NetQin Mobile Inc. 7,142,858 American Depositary Shares Representing 35,714,290 Class A Common Shares Underwriting Agreement
Exhibit 1.1
7,142,858 American Depositary Shares
Representing 35,714,290 Class A Common Shares
Representing 35,714,290 Class A Common Shares
____________, 2011
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
As Representative of the
several Underwriters listed
in Schedule 1 hereto
several Underwriters listed
in Schedule 1 hereto
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇.
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
NetQin Mobile Inc., an exempted company incorporated with limited liability under the laws of
the Cayman Islands (the “Company”), proposes to issue and sell to the several Underwriters listed
in Schedule 1 hereto (the “Underwriters”), for whom you are acting as representative (the
“Representative”), an aggregate of 7,142,858 American depositary shares (each, an “ADS,” and
collectively, the “Underwritten ADSs”), representing 35,714,290 Class A common shares, par value
US$0.0001 per share, of the Company (the “Common Shares”). In addition, the Company proposes to
issue and sell, at the option of the Underwriters, up to an additional 1,071,428 ADSs,
representing 5,357,140 additional Shares, (the “Option ADSs”). The ADSs and the Option ADSs are
herein referred to as the “Offered ADSs”. The Common Shares represented by the ADSs are herein
referred to as the “Underwritten Shares,” the Common Shares represented by the Option ADSs are
herein referred to as the “Option Shares” and the Underwritten Shares and the Option Shares are
herein referred to as the “Shares.”
The Company hereby acknowledges that, as part of the proposed offering of the Offered ADSs, it
has requested ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., and ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. has agreed, to administer a directed
share program (the “Directed Share Program”) under which up to 571,429 ADSs, or approximately 8% of
the ADSs to be purchased by the Underwriters (the “Reserved ADSs”), shall be reserved for purchase
at the initial public offering price by the Company’s directors, officers, employees, consultants,
associates and other persons having a relationship with the Company as designated by the Company
(the “Directed Share Participants”) as part of the distribution of the Offered ADSs by the
Underwriters, subject to the terms of this Underwriting Agreement, the applicable rules,
regulations and interpretations of the Financial Industry Regulatory Authority (“FINRA”) and all
other applicable laws, rules and regulations. The number of ADSs available
for sale to the general public will be reduced to the extent that Directed Share Participants
purchase Reserved ADSs. The Underwriters may offer any Reserved ADSs not purchased by Directed
Share Participants to the general public on the same basis as the other Offered ADSs being sold
hereunder. The Company has supplied ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. with the names, addresses and telephone
numbers of the individuals or other entities which the Company has designated to be participants in
the Directed Share Program. It is understood that any number of those so designated to participate
in the Directed Share Program may decline to do so.
The Offered ADSs are to be issued pursuant to a deposit agreement (the “Deposit Agreement”),
to be dated as of the Closing Date (defined below), or a date prior to the Closing Date, among the
Company, Deutsche Bank Trust Company Americas, as depositary (the “Depositary”), and owners and
beneficial owners from time to time of the ADSs. Each Offered ADS will initially represent the
right to receive five Class A Common Shares deposited pursuant to the Deposit Agreement.
The Company hereby confirms their agreement with the several Underwriters concerning the
purchase and sale of the Offered ADSs, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement on Form F-1 (File No. 333-172839), including a prospectus, relating to the Shares. Such
registration statement, as amended at the time it became effective, including the information, if
any, deemed pursuant to Rule 430A or 430C under the Securities Act to be part of the registration
statement at the time of its effectiveness (“Rule 430 Information”), is referred to herein as the
“Registration Statement”; and as used herein, the term “Preliminary Prospectus” means each
prospectus included in such registration statement (and any amendments thereto) before
effectiveness, any prospectus filed with the Commission pursuant to Rule 424(a) under the
Securities Act and the prospectus included in the Registration Statement at the time of its
effectiveness that omits Rule 430 Information, and the term “Prospectus” means the prospectus in
the form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) with the public offering price, other Rule 430 information and other final terms of
the Shares offered and otherwise satisfies Section 10(a) of the Act. If the Company has filed an
abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the “Rule 462
Registration Statement”), then any reference herein to the term “Registration Statement” shall be
deemed to include such Rule 462 Registration Statement. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Registration Statement and the
Prospectus.
At or prior to the Applicable Time (as defined below), the Company had prepared the following
information (collectively with the pricing information set forth on Annex B, the “Pricing
Disclosure Package”): a Preliminary Prospectus dated April 15, 2011 (“Statutory Prospectus”) and
each “free-writing prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on
Annex B hereto.
“Applicable Time” means [ ] [A/P].M., New York City time, on May 4, 2011.
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2. Purchase of the Offered ADSs by the Underwriters. (a)The Company agrees to issue
and sell the Underwritten ADSs to the several Underwriters as provided in this Agreement, and each
Underwriter, on the basis of the representations, warranties and agreements set forth herein and
subject to the conditions set forth herein, agrees, severally and not jointly, to purchase at a
price per ADS (the “Purchase Price”) of $_______ from the Company the respective number of
Underwritten ADSs set forth opposite such Underwriter’s name in Schedule 1 hereto by a fraction,
the numerator of which is the aggregate number of Underwritten ADSs to be purchased by such
Underwriter as set forth opposite the name of such Underwriter in Schedule 1 hereto and the
denominator of which is the aggregate number of Underwritten ADSs to be purchased by all the
Underwriters from the Company hereunder.
In addition, the Company agrees to issue and sell the Option ADSs to the several Underwriters
as provided in this Agreement, and the Underwriters, on the basis of the representations,
warranties and agreements set forth herein and subject to the conditions set forth herein, shall
have the option to purchase, severally and not jointly, from the Company the Option ADSs at the
Purchase Price less an amount per ADS equal to any dividends or distributions declared by the
Company and payable on the Underwritten ADSs but not payable on the Option ADSs. If any Option
ADSs are to be purchased, the number of Option ADSs to be purchased by each Underwriter shall be
the number of Option ADSs which bears the same ratio to the aggregate number of Option ADSs being
purchased as the number of Underwritten ADSs set forth opposite the name of such Underwriter in
Schedule 1 hereto (or such number increased as set forth in Section 11 hereof) bears to the
aggregate number of Underwritten ADSs being purchased from the Company by the several Underwriters,
subject, however, to such adjustments to eliminate any fractional ADSs as the Representative in
their sole discretion shall make. Any such election to purchase Option ADSs shall be made in
proportion to the maximum number of Option ADSs to be sold by the Company as set forth in Schedule
2 hereto.
The Underwriters may exercise the option to purchase Option ADSs at any time in whole, or from
time to time in part, on or before the thirtieth day following the date of the Prospectus, by
written notice from the Representative to the Company. Such notice shall set forth the aggregate
number of Option ADSs as to which the option is being exercised and the date and time when the
Option ADSs are to be delivered and the Option ADSs paid for, which may be the same date and time
as the Closing Date (as hereinafter defined) but shall not be earlier than the Closing Date or
later than the tenth full business day (as hereinafter defined) after the date of such notice
(unless such time and date are postponed in accordance with the provisions of Section 11 hereof).
Any such notice shall be given at least two business days prior to the date and time of delivery
specified therein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Offered ADSs as soon after the effectiveness of the Registration Statement and this Agreement as in
the judgment of the Representative is advisable, and initially to offer the Offered ADSs on the
terms set forth in the Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell Offered ADSs
to or through any affiliate of an Underwriter.
(c) Payment for the Offered ADSs shall be made by wire transfer in immediately available funds
to the accounts specified by the Company to the Representative, in the case of
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the Underwritten Shares, at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the “Closing Location”) at 9:00 A.M., New
York City time, on May 10, 2011, or at such other time or place on the same or such other date,
not later than the fifth business day thereafter, as the Representative, the Company may agree upon
in writing or, in the case of the Option ADSs, on the date and at the time and place specified by
the Representative in the written notice of the Underwriters’ election to purchase such Option ADSs.
The time and date of such payment for the Underwritten ADSs is referred to herein as the
“Closing Date,” and the time and date for such payment for the Option ADSs, if other than the
Closing Date, is herein referred to as the “Additional Closing Date.”
Payment for the Offered ADSs to be purchased on the Closing Date or the Additional Closing
Date, as the case may be, shall be made against delivery to the Representative for the respective
accounts of the several Underwriters of the Offered ADSs to be purchased on such date in definitive
form registered in such names and in such denominations as the Representative shall request in
writing not later than two full business days prior to the Closing Date or the Additional Closing
Date, as the case may be, with any transfer taxes payable in connection with the sale of such
Offered ADSs duly paid by the Company. Delivery of the ADSs shall be made through the facilities
of The Depository Trust Company (“DTC”) unless the Representative shall otherwise instruct.
(d) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
the Offered ADSs contemplated hereby (including in connection with determining the terms of the
offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any
other person. Additionally, neither the Representative nor any other Underwriter is advising the Company
or any other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with their own advisors concerning such matters and shall
be responsible for making their own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by
the Commission, and the Statutory Prospectus included in the Pricing Disclosure Package, at the
time of filing thereof, complied in all material respects with the Securities Act, and the
Statutory Prospectus, at the time of filing thereof, did not contain any untrue statement of a
material fact nor omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided that
the Company makes no representation and warranty with respect to any statements or omissions made
in reliance upon and in conformity with information relating to any Underwriter furnished to the
Company in writing by such Underwriter through the Representative expressly for use in such
Statutory Prospectus, it being understood and agreed that the
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only such information furnished by any Underwriter consists of the information described as
such in Section 8(b) hereof.
(b) Pricing Disclosure Package. The Pricing Disclosure Package as of the Applicable Time did not, and as of the Closing Date
and as of the Additional Closing Date, as the case may be, will not, contain any 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;
provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in such Pricing Disclosure Package, it being understood and agreed that the only
such information furnished by any Underwriter consists of the information described as such in
Section 8(b) hereof.
(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary Prospectus and the Prospectus, the
Company (including its agents and representatives, other than the Underwriters in their capacity as
such) has not prepared, used, authorized, approved or referred to and will not prepare, use,
authorize, approve or refer to any “written communication” (as defined in Rule 405 under the
Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Offered
ADSs (each such communication by the Company or its agents and representatives (other than a
communication referred to in clause (i) below), an “Issuer Free Writing Prospectus”) other than (i)
any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or
Rule 134 under the Securities Act or (ii) the documents listed on Annex B hereto, each electronic
road show and any other written communications approved in writing in advance by the
Representative. Each such Issuer Free Writing Prospectus as set forth in Annex B complied in all
material respects with the Securities Act, has been or will be (within the time period specified in
Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when
taken together with the Statutory Prospectus accompanying, or delivered prior to delivery of, such
Issuer Free Writing Prospectus, did not, and as of the Closing Date and as of the Additional
Closing Date, as the case may be, will not, contain any 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; provided that the Company makes
no representation and warranty with respect to any statements or omissions made in each such Issuer
Free Writing Prospectus in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in such Issuer Free Writing Prospectus, it being understood and agreed that the
only such information furnished by any Underwriter consists of the information described as such in
Section 8(b) hereof.
(d) Registration Statement and Prospectus. The Registration Statement has been declared effective by the Commission. No order
suspending the effectiveness of the Registration Statement has been issued by the Commission, and,
to the Company’s best knowledge after due inquiry, no proceeding for that purpose or pursuant to
Section 8A of the Securities Act against the Company or related to the offering of the Offered ADSs
has been initiated or threatened by the Commission; as of the applicable effective date of the
Registration Statement and any post-effective amendment thereto, the Registration Statement and any
such post-effective amendment complied and will comply in all material respects with the Securities
Act, and did not and will
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not 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 not misleading; and as of
the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date and
as of the Additional Closing Date, as the case may be, the Prospectus will not contain any 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;
provided that the Company makes no representation and warranty with respect to any
statements or omissions made in reliance upon and in conformity with information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement and the Prospectus and any amendment or supplement
thereto, it being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 8(b) hereof.
(e) Form F-6. A registration statement on Form F-6 (File No. 333-173389), and any amendments thereto, in
respect of the Offered ADSs has been filed with the Commission; such registration statement in the
form heretofore delivered to the Representative and, excluding exhibits, to the Representative for
each of the other Underwriters, has been declared effective by the Commission; 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
Company’s best 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 complied, and any further amendments thereto will comply, in all
material respects with the Securities Act, and did not, as of the applicable effective date, and
will not 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 not misleading.
(f) Form 8-A. A registration statement on Form 8-A (File No. 001- 35145), and any amendments thereto, in
respect of the registration of the Offered ADSs under the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder (collectively, the “Exchange
Act”) has been filed with the Commission; such registration statement in the form heretofore
delivered to the Representative and, excluding exhibits, to the Representative for each of the
other Underwriters, has been declared effective by the Commission; 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 Company’s
best 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 “Form 8-A Registration Statement”); and the Form 8-A Registration
Statement when it became effective complied, and any further amendments thereto will comply, in all
material respects with the Exchange Act, and did not, as of the applicable effective date, and will
not 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 not misleading.
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(g) Financial Statements. The financial statements (including the related notes thereto) of the Company and its
consolidated Group Entities (as defined below) included in the Registration Statement, the Pricing
Disclosure Package and the Prospectus comply in all material respects with the applicable
requirements of the Securities Act and present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates indicated and the results of their operations and the
changes in their cash flows for the periods specified; such financial statements have been prepared
in conformity with generally accepted accounting principles in the United States (“U.S. GAAP”)
applied on a consistent basis throughout the periods covered thereby, and any supporting schedules
included in the Registration Statement present fairly the information required to be stated
therein; the other financial information included in the Registration Statement, the Pricing
Disclosure Package and the Prospectus has been derived from the accounting records of the Company
and its consolidated Group Entities (as defined below) and presents fairly the information shown
thereby; and there are no financial statements (historical or pro forma) that are required to be
included in the Registration Statement, the Statutory Prospectus or the Prospectus that are not
included as required.
(h) No Material Adverse Change. Since the date of the most recent financial statements of the Company included in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, (i) there has not been
any change in the capital stock, short-term debt or long-term debt of the Company or any of the
Group Entities, or any dividend or distribution of any kind declared, set aside for payment, paid
or made by the Company on any class of shares, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business, properties,
management, financial position, shareholders’ equity, results of operations or prospects of the
Company and the Group Entities taken as a whole; (ii) neither the Company nor any of the Group
Entities has entered into any transaction or agreement (whether or not in the ordinary course of
business) that is material to the Company and the Group Entities taken as a whole or incurred any
liability or obligation, direct or contingent, that is material to the Company and the Group
Entities taken as a whole; and (iii) neither the Company nor any of the Group Entities has
sustained any loss or interference with its business that is material to the Company and the Group
Entities taken as a whole and that is either from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor disturbance or dispute or any action, order or
decree of any court or arbitrator or governmental or regulatory authority, except in each case as
otherwise disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(i) Organization and Good Standing. The Company does not own or control, directly or indirectly, any corporation, association
or other entity other than the subsidiaries and the variable interest entity of the Company, as
listed in Schedule 2 hereto (each, a “Group Entity,” and collectively, the “Group Entities”). The
Company and each of the Group Entities have been duly organized and are validly existing and in
good standing under the laws of their respective jurisdictions of organization, are duly qualified
to do business and are in good standing in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such qualification, and
have all corporate power and authority necessary to own or hold their respective properties and to
conduct the businesses in which they are engaged, except where the failure to be so qualified or in
good standing or have such power or authority would not, individually or in the aggregate, have a
material adverse effect on the business, properties, management, financial position, shareholders’
equity, results of operations or
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prospects of the Company and the Group Entities taken as a whole or on the performance by the
Company of the Group Entities under the Transaction Documents (as defined below) (a “Material
Adverse Effect”). The constitutive documents of the Company and each of the Group Entities comply
with the requirements of applicable law in their respective jurisdictions of incorporation and are
in full force and effect.
(j) Capitalization. The Company has an authorized capitalization as set forth in the Registration Statement,
the Pricing Disclosure Package and the Prospectus under the heading “Capitalization”; all the
outstanding shares of the Company have been duly and validly authorized and issued and are fully
paid and non-assessable and are not subject to any pre-emptive or similar rights; except as
described in or expressly contemplated by the Pricing Disclosure Package and the Prospectus, there
are no outstanding rights (including, without limitation, pre-emptive rights), warrants or options
to acquire, or instruments convertible into or exchangeable for, any shares or other equity
interest in the Company or any of the Group Entities, or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any shares or other equity
interest in the Company or any such Group Entity, any such convertible or exchangeable securities
or any such rights, warrants or options; the shares of the Company conform in all material respects
to the description thereof contained in the Registration Statement, the Pricing Disclosure Package
and the Prospectus; and all the outstanding shares or other equity interests of each Group Entity
owned, directly or indirectly, by the Company or their respective shareholders, as the case may be,
have been duly and validly authorized and issued, are fully paid and non-assessable and are owned,
directly or indirectly, by the Company or their respective shareholders, as the case may be, free
and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or
any other claim of any third party.
(k) Stock Options. With respect to the stock options (the “Stock Options”) granted pursuant to the stock-based
compensation plans of the Company and the Group Entities (the “Company Stock Plans”), (i) each
grant of a Stock Option was duly authorized no later than the date on which the grant of such Stock
Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action,
including, as applicable, approval by the board of directors of the Company (or a duly constituted
and authorized committee thereof) and any required shareholder approval by the necessary number of
votes or written consents, and the award agreement governing such grant (if any) was duly executed
and delivered by each party thereto, (ii) each such grant was made in accordance with the terms of
the Company Stock Plans and all other applicable laws and regulatory rules or requirements, and
(iii) each such grant was properly accounted for in accordance with U.S. GAAP in the financial
statements (including the related notes) of the Company.
(l) Due Authorization. The Company has full right, power and authority to execute and deliver this Agreement and
the Deposit Agreement (collectively, the “Transaction Documents”) and to perform its obligations
hereunder and thereunder; and all actions required to be taken for the due and proper
authorization, execution and delivery by it of each of the Transaction Documents and the
consummation by it of the transactions contemplated hereby and thereby has been duly and validly
taken.
(m) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Company and the
Founders.
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(n) Deposit Agreement. The Deposit Agreement has been duly authorized by the Company and, when duly executed and
delivered in accordance with its terms by each of the parties thereto, will constitute a valid and
legally binding agreement of the Company enforceable against the Company in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors’ rights generally or by equitable principles relating to enforceability. Upon
due execution and delivery by the Depositary of Offered ADSs and the deposit of Shares in respect
thereof in accordance with the provisions of the Deposit Agreement, such ADSs will be duly and
validly issued and the persons in whose names the ADSs are registered will be entitled to the
rights specified therein and in the Deposit Agreement; and the American depositary receipts
evidencing the Underwritten ADSs will conform in all material respects to the descriptions thereof
in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(o) The Shares. The Shares to be issued and represented by the Offered ADSs to be sold by the Company
hereunder have been duly authorized by the Company and, when issued and delivered and paid for as
provided herein, will be duly and validly issued, will be fully paid and nonassessable and will
conform to the descriptions thereof in the Registration Statement, the Pricing Disclosure Package
and the Prospectus; and the issuance of the Shares is not subject to any pre-emptive or similar
rights. The Shares may be freely deposited by the Company with the Depositary against issuance of
Offered ADSs; the Offered ADSs to be sold by the Company, when issued and delivered against payment
thereof, will be freely transferable by the Company 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 the Offered ADSs under the laws of the Cayman
Islands, the People’s Republic of China, which, for purposes of this Agreement only, excludes
Taiwan, The Hong Kong Special Administrative Region and The Macau Special Administrative Region
(the “PRC”) or the United States except as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus under “Description of share capital,” “Description of
American depositary shares” and “Shares eligible for future sale.”
(p) Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof
contained in the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(q) No Violation or Default. Neither the Company nor any of the Group Entities is (i) in violation of its memorandum and
articles of association, charter, by-laws, business license or similar organizational documents;
(ii) in default, and no event has occurred that, with notice or lapse of time or both, would
constitute such a default, in the due performance or observance of any term, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of the Group Entities is a party or by which the Company or
any of the Group Entities is bound or to which any of the property or assets of the Company or any
of the Group Entities is subject; or (iii) in violation of any law or statute or any judgment,
order, rule or regulation of any court or arbitrator or governmental or regulatory authority,
except, in the case of clauses (ii) and (iii) above, for any such default or violation that would
not, individually or in the aggregate, have a Material Adverse Effect.
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(r) No Conflicts. The execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance of the Shares and sale of the Offered ADSs by the Company, the deposit of
the Shares with the Depositary against issuance of the Offered ADSs and the consummation by the
Company of the transactions contemplated by the Transaction Documents will not (i) conflict with or
result in a breach or violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the Company or any of the Group Entities pursuant to, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or any of the Group
Entities is a party or by which the Company or any of the Group Entities is bound or to which any
of the property or assets of the Company or any of the Group Entities is subject, (ii) result in
any violation of the provisions of the memorandum and articles of association, charter or by-laws,
business license or similar organizational documents of the Company or any of the Group Entities or
(iii) result in the violation of any law or statute or any judgment, order, rule or regulation of
any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i)
and (iii) above, for any such conflict, breach, violation or default that would not, individually
or in the aggregate, have a Material Adverse Effect.
(s) No Consents Required. No consent, approval, authorization, order, license, registration or qualification of or
with any court or arbitrator or governmental or regulatory authority is required for the execution,
delivery and performance by the Company of each of the Transaction Documents, the issuance of the
Shares and sale of the Offered ADSs, the deposit of the Shares with the Depositary against issuance
of the Offered ADSs or the consummation of the transactions contemplated by the Transaction
Documents, except for the registration of the Shares and the ADSs under the Securities Act and such
consents, approvals, authorizations, orders and registrations or qualifications as may be required
by the Financial Industry Regulatory Authority, Inc. (“FINRA”) and under applicable state
securities laws in connection with the purchase and distribution of the ADSs by the Underwriters.
(t) Legal Proceedings. Except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or
proceedings pending to which the Company or any of the Group Entities is or may be a party or to
which any property of the Company or any of the Group Entities is or may be the subject that,
individually or in the aggregate, if determined adversely to the Company or any of the Group
Entities, could reasonably be expected to have a Material Adverse Effect; no such investigations,
actions, suits or proceedings are threatened or, to the knowledge of the Company, contemplated by
any governmental or regulatory authority or threatened by others; and (i) there are no current or
pending legal, governmental or regulatory actions, suits or proceedings that are required under the
Securities Act to be described in the Registration Statement, the Pricing Disclosure Package or the
Prospectus that are not so described in the Registration Statement, the Pricing Disclosure Package
and the Prospectus and (ii) there are no statutes, regulations or contracts or other documents that
are required under the Securities Act to be filed as exhibits to the Registration Statement or
described in the Registration Statement, the Pricing Disclosure Package or the Prospectus that are
not so filed as exhibits to the Registration Statement or described in the Registration Statement,
the Pricing Disclosure Package and the Prospectus. The statements set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus under the caption “Business — Legal
Proceedings” are true and accurate in all material
10
respects, and nothing has been omitted from such statements which would make the same
misleading in any material respect.
(u) Independent Accountants. PricewaterhouseCoopers ▇▇▇▇▇ ▇▇▇▇ CPAs Limited Company (“PricewaterhouseCoopers”), who have
certified certain financial statements of the Company and the Group Entities, is an independent
registered public accounting firm with respect to the Company and the Group Entities within the
applicable rules and regulations adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities Act.
(v) Title to Real and Personal Property. Except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, the Company and the Group Entities have good and marketable title to, or have valid and
marketable rights to lease or otherwise use, all items of real and personal property and assets
that are material to the respective businesses of the Company and the Group Entities, in each case
free and clear of all liens, encumbrances, claims and defects and imperfections of title except
those that (i) do not materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and the Group Entities or
(ii) could not reasonably be expected, individually or in the aggregate, to have a Material Adverse
Effect.
(w) Title to Intellectual Property. The Company and the Group Entities own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names, trademark registrations,
service ▇▇▇▇ registrations, copyrights, licenses, inventions, know-how and other intellectual
property (including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) (collectively, “Intellectual Property”) necessary
for the conduct of their respective businesses as currently conducted, and the conduct of their
respective businesses will not conflict in any material respect with any such rights of others; and
(i) to the knowledge of the Company, there is no infringement, misappropriation or violation by
third parties of any such Intellectual Property; (ii) there is no pending or, to the knowledge of
the Company, threatened action, suit, proceeding or claim by others challenging the rights of the
Company or the Group Entities in or to any such Intellectual Property, and the Company is unaware
of any facts which it believes would form a reasonable basis for a successful challenge to the
rights in such Intellectual Property; (iii) none of the Intellectual Property licensed to the
Company and the Group Entities has been adjudged invalid or unenforceable, in whole or in part, and
there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or
claim by others challenging the validity or scope of any such Intellectual Property, and the
Company is unaware of any facts which it believes would form a reasonable basis for a successful
challenge to the validity or scope of such Intellectual Property; (iv) to the knowledge of the
Company, there is no pending or threatened action, suit, proceeding or claim by others that the
Company or the Group Entities infringes, misappropriates or otherwise violates any Intellectual
Property or other proprietary rights of others, the Company has not received any written notice of
such claim and the Company is unaware of any facts which it believes would form a reasonable basis
for a successful claim of such infringement, misappropriation or violation; (v) the Company is
unaware of any facts which it believes would form a reasonable basis for a successful challenge
that any of its employees are in or have ever been in material violation of any term of any
employment contract, patent disclosure agreement, invention assignment agreement, non-competition
agreement, non-solicitation agreement, nondisclosure
11
agreement or any restrictive covenant to or with a former employer where the basis of such
violation relates to such employee’s employment with the Company or the Group Entities, or actions
undertaken by the employee while employed with the Company or the Group Entities; and (vi) to the
knowledge of the Company, the Company is not an assignee of nor is the Company a recipient of an
obligation to assign each of the Company’s rights in its patents and patent applications.
(x) No Undisclosed Relationships. No relationship, direct or indirect, exists between or among the Company or any of the
Group Entities, on the one hand, and the directors, officers, shareholders, customers or suppliers
of the Company or any of the Group Entities, on the other, that is required by the Securities Act
to be described in the Registration Statement, the Statutory Prospectus or the Prospectus and that
is not so described in such documents and in the Pricing Disclosure Package.
(y) Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Offered ADSs
and the application of the proceeds thereof received by the Company as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, will not be required to
register as an “investment company” or an entity “controlled” by an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the
Commission thereunder.
(z) Taxes. The Company and the Group Entities have paid all domestic and foreign taxes and filed all
tax returns required to be paid or filed through the date hereof except for those the absence of
which would not have a Material Adverse Effect; and except as otherwise disclosed in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, there is no tax
deficiency that has been, or could reasonably be expected to be, asserted against the Company or
any of the Group Entities or any of their respective properties or assets that has had, or could
reasonably be expected to have a Material Adverse Effect.
(aa) Licenses and Permits. Except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, the Company and the Group Entities possess all licenses, certificates, permits and
other authorizations issued by, and have made all declarations and filings with, the appropriate
domestic or foreign governmental or regulatory authorities that are necessary for the ownership or
lease of their respective properties or the conduct of their respective businesses as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, except where the
failure to possess or make the same would not, individually or in the aggregate, have a Material
Adverse Effect; the Company and the Group Entities are in compliance with the terms and conditions
of all such licenses, certificates, permits and other authorizations in all material respects; all
such licenses, certificates, permits and other authorizations are valid and in full force and
effect; and neither the Company nor any of the Group Entities has received notice of any revocation
or modification of any such license, certificate, permit or authorization or has any reason to
believe that any such license, certificate, permit or authorization will not be renewed in the
ordinary course.
(bb) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or any of the Group
Entities exists or, to the knowledge of the Company, is contemplated or threatened, and the Company
is not aware of any existing or imminent labor disturbance
12
by, or dispute with, the employees of any of its or the Group Entities’ principal
suppliers, contractors or customers, except as would not have a Material Adverse Effect.
(cc) No Undisclosed Benefits. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, the Company has no material obligation to provide health, retirement, death or
disability benefits to any of the present or past employees of the Company or any of the Group
Entities, or to any other person.
(dd) Compliance with and Liability under Environmental Laws. Neither the Company nor any of the Controlled Entities is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or toxic substances or relating to
the protection or restoration of the environment or human exposure to hazardous or toxic substances
(collectively, “environmental laws”), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim relating to any
environmental laws; and the Company is not aware of any pending investigation which might lead to
such a claim.
(ee) Disclosure Controls. The Company has passed a board resolution and a set of disclosure controls and procedures
in order to effect, from the date of the Public Offering, “disclosure controls and procedures” (as
defined in Rule 13a-15(e) of the Exchange Act) in the Company and the Group Entities that complies
with the requirements of the Exchange Act and that has been designed to ensure that information
required to be disclosed by the Company in reports that it files or submits under the Exchange Act
is recorded, processed, summarized and reported within the time periods specified in the
Commission’s rules and forms, including controls and procedures designed to ensure that such
information is accumulated and communicated to the Company’s management as appropriate to allow
timely decisions regarding required disclosure.
(ff) Accounting Controls. Except as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, the Company and the Group Entities maintain systems of “internal control over financial
reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of
the Exchange Act and have been designed by, or under the supervision of, their respective principal
executive and principal financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with U.S. GAAP, including, but not limited
to, internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as disclosed in
the Registration Statement, the Pricing Disclosure Package and the Prospectus, there are no
material weaknesses in the Company’s internal controls. The Company’s auditors and the Audit
Committee of the Board of Directors of the Company have been advised of: (i) all significant
deficiencies and material weaknesses in the
13
design or operation of internal controls over financial reporting which have adversely
affected or are reasonably likely to adversely affect the Company’s ability to record, process,
summarize and report financial information; and (ii) any fraud, whether or not material, that
involves management or other employees who have a significant role in the Company’s internal
controls over financial reporting.
(gg) Insurance. The Company and the Group Entities have insurance covering their respective properties,
which insurance is in amounts and insures against such losses and risks as the Company reasonably
believes are prudent and customary in the business in which the Company and the Group Entities are
engaged; and neither the Company nor any of the Group Entities has (i) received notice from any
insurer or agent of such insurer that capital improvements or other expenditures are required or
necessary to be made in order to continue such insurance or (ii) any reason to believe that it will
not be able to renew its existing insurance coverage as and when such coverage expires or to obtain
similar coverage at reasonable cost from similar insurers as may be necessary to continue its
business.
(hh) No Unlawful Payments. None of the Company, any of the Group Entities, any director or officer of the Company and,
to the knowledge of the Company, any agent, employee or other person associated with or acting on
behalf of the Company or any of the Group Entities has (i) used or authorized any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made or authorized any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; (iii) violated or is in violation of
any provision of the Foreign Corrupt Practices Act of 1977 or any other anti-bribery law in the
jurisdictions in which the Company and the Group Entities conduct their businesses; or (iv) made or
authorized any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(ii) Compliance with Money Laundering Laws. The operations of the Company and the Group Entities are and have been conducted at all
times in compliance with applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
of all jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the Company or any of
the Group Entities with respect to the Money Laundering Laws is pending or, to the knowledge of the
Company, threatened.
(jj) Compliance with OFAC. None of the Company, any of the Group Entities nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of the Group Entities is
currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury (“OFAC”); and the Company will not, directly or indirectly, use the
proceeds of the offering contemplated hereunder, or lend, contribute or otherwise make available
such proceeds to any Group Entity, joint venture partner or other person or entity, for the purpose
of financing the activities of any person currently subject to any U.S. sanctions administered by
OFAC. Neither the execution of this Agreement nor the performance of any transactions contemplated
herein would cause the Company or any of the Group Entities to violate any U.S. sanctions administered by OFAC
applicable to such person.
14
(kk) No Restrictions on Subsidiaries. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, no subsidiary of the Company is currently prohibited, directly or indirectly, under any
agreement or other instrument or laws to which it is a party or is subject to, from paying any
dividends to the Company or any other subsidiary of the Company, as applicable, from making any
other distribution on such subsidiary’s equity interest, from repaying to the Company or any other
subsidiary of the Company, as applicable, any loans or advances to such subsidiary from the Company
or from transferring any of such subsidiary’s properties or assets to the Company or any other
subsidiary of the Company, as applicable, or any other subsidiary of the Company; except as
disclosed in the Registration Statement, the Pricing Disclosure Package and the Prospectus, all
dividends and other distributions declared and payable on the share capital or equity interest of
each of the Group Entities may, under the current laws and regulations of the jurisdiction of
incorporation of the Group Entity, be paid to the parent company of the Group Entity in U.S.
dollars or any other currency that may be converted into foreign currency, which may be freely
transferred out of the jurisdiction of incorporation of the Group Entity, and all such dividends
and other distributions will not be subject to withholding or other taxes under the laws and
regulations of the jurisdiction of incorporation of the Group Entity and are otherwise free and
clear of any other tax, withholding or deduction in the jurisdiction of incorporation of the Group
Entity and without the necessity of obtaining any consents, approvals, authorizations, permissions,
orders, registrations, filings, exemptions, waivers, endorsements, licenses, annual inspections,
clearances and qualifications of a governmental agency having jurisdiction over the Company or any
of the Group Entities or any of their properties or any stock exchange authorities.
(ll) No Broker’s Fees. Neither the Company nor any of the Group Entities is a party to any contract, agreement or
understanding with any person (other than this Agreement) that would give rise to a valid claim
against the Company or any of the Group Entities or any Underwriter for a brokerage commission,
finder’s fee or like payment in connection with the offering and sale of the Offered ADSs and the
Shares represented thereby.
(mm) No Registration Rights. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, no person has the right to require the Company or any of the Group Entities to register
any securities for sale under the Securities Act by reason of the filing of the Registration
Statement with the Commission, the issuance of the Shares and the sale of the Offered ADSs by the
Company.
(nn) No Stabilization. Neither the Company nor any of the Group Entities has taken, directly or indirectly, any
action designed to or that could reasonably be expected to cause or result in any stabilization or
manipulation of the price of the Offered ADSs.
(oo) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(pp) Statistical and Market Data. Nothing has come to the attention of the Company that has caused the Company to believe
that the statistical and market-related data included in the Registration Statement, the Pricing
Disclosure Package and the Prospectus is not based on or derived
15
from sources that are reliable and
accurate in all material respects and the Company has obtained the written consents to the use of
such data from such sources to the extent required.
(qq) ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. The Company has taken all necessary actions to ensure that, upon and at all times after the
effectiveness of the Registration Statement, the Company and all of its directors and officers, in
their capacities as such, have been, are and will be in compliance with any applicable provisions
of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated in connection therewith
(the “▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act”), including Section 402 related to loans and Sections 302 and 906 related
to certifications.
(rr) Status under the Securities Act. At the time of filing the Registration Statement and any post-effective amendment thereto,
at the earliest time thereafter that the Company or any offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Securities Act) of the Offered ADSs and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under the
Securities Act. The Company has paid the registration fee for this offering pursuant to Rule
456(b)(1) under the Securities Act or will pay such fee within the time period required by such
rule (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(ss) Dividends. All dividends and other distributions declared and payable on the Shares of the Company may
under the current laws and regulations of the Cayman Islands be paid to the Depositary in U.S.
dollars or any other currency that may be converted into foreign currency, which may be 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 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, permissions, orders,
registrations, filings, exemptions, waivers, endorsements, licenses, annual inspections, clearances
and qualifications of a governmental agency having jurisdiction over the Company or any of the
Group Entities or any of their properties or any stock exchange authorities.
(tt) Transfer Taxes. 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, or any political subdivision or taxing authority thereof or therein in connection
with (i) the deposit with the Depositary of Shares by the Company against the issuance of Offered
ADSs, (ii) the sale and delivery by the Company of the Offered ADSs to or for the respective
accounts of the several Underwriters or (iii) the sale and delivery outside the Cayman Islands by
the several Underwriters of the Offered ADSs to the initial purchasers thereof in the manner
contemplated by this Agreement.
(uu) No Sale, Issuance or Distribution of Shares. Except as disclosed in the Registration Statement, the Pricing Disclosure Package and the
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
of the Securities Act, other than shares issued pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans or pursuant to outstanding options, rights or
warrants.
16
(vv) Foreign Private Issuer. The Company is a “foreign private issuer” within the meaning of Rule 405 under the
Securities Act.
(ww) Transaction Agreements under Cayman Law. 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 (other than court filings in the
normal course of proceedings) or that any stamp or similar tax (other than nominal stamp duty if
this Agreement and the Deposit Agreement are executed in or brought into the Cayman Islands) in the
Cayman Islands be paid on or in respect of this Agreement, the Deposit Agreement or any other
documents to be furnished hereunder.
(xx) PFIC. The Company does not expect to be a passive foreign investment company (“PFIC”) as defined
under Section 1297 of the Code for the taxable year ended December 31, 2010, and does not expect to
be a PFIC in the current taxable year ending December 31, 2011, or in the foreseeable future.
(yy) Critical Accounting Policies. The section entitled “Management’s discussion and analysis of financial condition and
results of operations — Critical accounting policies and estimates” in the Registration Statement,
the Pricing Disclosure Package and the Prospectus, truly, accurately and completely describes: (i)
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”); (ii) judgments and
uncertainties affecting the application of Critical Accounting Policies; and (iii) 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 the
Company’s independent registered public accounting firm with regard to such disclosure.
(zz) Liquidity and Capital Resources. The section entitled “Management’s discussion and analysis of financial condition and
results of operations — Liquidity and capital resources” in the Registration Statement, the Pricing
Disclosure Package and the Prospectus accurately and fully describes: 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. The section
entitled “Management’s discussion and analysis of financial condition and results of operations -
Off-balance sheet arrangements” in the Registration Statement, the Pricing Disclosure Package and
the Prospectus accurately and fully describes in
all material respects 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
the Group Entities, 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 the Group Entities or the availability thereof or the requirements of
the Company or
17
the Group Entities for capital resources. As used herein in this subsection the
phrase “reasonably likely” refers to a disclosure threshold lower than “more likely than not.”
(aaa) No Reduction from Amounts Payable. All amounts payable by the Company 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
or any authority thereof or therein, nor are any taxes imposed in the Cayman Islands on, or by
virtue of the execution or delivery of, such documents.
(bbb) Choice of Law. The courts of the Cayman Islands recognize and give effect to the choice of law provisions
set forth in Section 18(c) hereof and will enforce judgments of U.S. courts obtained against the
Company in connection with this Agreement under which a sum of money is payable (other than a sum
of money payable in respect of multiple damages, taxes or other charges of a like nature or in
respect of a fine or other penalty) and would give a judgment based thereon provided that (a) such
courts had proper jurisdiction over the parties subject to such judgment; (b) such courts did not
contravene the rules of natural justice of the Cayman Islands; (c) such judgment was not obtained
by fraud; (d) the enforcement of the judgment would not be contrary to the public policy of the
Cayman Islands; (e) no new admissible evidence relevant to the action is submitted prior to the
rendering of the judgment by the courts of the Cayman Islands; and (f) there is due compliance with
the correct procedures under the laws of the Cayman Islands.
(ccc) Corporate Structure and Related Party Transactions. The descriptions of the events and transactions set forth in the Registration Statement,
the Pricing Disclosure Package and the Prospectus under the captions “Corporate structure” and
“Related party transactions” are true, accurate, and complete in all material respects.
(ddd) Merger or Consolidations. Neither the Company nor any of the Group Entities has entered into any memorandum of
understanding, letter of intent, definitive agreement or any similar agreements with respect to a
merger or consolidation or a material acquisition or disposition of assets, technologies, business
units or businesses.
(eee) Directed Share Program. (i) The Registration Statement, the Pricing Disclosure Package and the Prospectus comply,
and any further amendments or supplements thereto will comply, with any applicable laws or
regulations of foreign jurisdictions in which the Prospectus or any Preliminary Prospectus, as
amended or supplemented, if applicable, are distributed in connection with the Directed Share
Program; (ii) no approval, authorization, consent or order of or filing with any governmental or
regulatory commission, board, body, authority or agency, other than those heretofore obtained, is
required in connection with the offering of the Reserved ADSs in any jurisdiction where the
Reserved ADSs are being offered; and (iii) the Company has not offered, or caused the Underwriters
to offer, any offered Reserved ADSs to any person pursuant to the Directed Share Program with the specific intent to unlawfully influence (A) a
customer or supplier of the Company to alter the customer’s or supplier’s level or type of business
with the Company or (B) a trade journalist or publication to write or publish favorable information
about the Company or its products or services.
18
(fff) Termination of Contracts. Neither the Company nor any of the Group Entities has sent or received any communication
regarding early termination of, or intent not to renew, any of the material contracts or agreements
referred to or described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus or filed as an exhibit to the Registration Statement to the extent that such contracts
and agreements are of the kind that is typically renewable, and no such termination or non-renewal
has been threatened by the Company or any of the Group Entities or by any other party to any such
contract or agreement.
(ggg) Personal Liability of Shareholders and ADS holders. No holder of any of the Shares or the Offered 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 or the Group Entities by virtue only
of its holding of any such Shares or Offered ADSs; and, except as set forth in the Registration
Statement, the Pricing Disclosure Package and the Prospectus, there are no material limitations on
the rights of holders of the Shares or the Offered ADSs who are not PRC residents to hold, vote or
transfer their securities.
(hhh) Compliance with PRC Regulations. Each of the Company and the Group Entities that was incorporated outside of the PRC has
complied with, and has taken steps to ensure compliance by each of its shareholders, option
holders, directors, officers, employees and Directed Share Participants that is, or is directly or
indirectly owned or controlled by, a PRC resident or citizen with any applicable rules and
regulations of the relevant PRC government agencies (including but not limited to the Ministry of
Commerce, the National Development and Reform Commission and the State Administration of Foreign
Exchange) relating to overseas investment by PRC residents and citizens (the “PRC Overseas
Investment and Listing Regulations”), including, without limitation, requesting each shareholder,
option holder, director, officer, employee and Directed Share Participant 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.
(iii) PRC Mergers and Acquisitions Rules. The Company is aware of and has been advised as to the content of the Rules on Mergers and
Acquisitions of Domestic Enterprises by Foreign Investors (the “PRC Mergers and Acquisition Rules”)
jointly promulgated by the Ministry of Commerce, the State Assets Supervision and Administration
Commission, the State Tax Administration, the State Administration of Industry and Commerce, the
China Securities Regulatory Commission (the “CSRC”) and the State Administration of Foreign
Exchange of the PRC on August 8, 2006 and effective as of September 8, 2006, including the relevant
provisions thereof which purport to require offshore special purpose entities 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 issuance and sale of the Shares and the Offered ADSs, the listing and trading of the
Offered ADSs on the New York Stock Exchange (the “NYSE”) or the consummation of the transactions
contemplated by this Agreement and the Deposit Agreement are not and will not be, as of the date
hereof or at the Closing Date or the Additional Closing Date, as the case may be, materially and
adversely affected by the PRC Mergers and Acquisitions Rules or any official clarifications,
guidance, interpretations or implementation rules in connection with or related to the PRC Mergers
19
and Acquisitions Rules (collectively, the “PRC Mergers and Acquisitions Rules and Related
Clarifications”).
(jjj) Compliance with Tax Exemption Laws and Regulations. Each of the Group Entities operating in the PRC is in compliance in all material respects
with all requirements under all applicable PRC laws and regulations to qualify for their income tax
benefits (the “Tax Benefits”) as described in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, and the actual operations and business activities of the Group Entities
are sufficient to meet the qualifications for their Tax Benefits. No submissions made to any PRC
government authority in connection with obtaining its Tax Benefits contained any misstatement or
omission that would have affected the granting of its Tax Benefits. The Group Entities in the PRC
have not received notice of any deficiency in their respective applications for their Tax Benefits,
and the Company is not aware of any reason the Group Entities in the PRC might not qualify for, or
be in compliance with the requirements for, their Tax Benefits.
(kkk) Affiliation. To the Company’s knowledge, there are no affiliations or associations between (i) any
member of the FINRA and (ii) the Company or 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 of the
Registration Statement was initially filed with the Commission.
4. Representations and Warranties of the Founders. Each of Dr. ▇▇▇▇▇ ▇▇ ▇▇▇ and ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ (collectively, the “Founders”, and each, a “Founder”), [severally and not jointly,]
represents and warrants to each Underwriter that:
(a) Due Authorization. This Agreement has been duly authorized, executed and delivered by such Founder.
(b) Choice of Law. The courts of the PRC recognize and give effect to the choice of law provisions set forth in
Section 18(c) hereof and will enforce judgments of U.S. courts obtained against each Founder in
connection with this Agreement under which a sum of money is payable (other than a sum of money
payable in respect of multiple damages, taxes or other charges of a like nature or in respect of a
fine or other penalty) and would give a judgment based thereon provided that (a) such courts had
proper jurisdiction over the parties subject to such judgment; (b) such courts did not contravene
the rules of natural justice of the PRC; (c) such judgment was not obtained by fraud;
(d) the enforcement of the judgment would not be contrary to the public policy of the PRC;
(e) no new admissible evidence relevant to the action is submitted prior to the rendering
of the judgment by the courts of the PRC; and (f) there is due compliance with the
correct procedures under the laws of the PRC.
(c) Registration Statement and Prospectus. As of the applicable effective date of the Registration Statement and any post-effective
amendment thereto, the Registration Statement
and any such post-effective amendment did not and will not 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 not misleading; and as of the date of the Prospectus and any
amendment or supplement thereto and as of the Closing Date and as of the Additional Closing
20
Date,
as the case may be, the Prospectus will not contain any 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; provided that such Founder makes
no representation and warranty with respect to any statements or omissions made in reliance upon
and in conformity with information relating to any Underwriter furnished to the Company in writing
by such Underwriter through the Representative expressly for use in the Registration Statement and
the Prospectus and any amendment or supplement thereto, it being understood and agreed that the
only such information furnished by any Underwriter consists of the information described as such in
Section 8(b) hereof.
In addition, any certificate signed by or on behalf of either Founder and delivered to the
Representative or counsel for the Underwriters as required or contemplated by this Agreement shall
constitute a representation and warranty hereunder by such Founder, as to matters covered thereby,
to each Underwriter.
5. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within the time periods
specified by Rule 424(b) and Rule 430A or 430C under the Securities Act, will file any Issuer Free
Writing Prospectus to the extent required by Rule 433 under the Securities Act; and will furnish
copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously
delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the
business day next succeeding the date of this Agreement in such quantities as the Representative
may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representative, three signed copies of
the Registration Statement as originally filed and each amendment thereto, in each case including
all exhibits and consents filed therewith; and (ii) to each Underwriter (A) a conformed copy of the
Registration Statement as originally filed and each amendment thereto (without exhibits) and (B)
during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus
(including all amendments and supplements thereto) and each Issuer Free Writing Prospectus as the
Representative may reasonably request. As used herein, the term “Prospectus Delivery Period” means
such period of time after the first date of the public offering of the Offered ADSs as in the
opinion of counsel for the Underwriters a prospectus relating to the Offered ADSs is required by
law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in
connection with sales of the Offered ADSs by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Before preparing, using, authorizing, approving, referring to or filing any Issuer Free
Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or
the Prospectus, the Company will furnish to the Representative and counsel for the Underwriters a
copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not prepare,
use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such
proposed amendment or supplement to which the Representative reasonably object.
21
(d) Notice to the Representative. The Company will advise the Representative promptly, and confirm such advice in writing,
(i) when the Registration Statement has become effective; (ii) when any amendment to the
Registration Statement has been filed or becomes effective; (iii) when any supplement to the
Prospectus or any Issuer Free Writing Prospectus or any amendment to the Prospectus has been filed;
(iv) of any request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or the receipt of any comments from the Commission
relating to the Registration Statement or any other request by the Commission for any additional
information; (v) of the issuance by the Commission of any order suspending the effectiveness of the
Registration Statement or preventing or suspending the use of any Preliminary Prospectus, any of
the Pricing Disclosure Package or the Prospectus or the initiation or threatening of any proceeding
for that purpose or pursuant to Section 8A of the Securities Act; (vi) of the occurrence of any
event within the Prospectus Delivery Period as a result of which the Prospectus, the Pricing
Disclosure Package or any Issuer Free Writing Prospectus as then amended or supplemented would
include any 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 existing when the Prospectus, the
Pricing Disclosure Package or any such Issuer Free Writing Prospectus is delivered to a purchaser,
not misleading; and (vii) of the receipt by the Company of any notice with respect to any
suspension of the qualification of the Offered ADSs for offer and sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and the Company will use its best
efforts to prevent the issuance of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of any Preliminary Prospectus, any of the Pricing
Disclosure Package or the Prospectus or suspending any such qualification of the Offered ADSs and,
if any such order is issued, will obtain as soon as possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall occur or condition shall
exist as a result of which the Prospectus as then amended or supplemented would 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 existing when the Prospectus is delivered to
a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply
with law, the Company will immediately notify the Underwriters thereof and forthwith prepare and,
subject to paragraph (c) above, file with the Commission and furnish to the Underwriters and to
such dealers as the Representative may designate such amendments or supplements to the Prospectus
as may be necessary so that the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus will comply with law and (2) if at any time prior to the
Closing Date (i) any event shall occur or condition shall exist as a result of which the Pricing
Disclosure Package as then amended or supplemented would 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 existing when the Pricing Disclosure Package is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the Pricing Disclosure
Package to comply with law, the Company will immediately notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c)
above, file with the Commission (to the extent required) and furnish to the Underwriters and
to such dealers as the Representative may designate, such amendments or supplements to the Pricing
Disclosure Package as may be necessary so that the statements in the Pricing Disclosure Package as
so amended or supplemented will not, in the light of the circumstances existing when
22
the Pricing
Disclosure Package is delivered to a purchaser, be misleading or so that the Pricing Disclosure
Package will comply with law.
(f) Blue Sky Compliance. The Company will qualify the Offered ADSs for offer and sale under the securities or Blue
Sky laws of such jurisdictions as the Representative shall reasonably request and will continue
such qualifications in effect so long as required for distribution of the Offered ADSs;
provided that the Company shall not be required to (i) qualify as a foreign corporation or
other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be
required to so qualify, (ii) file any general consent to service of process in any such
jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so
subject.
(g) Earning Statement. The Company will make generally available to its security holders and the Representative as
soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the
Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least
twelve months beginning with the first fiscal quarter of the Company occurring after the “effective
date” (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. For a period of 180 days after the date of the Prospectus the Company will not (i) issue,
offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of, directly or indirectly, any Common Shares or ADSs, or
any securities convertible into or exercisable or exchangeable for Common Shares or ADSs, (ii)
file, or announce the intention to file, any registration statement with respect to any Common
Shares or ADSs, or any securities convertible into or exercisable or exchangeable for Common Shares
or ADSs, or (iii) enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the Common Shares or ADSs, whether any such
transaction described in clause (i), (ii) or (iii) above is to be settled by delivery of Common
Shares or ADSs or such other securities, in cash or otherwise, without the prior written consent of
the Representative, other than (1) the ADSs to be sold hereunder and the Shares represented
thereby; (2) grants of employee share options, restricted share or other equity incentives pursuant
to the Company Stock Plans disclosed in the Registration Statement, Pricing Disclosure Package and
Prospectus, and issuances of Common Shares upon the exercise of options granted under such
Company Stock Plans; and (3) the conversion of the Company’s preferred shares into Common Shares
upon the completion of this offering. Notwithstanding the foregoing, if (1) during the last 17 days
of the 180-day restricted period, the Company issues an earnings release or announces material news
or a material event relating to the Company occurs; or (2) prior to the expiration of the 180-day
restricted period, the Company announces that it will release earnings results during the 16-day
period beginning on the last day of the 180-day period, the restrictions imposed by this Agreement
shall continue to apply until the expiration of the 18-day period beginning on the issuance of the
earnings release or the announcement of the material news or the occurrence of the material event.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Offered ADSs as described in
the Registration Statement, the Pricing Disclosure Package and the Prospectus under the heading
“Use of proceeds.”
23
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the
Shares or the ADSs.
(k) Exchange Listing. The Company will use its best efforts to list, subject to notice of issuance, the ADSs on
the NYSE.
(l) Reports. During the period of three years from the date of this Agreement, the Company will furnish
to the Representative, as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Shares or ADSs, and copies of any reports and
financial statements furnished to or filed with the Commission or any national securities exchange
or automatic quotation system; provided the Company will be deemed to have furnished such
reports and financial statements to the Representative to the extent they are filed on the
Commission’s Electronic Data Gathering, Analysis, and Retrieval system.
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in good faith, retain copies
of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with
Rule 433 under the Securities Act.
(n) Filings. The Company will file with the Commission such reports as may be required by Rule 463 under
the Securities Act.
(o) Deposit of Shares. The Company will, prior to the Closing Date or the Additional Closing Date, as the case may
be, deposit Shares with the Depositary in accordance with the provisions of the Deposit Agreement
and otherwise comply with the Deposit Agreement so that ADSs will be issued by the Depositary
against receipt of such Shares and such ADSs delivered to the Underwriters at the Closing Date or
the Additional Closing Date, as the case may be.
(p) Transfer Taxes. The Company will indemnify and hold each Underwriter harmless against any documentary, stamp
or similar issuance or transfer taxes, duties or fees and any transaction levies, commissions or
brokerage charges imposed by any government, or any political subdivisions or tax authority thereof
or therein, 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 Offered ADSs,
including the deposit of the Shares with the Depositary in accordance with the Deposit Agreement,
and the execution and delivery of this Agreement and the Deposit Agreement.
(q) Judgment and Approval. The Company agrees that (i) it will not attempt to avoid any judgment obtained by it or
denied to it in a court of competent jurisdiction outside the Cayman Islands; (ii) following the
consummation of the offering of the Offered ADSs, it will use its reasonable best efforts to obtain
and maintain all approvals required in the Cayman Islands to pay and remit outside the Cayman
Islands all dividends declared by the Company and payable on the Common Shares, if any; and (iii)
it will use its best efforts to obtain and maintain all approvals required in the Cayman Islands for the Company to acquire sufficient foreign exchange for
the payment of dividends, if any, and for all other relevant purposes.
24
(r) Directed Share Compliance. The Company will comply with all applicable securities and other laws, rules and
regulations in each jurisdiction in which the Reserved ADSs are offered in connection with the
Directed Share Program.
(s) Compliance with SAFE Rules and Regulations. The Company shall comply with any applicable rules and regulations of the State
Administration of Foreign Exchange of the PRC (the “SAFE Rules and Regulations”), and shall use its
reasonable best efforts to cause its directors, officers, option holders and shareholders named in
the Company’s share register that are, or that are directly or indirectly owned or controlled by,
PRC residents or PRC citizens, to comply with the SAFE Rules and Regulations applicable to them in
connection with the Company, including, without limitation, requesting each shareholder named in
the Company’s share register, option holder, director and officer that is, or is directly or
indirectly owned or controlled by, a PRC resident or PRC citizen to complete any registration and
other procedures required under applicable SAFE Rules and Regulations.
(t) Accounting Controls. Each of the Company and the Group Entities shall undertake measures to implement, by the
time such systems are required by the Exchange Act, systems of “internal control over financial
reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply with the requirements of
the Exchange Act and have been designed by, or under the supervision of, their respective principal
executive and principal financial officers, or persons performing similar functions, to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally accepted accounting
principles sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management’s general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(u) Compliance with Laws. The Company will 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.
6. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not used, authorized use of, referred to or participated in the planning for use
of, and will not use, authorize use of, refer to or participate in the planning for use of, any
“free writing prospectus,” as defined in Rule 405 under the Securities Act (which term includes use
of any written information furnished to the Commission by the Company and not incorporated by
reference into the Registration Statement and any press release issued by the Company)
other than (i) a free writing prospectus that contains no “issuer information” (as defined in
Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation by
reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus, (ii)
25
any Issuer Free Writing Prospectus listed on Annex B or prepared pursuant to Section 3(c) above
(including any electronic road show), or (iii) any free writing prospectus prepared by such
Underwriter and approved by the Company in advance in writing (each such free writing prospectus
referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Offered ADSs unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided
that Underwriters may use a term sheet substantially in the form of Annex C hereto without the
consent of the Company; provided further that any Underwriter using such term sheet shall
notify the Company and provide a copy of such term sheet to the Company prior to, or substantially
concurrently with, the first use of such term sheet.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
7. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten ADSs on the Closing Date or the Option ADSs on the Additional Closing
Date, as the case may be, as provided herein is subject to the performance by the Company of their
respective covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and
no proceeding for such purpose or pursuant to Section 8A under the Securities Act shall be pending
before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus
shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer
Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in
accordance with Section 5(a) hereof; and all requests by the Commission for additional information
shall have been complied with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The respective representations and warranties of the Company contained herein shall be true
and correct on the date hereof and on and as of the Closing Date or the Additional Closing Date, as
the case may be; and the statements of the Company and its officers made in any certificates
delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date or the
Additional Closing Date, as the case may be.
(c) No Downgrade. Subsequent to the earlier of (A) the Applicable Time and (B) the execution and delivery of
this Agreement, if there are any debt securities or preferred stock of or guaranteed by the Company
or any of its subsidiaries that are rated by a “nationally recognized statistical rating
organization”, as such term is defined by the Commission for purposes of Rule 436(g)(2) under the
Securities Act, (i) no downgrading shall have occurred in the rating accorded any such debt
securities or preferred stock and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to,
its rating of any such debt securities or preferred stock (other than an announcement with positive
implications of a possible upgrading).
26
(d) No Material Adverse Change. No event or condition of a type described in Section 3(h) hereof shall have occurred or
shall exist, which event or condition is not described in the Pricing Disclosure Package (excluding
any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement
thereto) and the effect of which in the judgment of the Representative makes it impracticable or
inadvisable to proceed with the offering, sale or delivery of the Offered ADSs on the Closing Date
or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated by
this Agreement, the Pricing Disclosure Package and the Prospectus.
(e) Officers’ Certificate. The Representative shall have received on and as of the Closing Date or the Additional
Closing Date, as the case may be, (x) a certificate of the chief financial officer of the Company
and one additional senior executive officer of the Company who is satisfactory to the
Representative (i) confirming that such officers have carefully reviewed the Registration
Statement, the Pricing Disclosure Package and the Prospectus and, to the best knowledge of such
officers, the representations of the Company set forth in Sections 3(b), 3(c) and 3(d) hereof are
true and correct, (ii) confirming that the other representations and warranties of the Company in
this Agreement are true and correct and that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date or the Additional Closing Date, as the case may be, and (iii) to the effect set forth
in paragraphs (a), (c) and (d) above.
(f) Certificate of Chief Executive Officer and Chief Financial Officer. The Representative shall have received on and as of the Closing Date or the Additional
Closing Date, as the case may be, a joint certificate of the chief executive officer and the chief
financial officer of the Company substantially in the form of Annex A-1 hereto.
(g) Certificate of Founders. The Representative shall have received on and as of the Closing Date or the Additional
Closing Date, as the case may be, a certificate of each of the Founders or their respective
authorized representatives, as the case may be, that (a) the representations and warranties of such
Founder in this Agreement are true and correct; and (b) such Founder has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or
prior to such Closing Date or Additional Closing Date, as the case may be.
(h) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional Closing Date, as
the case may be, PricewaterhouseCoopers shall have furnished to the Representative, at the request
of the Company, letters, dated the respective dates of delivery thereof and addressed to the
Underwriters, in form and substance reasonably satisfactory to the Representative, containing
statements and information of the type customarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial information contained
in the Registration Statement, the Pricing Disclosure Package and the Prospectus; provided, that
the letter delivered on the Closing Date or the Additional Closing
Date, as the case may be, shall use a “cut-off” date no more than three business days prior to
such Closing Date or such Additional Closing Date, as the case may be.
(i) Opinion and ▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Counsel for the Company. Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel for the Company, shall
have furnished
27
to the Representative, at the request of the Company, their written opinion and
10b-5 statement, dated the Closing Date or the Additional Closing Date, as the case may be, and
addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative,
to the effect set forth in Annex A-2 hereto.
(j) Opinion of Cayman Islands Counsel for the Company. ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the Company, shall have furnished to the
Representative, at the request of the Company, their written opinion, dated the Closing Date or the
Additional Closing Date, as the case may be, and addressed to the Underwriters, in form and
substance reasonably satisfactory to the Representative, to the effect set forth in Annex A-3
hereto.
(k) Opinion of Hong Kong Counsel for the Hong Kong subsidiary of the Company. Li & Partners, Hong Kong counsel for the Hong Kong subsidiary of the Company, shall have
furnished to the Representative, at the request of the Company, their written opinion, dated the
Closing Date or the Additional Closing Date, as the case may be, and addressed to the Underwriters,
in form and substance reasonably satisfactory to the Representative, to the effect set forth in
Annex A-4 hereto.
(l) Opinion of United States Counsel for the United States subsidiary of the Company. Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, United States counsel for the United States
subsidiary of the Company, shall have furnished to the Representative, at the request of the
Company, their written opinion, dated the Closing Date or the Additional Closing Date, as the case
may be, and addressed to the Underwriters, in form and substance reasonably satisfactory to the
Representative, to the effect set forth in Annex A-5 hereto.
(m) Opinion of PRC Counsel for the Company. Jingcheng Tongda & ▇▇▇▇, PRC counsel for the Company, shall have furnished to the
Representative, at the request of the Company, their written opinion, dated the Closing Date or the
Additional Closing Date, as the case may be, and addressed to the Company, in form and substance
reasonably satisfactory to the Representative, to the effect set forth in Annex A-6 hereto.
(n) Opinion and ▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Counsel for the Underwriters. The Representative shall have received on and as of the Closing Date or the Additional
Closing Date, as the case may be, an opinion and 10b-5 statement of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP,
United States counsel for the Underwriters, with respect to such matters as the Representative may
reasonably request, and such counsel shall have received such documents and information as they may
reasonably request to enable them to pass upon such matters.
(o) Opinion of PRC Counsel for the Underwriters. The Representative shall have received on and as of the Closing Date or the Additional
Closing Date, as the case may be, an opinion of King & Wood, PRC counsel for the Underwriters, with
respect to such matters as the
Representative may reasonably request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon such matters.
(p) Opinion of Counsel for the Depositary. The Representative shall have received on and as of the Closing Date or the Additional
Closing Date, as the case may be, an opinion of White & Case LLP, counsel for the Depositary, with
respect to such matters as the Representative
28
may reasonably request and in form and substance
satisfactory to the Representative to the effect set forth in Annex A-7 hereto.
(q) No Legal Impediment to Issuance and/or Sale. No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any domestic or foreign governmental or regulatory authority that
would, as of the Closing Date or the Additional Closing Date, as the case may be, prevent the
issuance or sale of the Offered ADSs or the Shares represented thereby by the Company; and no
injunction or order of any domestic or foreign court shall have been issued that would, as of the
Closing Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of
the Offered ADSs or the Shares represented thereby by the Company.
(r) Exchange Listing. The ADSs to be delivered on the Closing Date or Additional Closing Date, as the case may
be, shall have been approved for listing on the NYSE, subject to official notice of issuance.
(s) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between you
and each shareholders, option holders (that hold stock options upon the exercise of which at least
100,000 Common Shares are issuable), officers and directors of the Company relating to sales and
certain other dispositions of Common Shares or ADSs or certain other securities, delivered to you
on or before the date hereof, shall be in full force and effect on the Closing Date or Additional
Closing Date, as the case may be.
(t) Certificates at Closing Date. The Depositary shall have furnished or caused to be furnished to you at the Closing Date or
Additional Closing Date, as the case may be, certificates satisfactory to you evidencing the
deposit with it or its nominee of the Shares being so deposited against issuance of Offered ADSs to
be delivered by the Company at the Closing Date or Additional Closing Date, as the case may be, and
the execution, countersignature (if applicable), issuance and delivery of such Offered ADSs
pursuant to the Deposit Agreement.
(u) Adverse Developments in PRC Mergers and Acquisitions Rules. There shall not be any adverse legislative or regulatory developments related to the PRC
Mergers and Acquisitions Rules and Related Clarifications which in the sole judgment of the
Representative (after consultation with the Company if practicable) would make it inadvisable or
impractical to proceed with the public offering or the delivery of the Offered ADSs at the Closing
Date or the Additional Closing Date, as the case may be, on the terms and in the manner
contemplated in this Agreement.
(v) Compliance with Section 5(a). The Company shall have complied with the provisions of Section 5(a) hereof with respect to
the furnishing of Prospectuses on the business day next succeeding the date of this Agreement.
(w) Payment of Commission Fees. The Company shall have paid the required Commission filing fees relating to the Shares and
Offered ADSs in such amount and within the time frame provided in the Securities Act.
29
(x) No FINRA Objection. FINRA shall not have raised any objection with respect to the fairness or reasonableness of
the underwriting or other arrangements of the transactions contemplated hereby.
(y) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as the case may be, the
Company shall have furnished to the Representative such further certificates and documents as the
Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
8. Indemnification and Contribution.
(a) Indemnification of the Underwriters by the Company. The Company agrees to indemnify and hold harmless each Underwriter, its affiliates,
directors and officers and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including, without limitation, legal fees and other
expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such
fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or caused by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein not misleading, (ii) or
any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or
any amendment or supplement thereto), any Issuer Free Writing Prospectus, any “issuer information”
filed or required to be filed pursuant to Rule 433(d) under the Securities Act or any Pricing
Disclosure Package (including any Pricing Disclosure Package that has subsequently been amended),
or caused by any omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in light of the circumstances under which they were made, not
misleading, in each case except insofar as such losses, claims, damages or liabilities arise out
of, or are based upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to any Underwriter furnished
to the Company in writing by such Underwriter through the Representative expressly for use therein,
it being understood and agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (c) below.
In addition, the Company agrees to indemnify and hold harmless ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. and each
Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon: (i) any untrue statement or alleged untrue statement of a
material fact contained in any material prepared by or with the consent of the Company for
distribution to Directed Share Participants in connection with the Directed Share Program or caused
by any omission or alleged omission to state therein a material fact required to be stated therein
or
30
necessary to make the statements therein not misleading; (ii) the failure of any Directed Share
Participant to pay for and accept delivery of Directed Shares that the Directed Share Participant
agreed to purchase; or (iii) related to, arising out of, or in connection with the Directed Share
Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross negligence of ▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
(b) Indemnification of the Underwriters by the Founders. Each of the Founders agrees, [severally and not jointly,] to indemnify and hold
harmless each Underwriter, its affiliates, directors and officers and each person, if any, who
controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that
arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to make the statements
therein not misleading, (ii) or any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing
Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under
the Securities Act or any Pricing Disclosure Package (including any Pricing Disclosure Package that
has subsequently been amended), or caused by any omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, in each case except insofar as such losses, claims,
damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with any information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information described as such in
subsection (c) below; provided, however, that Dr. ▇▇▇▇▇ ▇▇ Lin’s liability under this Section 8(b)
shall be no greater than $23.56 million, and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇’▇ liability under this Section
8(b) shall be no greater than $6.49 million.
(c) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the
Company, its directors, its officers who signed the Registration Statement, each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only
with respect to any losses, claims, damages or liabilities that arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made in reliance upon and
in conformity with any information relating to such Underwriter furnished to the Company in writing
by such Underwriter through the Representative expressly for use in the Registration Statement, the
Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any
Pricing Disclosure Package, it being understood and agreed upon that the only such information furnished by any Underwriter
consists of the following information in the Prospectus furnished on behalf of each Underwriter:
the concession and discount figures appearing in the third paragraph under the caption
“Underwriting,”
31
and the information contained in the twelfth, thirteenth, fourteenth and twentieth
paragraphs under the caption “Underwriting.”
(d) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation),
claim or demand shall be brought or asserted against any person in respect of which indemnification
may be sought pursuant to the preceding paragraphs of this Section 8, such person (the “Indemnified
Person”) shall promptly notify the person against whom such indemnification may be sought (the
“Indemnifying Person”) in writing; provided that the failure to notify the Indemnifying
Person shall not relieve it from any liability that it may have under the preceding paragraphs of
this Section 8 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 Person shall not relieve it from any liability that it may have to an
Indemnified Person otherwise than under the preceding paragraphs of this Section 8. If any such
proceeding shall be brought or asserted against an Indemnified Person and it shall have notified
the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified
Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in such
proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
reasonably concluded that there may be legal defenses available to it that are different from or in
addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such fees and expenses shall be paid
or reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates,
directors and officers and any control persons of such Underwriter shall be designated in writing
by the Representative, any such separate firm for the Company, its directors, its officers who
signed the Registration Statement and any control persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified
Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into more than 30
days after receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding
32
in respect of which any Indemnified Person is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(e) Contribution. If the indemnification provided for in paragraphs (a), (b), (c) and (d) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters on the other, from the offering of the Offered ADSs or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) but also the
relative fault of the Company, on the one hand, and the Underwriters on the other in connection
with the statements or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Underwriters on the other, shall be deemed to be in the same
respective proportions as the net proceeds (before deducting expenses) received by the Company from
the sale of the Offered ADSs and the total underwriting discounts and commissions received by the
Underwriters in connection therewith, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate offering price of the Offered ADSs. The relative fault of the
Company, on the one hand, and the Underwriters on the other, 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 by the Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
(f) Limitation on Liability. The Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 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 that does not take account of the equitable considerations referred to in paragraph (e)
above. The amount paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in paragraph (e) above shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in
connection with any such action or claim. Notwithstanding the provisions of this Section 8, in no
event shall an Underwriter be required to contribute any amount in excess of the amount by which
the total underwriting discounts and commissions received by such Underwriter with respect to the
offering of the ADSs exceeds the amount of any damages that 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations to contribute pursuant to this Section 8 are several in proportion to their respective
purchase obligations hereunder and not joint.
33
(g) Non-Exclusive Remedies. The remedies provided for in this Section 8 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any Indemnified Person at law or in equity.
9. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
10. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, the Founders, if after the execution and delivery of this
Agreement and prior to the Closing Date or, in the case of the Option ADSs, prior to the Additional
Closing Date (i) trading generally shall have been suspended or materially limited on or by any of
the NYSE, the American Stock Exchange, The Nasdaq Stock Market, the Chicago Board Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, or the Stock Exchange of Hong Kong
a.k.a. the SEHK; (ii) trading of any securities issued or guaranteed by the Company shall have been
suspended on any exchange or in any over-the-counter market; (iii) a general moratorium on
commercial banking activities shall have been declared by federal, New York State or PRC
authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis, either within or outside the United States
and the PRC, that, in the judgment of the Representative, is material and adverse and makes it
impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares or
Offered ADSs on the Closing Date or the Additional Closing Date, as the case may be, on the terms
and in the manner contemplated by this Agreement, the Pricing Disclosure Package and the
Prospectus.
11. Defaulting Underwriter.
(a) If, on the Closing Date or the Additional Closing Date, as the case may be, any
Underwriter defaults on its obligation to purchase the ADSs that it has agreed to purchase
hereunder on such date, the non-defaulting Underwriters may in their discretion arrange for the
purchase of such ADSs by other persons satisfactory to the Company on the terms contained in this
Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting
Underwriters do not arrange for the purchase of such ADSs, then the Company shall be entitled to a
further period of 36 hours within which to procure other persons satisfactory to the non-defaulting
Underwriters to purchase such ADSs on such terms. If other persons become obligated or agree to
purchase the ADSs of a defaulting Underwriter, either the non-defaulting Underwriters or the
Company may postpone the Closing Date or the Additional Closing Date, as the case may be, for up to
five full business days in order to effect any changes that in the opinion of counsel for the
Company or counsel for the Underwriters may be necessary in the Registration Statement and the
Prospectus or in any other document or arrangement, and the Company agrees to promptly prepare any
amendment or supplement to the Registration Statement and the Prospectus that effects any such
changes. As used in this Agreement, the term “Underwriter” includes, for all purposes of this
Agreement unless the context otherwise requires, any person not
listed in Schedule 1 hereto that, pursuant to this Section 11, purchases ADSs that a
defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the ADSs of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company as provided
34
in
paragraph (a) above, the aggregate number of ADSs that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, does not exceed one-eleventh of the aggregate
number of ADSs to be purchased on such date, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the number of ADSs that such Underwriter agreed to purchase
hereunder on such date plus such Underwriter’s pro rata share (based on the number of ADSs that
such Underwriter agreed to purchase on such date) of the ADSs of such defaulting Underwriter or
Underwriters for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the ADSs of a defaulting
Underwriter or Underwriters by the non-defaulting Underwriters, the Company as provided in
paragraph (a) above, the aggregate number of ADSs that remain unpurchased on the Closing Date or
the Additional Closing Date, as the case may be, exceeds one-eleventh of the aggregate amount of
ADSs to be purchased on such date, or if the Company shall not exercise the right described in
paragraph (b) above, then this Agreement or, with respect to any Additional Closing Date, the
obligation of the Underwriters to purchase ADSs on the Additional Closing Date, shall terminate
without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 11 shall be without liability on
the part of the Company, except that the Company will continue to be liable for the payment of
expenses as set forth in Section 12 hereof and except that the provisions of Section 8 hereof shall
not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
12. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company will pay or cause to be paid all costs and expenses incident
to the performance of its obligations hereunder, including without limitation, (i) the costs
incident to the authorization, issuance, sale, preparation and delivery of the ADSs and any taxes
payable in that connection; (ii) the costs incident to the preparation, printing and filing under
the Securities Act of the Registration Statement, the Preliminary Prospectus, any Issuer Free
Writing Prospectus, the Pricing Disclosure Package and the Prospectus (including all exhibits,
amendments and supplements thereto) and the distribution thereof; (iii) the costs of reproducing
and distributing each of the Transaction Documents; (iv) the fees and expenses of the Company’s
counsel and independent accountants; (v) the fees and expenses incurred in connection with the
registration or qualification and determination of eligibility for investment of the ADSs under the
state or foreign securities or blue sky laws of such jurisdictions as the Representative may
designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the
related fees and expenses of counsel for the Underwriters) for no more than $25,000; (vi) the cost
of preparing stock certificates; (vii) the costs and charges of any transfer agent and any
registrar;
(viii) all expenses and application fees incurred in connection with any filing with, and
clearance of the offering by, FINRA; and (ix) all expenses incurred by the Company in connection
with any “road show” presentation to potential investors; (x) all expenses and application fees
related to the listing of the ADSs on the NYSE.
35
(b) If (i) this Agreement is terminated pursuant to Section 10, (ii) the Company for any
reason fail to tender the ADSs for delivery to the Underwriters or (iii) the Underwriters decline
to purchase the ADSs for any reason permitted under this Agreement, the Company agree to reimburse
the Underwriters for all out-of-pocket costs and expenses (including the fees and expenses of their
counsel) reasonably incurred by the Underwriters in connection with this Agreement and the offering
contemplated hereby.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 8 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of ADSs from any Underwriter shall be deemed to be a successor merely by reason of such
purchase.
14. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company, the Founders and the Underwriters contained in this
Agreement or made by or on behalf of the Company, the Founders or the Underwriters pursuant to this
Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment
for the ADSs and shall remain in full force and effect, regardless of any termination of this
Agreement or any investigation made by or on behalf of the Company, the Founders or the
Underwriters.
15. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; and (c) the term “subsidiary” has the meaning set forth in
Rule 405 under the Securities Act.
16. Submission to Jurisdiction; Appointment of Agent for Service.
(a) Each of the Company, the Founders irrevocably submits to the non-exclusive jurisdiction of
any New York State or United States Federal court sitting in The City of New York over any suit,
action or proceeding arising out of or relating to this Agreement, the Pricing Disclosure Package,
the Prospectus, the Registration Statement, the ADS Registration Statement or the offering of the
ADSs. Each of the Company, the Founders irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding brought in such a court and any claim that any such suit, action or proceeding
brought in such a court has been brought in an inconvenient forum. To the extent that any of the
Company, the Founders has or hereafter may acquire any immunity (on the grounds of sovereignty or
otherwise) from the jurisdiction of any court or from any legal process with respect to itself or
its property, each of the Company, such Founder, as applicable, irrevocably
waives, to the fullest extent permitted by law, such immunity in respect of any such suit,
action or proceeding.
(b) Each of the Company and the Founders hereby irrevocably appoints Law Debenture as their
respective agents for service of process in any suit, action or proceeding described in
36
the
preceding paragraph and agrees that service of process in any such suit, action or proceeding may
be made upon it at the office of such agent. Each of the Company, the Founders waives, to the fullest extent permitted by law, any other
requirements of or objections to personal jurisdiction with respect thereto. Each of the Company,
the Founders represents and warrants that such agent has agreed to act as its agent for service of
process, and each of the Company, the Founders 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.
17. Judgment Currency. If for the purposes of obtaining judgment in any court it is
necessary to convert a sum due hereunder into any currency other than United States dollars, the
parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Underwriters could purchase
United States dollars with such other currency in The City of New York on the business day
preceding that on which final judgment is given. The obligation of each of the Company, the
Founders with respect to any sum due from it to any Underwriter or any person controlling any
Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day following receipt by such Underwriter or controlling
person of any sum in such other currency, and only to the extent that such Underwriter or
controlling person may in accordance with normal banking procedures purchase United States dollars
with such other currency. If the United States dollars so purchased are less than the sum
originally due to such Underwriter or controlling person hereunder, each of the Company, the
Founders agrees as a separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter or controlling person against such loss. If the United States dollars so purchased are
greater than the sum originally due to such Underwriter or controlling person hereunder, such
Underwriter or controlling person agrees to pay to the Company, such Founder, as applicable, an
amount equal to the excess of the dollars so purchased over the sum originally due to such
Underwriter or controlling person hereunder.
18. Miscellaneous.
(a) Authority of the Representative. Any action by the Underwriters hereunder may be taken by the Representative on behalf of
the Underwriters, and any such action taken by the Representative shall be binding upon the
Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative ▇/▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇., ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (fax: ▇▇▇▇ ▇▇▇▇-▇▇▇▇); Attention: ECM Syndicate
Desk, with a copy to the General Counsel (fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇). Notices to the Company or the
Founders shall be given to it at NetQin Mobile Inc., ▇▇. ▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ District, Beijing 100013, People’s Republic of China (fax: ▇▇▇ (▇▇) ▇▇▇▇-▇▇▇▇);
Attention: Chief Financial Officer.
(c) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State
of New York applicable to agreements made and to be performed in such state.
37
(d) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by
any standard form of telecommunication), each of which shall be an original and all of which
together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to
any departure therefrom, shall in any event be effective unless the same shall be in writing and
signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not intended to
be part of, or to affect the meaning or interpretation of, this Agreement.
38
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
| Very truly yours, | ||||||
| NetQin Mobile Inc. | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| ▇▇▇▇▇ ▇▇ ▇▇▇ | ||||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ | ||||||
[Signature page to the Underwriting Agreement]
Accepted: __________, 2011
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
By: |
||||
| Authorized Signatory |
For itself and on behalf of the
several Underwriters listed
in Schedule 1 hereto.
several Underwriters listed
in Schedule 1 hereto.
[Signature page to the Underwriting Agreement]
Schedule 1
| Underwriter | Number of Shares | |||
▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. |
||||
▇▇▇▇▇▇▇▇▇▇▇ & Co. |
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Canaccord Genuity |
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Total |
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Schedule 2
List of Group Entities
NetQin International Ltd.
NetQin US Inc.
NetQin Mobile (Beijing) Inc., Ltd.
Beijing NetQin Technology Co., Ltd.
Fuzhou NetQin Mobile Information Technology Co., Ltd.
NetQin US Inc.
NetQin Mobile (Beijing) Inc., Ltd.
Beijing NetQin Technology Co., Ltd.
Fuzhou NetQin Mobile Information Technology Co., Ltd.
Annex A-1
Chief Financial Officer and Chief Executive Officer’s Certificate
Annex A-2
Opinion and ▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Counsel for the Company
Annex A-3
Opinion of Cayman Islands Counsel for the Company
Annex A-4
Opinion of Hong Kong Counsel for the Hong Kong Subsidiary of the Company
Annex A-5
Opinion of United State Counsel for the United State Subsidiary of the Company
Annex A-6
Opinion of PRC Counsel for the Company
Annex A-7
Opinion of Counsel for the Depositary
Annex B
a. Issuer Free Writing Prospectuses
Issuer free writing prospectus, dated April 20, 2011.
b. Public Offering Price
Annex C
None
Exhibit A
FORM OF LOCK-UP AGREEMENT
____ __, 2011
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
As Representative of
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
the several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇.
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Re: NetQin Mobile Inc. — Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representative of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with NetQin Mobile Inc., an
exempted company limited by shares incorporated under the laws of the Cayman Islands (the
“Company”), providing for the public offering (the “Public Offering”) by the several Underwriters
named in Schedule 1 to the Underwriting Agreement (the “Underwriters”), of American Depositary
Shares (“ADSs”) representing common shares, par value US$0.0001 per share, of the Company (the
“Common Shares”). Capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the ADSs, and for other good and valuable consideration receipt of which is hereby acknowledged,
the undersigned hereby agrees that, without the prior written consent of the Representative on
behalf of the Underwriters, the undersigned will not, during the period ending 180 days after the
date of the prospectus relating to the Public Offering (the “Prospectus”), (1) offer, pledge,
announce the intention to sell, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any Common Shares, ADSs or any securities
convertible into or exercisable or exchangeable for Common Shares or ADSs (including without
limitation, Common Shares which may be deemed to be beneficially owned by the undersigned in
accordance with the rules and regulations of the United States Securities and Exchange Commission
and securities which may be issued upon exercise of a stock option or warrant)
or (2) enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the Common Shares or ADSs, whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of Common Shares or
ADSs or such other securities, in cash or otherwise, in each case other than (A) the ADSs and the
Common Shares represented thereby to be sold by the undersigned pursuant to the Underwriting
Agreement, if any, (B) transfers of Common Shares as a bona fide gift or gifts, or through will or
intestacy, or to an immediate family member or trust or entity beneficially owned and controlled by
the undersigned, and (C) distributions of Class A Common Shares to members or stockholders of the
undersigned or a transfer of Common Shares or ADSs to a partner, member or an “affiliate” of the
undersigned, as such term is defined under the Securities Act of 1933, as amended; provided
that in the case of any transfer or distribution pursuant to clause (B) or (C), each donee or
distributee shall execute and deliver to the Representative a lock-up letter in the form of this
paragraph; and provided, further, that in the case of any transfer or distribution
pursuant to clause (B) or (C), no filing by any party (donor, donee, transferor or transferee)
under the Securities Exchange Act of 1934, as amended, or other public announcement shall be
required or shall be made voluntarily in connection with such transfer or distribution (other than
a filing on a Schedule 13D or 13G to the extent required by law). In addition, the undersigned
agrees that, without the prior written consent of the Representative on behalf of the Underwriters,
it will not, during the period ending 180 days after the date of the Prospectus, make any demand
for or exercise any right with respect to, the registration of any Common Shares or ADSs or any
security convertible into or exercisable or exchangeable for Common Shares or ADSs.
Notwithstanding the foregoing, if (1) during the last 17 days of the 180-day restricted period, the
Company issues an earnings release or announces material news or a material event relating to the
Company occurs; or (2) prior to the expiration of the 180-day restricted period, the Company
announces that it will release earnings results during the 16-day period beginning on the last day
of the 180-day period, the restrictions imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings release or the
announcement of the material news or the occurrence of the material event.
In furtherance of the foregoing, the Company, the Depositary and any duly appointed transfer
agent for the registration or transfer of the securities described herein are hereby authorized to
decline to make any transfer of securities if such transfer would constitute a violation or breach
of this agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this agreement. All authority herein conferred or agreed to be conferred
and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or
personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become effective, or
if the Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the ADSs to be sold thereunder, the
undersigned shall be released from all obligations under this agreement. The undersigned
understands that the Underwriters are entering into the Underwriting Agreement and proceeding with
the Public Offering in reliance upon this agreement.
-2-
This agreement shall be governed by and construed in accordance with the laws of the State of
New York, without regard to the conflict of laws principles thereof.
| Very truly yours, [NAME OF LOCK-UP PARTY] |
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| By: | ||||
| Name: | ||||
| Title: | ||||