EXHIBIT 4.3
$75, 000,000
▇▇▇▇▇▇▇.▇▇▇, INC.
Zero Coupon Convertible Subordinated Notes due July 15, 2023
REGISTRATION RIGHTS AGREEMENT
-----------------------------
July 8, 2003
Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
▇▇▇▇▇▇▇.▇▇▇, Inc., a Cayman Islands company (the "Company"), proposes to
issue and sell to Credit Suisse First Boston LLC (the "Initial Purchaser"), upon
the terms set forth in a purchase agreement of even date herewith (the "Purchase
Agreement"), $25,000,000 aggregate principal amount (plus up to an additional
$75,000,000 principal amount) of its Zero Coupon Convertible Subordinated Notes
due July 15, 2023 (the "Initial Securities"). The Initial Securities will be
convertible into ordinary shares, par value US$0.0001 per share, of the Company
(the "Ordinary Shares") at the conversion price set forth in the Offering
Circular dated July 9, 2003. The Initial Securities will be issued pursuant to
an Indenture, dated as of July 14, 2003 (the "Indenture"), between the Company
and The Bank of New York, as trustee (the "Trustee"). As an inducement to the
Initial Purchaser to enter into the Purchase Agreement, the Company agrees with
the Initial Purchaser, for the benefit of (i) the Initial Purchaser and (ii) the
holders of the Initial Securities and the Ordinary Shares issuable upon
conversion of the Initial Securities (collectively, the "Securities") from time
to time until such time as such Securities have been sold pursuant to a Shelf
Registration Statement (as defined in Section 1(a)) (each of the forgoing a
"Holder" and collectively the "Holders"), as follows:
1. Shelf Registration. (a) The Company shall, at its cost, prepare and,
as promptly as practicable (but in no event more than 90 days after so required
or requested pursuant to this Section 1) file with the Securities and Exchange
Commission (the "Commission") and thereafter use commercially reasonable efforts
to cause to be declared effective as soon as practicable a registration
statement on Form F-3 (the "Shelf Registration Statement" relating to the offer
and sale of the Transfer Restricted Securities (as defined in Section 5) by the
Holders thereof from time to time in accordance with the methods of distribution
set forth in the Shelf Registration Statement and Rule 415 under the Securities
Act of 1933, as amended (the "Securities Act") (hereinafter, the "Shelf
Registration"); provided, however, that no Holder (other than the Initial
Purchaser) shall be entitled to have the Securities held by it covered by such
Shelf Registration Statement unless such Holder agrees in writing to be bound by
all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use commercially reasonable efforts to keep the
Shelf Registration Statement continuously effective in order to permit the
prospectus included therein (the "Prospectus") to be lawfully delivered by the
Holders of the relevant Securities, for a period of two years from the date of
its effectiveness or such shorter period that will terminate when all the
Securities covered by the Shelf Registration Statement (i) have been sold
pursuant thereto, (ii) are distributed to the public pursuant to Rule 144 under
the Securities Act or (iii) are no longer restricted securities (as defined in
Rule 144(k) under the Securities Act, or any successor rule thereof), assuming
for this purpose that the Holders thereof are not affiliates of the Company (in
any such case, such period being called the "Shelf Registration Period").
1
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
2. Registration Procedures. In connection with the Shelf Registration
contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to the
filing thereof with the Commission, a copy of the Shelf Registration Statement
and each amendment thereof and each supplement, if any, to the prospectus
included therein and, in the event that the Initial Purchaser (with respect to
any portion of an unsold allotment from the original offering) is participating
in the Shelf Registration Statement, shall consider in good faith such comments
to each such document as the Initial Purchaser reasonably may propose; and (ii)
include the names of the Holders who propose to sell Securities pursuant to the
Shelf Registration Statement as selling securityholders.
(b) Not less than 30 calendar days prior to the effective date of the
Shelf Registration Statement (the "Effective Date"), the Company shall mail the
Notice and Questionnaire substantially in the form of Annex A hereto to the
Holders of Securities. No Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the Effective Date, and
no Holder shall be entitled to use the prospectus forming a part thereof for
offers and resales of Securities at any time, unless such Holder has returned a
completed and signed Notice and Questionnaire to the Company within 28 calendar
days from the date on which the Notice and Questionnaire is first mailed to such
Holder. Notwithstanding the foregoing, upon the request of any Holder of
Securities that did not return a Notice and Questionnaire on a timely basis or
did not receive a Notice and Questionnaire because it was a subsequent
transferee of Securities after the Company mailed the Notice and Questionnaire,
(x) the Company shall send a Notice and Questionnaire to such Holder at the
address set forth in such request and (y) upon receipt of a properly completed
Notice and Questionnaire from such Holder, the Company shall use commercially
reasonable efforts to name such Holder as a selling securityholder in the Shelf
Registration Statement by means of a pre-effective amendment or, if permitted by
the Commission, by means of a post-effective amendment or a prospectus
supplement to the Shelf Registration; provided, however, that the Company shall
have no obligation to pay Additional Interest to such Holder for its failure to
file a pre-effective amendment, post-effective amendment or prospectus
supplement.
(c) The Company shall give written notice to the Initial Purchaser and the
Holders of the Securities (which notice pursuant to clauses (ii) through (v)
hereof shall be accompanied by an instruction to suspend the use of the
Prospectus until the requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment thereto
has been filed with the Commission and when the Shelf Registration
Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements
to the Shelf Registration Statement or the prospectus included therein or
for additional information;
(iii) of the issuance by the Commission of any stop order suspending
the effectiveness of the Shelf Registration Statement or the initiation of
any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose; and
(v) of (x) the happening of any event that requires the Company to
make changes in the Shelf Registration Statement or the Prospectus in order
that the Shelf Registration Statement or the Prospectus does not contain an
untrue statement of a material fact nor omit to state a material fact
required to be stated
2
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading and (y) the occurrence or existence of any pending corporate
development that makes it appropriate to suspend the use of the related
prospectus pursuant to Section 2(j) below.
Upon receipt of the Company's notice pursuant to clauses (ii) through (v)
hereof, subject to the provisions of this Agreement, each Holder agrees not to
sell any Securities pursuant to the Shelf Registration Statement until such
Holder receives of the supplemented or amended prospectus, or until it is
advised in writing by the Company that the prospectus may be used, and has
received copies of any additional or supplemental filings that are incorporated
by reference in such prospectus.
(d) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement.
(e) The Company shall furnish to each Holder of Securities included within
the coverage of the Shelf Registration, without charge, at least one copy of the
Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, the related prospectus and, if the Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(f) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Securities included within the coverage of the Shelf Registration
as many copies of the Prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any amendment or supplement
thereto as such person may reasonably request. The Company consents, subject to
the provisions of this Agreement, to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of the Securities in
connection with the offering and sale of the Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
(g) Prior to any public offering of the Securities pursuant to the Shelf
Registration Statement, the Company shall register or qualify or cooperate with
the Holders of the Securities included therein and their respective counsel in
connection with the registration or qualification of the Securities for offer
and sale under the securities or "blue sky" laws of such states of the United
States as any Holder of the Securities reasonably requests in writing and do any
and all other acts or things necessary or advisable to enable the offer and sale
in such jurisdictions within the United States of the Securities covered by such
Registration Statement; provided, however, that the Company shall not be
required to (i) qualify generally to do business in any jurisdiction where it is
not then so qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not then so
subject.
(h) The Company shall cooperate with the Holders of the Securities to
facilitate the timely preparation and delivery of certificates representing the
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends (unless otherwise required by law) and in such denominations
and registered in such names as the Holders may request a reasonable period of
time prior to sales of the Securities pursuant to the Shelf Registration
Statement.
(i) Upon the occurrence of any event contemplated by clauses (ii) through
(v) of Section 2(c) above during the period for which the Company is required to
maintain an effective Shelf Registration Statement, the Company shall promptly
prepare and file a post-effective amendment to the Shelf Registration Statement
or an amendment or supplement to the Prospectus and any other required document
so that, as thereafter delivered to Holders or purchasers of the Securities, the
Prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(j) Notwithstanding anything to the contrary herein, the Company may
suspend the use of the prospectus for a period not to exceed 45 days in any
90-day period or an aggregate of 120 days in any 12-month period if the Board of
Directors of the Company shall have determined in good faith that because of
valid business reasons (not including avoidance of the Company's obligations
hereunder), including, without limitation, the acquisition or divestiture of
assets, pending corporate developments, public filings with the Commission and
similar events, it is in
3
the interest of the Company to suspend such use, and prior to suspending such
use the Company provides the Holders with written notice of such suspension,
which notice need not specify the nature of the event giving rise to such
suspension.
(k) Not later than the effective date of the Shelf Registration Statement,
the Company will provide CUSIP numbers for the Initial Securities and the
Ordinary Shares registered under the Shelf Registration Statement, and provide
the Trustee with printed certificates for the Initial Securities, in a form
eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Shelf
Registration Statement, which statement shall cover such 12-month period.
(m) The Company shall cause the Indenture to be qualified under the Trust
Indenture Act of 1939, as amended, (the "Trust Indenture Act") in a timely
manner and containing such changes, if any, as shall be necessary for such
qualification. In the event that such qualification would require the
appointment of a new trustee under the Indenture, the Company shall appoint a
new trustee thereunder pursuant to the applicable provisions of the Indenture.
(n) In addition to the information contained in the Notice and
Questionnaire, the Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such registration the
Securities of any Holder that unreasonably fails to furnish such information
within a reasonable time after receiving such request.
(o) The Company shall enter into such customary underwriting and other
agreements and take all such other actions, if any, as reasonably required in
order to facilitate an Underwritten Offering (as defined in Section 7(a)), if
one is requested pursuant to Section 7.
(p) If the offering is to be underwritten pursuant to Section 7, the
Company shall (i) make reasonably available for inspection by any underwriter
participating in any disposition pursuant to the Shelf Registration Statement
and any attorney, accountant or other agent retained by any such underwriter,
all relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant information
reasonably requested by any such underwriter, attorney, accountant or agent in
connection with the Shelf Registration Statement, in each case, as shall be
reasonably necessary to enable such persons, to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information gathering shall be
coordinated by one counsel designated by and on behalf of the selling Holders
and their underwriters as described in Section 3 hereof.
(q) The Company, if requested by 33% of the Holders of Securities covered
by the Shelf Registration Statement, shall cause (i) its counsel to deliver an
opinion and updates thereof relating to the Securities in customary form
addressed to such Holders and the managing underwriters, if any, thereof, and
dated, in the case of the initial opinion, the effective date of such Shelf
Registration Statement (it being agreed that the matters to be covered by such
opinion shall include, without limitation, the due incorporation and good
standing of the Company and its subsidiaries; the qualification of the Company
and its subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the type
referred to in Section 2(o) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
Securities; the absence of material legal or governmental proceedings involving
the Company and its subsidiaries; the absence of governmental approvals required
to be obtained in connection with the Shelf Registration Statement, the offering
and sale of the Securities, or any agreement of the type referred to in Section
2(o) hereof; the compliance as to form of the Shelf Registration Statement and
any documents incorporated by reference therein and of the Indenture with
4
the requirements of the Securities Act and the Trust Indenture Act,
respectively; and, as of the date of the opinion and as of the effective date of
the Shelf Registration Statement or most recent post-effective amendment
thereto, as the case may be, the absence from the Shelf Registration Statement
and the prospectus included therein, as then amended or supplemented, and from
any documents incorporated by reference therein of an untrue statement of a
material fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (in
the case of any such documents, in the light of the circumstances existing at
the time that such documents were filed with the Commission under the Exchange
Act of 1934, as amended (the "Exchange Act")); (ii) its officers to execute and
deliver all customary documents and certificates and updates thereof requested
by any underwriters of the Securities and (iii) its independent public
accountants and the independent public accountants with respect to any other
entity for which financial information is provided in the Shelf Registration
Statement to provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering matters of
the type customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
(r) The Company will use commercially reasonable efforts to (a) if the
Initial Securities have been rated prior to the initial sale of such Initial
Securities, confirm such ratings will apply to the Securities covered by a
Registration Statement, or (b) if the Initial Securities were not previously
rated, cause the Securities covered by a Registration Statement to be rated with
the appropriate rating agencies, if so requested by holders of a majority in
aggregate principal amount of Securities covered by the Shelf Registration
Statement, or by the managing underwriters, if any.
(s) In the event that any broker-dealer registered under the Exchange Act
shall underwrite any Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules (the "Rules") of the National Association of Securities
Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company will assist such broker-dealer in complying
with the requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Shelf Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the yield
of such Securities, (ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of the
Rules.
(t) The Company shall use commercially reasonable efforts to take all
other steps necessary to effect the registration of the Securities covered by a
Registration Statement contemplated hereby.
3. Registration Expenses. (a) All expenses incident to the Company's
performance of and compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement is ever filed or becomes
effective, including without limitation:
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and
state "blue sky" or securities laws;
(iii) all expenses of incurred for (A) printing, including the
printing of certificates for the Securities to be issued but excluding the
printing of prospectuses as provided in subsection (c) of this Section 3,
(B) messenger and delivery services and (C) telephone and fax services;
(iv) all fees and disbursements of counsel for the Company (except as
provided in subsection (c) of this Section 3);
5
(v) all application and filing fees in connection with listing the
Securities on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Company, including the expenses of any special audit and
comfort letters required by or incident to such performance (except as
provided in subsection (c) of this Section 3).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and the
expenses of any person, including special experts, retained by the Company.
(b) In connection with the Shelf Registration Statement required by this
Agreement, the Company will reimburse the Initial Purchaser and the Holders of
Securities covered by the Shelf Registration Statement, for the reasonable fees
and disbursements of not more than one counsel, designated by the Holders of a
majority in principal amount of the Securities covered by the Shelf Registration
Statement (provided that, for the purposes of determining such majority, holders
of Ordinary Shares issued upon the conversion of the Initial Securities shall be
deemed to be Holders of the aggregate principal amount of Initial Securities
from which such Ordinary Shares were converted) to act as counsel for the
Holders in connection therewith.
(c)(x) Each selling Holder of Securities in an Underwritten Offering (as
defined in Section 7(a)) shall (i) pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such selling Holder's Securities and (ii) reimburse the Company for any
out-of-pocket expenses it reasonably incurs for performing any of its
obligations under Sections 2(o), 2(r) and 2(s), and (y) each selling Holder of
Securities in any offering under the Shelf Registration Statement shall
reimburse the Company for any out-of-pocket expenses it reasonably incurs in
connection with (i) the printing and delivery of the prospectuses pursuant to
Section 2(f) and (ii) the performance of its obligations under Section 2(q) and
shall pay for all expenses payable in connection with such Holder's conversion
of the Company's Ordinary Shares into American depositary shares.
4. Indemnification. (a) The Company agrees to indemnify and hold harmless
each Holder and each person, if any, who controls such Holder within the meaning
of the Securities Act or the Exchange Act (each Holder, and such controlling
persons are referred to collectively as the "Indemnified Parties") from and
against any losses, claims, damages or liabilities, joint or several, or any
actions in respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities registered under the Shelf Registration Statement) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Shelf Registration Statement or prospectus
including any document incorporated by reference therein, or in any amendment or
supplement thereto or in any preliminary prospectus relating to the Shelf
Registration, 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 shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
the Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein and (ii) with respect to any untrue statement or omission
or alleged untrue statement or omission made in any preliminary prospectus
relating to the Shelf Registration Statement, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Holder from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Holder under the Securities Act
in connection with such purchase and any such loss, claim, damage or liability
of such Holder results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Securities
to such person, a copy of the final prospectus if the Company had previously
furnished copies thereof to such Holder; provided further, however, that this
indemnity agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party. The Company shall also indemnify
6
underwriters in any Underwritten Offering (as defined in Section 7(a)), their
officers and directors and each person who controls such underwriters within the
meaning of the Securities Act or the Exchange Act to the same extent as provided
above with respect to the indemnification of the Holders of the Securities if
requested by such Holders.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company, its officers and directors and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act from and against any losses, claims, damages or liabilities or any actions
in respect thereof, to which the Company or any such controlling person may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to the Shelf
Registration, or arise out of or are based upon the omission or alleged omission
to state therein a material fact necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
omission or alleged untrue statement or omission was made in reliance upon and
in conformity with written information pertaining to such Holder and furnished
to the Company by or on behalf of such Holder specifically for inclusion
therein; and, subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company for any legal or other
expenses reasonably incurred by the Company or any such controlling person in
connection with investigating or defending any loss, claim, damage, liability or
action in respect thereof. This indemnity agreement will be in addition to any
liability which such Holder may otherwise have to the Company or any of its
controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 4 of
notice of the commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 4, notify the
indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have
under subsection (a) or (b) above except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, 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.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable considerations. The
relative fault of the parties 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 on the one hand or such Holder or such other indemnified
party, as the case may be, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party
7
in connection with investigating or defending any action or claim which is the
subject of this subsection (d). Notwithstanding any other provision of this
Section 4(d), the Holders shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Securities pursuant to the Shelf Registration Statement exceeds the
amount of damages which such Holders have 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act shall have the same rights to contribution as the Company.
(e) The agreements contained in this Section 4 shall survive the sale of
the Securities pursuant to the Shelf Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "Additional Interest") with respect to the Initial Securities
shall be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iii) below being herein called a "Registration
Default"):
(i) the Shelf Registration Statement has not been filed with the
Commission by the 90/th/ day after the first date of original issuance of
the Initial Securities;
(ii) the Shelf Registration Statement has not been declared effective
by the Commission by the 180/th/ day after the first date of original issue
of the Initial Securities; or
(iii) the Shelf Registration Statement is declared effective by the
Commission but (A) the Shelf Registration Statement thereafter ceases to be
effective or (B) the Shelf Registration Statement or the Prospectus ceases
to be usable in connection with resales of Transfer Restricted Securities
(as defined in Section 5(e)) during the periods specified herein because
either (1) any event occurs as a result of which the Prospectus forming
part of such Shelf Registration Statement would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or (2) it shall be necessary to amend
such Shelf Registration Statement or supplement the related prospectus, to
comply with the Securities Act or the Exchange Act or the respective rules
thereunder.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission .
Additional Interest shall accrue on the Initial Securities from and
including the date on which any such Registration Default shall occur to but
excluding the date on which all such Registration Defaults have been cured, at a
rate of 0.50% per annum (the "Additional Interest Rate").
(b) A Registration Default referred to in Section 5(a)(iii) hereof shall
be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to the Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related prospectus, provided that, the Company is proceeding
promptly and in good faith to amend or supplement the Shelf Registration
Statement and related prospectus to describe such events as required by
paragraph 2(i) hereof; provided, however, that in any case if such Registration
Default occurs for a continuous period in excess of 30 days, Additional Interest
shall be payable in accordance with the above paragraph from the date such
Registration Default occurs until such Registration Default is cured.
8
(c) The parties hereto agree that the Additional Interest provided for in
Section 5(a) constitutes a reasonable estimate of the damages that may be
incurred by Holders of Securities by reason of the failure of the Shelf
Registration Statement to be filed or declared effective or available for
effecting resales of Securities in accordance with the provisions hereof, and
that the Additional Interest shall be the exclusive remedy at law or in equity
or otherwise available to the Holders of Securities for such Registration
Default.
(d) Any amounts of Additional Interest due pursuant to Section 5(a) will
be payable in cash semi-annually on April 15 and October 15 (each an "Additional
Interest Payment Date") during the continuation of a Registration Default and
the Additional Interest Payment Date that succeeds the end of a period of
Registration Default. The amount of Additional Interest will be determined by
multiplying the Additional Interest Rate by the principal amount of the Initial
Securities, further multiplied by a fraction, the numerator of which is the
number of days such Additional Interest Rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months),
and the denominator of which is 360.
(e) "Transfer Restricted Securities" means each Security until (i) the
date on which such Security has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement or (ii)
the date on which such Security is distributed to the public pursuant to Rule
144 under the Securities Act or is saleable pursuant to Rule 144(k) under the
Securities Act. Notwithstanding anything to the contrary contained herein, no
Additional Interest shall accrue as to any Initial Securities from and after the
date they cease to be Transfer Restricted Securities.
6. Rules 144 and 144A. The Company shall use commercially reasonable
efforts to file the reports required to be filed by it under the Securities Act
and the Exchange Act in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder, make
publicly available other information so long as necessary to permit sales of
their securities pursuant to Rules 144 and 144A. The Company covenants that it
will take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell Transfer
Restricted Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Securities identified to the Company by
the Initial Purchaser upon request. Upon the request of any Holder, the Company
shall deliver to such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in this Section 6
shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
7. Underwritten Registrations. (a) The Holders of at least 33% in
aggregate principal amount of then-outstanding Transfer Restricted Securities
may elect to participate in one Underwritten Offering of the Transfer Restricted
Securities (an "Underwritten Offering") (provided that, for the purpose of
determining such percentage, holders of Ordinary Shares issued upon conversion
of the Initial Securities shall not be deemed holders of Ordinary Shares, but
shall be deemed to be holders of the aggregate principal amount of Initial
Securities from which such Ordinary Shares were converted).
(b) If any of the Transfer Restricted Securities covered by the Shelf
Registration are to be sold in an Underwritten Offering, the investment banker
or investment bankers and manager or managers that will administer the offering
("Managing Underwriters") will be selected by the holders of a majority in
aggregate principal amount of such Transfer Restricted Securities to be included
in the Underwritten Offering (provided that, for the purposes of determining
such majority, holders of Ordinary Shares issued upon conversion of the Initial
Securities shall not be deemed holders of Ordinary Shares, but shall be deemed
to be holders of the aggregate principal amount of Initial Securities from which
such Ordinary Shares were converted).
No person may participate in the Underwritten Offering unless such person
(i) agrees to sell such person's Transfer Restricted Securities on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements, (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements and (iii) agrees in writing to pay its share of the expenses
incurred in connection therewith in accordance with Section 3(c).
9
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not on or after the date
of this Agreement enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(b) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents
(provided that holders of Ordinary Shares issued upon conversion of Initial
Securities shall not be deemed holders of Ordinary Shares, but shall be deemed
to be holders of the aggregate principal amount of Initial Securities from which
such Ordinary Shares were converted). Without the consent of the Holder of each
Initial Security, however, no modification may change the provisions relating to
the payment of Additional Interest.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current address
given by such Holder to the Company.
(2) if to the Initial Purchaser:
Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Transactions Advisory Group
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
The Hong ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
Tel. No.: ▇▇▇-▇▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
(3) if to the Company, at its address as follows:
▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ District
Beijing 100738, People's Republic of China
Tel. No.: 8610-8518-0163
Fax No.: 8610-8518-3618
Attention: Chief Financial Officer
10
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
21/F, Entertainment Building
▇▇ ▇▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Tel. No.: ▇▇▇-▇▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; ten business days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the third day after delivery, if sent by express air
courier guaranteeing next day delivery.
(d) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(e) Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Company submits to the
nonexclusive jurisdiction of any federal or state court in the State of New
York.
(i) Severability. If any one or more of the provisions contained herein,
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.
(j) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is required
hereunder, Securities held by the Company or its affiliates (other than
subsequent Holders of Securities if such subsequent Holders are deemed to be
affiliates solely by reason of their holdings of such Securities) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(k) Agent for Service; Submission to Jurisdiction; Waiver of Immunities.
By the execution and delivery of this Agreement, the Company (i) acknowledges
that it has, by separate written instrument, irrevocably designated and
appointed CT Corporation System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (and any successor entity), as its authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
this Agreement that may be instituted in any federal or state court in the State
of New York or brought under federal or state securities laws, and acknowledges
that CT Corporation System has accepted such designation, (ii) submits to the
nonexclusive jurisdiction of any such court in any such suit or proceeding, and
(iii) agrees that service of process upon CT Corporation System and written
notice of said service to the Company shall be deemed in every respect effective
service of process upon it in any such suit or proceeding. The Company further
agrees to
11
take any and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment of CT Corporation System in full force and effect so long as any of
the Securities shall be outstanding. To the extent that the Company may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, it
hereby irrevocably waives such immunity in respect of this Agreement, to the
fullest extent permitted by law.
12
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among
the several Initial Purchaser and the Company in accordance with its terms.
Very truly yours,
▇▇▇▇▇▇▇.▇▇▇, Inc.
by: /s/ ▇▇▇ Sun
------------------------------------
Name: ▇▇▇ Sun
Title: Acting CEO & a Director
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
Credit Suisse First Boston LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
13
ANNEX A
Form of Selling Securityholder Notice and Questionnaire
The undersigned beneficial holder of Zero Coupon Convertible Subordinated
Notes due 2023 (the "Notes") of ▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Company") or ordinary
shares, par value $0.0001 per share (the "Ordinary Shares" and, together with
the Notes, the "Securities"), of the Company understands that the Company has
filed or intends to file with the Securities and Exchange Commission a
registration statement (the "Shelf Registration Statement") for the registration
and resale under Rule 415 of the Securities Act of 1933, as amended, of the
Securities in accordance with the terms of the Registration Rights Agreement,
dated as of July 8, 2003 (the "Registration Rights Agreement"), among the
Company and the initial purchaser named therein. A copy of the Registration
Rights Agreement is available from the Company upon request at the address set
forth below. All capitalized terms not otherwise defined herein shall have the
meaning ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Securities is entitled to the benefits of the
Registration Rights Agreement. In order to sell or otherwise dispose of any
Securities pursuant to the Shelf Registration Statement, a beneficial owner of
Securities generally will be required to be named as a selling securityholder in
the related prospectus, deliver a prospectus to purchasers of Securities and be
bound by those provisions of the Registration Rights Agreement applicable to
such beneficial owner (including certain indemnification provisions). In order
to have Securities included in the Shelf Registration Statement (or a supplement
or amendment thereto), this Notice of Registration Statement and Sellin
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company at the address set forth herein for
receipt ON OR BEFORE [insert date that is 28 days from the date of the Notice
and Questionnaire].
Notwithstanding the foregoing, upon the request of any Holder of Securities
that did not return a Notice and Questionnaire on a timely basis or did not
receive a Notice and Questionnaire because it was a subseqent transferee of
Securtiis after the Company mailed the Notice and Qeustionnaire, (x) the Company
shall send a Notice and Quetionnaire to such Holder at the address set forth in
such request and (y) upon receipt of a properly completed Notice and
Questionnaire from such Holder, the Company shall use commercially reasonable
efforts to name such Holder as a selling securityholder in the Shelf
Registration Statement by means of a pre-effective amendment or, if permitted by
the Commission, by means of a post-effective amendment or a Prospectus
supplement to the Shelf Registration Statement; provided, however,that the
Company shall have no obligation to pay Additional Interest to such Holder for
its failure to file a pre-effective amendment, a post-effective amendment or
Prospectus supplement.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and the related prospectus.
Accordingly, holders and beneficial owners of Securities are advised to consult
their own securities law counsel regarding the consequences of being named or
not being named as a selling securityholder in the Shelf Registration Statement
and the related prospectus.
Notice
The undersigned beneficial owner (the "Selling Securityholder") of
Securities hereby gives notice to the Company of its intention to sell or
otherwise dispose of Securities beneficially owned by it and listed below in
Item 3 (unless otherwise specified under Item 3) pursuant to the Shelf
Registration Statement.
The undersigned, by signing and returning this Notice and Questionnaire,
understands that it will be bound by the terms and conditions of this Notice and
Questionnaire and the Registration Rights Agreement as if the undersigned
Selling Securityholder were an original party thereto.
The undersigned hereby provides the following information to the Company
and represents and warrants that such information is accurate and complete:
A-1
Questionnaire
1. (a) Full Legal Name of Selling Securityholder:
___________________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as (a) above)
through which Securities listed in Item (3) below are held:
___________________________________________________________________________
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) through which Securities listed in Item (3) below are
held:
___________________________________________________________________________
2. Address for Notices to Selling Securityholder:
___________________________________________________________________________
___________________________________________________________________________
Telephone:
_________________________________________________________________
Fax:
_______________________________________________________________________
Contact Person:
____________________________________________________________
3. Beneficial Ownership of Securities:
(a) Type and principal amount of Securities beneficially owned:
___________________________________________________________________________
(b) CUSIP No(s). of Securities beneficially owned:
___________________________________________________________________________
4. Beneficial Ownership of the Company's securities owned by the Selling
Securityholder:
Except as set forth below in this Item (4), the undersigned is not the
beneficial or registered owner of any "Other Securities," defined as
securities of the Company other than the Securities listed above in Item
(3).
(a) Type and amount of Other Securities beneficially owned by the Selling
Securityholder:
___________________________________________________________________________
(b) CUSIP No(s). of such Other Securities beneficially owned:
___________________________________________________________________________
5. Relationship with the Company:
Except as set forth below, neither the undersigned nor any of its
affiliates, officers, directors or principal equityholders (5% or more) has
held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three
years.
A-2
State any exceptions here:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
6. Plan of Distribution:
Except as set forth below, the undersigned (including its donees or
pledgees) intends to distribute the Securities listed above in Item (3)
pursuant to the Shelf Registration Statement only as follows (if at all):
Such Securities may be sold from time to time directly by the undersigned
or, alternatively, through underwriters, broker-dealers or agents. If the
Securities are sold through an Underwritten Offering, the Selling
Securityholder will (i) pay underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Selling
Securityholder's Securities and (ii) reimburse the Company for any
out-of-pocket expenses it reasonably incurs for performing any of its
obligations under Sections 2(o), 2(r) and 2(s) of the Registration Rights
Agreement in connection with such Underwritten Offering. In any offering
under the Shelf Registratin Statement, each Selling Securityholder will
reimburse the Company for any out-of-pocket expenses it reasonably incurs
in connection with (i) the printing and delivery of prospectuses pursuant
to Section 2(f) of the Registration Rights Agreement and (ii) the
performance of its obligations under Section 2(q) of the Registration Right
Agreement and will pay for all expenses payable in conenction with such
Selling Securityholder's conversion of the Company's Ordinary Shares into
American depositary shares. Such Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of
sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve block
transactions) (i) on any national securities exchange or quotation service
on which the Securities may be listed or quoted at the time of sale, (ii)
in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the Securities
or otherwise, the undersigned may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the Securities
and deliver Securities to close out such short positions, or loan or pledge
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
The undersigned acknowledges that it understands its obligation to comply
with the provisions of the Securities Exchange Act of 1934, as amended, and the
Rules thereunder relating to stock manipulation, particularly Regulation M
thereunder (or any successor Rules or regulations), in connection with any
offering of Securities pursuant to the Shelf Registration Statement. The
undersigned agrees that neither it nor any person acting on its behalf will
engage in any transaction in violation of such provisions.
The Selling Securityholder hereby acknowledges its obligations under the
Registration Rights Agreement to indemnify and hold harmless certain persons as
set forth therein.
A-3
The Selling Securityholder hereby agrees to deliver to the Company and the
Trustee the Notice of Transfer set forth in Exhibit 1 to this Notice and
Questionnaire following any sale of Securities pursuant to the Shelf
Registration Statement.
Pursuant to the Registration Rights Agreement, the Company has agreed under
certain circumstances to indemnify the Selling Securityholder against certain
liabilities.
In accordance with the undersigned's obligation under the Registration
Rights Agreement to provide such information as may be required by law for
inclusion in the Shelf Registration Statement, the undersigned agrees to
promptly notify the Company of any inaccuracies or changes in the information
provided herein that may occur subsequent to the date hereof at any time while
the Shelf Registration Statement remains effective. All notices hereunder and
pursuant to the Registration Rights Agreement shall be made in writing at the
address set forth below.
By signing below, the undersigned consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and the
related prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of
the Shelf Registration Statement and the related prospectus.
A-4
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Beneficial Owner
By:
------------------------------------
Name:
Title:
PLEASE FAX THE COMPLETED AND EXECUTED
QUESTIONNAIRE AND RETURN THE ORIGINAL TO:
▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Plaza
▇▇▇▇ ▇▇▇▇▇ District
Beijing, People's Republic of China 100738
(▇▇-▇▇) ▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇
Fax: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
A-5
Exhibit 1
to Annex A
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇,
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Plaza
▇▇▇▇ ▇▇▇▇▇ District
Beijing, People's Republic of China 100738
Attention: Chief Financial Officer
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Attention: Corporate Trust Services
With a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
#▇▇-▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: Global Trust Services
Fax No.: ▇▇-▇▇▇▇-▇▇▇▇
Re: ▇▇▇▇▇▇▇.▇▇▇, Inc. (the "Company")
Zero Coupon Convertible Subordinated Notes due 2023 (the "Securities")
Dear Sirs:
Please be advised that the undersigned has transferred $ _______________________
aggregate principal amount of the above-referenced Securities or ordinary shares
of the Company, issued upon conversion, repurchase or redemption of the
Securities, pursuant to an effective Registration Statement on Form
_________________ (File No. 333- ________________ ) filed by the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied with respect to the
transfer described above and that the above-named beneficial owner of the
Securities or ordinary shares is named as a selling securityholder in the
Prospectus dated [date], or in amendments or supplements thereto, and that the
aggregate principal amount of the Securities or number of ordinary shares
transferred are [a portion of] the Securities or ordinary shares listed in such
Prospectus, as amended or supplemented, opposite such owner's name.
Very truly yours,
-----------------------------------
(Name)
By:
-----------------------------------
(Authorized Signature)