated by this Agreement, the
Deposit Agreement and the Power of Attorney (as hereinafter defined)
is not and will not be, as of the date hereof or at each Time of
Delivery, adversely affected by the M&A Rules or any official
clarifications, guidance, interpretations or implementation rules in
connection with or related to the M&A Rules (collectively, the "M&A
Rules and Related Clarifications");
18
(lxviii) As of the date of the Pricing Prospectus and as of the
date hereof, the M&A Rules did not and do not apply to the sale of the
Shares and the issuance and sale of the ADSs, the listing and trading
of the ADSs on the NYSE, or the consummation of the transactions
contemplated by this Agreement, the Deposit Agreement and the Power of
Attorney;
(lxix) The statements set forth in the Pricing Prospectus under
the captions "Risk Factors -- Risks Relating to Our Business and
Industry -- Our failure to obtain the prior approval of the China
Securities Regulatory Commission, or the CSRC, of the listing and
trading of our ADSs on the New York Stock Exchange could have a
material adverse effect on our business, operating results, reputation
and trading price of our ADSs, and may also create uncertainties for
this offering", when taken together with the statements under
"Regulation -- Regulation of Overseas Listings", are fair and accurate
summaries of the matters described therein, and nothing has been
omitted from such summaries which would make the same misleading in
any material respect;
(lxx) Since the filing of the Initial Registration Statement with
the Commission, there has been no change to the composition of the
board of directors of the Company or the composition of the executive
officers of the Company; and
(lxxi) The Company is in full compliance with all applicable
obligations and duties imposed on it by the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
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 and sale of the ADSs shall be
deemed to be a representation and warranty by the Company, as to matters covered
thereby, to each of the Underwriters.
(b) Each of the Selling Shareholders severally represents and warrants
as to and in respect of itself to, and agrees with, each of the Underwriters and
the Company that:
(i) Such Selling Shareholder, if an entity, has been duly
organized and is validly existing as a company or a limited
partnership, as the case may be, in good standing in its jurisdiction
of formation;
(ii) All Governmental Authorizations required for the deposit of
the Shares being deposited by such Selling Shareholder with the
Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at each Time of Delivery (as defined in Section 4 hereof),
for the sale and delivery of the ADSs to be sold by such Selling
Shareholder hereunder and for the execution and delivery by such
Selling Shareholder of this Agreement and the Power of Attorney
hereinafter referred to have been obtained; and such Selling
Shareholder has full right, power and authority to enter into this
Agreement and the Power of Attorney and to sell, assign, transfer and
deliver the ADSs to be sold by such Selling Shareholder hereunder;
(iii) The sale of the ADSs to be sold by such Selling Shareholder
hereunder, the deposit of the Shares by such Selling Shareholder with
the Depositary against issuance
19
of the ADRs evidencing the ADSs to be delivered by such Selling
Shareholder at each Time of Delivery and the compliance by such
Selling Shareholder with all of the provisions of this Agreement, the
Deposit Agreement and the Power of Attorney and the consummation of
the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material statute,
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which such Selling Shareholder is a party or by which
such Selling Shareholder is bound, or to which any of the property or
assets of such Selling Shareholder is subject, nor will such action
result in any violation of the provisions of the constituent documents
of such Selling Shareholder if such Selling Shareholder is a company,
the partnership agreement of such Selling Shareholder if such Selling
Shareholder is a partnership or similar governing documents of such
Selling Shareholder if such Selling Shareholder is any other type of
entity, or any statute or any order, rule or regulation of any
Governmental Agency having jurisdiction over such Selling Shareholder
or the property of such Selling Shareholder;
(iv) Except as described in the Registration Statement (excluding
the exhibits thereto), each Preliminary Prospectus, the Pricing
Prospectus and the Prospectus, (i) there are no affiliations or
associations between any member of the NASD and such Selling
Shareholder; and (ii) none of the proceeds received by such Selling
Shareholder from the sale of the Shares and ADSs to be sold by such
Selling Shareholder hereunder will be paid to a member of the NASD or
any affiliate of (or person "associated with," as such terms are used
in the rules of the NASD) such member;
(v) Such Selling Shareholder has, and immediately prior to each
Time of Delivery such Selling Shareholder will have, good and valid
title to the Shares to be represented by the ADSs to be sold by such
Selling Shareholder hereunder at such Time of Delivery, free and clear
of all liens, encumbrances, equities or claims; and, upon delivery of
the ADSs representing such Shares and payment therefor pursuant
hereto, good and valid title to such ADSs, free and clear of all
liens, encumbrances, equities or claims, will pass to the several
Underwriters;
(vi) Neither such Selling Shareholder nor any of its affiliates,
nor any person acting on its or their behalf has taken or will take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or the ADSs
(except that no representation or warranty is made with respect to any
affiliate that is an Underwriter);
(vii) The sale of the Shares to be sold by such Selling
Shareholder pursuant to this Agreement is not prompted by any material
information concerning the Company or any of its subsidiaries which is
not set forth in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus, the Pricing Prospectus and the
Prospectus;
(viii) Such Selling Shareholder has not, prior to the execution
of this Agreement, offered or sold any Shares by means of any
"prospectus" (within the meaning of the Act), or used any "prospectus"
(within the meaning of the Act) in connection with the
20
offer or sale of the Shares and ADSs, in each case other than the then
most recent Preliminary Prospectus;
(ix) The Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus and the Prospectus complied and, as then amended or
supplemented, will comply with all applicable provisions of the Act
and the rules and regulations of the Commission thereunder; the
Registration Statement, as it relates to such Selling Shareholder, did
not, as of its effective time, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; at
no time during the period that begins on the earlier of the date of
such Preliminary Prospectus and the date such Preliminary Prospectus
was filed with the Commission and ends at each Time of Delivery did or
will any Preliminary Prospectus, as then amended or supplemented, as
such Preliminary Prospectus relates to such Selling Shareholder,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, and at no time during such period did or will any
Preliminary Prospectus, as then amended or supplemented, together with
any combination of one or more of the then issued Issuer Free Writing
Prospectuses, if any, in each case as they relate to such Selling
Shareholder, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and at no time during the period that begins on the
earlier of the date of the Prospectus and the date the Prospectus is
filed with the Commission and ends at the later of the First Time of
Delivery, the Second Time of Delivery, if any, and the end of the
period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of ADSs
did or will the Prospectus, as then amended or supplemented, as the
Prospectus relates to such Selling Shareholder, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and at no
time during the period that begins on the date of such Issuer Free
Writing Prospectus and ends at each Time of Delivery did or will any
Issuer Free Writing Prospectus, as such Issuer Free Writing Prospectus
relates to such Selling Shareholder, include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(x) The ADSs to be sold by such Selling Shareholder, when issued
and delivered against payment therefor, will be freely transferable by
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 ADSs under the laws of the Cayman
Islands, the PRC or the United States except as described in the
Pricing Prospectus under the captions "Description of Share Capital",
"Description of American Depositary Shares" and "Shares Eligible for
Future Sale";
(xi) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to
21
the government of the Cayman Islands, the BVI, the State of Delaware,
the United States, the Federal Republic of Germany or the PRC, or any
political subdivision or taxing authority thereof or therein in
connection with (A) the deposit with the Depositary of the Shares by
such Selling Shareholder against the issuance of ADRs evidencing the
ADSs to be sold by such Selling Shareholder, (B) the sale and delivery
by such Selling Shareholder of the Shares and the ADSs to be sold by
such Selling Shareholder to or for the respective accounts of the
Underwriters or (C) the sale and delivery by the Underwriters of the
Shares and such ADSs to the initial purchasers thereof;
(xii) All amounts payable by such Selling Shareholder under this
Agreement shall be made free and clear of and without deduction for or
on account of any taxes imposed, assessed or levied by the Cayman
Islands, the BVI, the State of Delaware, the United States, the
Federal Republic of Germany or the PRC or any authority thereof or
therein, nor are any taxes imposed in the Cayman Islands, the BVI, the
State of Delaware, the United States, the Federal Republic of Germany
or the PRC on, or by virtue of the execution of this Agreement or the
sale and delivery of the Shares and ADSs;
(xiii) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder; and to ensure
the legality, validity, enforceability or admissibility into evidence
in the Cayman Islands, the BVI, the State of Delaware, the United
States, the Federal Republic of Germany or the PRC of this Agreement,
it is not necessary that this Agreement be filed or recorded with any
court or other authority in the Cayman Islands, the BVI, the State of
Delaware, the United States, the Federal Republic of Germany or the
PRC or that any stamp or similar tax in the Cayman Islands, the BVI,
the State of Delaware, the United States, the Federal Republic of
Germany or the PRC be paid on or in respect of this Agreement or any
other documents to be furnished hereunder;
(xiv) Other than this Agreement, there are no contracts,
agreements or understandings between such Selling Shareholder and any
person that would give rise to a valid claim against such Selling
Shareholder or any Underwriter for a brokerage commission, finder's
fee or other like payment in connection with the offer and sale of the
Shares and the ADSs;
(xv) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-8BEN
(or other applicable form or statement specified by United States
Treasury Department regulations in lieu thereof);
(xvi) Such Selling Shareholder has duly executed and delivered a
Power of Attorney (the "Power of Attorney"), in the form set forth in
Annex I attached hereto, appointing the persons indicated in such
Power of Attorney, and each of them, as such Selling Shareholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute
and deliver this Agreement on behalf of such Selling Shareholder, to
determine the purchase price to be paid by the Underwriters to the
Selling Shareholders as provided in Section 2 hereof, to authorize the
delivery of the Shares and ADSs to be sold by such
22
Selling Shareholder hereunder and otherwise to act on behalf of such
Selling Shareholder in connection with the transactions contemplated
by this Agreement;
(xvii) The appointment by such Selling Shareholder of the
Attorneys-in-Fact by the Power of Attorney is 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 and 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 actions taken by
the Attorneys-in-Fact pursuant to the Power of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or other
event had not occurred, regardless of whether or not the
Attorneys-in-Fact shall have received notice of such death,
incapacity, termination, dissolution or other event; and
(xviii) (i) Neither such Selling Shareholder nor any of its
subsidiaries, affiliates, employees, agents and directors and officers
in the United States: (a) does any business with or involving the
government of, or any person or project located in, any country
targeted by any of the economic sanctions promulgated by any Executive
Order issued by the President of the United States or administered by
the OFAC; or (b) supports or facilitates any such business or project,
in each case other than as permitted under such economic sanctions;
(ii) such Selling Shareholder is not controlled (within the meaning of
the Executive Orders or regulations promulgating such economic
sanctions or the laws authorizing such promulgation) by any such
government or person; and (iii) the proceeds received by such Selling
Shareholder from the sale of ADSs pursuant to this Agreement will not
be used to fund any operations in, to finance any investments,
projects or activities in, or to make any payments to, any country, or
to make any payments to, or finance any activities with, any person
targeted by any of such economic sanctions.
In addition, any certificate signed by any Selling 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 such Selling Shareholder and delivered to the
Underwriters or counsel for the Underwriters in connection with the offering and
sale of the ADSs shall be deemed to be a representation and warranty by such
Selling Shareholder, as to matters covered thereby, to each of the Underwriters.
2. Subject to the terms and conditions herein set forth, (a) each Selling
Shareholder agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from 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 each of the Selling Shareholders as set forth opposite their
respective names in Schedule II attached hereto by a fraction, the
23
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 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, each Selling Shareholder agrees, severally and not jointly, to sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from each of the Selling Shareholders, at the purchase
price per ADS set forth in clause (a) of this Section 2, that portion of the
number of Optional ADSs as to which such election shall have been exercised (to
be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional ADSs by a fraction the numerator of which is
the maximum number of Optional ADSs which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in 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 1,692,300 Optional ADSs, at the
purchase price per ADS set forth in the paragraph above, for the sole purpose of
covering sales of ADSs 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. Any such election to purchase Optional ADSs may be exercised
only by written notice from you to the Company and the Attorneys-in-Fact, given
within a period of 30 calendar days after the date of this Agreement and setting
forth the aggregate number of Optional ADSs to be purchased and the date on
which such Optional ADSs are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless you, the Company and the Selling Shareholders otherwise agree in
writing, earlier than two or later than ten business days after the date of such
notice.
3. Upon the authorization by you of the release of the Firm ADSs, the
several Underwriters propose to offer the Firm ADSs for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The ADSs to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours' notice
to the Company and the Selling Shareholders prior to a Time of Delivery (as
defined below) (the "Notification Time"), shall be delivered by or on behalf of
the Selling Shareholders to the Representatives, through the facilities of The
Depository Trust Company ("DTC"), for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account(s) specified by the
Selling Shareholders to the Representatives at least forty-eight hours in
advance of such Time of Delivery. The Company and the Selling Shareholders will
cause the certificates representing the ADSs to be made available for checking
at least twenty-four hours prior to the Time of Delivery with respect thereto at
the office of DTC or its designated custodian (the "Designated Office"). The
time and date of such delivery and payment shall be, with respect to the Firm
ADSs, 9:30 a.m., New York City time, on ________, 2007 or such other time and
date as the Representatives and the Company may agree upon in writing, and, with
respect to the Optional ADSs, 9:30 a.m., New York City time, on the date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional ADSs, or
such other time and date as the Representatives and the Company may agree upon
in writing. Such time and date for delivery of the Firm ADSs is herein called
the "First Time of Delivery"; such time and date for delivery of the Optional
ADSs, if not the First Time of Delivery, is
24
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(r) hereof, will be delivered at the offices
of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
(the "Closing Location"), and the ADSs will be delivered as specified in Section
(a) above, all at such Time of Delivery. A meeting will be held at the Closing
Location at 4:00 p.m., Hong Kong time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any amendment or supplement to
the Prospectus has been filed and to furnish you copies thereof; to
file promptly all material required to be filed by the Company with
the Commission pursuant to Rule 433(d) under the Act; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or other prospectus in respect
of the ADSs, of the suspension of the qualification of the ADSs for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus or for additional information; in the event of
such request for amendment or supplement, to provide you and your
counsel copies of any proposed amendment or supplement for review and
comment a reasonable amount of time prior to any proposed filing and
to file no such amendment or supplement unless approved by you (which
approval shall not be unreasonably withheld); and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the ADSs for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be
25
necessary to complete the distribution of the ADSs, provided that in
connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic
copies of the Prospectus in New York City in such quantities as you
may reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time prior to the expiration of nine months after the
time of issue of the Prospectus in connection with the offering or
sale of the ADSs and if at such time any event shall have occurred as
a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus (or in lieu thereof, the notice referred to in Rule 173(a)
under the Act) is delivered, not misleading, or, if for any other
reason it shall be necessary during such same period to amend or
supplement the Prospectus in order to comply with the Act, to notify
you and upon your request to prepare and furnish without charge to
each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of
an amended Prospectus or a supplement to the Prospectus which will
correct such statement or omission or effect such compliance; and in
case any Underwriter is required to deliver a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) in
connection with sales of any of the ADSs at any time nine months or
more after the time of issue of the Prospectus, upon your request but
at the expense of such Underwriter, to prepare and deliver to such
Underwriter as many written and electronic copies as you may request
of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(iv) To make generally available to its security holders as soon
as practicable, but in any event not later than sixteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), a consolidated earnings statement of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(v) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus (the "Lock-Up Period"), without your prior written consent,
not to offer, sell, contract to sell, pledge, grant any option to
purchase, purchase any option or contract to sell, right or warrant to
purchase, make any short sale, file a registration statement with
respect to, or otherwise dispose of (including entering into any swap
or other arrangement that transfers to another, in whole or in part,
any of the economic consequence of ownership interests), except as
provided hereunder, (A) any ADSs or ordinary shares or securities of
the Company that are substantially similar to the ADSs or ordinary
shares, including but not limited to any options or warrants to
purchase ordinary shares or any securities that are convertible into
or exchangeable for, or that represent the right to receive, ADSs or
ordinary shares or any such substantially similar securities; and (B)
any ordinary shares of Company's subsidiaries or depositary
26
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, except that the foregoing
restrictions shall not apply to: (x) the ADSs and the Ordinary Shares
underlying such ADSs to be sold under this Agreement and (y) grants
made pursuant to the Company's employee incentive share plan existing
on the date of this Agreement, which is described in the Pricing
Prospectus and the filing of a Registration Statement on Form S-8 by
the Company with the Commission with respect to the Ordinary Shares
underlying grants made under such plan; provided, however, that if (1)
during the last 17 days of the initial Lock-Up Period, the Company
releases earnings results or announces material news or a material
event or (2) prior to the expiration of the initial Lock-Up Period,
the Company announces, or if the Representatives determine, that it
will release earnings results during the 16-day period following the
last day of the initial Lock-Up Period, then in each case the Lock-Up
Period will be automatically extended until the expiration of the
18-day period beginning on the date of release of the earnings results
or the announcement of the material news or material event, as
applicable, unless the Representatives waive, in writing, such
extension; and the Company will provide the Representatives and each
shareholder subject to the Lock-Up Period pursuant to the lock-up
letters described in Section 8(o) with prior notice of any such
announcement that gives rise to an extension of the Lock-Up Period;
(vi) During the Lock-Up Period, to cause each of its subsidiaries
not to offer, sell, contract to sell, pledge, grant any option to
purchase, purchase any option or contract to sell, right or warrant to
purchase, make any short sale, file a registration statement with
respect to, or otherwise dispose of (including entering into any swap
or other arrangement that transfers to another, in whole or in part,
any of the economic consequence of ownership interests), except as
provided hereunder and under this Agreement: (A) any ADSs or ordinary
shares or any securities of the Company that are substantially similar
to the ADSs or ordinary shares, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, ADSs or ordinary shares or any such
substantially similar securities; and (B) any ordinary shares of any
of the Company's subsidiaries or depositary shares or depositary
receipts representing such ordinary shares, including but not limited
to any securities that are convertible into or exchangeable for or
that represent the right to receive such ordinary shares or such
depositary shares or depositary receipts or any such substantially
similar securities, without your prior written consent; provided,
however, that if (1) during the last 17 days of the initial Lock-Up
Period, the Company releases earnings results or announces material
news or a material event or (2) prior to the expiration of the initial
Lock-Up Period, the Company announces, or if the Representatives
determine, that it will release earnings results during the 16-day
period following the last day of the initial Lock-Up Period, then in
each case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of
the earnings results or the announcement of the material news or
material event, as applicable, unless the Representatives waive, in
writing, such extension; and the Company will provide the
Representatives and each shareholder subject to the Lock-Up Period
pursuant to the lock-up letters described in Section 8(o) with prior
notice of any such announcement that gives rise to an extension of the
Lock-Up Period;
27
(vii) To furnish to its shareholders within such period required
by the Exchange Act after the end of each fiscal year an annual report
(in English) (including a balance sheet and statements of income,
shareholders' equity and cash flows of the Company and its
consolidated subsidiaries prepared in conformity with US GAAP and
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), to make available to
its shareholders consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail;
(viii) During a period of three years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to shareholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any securities exchange on which any class of securities
of the Company is listed; provided, however, that the Company may
satisfy the requirements of this subsection (viii) by making any such
reports, communications or information publicly available on its
website or the Commission's ▇▇▇▇▇ website; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its subsidiaries are consolidated in
reports furnished to its shareholders generally or to the Commission);
(ix) Not to, directly or indirectly, use or facilitate the use of
any of the proceeds from the sale of the ADSs contemplated hereby to
fund any operations in, to finance any investments, projects or
activities in, or to make any payments to, any country, or to make any
payments to, or finance any activities with, any person, targeted by
any of the economic sanctions promulgated by any Executive Order
issued by the President of the United States or administered by the
OFAC; and the Company will maintain and implement adequate internal
controls and procedures to monitor and audit transactions that are
reasonably designed to detect and prevent any use of funds that is
inconsistent with any of the Company's representations and obligations
under the preceding sentence;
(x) Prior to each Time of Delivery to deposit Ordinary Shares
with the Depositary in accordance with the provisions of the Deposit
Agreement and otherwise to comply with the Deposit Agreement so that
ADRs evidencing ADSs will be executed (and, if applicable,
countersigned) and issued by the Depositary against receipt of such
Ordinary Shares and delivered to the Underwriters at such Time of
Delivery;
(xi) Not to (and to cause its affiliates not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which would reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company or
facilitate the sale or resale of the Shares and the ADSs;
(xii) To use its best efforts to include for listing, and
maintain the listing of, the Shares and the ADSs on the NYSE;
28
(xiii) 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;
(xiv) 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 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;
(xv) 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 and the
execution and delivery of this Agreement;
(xvi) 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;
(xvii) 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 or sale of the ADSs, without your prior consent;
(xviii) Not, at any time at or after the execution of this
Agreement, to, directly or indirectly, offer or sell any Shares or
ADSs by means of any "prospectus" (within the meaning of the Act), or
use any "prospectus" (within the meaning of the Act) in connection
with the offer or sale of the Shares or ADSs, in each case other than
the Prospectus; and
(xix) To comply with all applicable securities laws, rules and
regulations, including, without limitation, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act,
and to require the Company's directors and executive officers, in
their capacities as such, to comply with all applicable securities
laws, rules and regulations, including, without limitation, the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(b) Each of the Selling Shareholders severally and not jointly agrees
with each of the Underwriters:
(i) During the Lock-Up Period, such Selling Shareholder will not,
without your prior written consent, offer, sell, contract to sell,
pledge, grant any option to purchase, purchase any option or contract
to sell, right or warrant to purchase, make any short sale, file a
registration statement with respect to, or otherwise dispose of
(including entering into
29
any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequence of ownership interests),
except as provided hereunder and under this Agreement: (A) any ADSs or
ordinary shares or any securities of the Company that are
substantially similar to the ADSs or Ordinary Shares, including but
not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, ADSs or
ordinary shares or any such substantially similar securities; and (B)
any ordinary shares of any of the Company's subsidiaries or depositary
shares or depositary receipts representing such ordinary shares,
including but not limited to any securities that are convertible into
or exchangeable for or that represent the right to receive such
ordinary shares or such depositary shares or depositary receipts or
any such substantially similar securities, except that the foregoing
restrictions shall not apply to (x) a bona fide gift by an individual
to a donee, provided that such donee agrees to be bound in writing by
the same restrictions set forth therein or (y) a sale or transfer by
an entity to an affiliate or another entity whose owners,
beneficiaries or limited partners, as the case may be, are drawn
solely from a group consisting of the signatory of such Selling
Shareholder to the relevant Lock-Up Agreement (as defined in Section
8(o) hereof) and immediate family members of such signatory, provided
that such sale or transfer is not a disposition for value and that
such transferee agrees to be bound in writing by the same restrictions
set forth therein; provided, however, that if (1) during the last 17
days of the initial Lock-Up Period, the Company releases earnings
results or announces material news or a material event or (2) prior to
the expiration of the initial Lock-Up Period, the Company announces,
or if the Representatives determine, that it will release earnings
results during the 16-day period following the last day of the initial
Lock-Up Period, then in each case the Lock-Up Period will be
automatically extended until the expiration of the 18-day period
beginning on the date of release of the earnings results or the
announcement of the material news or material event, as applicable,
unless the Representatives waive, in writing, such extension; and the
Company will provide the Representatives and each shareholder subject
to the Lock-Up Period pursuant to the lock-up letters described in
Section 8(o) with prior notice of any such announcement that gives
rise to an extension of the Lock-Up Period;
(ii) Prior to each Time of Delivery, to deposit, or cause to be
deposited on their behalf, Ordinary Shares with the Depositary in
accordance with the provisions of the Deposit Agreement and otherwise
to comply with the Deposit Agreement so that ADRs evidencing ADSs will
be executed (and, if applicable, countersigned) and issued by the
Depositary against receipt of such Ordinary Shares and delivered to
the Underwriters at such Time of Delivery;
(iii) Not to (and to cause its affiliates, other than an
affiliate that is an Underwriter, not to) take, directly or
indirectly, any action which is designed to or which constitutes or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company or
facilitate the sale or resale of the Shares or the ADSs;
(iv) To indemnify and hold each of the Underwriters harmless
against any documentary, stamp or similar issuance or transfer taxes,
duties or fees and any transaction levies, commissions or brokerage
charges, including any interest and penalties, which are or may be
required to be paid in connection with the creation, allotment,
30
issuance, offer and distribution of the Shares and ADSs to be sold by
such Selling Shareholder and the execution and delivery of this
Agreement;
(v) Not, at any time at or after the execution of this Agreement,
to offer or sell any Shares or ADSs by means of any "prospectus"
(within the meaning of the Act), or use any "prospectus" (within the
meaning of the Act) in connection with the offer or sale of the Shares
or ADSs, in each case other than the Prospectus;
(vi) To pay or cause to be paid all taxes, if any, on the
transfer and sale of the Shares and the ADSs being sold by such
Selling Shareholder;
(vii) To advise you promptly, and if requested by you, confirm
such advice in writing, so long as a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of
ADSs, of (A) any material change in the general affairs, management,
financial condition, results of operations or prospects of the Company
and its subsidiaries, (B) any change in information contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus and
any Issuer Free Writing Prospectuses, if any, relating to such Selling
Shareholder or (C) any new material information relating to the
Company or relating to any matter stated in the Registration
Statement, any Preliminary Prospectus, the Prospectus and any Issuer
Free Writing Prospectus, if any, which comes to the attention of such
Selling Shareholder; and
(viii) Not to use any of the proceeds received by such Selling
Shareholder from the sale of the ADSs pursuant to this Agreement to
fund any operations in, to finance any investments, projects or
activities in, or to make any payments to, any country, or to make any
payments to, or finance any activities with, any person, targeted by
any of the economic sanctions promulgated by any Executive Order
issued by the President of the United States or administered by the
OFAC, or in any manner that is not in compliance with applicable laws,
rules and regulations of any Governmental Agency having jurisdiction
over such Selling Shareholders including, without limitation, the
requirement for PRC residents or citizens to repatriate the net
proceeds received by such Selling Shareholders into the PRC under the
applicable regulations of the Ministry of Commerce and the State
Administration of Foreign Exchange of the PRC.
6. (a) Each of the Company and the Selling Shareholders represents and
agrees that, without the prior consent of the Representatives, it has not made
and will not make any offer relating to the Shares and the ADSs that would
constitute a "free writing prospectus" as defined in Rule 405 under the Act;
each Underwriter represents and agrees that, without the prior consent of the
Company and the Representatives, it has not made and will not make any offer
relating to the Shares and the ADSs that would constitute a free writing
prospectus; any such free writing prospectus the use of which has been consented
to by the Company and the Representatives is listed on Schedule III attached
hereto;
(b) The Company has complied and will comply with the requirements of
Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and
legending; and the Company represents that it has satisfied and agrees
31
that it will satisfy the conditions under Rule 433 under the Act to avoid a
requirement to file with the Commission any electronic road show; and
(c) The Company agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of which
such Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the Pricing Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives,
will prepare and furnish without charge to each Underwriter an Issuer Free
Writing Prospectus or other document which will correct such conflict, statement
or omission; provided, however, that this covenant shall not apply to any
statements or omissions in an Issuer Free Writing Prospectus made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter through Representatives expressly for use therein.
7. The Underwriters will be responsible for all costs and expenses they
incur in connection with the transactions contemplated under this Agreement;
provided, however, that, promptly upon request, the Company and each of the
Selling Shareholders will, jointly and severally, reimburse all reasonable costs
and expenses incurred by the Underwriters in connection with the marketing of
the offering and sale of the ADSs to prospective investors, including, without
limitation, costs and expenses relating to road show presentations, travel,
accommodation and meal expenses and other road show expenses incurred by the
Underwriters, in an amount estimated not to exceed US$________. For the
avoidance of doubt, the Company and the Selling Shareholders will be responsible
for all costs and expenses incurred by them in connection with the offering of
the ADSs and Ordinary Shares, including, among others, (i) all cost and expenses
in connection with the preparation, printing, reproduction and filing of the
registration statements and the prospectus (including filing fees with the
Commission and NASD), and the mailing and delivering of copies thereof to the
members of the underwriting syndicate and to dealers, (ii) all the costs and
expenses incurred by the officers of the Company and any consultants engaged by
the Company relating to or arising out of the road show, including the cost of
any aircraft chartered in connection with the road show, and (iii) the Company's
and the Selling Shareholders' own legal fees and the costs of accountants
(including the cost of audit and accounting reports) and other advisers, (iv)
all fees and expenses in connection with the application for including the ADSs
for listing on the NYSE and any registration thereof under the Exchange Act, (v)
the costs and expenses of qualifying the ADSs for inclusion in the book-entry
settlement system of the DTC, (vi) all expenses and taxes arising as a result of
the deposit by the Company and each of the Selling Shareholders of the Shares
with the Depositary and the issuance and delivery of the ADRs evidencing ADSs in
exchange therefor by the Depositary to the Company, of the sale and delivery of
the ADSs and the Shares by the Company to or for the account of the Underwriters
and of the sale and delivery of the ADSs and the Shares by the Underwriters to
each other and to the initial purchasers thereof in the manner contemplated
under this Agreement, including, in any such case, any the Cayman Islands
income, capital gains, withholding, transfer or other tax asserted against an
Underwriter by reason of the purchase and sale of an ADS or a Share pursuant to
this Agreement, (vii) the fees and expenses of the Depositary as agreed by the
Company and the Depositary and any custodian appointed under the Deposit
Agreement, other than the fees and expenses to be paid by holders of ADRs (other
than the Underwriters in connection with the initial purchase of ADSs), (viii)
the fees and expenses of the Authorized Agent (as defined in Section 15 hereof),
(ix) the cost of preparing the ADRs; and (x) all other costs and expenses
incident to the performance of the Company's obligations hereunder which are not
otherwise specifically provided for in this Section.
32
8. The obligations of the Underwriters hereunder, as to the ADSs to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; all material required to be filed by the Company pursuant
to Rule 433(d) under the Act shall have been filed with the Commission within
the applicable time period prescribed for such filing by Rule 433; if the
Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus shall have been initiated
or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel to the
Underwriters, shall have furnished to you such written opinion and letter, dated
such Time of Delivery, with respect to the matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Commerce & Finance Law Offices, PRC counsel to the Underwriters,
shall have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the same matters covered in subsection (e) below as
well as such other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(d) O'Melveny & ▇▇▇▇▇ LLP, United States counsel to the Company and
the Selling Shareholders, shall have furnished to you their written opinion,
dated such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) This Agreement has been duly executed and delivered by the
Company and each of the Selling Shareholders;
(ii) The Deposit Agreement has been duly executed and delivered
by the Company and, assuming due authorization, execution and delivery
by the Depositary, constitutes a valid and legally binding obligation
of the Company, enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or affecting creditors' rights generally
(including, without limitation, fraudulent conveyance laws) and by
general principles of equity, including, without limitation, concepts
of materiality, reasonableness, good faith and fair dealing and the
possible unavailability of specific performance or injunctive relief,
regardless of whether considered in a proceeding in equity or at law;
33
(iii) Upon due issuance by the Depositary of ADRs evidencing ADSs
against the deposit of Ordinary Shares in respect thereof in
accordance with the terms of the Deposit Agreement, such ADRs will be
duly and validly issued and will entitle the holders thereof to the
rights specified therein and in the Deposit Agreement;
(iv) Upon payment of the purchase price for the ADSs, and the
crediting of the ADSs to the Underwriters' accounts with DTC, Cede &
Co. or such other nominee designated by DTC, the Underwriters will
acquire a valid "security entitlement" (within the meaning of New York
Uniform Commercial Code Section 8-501) to such ADSs, and no action
based on an "adverse claim" (as defined in New York Uniform Commercial
Code Section 8-102) may be asserted against the Underwriters with
respect to such security entitlement if, at such time, the
Underwriters do not have notice of any adverse claim within the
meaning of New York Uniform Commercial Code Section 8-105;
(v) The execution and delivery by the Company of this Agreement
and the Deposit Agreement, the deposit of the Shares with the
Depositary against issuance of the ADRs evidencing the ADSs, the sale
of the Shares and the issue and sale of the ADSs being delivered at
such Time of Delivery, the compliance by the Company with this
Agreement and the Deposit Agreement and the consummation of the
transactions herein and therein contemplated will not (i) violate,
breach, or result in a default under any existing obligation of or
restriction on the Company or any of its subsidiaries under any
agreement which has been filed as an exhibit to the Registration
Statement (each, a "Company Agreement") or (ii) breach or otherwise
violate any existing obligation of or restriction on the Company or
any of its subsidiaries under any order, judgment or decree of any New
York or U.S. federal court or governmental authority binding on the
Company or any of the subsidiaries and identified to us in the
Certificate of the Company dated such Time of Delivery delivered to
such counsel in connection herewith;
(vi) The execution and delivery by each Selling Shareholder of
this Agreement and the Power of Attorney, the deposit of the Shares
with the Depositary against issuance of the ADRs evidencing the ADSs,
the sale of the Shares and the issue and sale of the ADSs being
delivered at such Time of Delivery, the compliance by such Selling
Shareholder with this Agreement and the Power of Attorney and the
consummation of the transactions herein and therein contemplated will
not (i) violate, breach, or result in a default under any existing
obligation of or restriction on such Selling Shareholder under any
agreement which has been filed as an exhibit to the Registration
Statement (each, a "Selling Shareholder Agreement") or (ii) breach or
otherwise violate any existing obligation of or restriction on such
Selling Shareholder under any order, judgment or decree of any New
York or U.S. federal court or governmental authority binding on such
Selling Shareholder and identified to us in such Selling Shareholder's
Certificate dated such Time of Delivery delivered to such counsel in
connection herewith;
(vii) The execution and delivery by each of the Company and each
of the Selling Shareholders of this Agreement, the execution and
delivery by the Company of the Deposit Agreement, the execution and
delivery by each of the Selling Shareholders of the Power of Attorney,
the performance by the Company of its obligations under this Agreement
and the Deposit Agreement and by each of the Selling Shareholders of
their
34
respective obligations under this Agreement and the Power of Attorney,
and the consummation of the transactions contemplated to be performed
by the Company and each of the Selling Shareholders in this Agreement
and the Deposit Agreement and the Power of Attorney, as the case may
be, do not violate any current New York or federal statute or
regulation that we have, in the exercise of customary professional due
diligence, recognized as applicable to the Company or any of the
Selling Shareholders, as the case may be, or to the transactions of
the type contemplated by this Agreement, the Deposit Agreement and the
Power of Attorney;
(viii) No order, consent, permit or approval of any New York or
U.S. federal governmental authority is required on the part of the
Company or any Selling Shareholder for the issue and sale of the ADSs
or the consummation by the Company or such Selling Shareholder of the
transactions contemplated by this Agreement, the Deposit Agreement and
the Power of Attorney, except such as have been obtained under the Act
and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the ADSs by
the Underwriters;
(ix) The statements set forth in the Prospectus under the caption
"Description of American Depositary Shares", insofar as they summarize
the terms of the Deposit Agreement and the ADSs, and under the
captions "Shares Eligible for Future Sale" and "Underwriting", insofar
as they summarize provisions of the laws and documents referred to
therein, are a fair summary thereof; and the statements set forth in
the Prospectus under the caption "Taxation", insofar as they summarize
the provisions of the laws referred to therein, are a fair summary
thereof;
(x) The Company is not, and after giving effect to the offering
and sale of the ADSs and the application of the proceeds thereof as
described in the Prospectus will not be, an investment company
required to register under the Investment Company Act;
(xi) The Registration Statement and the ADS Registration
Statement have been declared effective under the Act and, to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or the ADS Registration Statement has been
issued or threatened by the Commission;
(xii) Under the laws of the State of New York relating to
personal jurisdiction, the Company has, pursuant to Section 15 of this
Agreement and Section 7.06 of the Deposit Agreement, validly and
irrevocably submitted to the personal jurisdiction of, in the case of
this Agreement, any state or federal court located in the Borough of
Manhattan, The City of New York, New York (each a "New York Court")
and, in the case of the Deposit Agreement, any state or federal court
located in the State of New York, in any action arising out of or
relating to this Agreement or the Deposit Agreement or the
transactions contemplated hereby or thereby, has validly and
irrevocably waived any objection to the venue of a proceeding in any
such court, and has validly and irrevocably appointed CT Corporation
System as its authorized agent for the purpose described in Section 15
hereof and Section 7.06 of the Deposit Agreement, and service of
process effected on such agent
35
as set forth in Section 15 hereof or Section 7.06 of the Deposit
Agreement will be effective to confer valid personal jurisdiction over
the Company;
(xiii) Under the laws of the State of New York relating to
personal jurisdiction, each of the Selling Shareholders has, pursuant
to Section 15 of this Agreement, validly and irrevocably submitted to
the personal jurisdiction of any New York Court in any action arising
out of or relating to this Agreement or the transactions contemplated
hereby, has validly and irrevocably waived any objection to the venue
of a proceeding in any such court, and has validly and irrevocably
appointed CT Corporation System as its authorized agent for the
purpose described in Section 15 hereof, and service of process
effected on such agent as set forth in Section 15 hereof will be
effective to confer valid personal jurisdiction over such Selling
Shareholder;
(xiv) The Registration Statement, on each date it was filed, the
Preliminary Prospectus, as of its date, the Prospectus, as of its
date, and the ADS Registration Statement, on the date it was filed,
each appeared on its face to comply in all material respects with the
requirements of the Act and the rules and regulations thereunder (in
each case other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion); although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement, the Preliminary Prospectus dated __________,
2007, the Issuer Free Writing Prospectuses set forth in Schedule
III(b) attached hereto or the Prospectus, except for those referred to
in the opinion in subsection (ix) of this Section 8(d), nothing has
come to such counsel's attention that causes such counsel to believe
that (a) any part of the Registration Statement or any further
amendment thereto (other than the financial statements and other
financial information contained therein, as to which such counsel need
express no opinion), at the time such part or any further amendment
thereto became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading; (b) the
Preliminary Prospectus dated __________, 2007 together with the Issuer
Free Writing Prospectuses set forth in Schedule III(b) attached
hereto, as of the Applicable Time and as of such Time of Delivery
(other than the financial statements and other financial information
contained therein, as to which such counsel need express no opinion),
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; (c) the Prospectus, as of its date and as of such Time of
Delivery (other than the financial statements and other financial
information contained therein, as to which such counsel need express
no opinion), contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; or (d) the ADS Registration Statement
or any further amendments thereto (other than the financial statements
and other financial information contain therein, as to which such
counsel need express no opinion), at the time the ADS Registration
Statement or any further amendment thereto became effective, contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; and
36
(xv) Such counsel does not know of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement which is not filed as required.
In rendering such opinion, O'Melveny & ▇▇▇▇▇ LLP may state that they
express no opinion as to the laws of any jurisdiction outside the United States;
(e) ▇▇▇ ▇▇ Law Offices, PRC counsel to the Company and the Selling
Shareholders, shall have furnished to you such written opinion or opinions,
dated such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) Shenzhen Mindray has been duly organized and is validly
existing as a Sino-foreign joint stock company with limited liability
under the laws of the PRC and its business license is in full force
and effect; Shenzhen Mindray has been duly qualified as a foreign
invested enterprise; 79.0356% and 20.9642% of the equity interests of
Shenzhen Mindray are owned by GEL and GGIL, respectively, and to the
best of such counsel's knowledge after due inquiry, such equity
interests are free and clear of all liens, encumbrances, equities or
claims; the articles of association, the business license and other
constituent documents of Shenzhen Mindray comply with the requirements
of applicable laws of the PRC and are in full force and effect;
Shenzhen Mindray has full power and authority (corporate and other)
and all consents, approvals, authorizations, orders, registrations,
clearances and qualifications of or with any Governmental Agency
having jurisdiction over Shenzhen Mindray or any of its properties
required for the ownership or lease of property by it and the conduct
of its business and has the legal right and authority to own, use,
lease and operate its assets and to conduct its business in the manner
presently conducted and as described in the Prospectus;
(ii) Beijing Shen Mindray Medical Electronics Research Institute
Company Limited ("Beijing Mindray") has been duly organized and is
validly existing as a limited liability company under laws of the PRC
and its business license is in full force and effect; 99.9% the equity
interest of Beijing Mindray are owned by Shenzhen Mindray, and to the
best of such counsel's knowledge after due inquiry, such equity
interests are free and clear of all liens, encumbrances, equities or
claims; the articles of association, the business license and other
constituent documents of Beijing Mindray comply with the requirements
of applicable PRC Laws and are in full force and effect; all of the
issued shares of capital stock of Beijing Mindray have been duly and
validly authorized and issued and are fully paid and non-assessable;
Beijing Mindray has full power and authority (corporate and other) and
has all consents, approvals, authorizations, orders, registrations,
clearances and qualifications of or with any, Governmental Agency
having jurisdiction over Beijing Mindray or any of its properties
required for the ownership or lease of property by it and the conduct
of its business and has the legal right and authority to own, use,
lease and operate its assets and to conduct its business in the manner
presently conducted and as described in the Prospectus;
(iii) All of the issued shares of capital stock of Shenzhen
Mindray have been duly and validly authorized and issued and are fully
paid and non-assessable; Shenzhen Mindray has obtained all approvals,
authorizations, consents and orders, and has made all
37
filings and registrations, which are required under PRC laws and
regulations for the ownership interest by the GEL and GGIL of their
respective equity interest in Shenzhen Mindray; and there are no
outstanding rights, warrants or options to acquire, or instruments
convertible into or exchangeable for, nor any agreements or other
obligations to issue or other rights to convert any obligation into,
any equity interest in Shenzhen Mindray;
(iv) Shenzhen Mindray and Beijing Mindray have legal and valid
title to all of their respective properties and assets, in each case,
free and clear of all liens, charges, encumbrances, equities, claims,
defects, options and restrictions; each lease agreement to which
Shenzhen Mindray or Beijing Mindray is a party is duly executed and
legally binding; the leasehold interests of Shenzhen Mindray and
Beijing Mindray are fully protected by the terms of the lease
agreements, which are valid, binding and enforceable in accordance
with their respective terms under PRC law; and, to the best of such
counsel's knowledge after due inquiry, none of the Company, Shenzhen
Mindray and Beijing Mindray owns, operates, manages or has any other
right or interest in any other material real property of any kind,
except as described in the Pricing Prospectus;
(v) All Governmental Authorizations required under the laws and
regulations of the PRC in connection with the establishment of the
overseas subsidiaries of Shenzhen Mindray have been obtained, and none
of such Governmental Authorizations has been withdrawn or is subject
to any condition precedent which has not been fulfilled or performed;
(vi) Shenzhen Mindray has the corporate power to enter into and
perform its obligations under each of the agreements (the
"Restructuring Agreements") entered into in connection with the
transactions as described in the Prospectus under the caption "Our
Corporate Structure" to which it is a party and has taken all
necessary corporate action to authorize the execution, delivery and
performance of, and has authorized, executed and delivered, each of
the Restructuring Agreements to which it is a party; and each of the
Restructuring Agreements to which Shenzhen Mindray is a party
constitutes a valid and legally binding obligation of Shenzhen
Mindray, enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(vii) The execution and delivery by Shenzhen Mindray of, and the
performance by Shenzhen Mindray of its obligations under, each of the
Restructuring Agreements to which it is a party and the consummation
by Shenzhen Mindray of the transactions contemplated therein will not:
(A) conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which Shenzhen Mindray is a party or by which Shenzhen
Mindray is bound or to which any of the properties or assets of
Shenzhen Mindray is bound or to which any of the properties or assets
of Shenzhen Mindray is subject; (B) result in any violation of the
provisions of the articles of association, business license of
Shenzhen Mindray; or (C) result in any violation of any laws of the
PRC;
38
(viii) Each of the Restructuring Agreements is in proper legal
form under the laws of the PRC for the enforcement thereof against
each of the parties thereto in the PRC without further action by any
of the parties thereto; and to ensure the legality, validity,
enforceability or admissibility in evidence of each of the
Restructuring Agreements in the PRC, it is not necessary that any such
document be filed or recorded with any court or other authority in the
PRC or that any stamp or similar tax be paid on or in respect of any
of the Restructuring Agreements (in the case any such stamp or tax is
required, the Company or its relevant subsidiaries have duly paid the
stamp or tax as of the date hereof);
(ix) Each of Shenzhen Mindray and Beijing Mindray has all
necessary licenses, consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations
and filings with, all Governmental Agencies to own, lease, license and
use its properties, assets and conduct its business in the manner
described in the Prospectus and such licenses, consents,
authorizations, approvals, orders, certificates or permits contain no
materially burdensome restrictions or conditions not described in the
Prospectus; except as described in the Prospectus, neither Shenzhen
Mindray nor Beijing Mindray has any reason to believe that any
regulatory body is considering modifying, suspending or revoking any
such licenses, consents, authorizations, approvals, orders,
certificates or permits and each of Shenzhen Mindray or Beijing
Mindray is in compliance with the provisions of all such licenses,
consents, authorizations, approvals, orders, certificates or permits
in all material respects;
(x) All dividends and other distributions declared and payable
upon the equity interests in Shenzhen Mindray may under the current
laws and regulations of the PRC be paid to GEL and GGIL in Renminbi
that may be converted into U.S. dollars and freely transferred out of
the PRC, and all such dividends and other distributions are not and,
except as described in the Prospectus, will not be subject to
withholding or other taxes under the laws and regulations of the PRC
and, except as described in the Prospectus, are otherwise free and
clear of any other tax, withholding or deduction in the PRC, and
without the necessity of obtaining any Governmental Authorization in
the PRC;
(xi) To the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its subsidiaries is (A) in breach of or
in default under any laws, regulations, rules, orders, decrees,
guidelines or notices of the PRC, (B) in breach of or in default under
any approval, consent, waiver, authorization, exemption, permission,
endorsement or license granted by any Governmental Agency in the PRC,
(C) in violation of their respective constituent documents, business
licenses or permits or (D) in default in the performance or observance
of any material obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(xii) The statements in the Prospectus under "Prospectus
Summary", "Risk Factors", "Our Corporate Structure", "Management's
Discussion and Analysis of Financial Condition and Results of
Operations", "Our Industry", "Business", "Regulation", "Management",
"Related Party Transactions", "Taxation" and "Enforcement of Civil
Liabilities" to the extent such statements relate to matters of PRC
law or regulation or to the
39
provisions of documents therein described, are true and accurate in
all material respects, and nothing has been omitted from such
statements which would make the same misleading in any material
respect;
(xiii) Shenzhen Mindray is the exclusive owner of all right,
title and interest in and to the Intellectual Property, and the
Company or Shenzhen Mindray has a valid right to use the Intellectual
Property as currently used or as currently contemplated to be used by
the Company, in each case, as described in the Prospectus; any of the
Intellectual Property that was assigned by Shenzhen Mindray
Electronics Co., Ltd. (Chinese Characters) or Changrunda Electronics
(Shenzhen) Co., Ltd. (Chinese Characters) to Shenzhen Mindray has been
assigned solely to Shenzhen Mindray, which assignment was either
recorded in and proclaimed by the PRC Intellectual Property Authority
or other foreign patent or trademark registration office, as
applicable, or have been submitted for recording in the PRC
Intellectual Property Authority or other foreign patent or trademark
registration office, as applicable; and such assignment is valid,
binding and enforceable, and all PRC governmental approvals in respect
of such assignment have been obtained and are in full force and
effect;
(xiv) To the best of such counsel's knowledge after due inquiry,
neither the Company nor any of its subsidiaries is infringing,
misappropriating or violating any intellectual property right of any
third party in the PRC; and no Intellectual Property is subject to any
outstanding decree, order, injunction, judgment or ruling restricting
the use of such Intellectual Property in the PRC that would impair the
validity or enforceability of such Intellectual Property;
(xv) No security interests or other liens have been created with
respect to any of the Intellectual Property;
(xvi) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the government of the PRC or to any
political subdivision or taxing authority thereof or therein in
connection with (a) the deposit with the Depositary of Shares against
the issuance of ADRs evidencing the ADSs, (b) the sale and delivery by
the Selling Shareholders of the ADSs and the Shares to or for the
respective accounts of the Underwriters or (c) the sale and delivery
outside the PRC by the Underwriters of the ADSs and the Shares to the
initial purchasers thereof in the manner contemplated herein;
(xvii) The irrevocable submission of each of the Company and the
Selling Shareholders to the jurisdiction of any New York Court, the
waiver by each of the Company and the Selling Shareholders of any
objection to the venue of a proceeding in a New York Court, the waiver
and agreement not to plead an inconvenient forum, the waiver of
sovereign immunity and the agreement of each of the Company and the
Selling Shareholders that this Agreement and Deposit Agreement shall
be construed in accordance with and governed by the laws of the State
of New York are legal, valid and binding under the laws of the PRC and
will be respected by PRC courts; service of process effected in the
manner set forth in this Agreement and the Deposit Agreement will be
effective, insofar as PRC law is concerned, to confer valid personal
jurisdiction over each of
40
the Company and the Selling Shareholders; and any judgment obtained in
a New York Court arising out of or in relation to the obligations of
each of the Company and the Selling Shareholders under this Agreement
and the Deposit Agreement will be recognized in PRC courts subject to
the conditions described under the caption "Enforceability of Civil
Liabilities" in the Prospectus;
(xviii) The indemnification and contribution provisions set forth
in Section 9 hereof and Section 5.08 of the Deposit Agreement do not
contravene the public policy or laws of PRC;
(xix) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal, arbitration or
governmental proceedings pending to which the Company, Shenzhen
Mindray or Beijing Mindray is a party or of which any property of
Shenzhen Mindray or Beijing Mindray is the subject which, if
determined adversely to any of Shenzhen Mindray or Beijing Mindray
would individually or in the aggregate have a material adverse effect
on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company, Shenzhen
Mindray or Beijing Mindray; and, to the best of such counsel's
knowledge after due inquiry, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(xx) The sale of the Shares and the issue and sale of the ADSs
being delivered at such Time of Delivery and the deposit of the Shares
with the Depositary against issuance of the ADRs evidencing the ADSs
to be delivered at such Time of Delivery and the compliance by the
Company with all of the provisions of this Agreement and the Deposit
Agreement, the compliance by each of the Selling Shareholders with all
of the provisions of this Agreement and the Power of Attorney, and the
consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which Shenzhen Mindray or Beijing
Mindray is a party or by which Shenzhen Mindray or Beijing Mindray is
bound or to which any of the property or assets of Shenzhen Mindray or
Beijing Mindray is subject, nor will such action result in any
violation of the provisions of the articles of association, business
license or any other constituent documents of Shenzhen Mindray or
Beijing Mindray or any statute or any order, rule or regulation known
to such counsel of any Governmental Agency having jurisdiction over
Shenzhen Mindray or Beijing Mindray or any of their properties;
(xxi) No Governmental Authorization of or with any Governmental
Agency in the PRC is required for the sale of the Shares and the issue
and sale of the ADSs, the listing of the ADSs on the NYSE, the deposit
of the Shares with the Depositary against issuance of the ADRs
evidencing the ADSs to be delivered at such Time of Delivery or the
consummation of the transactions contemplated by this Agreement, the
Deposit Agreement and the Power of Attorney; and the sale of the
Shares and the issue and sale of the ADSs being delivered at such Time
of Delivery and the deposit of the Shares with the Depositary against
issuance of the ADRs evidencing the ADSs to be delivered at such Time
of Delivery and the compliance by the Company with all of the
provisions of this Agreement
41
and the Deposit Agreement, the compliance by each of the Selling
Shareholders with all of the provisions of this Agreement and the
Power of Attorney, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any law or statute or any order, rule or regulation of
any Governmental Agency in the PRC;
(xxii) Neither Shenzhen Mindray nor Beijing Mindray is in
violation of its articles of association, business license or any
other constituent documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
(xxiii) The application of the net proceeds to be received by the
Selling Shareholders from the sale of ADSs as contemplated by the
Prospectus will not contravene any provision of applicable PRC law,
rule or regulation, or the articles of association, the business or
other constituent documents of Shenzhen Mindray or contravene the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument binding upon Shenzhen Mindray, or any
judgment, order or decree of any Governmental Agency in the PRC;
(xxiv) The descriptions of the Restructuring set forth in the
Prospectus under the caption "Our Corporate Structure" are accurate,
complete and fair;
(xxv) The Restructuring does not (A) contravene any provision of
applicable law or statute, rule or regulation of any Governmental
Agency having jurisdiction over Shenzhen Mindray or Beijing Mindray or
any of their properties, including the PRC Overseas Investment and
Listing Regulations, (B) contravene the articles of association,
business license or other constituent documents of Shenzhen Mindray or
Beijing Mindray 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
Shenzhen Mindray or Beijing Mindray is a party or by which Shenzhen
Mindray or Beijing Mindray is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject;
(xxvi) All Governmental Authorizations required under the laws of
the PRC in connection with the Restructuring have been made or
unconditionally obtained in writing and are in full force and effect,
and no such Governmental Authorization has been withdrawn or revoked
or is subject to any condition precedent which has not been fulfilled
or performed;
(xxvii) Although such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Registration Statement or the Prospectus, they have no reason
to believe that (a) any part of the Registration Statement or any
further amendment thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion), when such
part or amendment
42
became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (b) the
Pricing Disclosure Package, as of the Applicable Time and as of such
Time of Delivery, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; (c) each Issuer Free Writing Prospectus
listed on Schedule III attached hereto conflicted with the information
contained in the Registration Statement, the Pricing Disclosure
Package or the Prospectus and each such Issuer Free Writing
Prospectus, as supplemented by and taken together with the Pricing
Disclosure Package as of the Applicable Time and as of such Time of
Delivery, contained any untrue statement of a material fact or omitted
to state any material fact required necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; or (d) as of its date and as of such Time of Delivery,
the Prospectus or any further amendment or supplement thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained or contains an untrue statement of
a material fact or omitted or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and
(xxviii) The entry into, and performance or enforcement of this
Agreement, the Deposit Agreement or the Power of Attorney in
accordance with its respective terms will not subject any of the
Underwriters or the Depositary to any requirement to be licensed or
otherwise qualified to do business in the PRC, nor will any
Underwriter or the Depositary be deemed to be resident, domiciled,
carrying on business through an establishment or place in the PRC or
in breach of any laws or regulations in the PRC by reason of entry
into, performance or enforcement of this Agreement, the Deposit
Agreement or the Power of Attorney.
In giving such opinion, such counsel may state that (A) with respect to all
matters of United States federal and New York State law they have relied upon
the opinions of United States counsel to the Company and the Selling
Shareholders delivered pursuant to paragraph (d) of this Section 8 and (B) with
respect to all matters of Cayman Islands and BVI law they have relied upon the
opinions of Cayman Islands and BVI counsel to the Company and the Selling
Shareholders delivered pursuant to paragraph (f) of this Section 8;
(f) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Cayman Islands and BVI counsel for the
Company and the Selling Shareholders that is an entity formed under the laws of
either the Cayman Islands or the BVI (the "Covered Selling Shareholders"), shall
have furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a company in good standing under the laws of the Cayman
Islands with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus;
43
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to acquire the ADSs to be deposited by the Covered Selling
Shareholders or to be purchased from the Covered Selling Shareholders
under this Agreement which have not been complied with; the Shares to
be deposited by the Covered Selling Shareholders may be freely
deposited by the Covered Selling Shareholders with the Depositary
against issuance of ADRs evidencing ADSs; and the ADSs and the Shares
to be sold by the Covered Selling Shareholders are freely transferable
by the Covered Selling Shareholders to or for the account of the
several Underwriters in the manner contemplated herein;
(iii) GEL has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the BVI; and all of its
issued shares of capital stock have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned directly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(iv) GGIL has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the BVI; and all of its
issued shares of capital stock have been duly and validly authorized
and issued, are fully paid and non-assessable, and are owned directly
by the Company, free and clear of all liens, encumbrances, equities or
claims;
(v) Each of the Covered Selling Shareholders has been duly
organized and is validly existing in good standing in its jurisdiction
of organization;
(vi) To the best of such counsel's knowledge, after having
conducted a search of the register of writs and other originating
processes, and other than as set forth in the Prospectus, there are no
legal, arbitration or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on the
current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries,
taken as a whole; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by any Governmental
Agency or threatened by others;
(vii) Each of this Agreement and the Power of Attorney has been
duly authorized, executed and delivered by or on behalf of the Covered
Selling Shareholders and constitutes a valid and legally binding
agreement of the Covered Selling Shareholders enforceable in
accordance with its terms, subject, as to enforceability, to
bankruptcy, insolvency, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles; and the Attorneys-in-Fact have been duly
authorized by such Covered Selling Shareholders to deliver the
securities to be sold by
44
such Covered Selling Shareholders in accordance with the terms of this
Agreement and the Power of Attorney;
(viii) Each of this Agreement and the Deposit Agreement has been
duly authorized, executed and delivered by the Company and constitutes
a valid and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, moratorium, reorganization and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(ix) Each of this Agreement and the Deposit Agreement is in
proper form to be enforceable against the Company in the Cayman
Islands in accordance with its terms; to ensure the legality,
validity, enforceability or admissibility into evidence in the Cayman
Islands of this Agreement or the Deposit Agreement, it is not
necessary that this Agreement or the Deposit Agreement be filed or
recorded with any court or other authority in the Cayman Islands or
that any stamp or similar tax in the Cayman Islands be paid on or in
respect of this Agreement, the Deposit Agreement or any other
documents to be furnished hereunder or thereunder;
(x) Each of this Agreement and the Power of Attorney is in proper
form to be enforceable against the Covered Selling Shareholders in the
Cayman Islands or the BVI, as the case may be, in accordance with its
terms; to ensure the legality, validity, enforceability or
admissibility into evidence in the Cayman Islands or the BVI, as the
case may be, of this Agreement or the Power of Attorney, it is not
necessary that this Agreement or the Power of Attorney be filed or
recorded with any court or other authority in the Cayman Islands or
the BVI, as the case may be,or that any stamp or similar tax in the
Cayman Islands or the BVI, as the case may be, be paid on or in
respect of this Agreement, the Power of Attorney or any other
documents to be furnished hereunder or thereunder;
(xi) The sale of the Shares and the issue and sale of the ADSs
being delivered at such Time of Delivery and the deposit of the Shares
with the Depositary against issuance of the ADSs evidencing the ADRs
to be delivered at such Time of Delivery and the compliance by the
Company with all of the provisions of this Agreement, and the Deposit
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company,
GEL or GGIL is a party or by which the Company, GEL or GGIL is bound
or to which any of the property or assets of the Company, GEL or GGIL
is subject, nor will such action result in any violation of the
provisions of the constituent documents of the Company or any statute
or any order, rule or regulation known to such counsel of any
Governmental Agency having jurisdiction over the Company, GEL or GGIL
or any of their respective properties;
(xii) The sale of the ADSs to be sold by the Covered Selling
Shareholders hereunder and the compliance by the Covered Selling
Shareholders with all of the
45
provisions of this Agreement and the Power of Attorney and the
consummation of the transactions herein contemplated will not conflict
with or result in a breach or violation of any terms or provisions of,
or constitute a default under, any statute, indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to
such counsel to which a Covered Selling Shareholder is a party or by
which a Covered Selling Shareholder is bound, or to which any of the
property or assets of a Covered Selling Shareholder is subject, nor
will such action result in any violation of the provisions of the
constituent documents of a Covered Selling Shareholder or any order,
rule or regulation known to such counsel of any Governmental Agency
having jurisdiction over a Covered Selling Shareholder or the property
of a Covered Selling Shareholder;
(xiii) No Governmental Authorization of or with any Governmental
Agency in the Cayman Islands or the BVI, as the case may be, is
required for the sale of the Shares and the issue and sale of the
ADSs, the deposit of the Shares with the Depositary against issuance
of the ADRs evidencing the ADSs to be delivered at such Time of
Delivery or the consummation of the transactions contemplated by this
Agreement, the Deposit Agreement or the Power of Attorney;
(xiv) Immediately prior to such Time of Delivery each Covered
Selling Shareholder had good and valid title to the Shares and ADSs to
be sold at such Time of Delivery by such Covered Selling Shareholder
under this Agreement, free and clear of all liens, encumbrances,
equities or claims, and full right, power and authority to sell,
assign, transfer and deliver the Shares and ADSs to be sold by such
Covered Selling Shareholder hereunder and thereunder; and, upon
delivery of the ADSs representing such Shares and payment therefor
pursuant to this Agreement, good and valid title to such ADSs, free
and clear of all liens, encumbrances, equities or claims, will be
transferred to each of the several Underwriters;
(xv) The statements set forth in the Prospectus under the caption
"Description of Share Capital", insofar as they purport to constitute
a summary of the terms of the ordinary shares are accurate, complete
and fair;
(xvi) The statements set forth in the Prospectus under the
caption "Taxation - Cayman Islands Taxation", insofar as they purport
to describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(xvii) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the Cayman Islands or to any
political subdivision or taxing authority thereof or therein in
connection with (A) the deposit with the Depositary of Shares by the
Covered Selling Shareholders against the issuance of ADRs evidencing
the ADSs, (B) the sale and delivery by the Covered Selling
Shareholders of the ADSs and the Shares to or for the respective
accounts of the Underwriters or (C) the sale and delivery outside the
Cayman Islands by the Underwriters of the ADSs and the Shares to the
initial purchasers thereof in the manner contemplated herein;
46
(xviii) Insofar as matters of the Cayman Islands law are
concerned, the Registration Statement and the filing of the
Registration Statement with the Commission have been duly authorized
by and on behalf of the Company; and the Registration Statement has
been duly executed pursuant to such authorization by and on behalf of
the Company;
(xix) Each of the Company's agreement and the Covered Selling
Shareholders' agreement to the choice of law provisions set forth in
Section 15 hereof will be recognized by the courts of the Cayman
Islands or the BVI, as the case may be; the Company and the Covered
Selling Shareholders can ▇▇▇ and be sued in their own names under the
laws of the Cayman Islands or the BVI, as the case may be; the
irrevocable submission of the Company and the Covered Selling
Shareholders to the exclusive jurisdiction of a New York Court, the
waiver by the Company and the Covered Selling Shareholders of any
objection to the venue of a proceeding of a New York Court and the
agreement of the Company and the Covered Selling Shareholders that
this Agreement shall be governed by and construed in accordance with
the laws of the State of New York are legal, valid and binding;
service of process effected in the manner set forth in Section 15
hereof will be effective, insofar as the law of the Cayman Islands or
the BVI, as the case may be, is concerned, to confer valid personal
jurisdiction over the Company and the Covered Selling Shareholders;
and judgment obtained in a New York Court arising out of or in
relation to the obligations of the Company or a Covered Selling
Shareholder under this Agreement would be enforceable against the
Company or such Covered Selling Shareholder, respectively, in the
courts of the Cayman Islands or the BVI, as the case may be;
(xx) The indemnification and contribution provisions set forth in
Section 9 hereof and Section 5.08 of the Deposit Agreement do not
contravene the public policy or laws of the Cayman Islands or the BVI;
(xxi) All dividends and other distributions declared and payable
on the shares of capital stock of the Company may under the current
laws and regulations of the Cayman Islands be paid to the Depositary
and freely transferred out of the Cayman Islands, and all such
dividends and other distributions will not be subject to withholding
or other taxes under the laws and regulations of Cayman Islands and
are otherwise free and clear of any other tax, withholding or
deduction in the Cayman Islands and without the necessity of obtaining
any Governmental Authorization in the Cayman Islands;
(xxii) All dividends and other distributions declared and payable
on the shares of capital stock of each of GEL and GGIL may under the
current laws and regulations of the BVI be paid to the Company and
freely transferred out of the BVI, and all such dividends and other
distributions will not be subject to withholding or other taxes under
the laws and regulations of the BVI and are otherwise free and clear
of any other tax, withholding or deduction in the BVI and without the
necessity of obtaining any Governmental Authorization in the BVI;
(xxiii) None of the Company, GEL and GGIL is in violation of its
constituent documents or in default in the performance or observance
of any material obligation,
47
agreement, covenant or condition contained in any license, indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound; the Restructuring does not (A) contravene any
provision of applicable Cayman Islands or BVI law or statute, rule or
regulation of any Governmental Agency having jurisdiction over the
Company, GEL or GGIL or any of their properties, (B) contravene the
articles of association, business license or other constituent
documents of the Company, GEL or GGIL, or (C) conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any license, indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument to
which the Company, GEL or GGIL is a party or by which the Company, GEL
or GGIL is bound or to which any of the property or assets of the
Company, GEL or GGIL is subject;
(xxiv) There is nothing contained in the laws of the Cayman
Islands, the memorandum and articles of association of the Company
which prevents the exercise of any right or the enjoyment of any
benefit to which an ADS holder is entitled as a result of owning an
ADS issued under the terms of the Deposit Agreement and which has not
been disclosed in the Deposit Agreement and the form of receipt
attached to the Deposit Agreement; and
(xxv) There are no reporting obligations under the laws of the
Cayman Islands on holders of the ADSs that have not been disclosed in
the Deposit Agreement and the form of receipt attached to the Deposit
Agreement.
In giving such opinion, such counsel may state that (A) with respect to all
matters of United States federal and New York law they have relied upon the
opinions of United States counsel to the Company and the Selling Shareholders
delivered pursuant to paragraph (d) of this Section 8 and (B) with respect to
all matters of PRC law they have relied upon the opinions of PRC counsel to the
Company and the Selling Shareholders delivered pursuant to paragraph (e) of this
Section 8;
(g) The respective counsel to each Selling Shareholder other than a
Covered Selling Shareholder shall have furnished to you their written opinions,
dated such Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) Such Selling Shareholder that is an entity has been duly
organized and is validly existing in good standing in its jurisdiction
of organization;
(ii) Immediately prior to such Time of Delivery, such Selling
Shareholder had good and valid title to the Shares and ADSs to be sold
at such Time of Delivery by such Selling Shareholder under this
Agreement, free and clear of all liens, encumbrances, equities or
claims, and full right, power and authority to sell, assign, transfer
and deliver the Shares and ADSs to be sold by such Selling Shareholder
hereunder and thereunder; and, upon delivery of the ADSs representing
such Shares and payment therefor pursuant to this Agreement, good and
valid title to such ADSs, free and clear of all liens, encumbrances,
equities or claims, will be transferred to each of the several
Underwriter;
48
(iii) Each of this Agreement and the Power of Attorney has been
duly authorized, executed and delivered by or on behalf of such
Selling Shareholder and constitutes a valid and legally binding
agreement of such Selling Shareholder 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
the Attorneys-in-Fact have been duly authorized by such Selling
Shareholder to deliver the securities to be sold by such Selling
Shareholder in accordance with the terms of this Agreement and the
Power of Attorney;
(iv) Each of this Agreement and the Power of Attorney is in
proper form to be enforceable against such Selling Shareholder that is
an entity in such Selling Shareholder's jurisdiction of organization
in accordance with its terms; to ensure the legality, validity,
enforceability or admissibility into evidence in such Selling
Shareholder's jurisdiction of organization of this Agreement or the
Power of Attorney, it is not necessary that this Agreement or the
Power of Attorney be filed or recorded with any court or other
authority in such jurisdiction or that any stamp or similar tax in
such jurisdiction be paid on or in respect of this Agreement, the
Power of Attorney or any other documents to be furnished hereunder or
thereunder;
(v) The sale of the ADSs to be sold by such Selling Shareholder
hereunder and the compliance by such Selling Shareholder with all of
the provisions of this Agreement and the Power of Attorney and the
consummation of the transactions contemplated hereunder or thereunder
will not conflict with or result in a breach or violation of any terms
or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which 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 that is an entity or
any order, rule or regulation known to such counsel of any
Governmental Agency having jurisdiction over such Selling Shareholder
or its property;
(vi) No Governmental Authorization of or with any Governmental
Agency in such Selling Shareholder's jurisdiction of organization, in
the case of such Selling Shareholder that is an entity, is required
for the sale of the Shares and the issue and sale of the ADSs, the
deposit of the Shares with the Depositary against issuance of the ADRs
evidencing the ADSs to be delivered at such Time of Delivery or the
consummation of the transactions contemplated by this Agreement, the
Deposit Agreement or the Power of Attorney;
(vii) 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 such Selling Shareholder's
jurisdiction of organization or to any political subdivision or taxing
authority thereof or therein in connection with (A) the deposit with
the Depositary of Shares by such Selling Shareholder against the
issuance of ADRs evidencing the ADSs, (B) the sale and delivery by
such Selling Shareholder of the ADSs and the Shares to or for the
respective accounts of the Underwriters or (C) the sale and delivery
outside such
49
jurisdiction by the Underwriters of the ADSs and the Shares to the
initial purchasers thereof in the manner contemplated herein;
(viii) Such Selling Shareholder's agreement to the choice of law
provisions set forth in Section 15 hereof will be recognized by the
courts of such Selling Shareholder's jurisdiction of organization, in
the case of such Selling Shareholder that is an entity; such Selling
Shareholder can ▇▇▇ and be sued in its own name under the laws of such
jurisdiction; the irrevocable submission of such Selling Shareholder
to the exclusive jurisdiction of a New York Court, the waiver by such
Selling Shareholder of any objection to the venue of a proceeding of a
New York Court and the agreement of such Selling Shareholder that this
Agreement and the Power of Attorney shall be governed by and construed
in accordance with the laws of the State of New York are legal, valid
and binding; service of process effected in the manner set forth in
Section 15 hereof will be effective, insofar as the law of such
jurisdiction is concerned, to confer valid personal jurisdiction over
such Selling Shareholder; and judgment obtained in a New York Court
arising out of or in relation to the obligations of such Selling
Shareholder under this Agreement would be enforceable against such
Selling Shareholder in the courts of such jurisdiction; and
(ix) The indemnification and contribution provisions set forth in
Section 9 hereof do not contravene the public policy or laws of such
Selling Shareholder's jurisdiction of organization, in the case of
such Selling Shareholder that is an entity;
(h) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel for the Depositary, shall
have furnished to you their written opinion, dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a valid and binding
agreement of the Depositary enforceable against the Depositary in
accordance with its terms, except as enforcement of it may be limited
by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or similar laws of general application relating to or
affecting creditors' rights and by general principles of equity;
(ii) Upon execution and delivery by the Depositary of ADRs
evidencing the ADSs against the deposit of Shares in accordance with
the provisions of the Deposit Agreement, the ADRs will be duly and
validly issued and will entitle the holders thereof to the rights
specified therein and in the Deposit Agreement; and
(iii) The ADS Registration Statement has been filed and declared
effective and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the ADS Registration Statement or any
part thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Act and the
ADS Registration Statement, and each amendment as of their respective
effective dates, complied as to form in all material respects with the
requirements of the Act and the rules and regulations of the
Commission thereunder;
50
(i) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Deloitte Touche
Tohmatsu 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 II attached hereto;
(j) 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;
(k) (A) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Pricing Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus, and (B) since the
respective dates as of which information is given in the Pricing Prospectus
there shall not have been any change in the share capital (other than pursuant
to the Company's employee share incentive plan existing on the date of this
Agreement which is described in the Pricing Prospectus), short- or long-term
debt of the Company or any of its subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the Company
and its subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (A) or
(B), is in your judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(l) On or after the Applicable Time there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on Nasdaq, the NYSE, 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, the PRC or the
Cayman Islands declared by the relevant authorities, or a material disruption in
commercial banking or securities settlement or clearance services in the United
States, the United Kingdom, Hong Kong, the PRC or the Cayman Islands; (iv) a
change or development involving a prospective change in taxation affecting the
Company, any of its subsidiaries or the Shares or the ADSs or the transfer
thereof; (v) the enactment, publication, decree or other promulgation of any
statute, regulation, rule or order of any Governmental Agency materially
affecting the business or operations of the Company or its subsidiaries, other
than any Excluded Event contemplated by Section 8(s); (vi) the outbreak or
escalation of hostilities or act of terrorism involving the United States, the
United Kingdom, Hong Kong, the PRC or the Cayman Islands or the declaration by
the United States, the United Kingdom, Hong Kong, the PRC or the Cayman Islands
of a national emergency or war; or (vii) the occurrence of any other calamity or
crisis or any change in financial, political or economic conditions or currency
exchange rates or controls in the United States, the United Kingdom, Hong Kong,
the PRC, the Cayman Islands or elsewhere, if the effect of any such event
specified in clauses (v), (vi) or (vii), in the sole judgment of the
Representatives, makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares and the ADSs being delivered at
such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
51
(m) The Shares and the ADSs to be sold by the Selling Shareholders at
such Time of Delivery shall have been duly listed, subject to official notice of
issuance, on the NYSE;
(n) The Depositary shall have furnished or caused to be furnished to
you at such Time of Delivery certificates satisfactory to you evidencing the
deposit with it of the Shares being so deposited against issuance of ADRs
evidencing the ADSs to be delivered by the Selling Shareholders at such Time of
Delivery, and the execution, countersignature (if applicable), issuance and
delivery of ADRs evidencing such ADSs pursuant to the Deposit Agreement;
(o) Each party set forth in Annex III attached hereto shall have
entered into an agreement (each a "Lock-Up Agreement") whereby during the period
beginning from the date hereof and continuing to and including the date 90 days
after the date of the Prospectus, such party shall not, except as provided
hereunder offer, sell, contract to sell, pledge, grant any option to purchase,
purchase any option or contract to sell, right or warrant to purchase, make any
short sale, file a registration statement with respect to, or otherwise dispose
of (including entering into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequence of ownership
interests): (A) any ADSs or ordinary shares or any securities of the Company
that are substantially similar to the ADSs or ordinary shares, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, ADSs or ordinary shares or any such
substantially similar securities; and (B) any ordinary shares of any of the
Company's subsidiaries or depositary shares or depositary receipts representing
such ordinary shares, including but not limited to any securities that are
convertible into or exchangeable for or that represent the right to receive such
ordinary shares or such depositary shares or depositary receipts or any such
substantially similar securities (in each case other than pursuant to a transfer
to an affiliate, provided that such transfer is not a disposition for value and
such affiliate agrees to be bound in writing by the restrictions set forth
therein), without your prior written consent, except for ADSs and shares of
Common Stock represented thereby being sold hereunder (a form of such Lock-Up
Agreement is attached as Annex IV attached hereto);
(p) The Company shall have complied with the provisions of Section
5(a)(iii) hereof with respect to the furnishing of Prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(q) At the First Time of Delivery, 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 V attached hereto;
(r) The Company and the Selling Shareholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and of the Selling Shareholders, respectively, satisfactory to
you as to the accuracy of the representations and warranties of the Company and
the Selling Shareholders, respectively, herein at and as of such Time of
Delivery, as to the performance by the Company and the Selling Shareholders of
all of their respective obligations hereunder to be performed at or prior to
such Time of Delivery, and as to such other matters as you may reasonably
request, including, without limitation, certificates of officers of the Company
satisfactory to you with respect to the memorandum and articles of association
and other organizational documents of the Company, all resolutions of the board
of directors of the Company and other corporate actions relating to this
Agreement and the authorization, issue and sale of the Shares and ADSs and the
incumbency and specimen signatures of signing officers, and the Company and the
Selling Shareholders shall have
52
furnished or caused to be furnished certificates as to the matters set forth in
subsections (a), (k) and (s) of this Section, the Certificate of the Company
referred to in subsection (d)(v) of this Section, the Certificate of the Selling
Shareholders referred to in subsection (d)(vi) of this Section, and as to such
other matters as you may reasonably request;
(s) There shall not be any litigation, proceedings, investigations,
processes for administrative sanctions or other actions initiated or threatened
by any Governmental 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 sale of the Shares and the issue and sale of the ADSs, the
listing and trading of the ADSs on the NYSE or the transactions contemplated by
this Agreement, the Deposit Agreement and the Power of Attorney; provided, that
this Section 8(s) shall not apply to (i) any such action initiated or threatened
by any such Governmental Agency before any such Governmental Agency seeking to
impose monetary fine or penalties the payment of which will not have a Material
Adverse Effect or (ii) a ratifying or post-listing filing with a Governmental
Authority, in each case in the reasonable judgment of the Representatives, that
will not create material pricing pressure or have an adverse impact on the
trading price of the ADSs (each, an "Excluded Event"); and
(t) There shall not be any adverse legislative or regulatory
developments related to the M&A Rules and Related Clarifications (other than an
Excluded Event) which in the sole judgment of the Representatives (after
consultation with the Company if practicable) would make it inadvisable to
proceed with the public offering or the delivery of the Shares and the ADSs
being delivered at such Time of Delivery on the terms and in the manner
contemplated in this Agreement (including any such development that results in
either PRC counsel to the Company or PRC counsel to the Underwriters not being
able to confirm, 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, each dated as of the date of the filing of the Initial Registration
Statement, attached hereto as Annex VI to this Agreement).
9. (a) The Company and each of the Selling Shareholders, jointly and
severally, will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) any breach of any representation or warranty in Sections 1(a)(ii)
through1(a)(vi) hereof, or (ii) 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, 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 with respect to
clause (ii) of this paragraph, the Company and the Selling Shareholders shall
not be liable in any such case to the extent, but only 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
53
Representatives or a Selling Shareholder expressly for use therein; provided,
further, that no Selling Shareholder shall be liable under this Section 9(a) for
any losses, claims, damages or liabilities in excess of the proceeds (before
deducting underwriting discounts and commissions and any offering expenses) to
be received by such Selling Shareholder from the sale of ADSs hereunder (for the
avoidance of doubt, the limit on liabilities set forth in the last proviso of
this Section 9(a) shall not apply to any Selling Shareholder in connection with
such Selling Shareholder's liability for any losses, claims, damages or
liabilities contemplated by Section 9(b)).
(b) Each of the Selling Shareholders will severally and not jointly
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, any Issuer Free Writing Prospectus or any "issuer
information" filed or required to be filed pursuant to Rule 433(d) under the
Act, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter for any
legal or other expenses reasonably incurred by such Underwriter in connection
with investigating or defending any such action or claim as such expenses are
incurred, in each case to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Registration
Statement, the ADS Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any such amendment or supplement, or
any Issuer Free Writing Prospectus or any "issuer information" filed or required
to be filed pursuant to Rule 433(d) under the Act in reliance upon and in
conformity with written information furnished to the Company or such Underwriter
by such Selling Shareholder expressly for use therein.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Shareholder against any losses, claims,
damages or liabilities to which the Company or such Selling Shareholder become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company and each Selling Shareholder for any legal or other
expenses reasonably incurred by the Company or such Selling Shareholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b) or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party under such subsection, notify the indemnifying party in
writing of
54
the commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under such subsection. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(e) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b), or (c) 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 (it being understood that, for purposes of this subsection (e), any
benefits received by any of the Selling Shareholders shall also be deemed to
have been received by the Company) and the Underwriters on the other from the
offering of the ADSs. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (d) 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.
The Company, each of the Selling Shareholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection (e)
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 (e). The amount paid or payable by an
55
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (e) 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 (e), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the ADSs underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(e) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Shareholders under
this Section 9 shall be in addition to any liability which the Company and the
respective Selling Shareholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act and to each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 shall
be in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer and
director of the Company (including any person who, with his or her consent, is
named in the Registration Statement as about to become a director of the
Company) and any Selling Shareholder and to each person, if any, who controls
the Company or any Selling Shareholder within the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the
ADSs which it has agreed to purchase hereunder at a Time of Delivery, you may in
your discretion arrange for you or another party or other parties to purchase
such ADSs on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such ADSs,
then the Company and the Selling Shareholders shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such ADSs on such terms. In the event
that, within the respective prescribed periods, you notify the Company and the
Selling Shareholders that you have so arranged for the purchase of such ADSs, or
the Company and the Selling Shareholders notify you that they have so arranged
for the purchase of such ADSs, you or the Company and the Selling Shareholders
shall have the right to postpone such Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such ADSs.
(b) If, after giving effect to any arrangements for the purchase of
the ADSs of a defaulting Underwriter or Underwriters by you, the Company and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the ADSs to be purchased at such Time of Delivery, then
the Selling Shareholders shall have the right to require each non-defaulting
Underwriter to purchase the number of ADSs which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the number
of
56
ADSs which such Underwriter agreed to purchase hereunder) of the ADSs of such
defaulting Underwriter or Underwriters for which such arrangements have not been
made; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
(c) If, after giving effect to any arrangements for the purchase of
the ADSs of a defaulting Underwriter or Underwriters by you, the Company and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased exceeds one-eleventh of the aggregate
number of all the ADSs to be purchased at such Time of Delivery, or if the
Company and the Selling Shareholders shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase ADSs of
a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase,
and of the Selling Shareholders to sell, the Optional ADSs) shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter, the
Company or the Selling Shareholders, except for the expenses to be borne by the
Company and the Selling Shareholders and the Underwriters as provided in Section
7 hereof and the indemnity and contribution agreements in Sections 9 and 16
hereof; but nothing herein shall relieve a defaulting Underwriter from liability
for its default.
11. The respective indemnities and contribution provisions in Section 9,
and the agreements, representations, warranties and other statements of the
Company, the Selling Shareholders and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any of the Selling Shareholders, or any officer or director or controlling
person of the Company, or any controlling person of any Selling Shareholder, and
shall survive delivery of and payment for the ADSs.
12. (a) This Agreement shall become effective when the parties hereto have
executed and delivered this Agreement.
(b) If the Representatives elect to terminate this Agreement as
provided in this Section 12, the Company, the Selling Shareholders and each
other Underwriter shall be notified promptly in writing.
(c) 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, 9 and
16 hereof; but, if for any other reason, any ADSs are not delivered by or on
behalf of the Company and the Selling Shareholders as provided herein, the
Company and each of the Selling Shareholders will, upon the occurrence of any
failure to complete the sale and delivery of the ADSs, promptly (and, in any
event, not later than 30 days), jointly and severally, reimburse the
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
ADSs not so delivered, but the Company and the Selling Shareholders shall then
be under no further liability to any Underwriter in respect of the ADSs not so
delivered except as provided in Sections 7, 9 and 16 hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you. All statements, requests, notices and agreements hereunder
57
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., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇ ▇▇▇▇▇'▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, facsimile number: (▇▇▇) ▇▇▇▇-▇▇▇▇, Attention: Legal
Department, in the case of ▇.▇. ▇▇▇▇▇▇ Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10172, United States of America, facsimile number:
(▇▇▇) ▇▇▇-▇▇▇▇, attention: Equity Syndicated Desk and in the case of UBS AG,
52/F, Two International Finance Centre, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
facsimile number: (▇▇▇) ▇▇▇▇-▇▇▇▇, Attention: Legal Department; if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
Mindray Medical International Limited c/o Shenzhen Mindray Bio-Medical
Electronics Co., Ltd., Mindray Building, Keji 12th Road South Hi-Tech Industrial
Park, Nanshan, Shenzhen, 518057, People's Republic of China, Attention: ▇▇▇▇▇
I-▇▇▇ ▇▇▇; if to any Selling Shareholder shall be delivered or sent by mail,
telex or facsimile transmission to such Selling Shareholder c/o Shenzhen Mindray
Bio-Medical Electronics Co., Ltd., Mindray Building, Keji 12th Road South
Hi-Tech Industrial Park, Nanshan, Shenzhen, 518057, People's Republic of China,
Attention: ▇▇▇▇▇ I-▇▇▇ ▇▇▇; provided, however, that any notice to an Underwriter
pursuant to Section 9(d) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Shareholders and, to the
extent provided in Sections 9 and 11 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Shareholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the ADSs from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
15. 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 it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. Each of the
Company and the Selling Shareholders has appointed CT Corporation System, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, as its authorized agent (the "Authorized
Agent") upon whom process may be served in any such action arising out of or
based on this Agreement or the transactions contemplated hereby which may be
instituted in any New York Court by any Underwriter or by any person who
controls any Underwriter, expressly consents to the jurisdiction of any such
court in respect of any such action, and waives any other requirements of or
objections to personal jurisdiction with respect thereto. Such appointment shall
be irrevocable. Each of the Company and the Selling Shareholders represents and
warrants that the Authorized Agent has agreed to act as such agent for service
of process and agrees to take any and all action, including the filing of any
and all documents and instruments, that may be necessary to continue such
appointment in full force and effect as aforesaid. Service of process upon the
Authorized Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the Company and the
Selling Shareholders as the case may be.
16. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Shareholders, as
the case may be, will indemnify each Underwriter against any
58
loss incurred by such Underwriter as a result of any variation as between (i)
the rate of exchange at which the United States dollar amount is converted into
the judgment currency for the purpose of such judgment or order and (ii) the
rate of exchange at which an Underwriter is able to purchase United States
dollars with the amount of the judgment currency actually received by such
Underwriter. The foregoing indemnity shall constitute a separate and independent
obligation of the Company and the Selling Shareholders and shall continue in
full force and effect notwithstanding any such judgment or order as aforesaid.
The term "rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of or conversion into United States
dollars.
17. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18. Each of the Company and the Selling Shareholders acknowledges and
agrees that (i) the purchase and sale of the ADSs pursuant to this Agreement is
an arm's-length commercial transaction between the Company and such Selling
Shareholders, on the one hand, and the several Underwriters, on the other, (ii)
in connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company or any Selling Shareholder, (iii) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Company or such Selling
Shareholder with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company or any Selling Shareholder on other matters) or
any other obligation to the Company or such Selling Shareholder except the
obligations expressly set forth in this Agreement and (iv) each of the Company
and the Selling Shareholders has consulted its own legal and financial advisors
to the extent it deemed appropriate. Each of the Company and the Selling
Shareholders agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company or any Selling Shareholder, in
connection with such transaction or the process leading thereto.
19. This Agreement constitutes the entire agreement among the parties and
supersedes all prior agreements and understandings (whether written or oral)
among the Company, the Selling Shareholders and the Underwriters, or any of
them, with respect to the subject matter hereof.
20. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
21. Each of the Company, the Selling Shareholders and the Underwriters
irrevocably waives, to the fullest extent permitted by law, any and all rights
to trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
22. This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
23. Notwithstanding anything herein to the contrary, each of the Company
and the Selling Shareholders is authorized to disclose to any persons the U.S.
Federal and State income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax
analyses) provided to the Company and the Selling Shareholders relating to that
treatment and
59
structure, without the Underwriters imposing any limitation of any kind.
However, any information relating to the tax treatment and tax structure shall
remain confidential (and the foregoing sentence shall not apply) to the extent
necessary to enable any person to comply with securities laws. For this purpose,
"tax structure" is limited to any facts that may be relevant to that treatment.
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Shareholder represents by so doing that he or she has been duly
appointed as Attorney-in-Fact by such Selling Shareholder pursuant to a validly
existing and binding Power of Attorney which authorizes such Attorney-in-Fact to
take such action.
If the foregoing is in accordance with your understanding, please sign and
return to us six counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
the Selling Shareholders. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company and the Selling Shareholders for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
60
Very truly yours,
Mindray Medical International Limited
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
The Selling Shareholders named in
Schedule II attached hereto
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
As Attorney-in-Fact acting on behalf of
each of the Selling Shareholders named
in Schedule II attached hereto
Accepted as of the date hereof on
behalf of each of the Underwriters
▇▇▇▇▇▇▇ Sachs (Asia) L.L.C.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
UBS AG
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
61
SCHEDULE I
TOTAL NUMBER OF NUMBER OF OPTIONAL ADSS
FIRM ADSS TO BE TO BE PURCHASED IF
UNDERWRITER PURCHASED MAXIMUM OPTION EXERCISED
----------- --------------- ------------------------
▇▇▇▇▇▇▇ Sachs (Asia) L.L.C........ __________ _________
▇.▇. ▇▇▇▇▇▇ Securities Inc........ __________ _________
UBS AG............................ __________ _________
[NAMES OF OTHER UNDERWRITERS]
---------- ---------
TOTAL............................. 11,282,003 1,692,300
========== =========
SCH-I
SCHEDULE II
TOTAL NUMBER OF NUMBER OF OPTIONAL ADSS
FIRM ADSS TO BE TO BE SOLD IF
SELLING SHAREHOLDERS SOLD MAXIMUM OPTION EXERCISED
-------------------- --------------- ------------------------
Quiet Well Limited............................. __________ _________
New Dragon (No. 12) Investments Limited........ __________ _________
Able Choice Investments Limited................ __________ _________
Asiawell Holdings Limited...................... __________ _________
Dragon City International Investment Limited... __________ _________
▇▇▇▇ ▇▇▇ Finance Limited....................... __________ _________
Scien-Ray (BVI) Incorporated................... __________ _________
Z&B Investment Co., Ltd........................ __________ _________
City Legend Limited............................ __________ _________
GS Capital Partners V Fund, L.P................ __________ _________
GS Capital Partners V Offshore Fund, L.P....... __________ _________
GS Capital Partners V Institutional, L.P....... __________ _________
GS Capital Partners V GmbH & Co. KG............ __________ _________
---------- ---------
TOTAL.......................................... 11,282,003 1,692,300
========== =========
SCH-II
SCHEDULE III
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure
Package:
(b) Materials other than the Pricing Prospectus that comprise the Pricing
Disclosure Package:
SCH-III