4,000,000 Shares ZHONGPIN INC. Common Stock UNDERWRITING AGREEMENT
Exhibit
1.1
4,000,000
Shares
Common
Stock
October
9, 2009
▇▇▇▇▇
▇▇▇▇▇▇▇ & CO.
As the
Representative of the several
Underwriters
named in Schedule I hereto
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co.
U.S. Bancorp Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
Zhongpin Inc., a Delaware corporation
(the “Company”),
proposes to issue and sell to the several underwriters named in Schedule I hereto
(the “Underwriters”) an
aggregate of 4,000,000 shares (the “Firm Shares”) of the
Company’s common stock, par value $0.001 per share (the “Common Stock”), pursuant to
the terms of this underwriting agreement (the “Agreement”). The
Company has also granted to the several Underwriters an option to purchase up to
600,000 shares of Common Stock (the “Option Shares”) on the terms
and for the purposes set forth in Section 3
hereof. The Firm Shares and any Option Shares purchased pursuant to
this Agreement are herein collectively called the “Shares.”
The Company hereby confirms its
agreement with respect of the sale of the Shares to the several Underwriters for
whom you are acting as the representative (the “Representative”).
1. Registration
Statement and Prospectus. The Company has prepared and filed in
conformity with the
requirements of the Securities Act of 1933, as
amended (the “Securities Act”), and the published rules and
regulations thereunder (the “Rules and
Regulations”) adopted by the Securities and Exchange
Commission (the “Commission”) a Registration Statement (as hereinafter defined) on Form S-3 (No.
333-160058), relating to the Securities and the
offering thereof from time to time in accordance with Rule 415 of the Rules and
Regulations, and such amendments thereof as may have been required. The Registration Statement includes a prospectus dated
July 14, 2009 (the “Base
Prospectus”). The Company has filed the Base
Prospectus with the Commission and has filed with, or transmitted for filing to,
or shall promptly hereafter file with or transmit for filing to the
Commission, a prospectus
supplement relating to the Shares in accordance with Rule 424(b)
of the Rules and
Regulations (the
“Final Prospectus
Supplement”). The term “Registration Statement” as used in this Agreement means the
initial registration statement (including all exhibits, financial
schedules and all documents and information deemed to be a part of the
Registration Statement (through incorporation by reference or otherwise)), as
amended, at the time and on the date it became effective (the “Effective Date”), including the information (if any)
contained in the form of final prospectus filed with the Commission pursuant to
Rule 424(b) of the Rules and Regulations and deemed to be part thereof at the
time of effectiveness pursuant to Rule 430A or Rule 430B of the Rules and Regulations. The term
“Prospectus” as used in this Agreement means the
Base Prospectus together with the Final Prospectus Supplement. Any
preliminary prospectus or prospectus subject to completion included in the
Registration Statement or filed with the Commission pursuant to Rule 424 of the
Rules and Regulations is hereafter called a “Preliminary Prospectus.”
As used herein, the terms
“Base Prospectus,” “Prospectus,” “Registration Statement,” “Preliminary Prospectus” and “Final Prospectus Supplement” shall include any documents
incorporated by reference therein and any reference to any amendment or
supplement to the Registration Statement or the Prospectus shall be deemed to
refer to and include any document filed under the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), after the date of the Base Prospectus
by the Company with the Commission and on or before the last to occur of
the Effective Date, the date of the Preliminary Prospectus, if any, or the date
of the Prospectus, and any reference herein to the terms “amend,” “amendment,”
or “supplement” with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include (i) the
filing of any document under the Exchange Act after the Effective Date, the date
of such Preliminary Prospectus or the date of the Prospectus, as the case may
be, which is incorporated by reference and (ii) any such document so filed, but
excluding any documents or information furnished to the Commission under Item
2.02 or Item 7.01 of any Current Report on Form 8-K. If the Company
has filed an abbreviated registration statement to register additional Shares
pursuant to Rule 462(b) of the Rules and Regulations (the “Rule 462(b) Registration
Statement”), then any reference herein to the term “Registration Statement” shall
also be deemed to include such Rule 462(b) Registration
Statement. The Company
hereby confirms that the Underwriters, in connection with their duties in such capacity, are authorized to distribute or cause to be
distributed the Prospectus (as from time to time amended or supplemented if the
Company furnishes amendments or supplements thereto to the Underwriters).
All references in this Agreement to
financial statements and schedules and other information which is
“contained,” “included” or “stated” in the Registration Statement or the
Prospectus (or other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which is incorporated by
reference in the Registration Statement or the Prospectus, as the case may be;
and all references in this Agreement to amendments or supplements to the
Registration Statement or the Prospectus shall be deemed to mean and
include the filing of any document under
the Exchange Act on or before the Closing Date (as defined herein), which is
incorporated by reference in the Registration Statement or the Prospectus, as
the case may be.
For purposes of this Agreement, all
references to the Registration Statement, any Rule 462(b) Registration
Statement, the Base Prospectus, any Preliminary Prospectus, the Prospectus or
any amendment or supplement to any of the foregoing shall be deemed to include
the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System or any such successor system (“▇▇▇▇▇”).
2. Representations and Warranties of
the Company. The Company represents and warrants to the
several Underwriters as of the date hereof, and as of the Closing Date, and
agrees with the several Underwriters, as follows:
(a) Registration Statement and
Prospectus. The Company meets the requirements for use of Form S-3 under
the Securities Act and has complied with the requirements of Rule 415 of the
Rules and Regulations with respect to the Registration Statement. The
Registration Statement has become effective under the Securities
Act. No stop order preventing or suspending the effectiveness of the
Registration Statement or preventing or suspending the use of the Prospectus has
been issued by the Commission, and no proceedings for such purpose have been
instituted or are pending or, to the Company’s knowledge, are contemplated or
threatened by the Commission, and any request received by the Company on the
part of the Commission for additional information has been complied
with.
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(b) General Disclosure
Package. As of the Applicable Time (as defined below) and as
of the Closing Date, neither (A) the Issuer General Use Free Writing
Prospectus(es)(as defined below), if any, issued at or prior to the Applicable
Time, the Statutory Prospectus (as defined below) and the information included
on Exhibit G
hereto (the “Pricing
Information”), all considered together (collectively, the “General Disclosure
Package”), nor (B) any individual Issuer Limited-Use Free Writing
Prospectus (as defined below), if any, when considered together with the General
Disclosure Package, included or will include any untrue statement of a material
fact or omitted or will omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading;
provided, that the Company makes no representations or warranty in this
paragraph with respect to statements in or omissions from the General Disclosure
Package in reliance upon, and in conformity with, written information furnished
to the Company by any Underwriter through you, specifically for inclusion
therein, which information the parties hereto agree is limited to the
Underwriter Information (as defined in Section 8
hereof). No statement of material fact included in the Prospectus has
been omitted from the General Disclosure Package and no statement of material
fact included in the General Disclosure Package that is required to be included
in the Prospectus has been omitted therefrom. As used in this paragraph and
elsewhere in this Agreement:
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(1)
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“Applicable Time” means
7:30 a.m. (New York City time) on the date of this
Agreement.
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(2)
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“Statutory Prospectus”
means the Preliminary Prospectus, if any, and the Base Prospectus, each as
amended and supplemented as of immediately prior to the Applicable Time,
including any document incorporated by reference therein and any
prospectus supplement deemed to be a part thereof. For purposes
of this definition, information contained in a form of prospectus that is
deemed retroactively to be a part of the Registration Statement pursuant
to Rule 430B of the Rules and Regulations shall be considered to be
included in the Statutory Prospectus as of the actual time that form of
prospectus is filed with the Commission pursuant to Rule 424(b) of the
Rules and Regulations.
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(3)
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“Issuer Free Writing
Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the Rules and Regulations (“Rule 433”), relating to
the Shares that (i) is required to be filed with the Commission by the
Company or (ii) is a
“road show that is a written
communication” within the meaning of Rule
433(d)(8)(i) of the Rules and
Regulations, whether or not
required to be filed with the Commission
or is exempt from filing pursuant to Rule 433(d)(5)(i) of the Rules
and Regulations because it contains a description
of the Shares
or of the offering
that does not reflect the final terms, in each case in the form
filed or required to be filed with the
Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g) under the
Securities Act.
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(4)
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“Issuer General Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus that
is intended for general distribution to prospective investors as
identified on Schedule III
hereto.
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(5)
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“Issuer Limited-Use Free
Writing Prospectus” means any Issuer Free Writing Prospectus that
is not an Issuer General Free Writing
Prospectus.
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(c) Use of
Prospectuses. No order preventing or suspending the use of any
Preliminary Prospectus, any Issuer Free Writing Prospectus or the Prospectus
relating to the proposed offering of the Shares has been issued by the
Commission, and no proceeding for that purpose or pursuant to Section 8A of the
Securities Act has been instituted or, to the knowledge of the Company, is
threatened by the Commission, and each Preliminary Prospectus, if any, at the
time of filing thereof, complied in all material respects with the requirements
of the Securities Act and the Rules and Regulations, and did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, that the Company
makes no representations or warranty in this paragraph with respect to
statements in or omissions from the any Preliminary Prospectus in reliance upon,
and in conformity with, written information furnished to the Company by any
Underwriter through you specifically for inclusion therein, which information
the parties hereto agree is limited to the Underwriter Information.
(d) Compliance with Registration
Requirements. Each part of the Registration Statement and any
post-effective amendment thereto, at the time such part became effective
(including each deemed effective date with respect to the Underwriters pursuant
to Rule 430B of the Rules and Regulations), at the date of this Agreement and as
of the Closing Date, complied and will comply, in all material respects, with
the requirements of the Securities Act and the Rules and Regulations and 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 to make the statements
therein not misleading. The Prospectus and any amendment or supplement thereto,
at the time of filing or the time of first use within the meaning of the Rules
and Regulations and as of the Closing Date, complied and will comply, in all
material respects, with the requirements of the Securities Act and the Rules and
Regulations and did not and will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided,
that the Company makes no representations or warranty in this paragraph with
respect to statements in or omissions from the Registration Statement or the
Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by any Underwriter through you specifically for
inclusion therein, which information the parties hereto agree is limited to the
Underwriter Information.
(e) Conflict with Registration
Statement. Each Issuer Free Writing Prospectus, if any, as of its
issue date and at all subsequent times through the completion of the offering
and sale of the Shares or until any earlier date that the Company notified or
notifies the Underwriters through you as described in Section 4(d) hereof,
did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration
Statement, the Statutory Prospectus or the Prospectus, including any document
incorporated by reference therein and any prospectus supplement deemed to be a
part thereof that has not been superseded or modified, or included or would
include an untrue statement of a material fact or omitted or would omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances prevailing at the subsequent
time, not misleading; provided, that the Company
makes no representations or warranty in this paragraph with respect to any
Underwriter Information.
(f) Incorporated
Documents. Each of the documents incorporated by reference in
the Prospectus, when it became effective or was filed with the Commission, as
the case may be, complied in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder, was filed on a timely basis with the Commission
and did not contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
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(g) Distributed Materials.
The Company has not, directly or indirectly, distributed and will not distribute
any prospectus or other offering material in connection with the offering and
sale of the Shares other than any Preliminary Prospectus, the Statutory
Prospectus and the Prospectus, the documents incorporated by reference therein
and other materials, if any, permitted under the Securities Act to be
distributed. The Company will file with the Commission all Issuer Free Writing
Prospectuses required to be filed in the time required under Rules 164(b)(2) and
433(d) of the Rules and Regulations, as the case may be. The Company confirms
that no electronic road show has been or will be used in connection with the
transaction contemplated under this Agreement.
(h) Not an Ineligible
Issuer. (1) At the earliest time after the filing of the
Registration Statement that the Company or another offering participant made a
bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act)
of the Shares and (2) at the date hereof, the Company was not and is not an
“ineligible issuer,” as defined in Rule 405 of the Rules and Regulations,
without taking account of any determination by the Commission pursuant to Rule
405 of the Rules and Regulations that it is not necessary that the Company be
considered an ineligible issuer, including, without limitation, for purposes of
Rules 164 and 433 of the Rules and Regulations with respect to the offering of
the Shares as contemplated by the Registration Statement.
(i) Due
Incorporation. The Company and each Subsidiary (as defined
below) has been duly organized and is validly existing as a corporation or other
legal entity in good standing (or the foreign equivalent thereof) under the laws
of each of its respective jurisdiction of organization, with the corporate power
and authority to own its properties and to conduct its business as currently
being conducted and as described in the Registration Statement, the Statutory
Prospectus and the Prospectus and is duly qualified to transact
business and is in good standing as a foreign corporation or other legal entity
in each other jurisdiction in which its ownership or leasing of property or the
conduct of its business requires such qualification, except where the failure to
be so qualified and in good standing (i) would not have, individually or in the
aggregate, a material adverse effect upon, or change in, the general affairs,
business, operations, prospects, properties, financial condition, or results of
operations of the Company and its subsidiaries, taken as a whole, or (ii) impair
in any material respect the ability of the Company to perform its obligations
under this Agreement or to consummate any transactions contemplated by this
Agreement, the General Disclosure Package or the Prospectus (any such effect as
described in clauses (i) or (ii), a “Material Adverse
Effect”). The Company owns or controls, directly or
indirectly, only the corporations, partnerships, limited liability partnerships,
limited liability companies, associations or other entities as included in Schedule IV hereto
(each, a “Subsidiary,”
and together, the “Subsidiaries”).
(j) Due Authorization and
Enforceability. The Company has the full right, power and authority
to enter into this Agreement and to perform and discharge its obligations
hereunder; and this Agreement has been duly authorized, executed and delivered
by the Company, and constitutes a valid, legal and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as
rights to indemnity hereunder may be limited by federal or state securities laws
and except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors
generally and subject to general principles of equity.
(k) The Shares. The
Shares have been duly and validly authorized by the Company and, when issued,
delivered and paid for in accordance with the terms of this Agreement, will have
been duly and validly issued and will be fully paid and nonassessable, will not
be subject to any statutory or contractual preemptive rights or other rights to
subscribe for or purchase or acquire any shares of Common Stock of the Company
that have not been waived or complied with and will conform in all material
respects to the description thereof contained in the General Disclosure Package
and the Prospectus and such description conforms in all material respects to the
rights set forth in the instruments defining the same.
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(l) Capitalization. The
Company has an authorized capitalization as set forth in the Prospectus, and all
of the issued and outstanding shares of capital stock of the Company have been
duly authorized and validly issued, are fully paid and nonassessable, have been
issued in compliance with all federal and state securities laws, and conform in
all material respects to the description thereof contained in the General
Disclosure Package and the Prospectus. None of the outstanding shares of Common
Stock was issued in violation of any preemptive rights, rights of first refusal
or other similar rights to subscribe for or purchase or acquire any securities
of the Company. There are no authorized or outstanding shares of
capital stock, options, warrants, preemptive rights, rights of first refusal or
other rights to purchase, or equity or debt securities convertible into or
exchangeable for, any capital stock of the Company or any of its Subsidiaries
other than those described in the General Disclosure Package. The
description of the Company’s stock option, stock bonus and other stock plans or
arrangements, and the options or other rights granted thereunder, as described
in the General Disclosure Package and the Prospectus, accurately and fairly
present in all material respects the information required to be shown with
respect to such plans, arrangements, options and rights.
(m) Subsidiaries. Other than the
Subsidiaries listed in Schedule IV hereto,
the Company has no other Subsidiaries. All of the issued and
outstanding shares of capital stock or other equity interests of each Subsidiary
of the Company have been duly and validly authorized and issued, are fully paid
and non−assessable and, except as otherwise described in the Registration
Statement, the General Disclosure Package and in the Prospectus, are owned
directly by the Company or through one or more wholly−owned subsidiaries, free
and clear of all liens, encumbrances, equities or claims.
(n) No Conflict. The
execution, delivery and performance by the Company of this Agreement and the
consummation of the transactions contemplated hereby, including the issuance and
sale by the Company of the Shares, will not conflict with or result in a breach
or violation of, or constitute a default under (nor constitute any event which
with notice, lapse of time or both would result in any breach or violation of or
constitute a default under), give rise to any right of termination or other
right or the cancellation or acceleration of any right or obligation or loss of
a benefit under, or give rise to the creation or imposition of any lien,
encumbrance, security interest, claim or charge upon any property or assets of
the Company or any Subsidiary pursuant to (i) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or
any Subsidiary is a party or by which any of them or any of their respective
properties may be bound or to which any of the property or assets of the Company
or any of its Subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or by-laws of the Company or any
Subsidiary, or (iii) result in any violation of any law, statute, rule,
regulation, judgment, order or decree of any court or governmental agency or
body, domestic or foreign, having jurisdiction over the Company or its
Subsidiaries or any of their properties or assets.
(o) No Consents
Required. No approval, authorization, consent or order of or
filing, qualification or registration with, any court or governmental agency or
body, foreign or domestic, which has not been made, obtained or taken and is not
in full force and effect, is required in connection with the execution, delivery
and performance of this Agreement, including the issuance and sale of the Shares
or the consummation by the Company of the transactions contemplated hereby,
other than (i) as may be required under the Securities Act, (ii) any
necessary qualification of the Shares under the securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by the
Underwriters, (iii) under the rules and regulations of the Financial
Industry Regulatory Authority, Inc. (“FINRA”) and (iv) the Nasdaq
Global Select Market.
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(p) No Registration
Rights. Except as otherwise described in the General
Disclosure Package, there are no preemptive rights or other rights to subscribe
for or to purchase, or any restriction upon the voting of transfer of, any
shares of Common Stock pursuant to the Company’s charter, by-laws or any
agreement or other instrument to which the Company is a party or by which the
Company is bound. There
are no contracts, agreements or understandings between the Company and any
person granting such person the right (other than rights which have been waived
in writing in connection with the transactions contemplated by this Agreement or
otherwise satisfied) to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company
under the Securities Act.
(q) Independent
Accountants. Each of BDO Guangdong Dahua Delu CPAs (“BDO”) and Child, ▇▇▇ ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, PLLC, who have certified certain of the financial statements and
related schedules included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, and, in the case
of BDO, has audited the Company’s internal control over financial reporting and
management’s assessment thereof, is (i) an independent public accounting
firm within the meaning of the
Securities Act and the Rules and Regulations and the Public Company Accounting
Oversight Board (United States) (the “PCAOB”), (ii) a registered public accounting
firm (as defined in Section 2(a)(12) of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the “▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act”)), and (iii) not in violation of the
auditor independence
requirements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act.
(r) Financial
Statements. The financial statements of the Company, together
with the related schedules and notes thereto, set forth or incorporated by
reference in the General Disclosure Package, the Prospectus and in the
Registration Statement comply in all material respects with the applicable
requirements of the Securities Act and the Exchange Act, as applicable, and
present fairly in all material respects (i) the financial condition of the
Company and the Subsidiaries, taken as a whole, as of the dates indicated and
(ii) the consolidated results of operations, stockholders’ equity and changes in
cash flows of the Company and the Subsidiaries, taken as a whole, for the
periods therein specified; and such financial statements and related schedules
and notes thereto have been prepared in conformity with United States generally
accepted accounting principles, consistently applied throughout the periods
involved (except as otherwise stated therein and subject, in the case of
unaudited financial statements, to the absence of footnotes and normal year-end
adjustments). There are no other financial statements (historical or
pro forma) that are required to be included or incorporated by reference in the
Registration Statement, the General Disclosure Package or the Prospectus. There
is no pro forma or as adjusted financial information which is required to be
included in the Registration Statement, the General Disclosure Package or the
Prospectus or a document incorporated by reference therein in accordance with
the Securities Act and the Rules and Regulation, which has not been included or
incorporated as so required. The financial data contained in the
Registration Statement, the General Disclosure Package and the Prospectus are
accurately and fairly presented in all material respects and prepared on a basis
consistent with the financial statements and books and records of the
Company. The Company and the Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any off-balance
sheet arrangements as defined by the rules of the Commission), not described in
the Registration Statement (excluding the exhibits thereto), the General
Disclosure Package and the Prospectus. There are no “non-GAAP
financial measures” (as such term is defined by the rules of the Commission)
contained in the Registration Statement, the General Disclosure Package or the
Prospectus.
(s) Absence of Material Changes.
Subsequent to the date of the latest audited financial statements
included or incorporated by reference in the General Disclosure Package, (a)
neither the Company nor any of its Subsidiaries has sustained any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth in the General Disclosure Package,
(b) there has not
been any change in the capital stock (other than a change in the number of
outstanding shares of Common Stock due to the issuance of shares upon the
exercise of outstanding options or warrants or the conversion of convertible
indebtedness), or material change in the short−term debt or long−term debt of
the Company or any Subsidiary (other than upon conversion of convertible
indebtedness and the increase in short-term and long-term debt set forth in
Schedule V
hereto), or any material adverse change, in or affecting the business, assets,
general affairs, management, financial position, prospects, stockholders’ equity
or results of operations of the Company and the Subsidiaries (a “Material Adverse Change”),
otherwise than as set forth in the General Disclosure Package.
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(t) Legal Proceedings. There are
no legal or governmental actions, suits, claims or proceedings (including any
inquiries or investigations by any court or governmental agency, authority or
body, domestic or foreign) pending to which the Company or any Subsidiary is a
party or of which any of their respective properties is subject at law or in
equity, which is required to be described in the Registration Statement, the
General Disclosure Package or the Prospectus or a document incorporated by
reference therein and is not so described therein, or which, singularly or in
the aggregate, if resolved adversely to the Company or any Subsidiary, would
reasonably be likely to result in a Material Adverse Effect. To the Company’s
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others. The General Disclosure Package
contains in all material respects the same description of the foregoing matters
contained in the Prospectus.
(u) No Undisclosed
Description. There are no statutes, regulations, contracts or
documents that are required to be described in the Registration Statement, the
General Disclosure Package and the Prospectus or be filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations
that have not been so described in all material respects or filed.
(v) No Tax Payable. No
transaction, stamp, capital or other issuance, registration, transaction,
transfer or withholding taxes or duties are payable in the People’s Republic of
China (which, for purpose of this Agreement only, excludes Taiwan, The Hong Kong
Special Administrative Region and The Macau Special Administrative Region) (the
“PRC”), the British
Virgin Islands or in the United States by or on behalf of any Underwriter to any
PRC, British Virgin Islands or United States taxing authority in connection with
(A) the execution and delivery of this Agreement; and (B) the
issuance, sale and delivery of the Shares.
(w) No
Violation. Neither the Company nor any Subsidiary is in breach
or violation of or in default (nor has any event occurred which with notice,
lapse of time or both would result in any breach or violation of, or constitute
a default) (i) under the provisions of its charter or bylaws (or analogous
governing instrument, as applicable) or (ii) in the performance or
observance of any term, covenant, obligation, agreement or condition contained
in any indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any Subsidiary is a party or by
which any of them or any of their properties may be bound or affected, or (iii)
in the performance or observance of any statute, law, rule, regulation,
ordinance, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having
jurisdiction over the Company, the Subsidiaries or any of their respective
properties, as applicable, except, with respect to clauses (ii) and (iii) above,
to the extent any such contravention has been waived or would not result in a
Material Adverse Effect.
(x) Permits. The Company and each Subsidiary has made
all filings, applications and submissions required by, and possesses all approvals,
licenses, certificates,
certifications, clearances, consents, exemptions, marks, notifications, orders,
permits and other authorizations issued by, the appropriate federal, state or
foreign regulatory authorities necessary to conduct its business as described in
the Prospectus (collectively, “Permits”), except for such Permits which the
failure to obtain would not have a Material Adverse Effect (the “Immaterial
Permits”), and is in compliance in all material
respects with the terms and conditions of all such Permits other than the Immaterial Permits (the
“Required
Permits”); all such Required Permits held by the Company are valid
and in full force and effect. Neither the Company nor any
Subsidiary has received notice of any proceedings relating to revocation or
modification of any such
Required Permit, which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect.
-8-
(y) Not an Investment
Company. Neither the Company nor any Subsidiary is or, after
giving effect to the offering and sale of the Shares and the application of the
proceeds thereof as described in the General Disclosure Package and the
Prospectus, will be (i) required to register as an “investment company” as
defined in the Investment Company Act of 1940, as amended (the “ Investment Company
Act “), and the rules and regulations of the
Commission thereunder or (ii) a “business development company” (as defined in Section 2(a)(48) of
the Investment Company Act).
(z) No Price
Stabilization. Neither the Company nor any Subsidiary nor, to
the Company’s knowledge, any of their respective officers, directors, affiliates
or controlling persons has taken or will take, directly or indirectly, any
action designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares.
(aa) Good Title to
Property. Each of the Company and the Subsidiaries has good
and valid title to all property (whether real or personal) described in the
Registration Statement and the General Disclosure Package as being owned by each
of them, in each case free and clear of all liens, claims, security interests,
other encumbrances or defects (“Liens”), except such as are
described in the Registration Statement and the General Disclosure Package and
those that would not, individually or in the aggregate, 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
Subsidiaries. All of the property described in the Registration
Statement and the General Disclosure Package as being held under lease by the
Company or any Subsidiary is held thereby under valid, subsisting and
enforceable leases, without any liens, restrictions, encumbrances or claims,
except those that, individually or in the aggregate, are not material and
do not materially interfere with the use made and proposed to be made of such
property by the Company and the Subsidiaries.
(bb) Intellectual Property
Rights. The Company and the Subsidiaries own or possess the
right to use all patents, trademarks, trademark registrations, service marks,
service ▇▇▇▇ registrations, trade names, copyrights, licenses, inventions,
software, databases, know-how, Internet domain names, trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures, and other intellectual property (collectively, “Intellectual Property”)
necessary to carry on their respective businesses as currently conducted, and as
proposed to be conducted and described in the General Disclosure Package and the
Prospectus, and the Company is not aware of any claim to the contrary or any
challenge by any other person to the rights of the Company and the Subsidiaries
with respect to the foregoing except for those that could not have a Material
Adverse Effect. The Intellectual Property licenses, if any, described in the
General Disclosure Package and the Prospectus are, to the knowledge of the
Company, valid, binding upon, and enforceable by or against the parties thereto
in accordance to its terms. The Company and each Subsidiary has complied in all
material respects with, and is not in breach nor has received any asserted or
threatened claim of breach of, any Intellectual Property license, and the
Company has no knowledge of any breach or anticipated breach by any other person
to any Intellectual Property license. The Company’s and each Subsidiary’s
businesses as now conducted and as proposed to be conducted, to the knowledge of
the Company, do not and will not infringe or conflict with any patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses or
other Intellectual Property or franchise right of any person. The Company has
not received notice of any material claim against the Company or any Subsidiary
alleging the infringement by the Company or any of its Subsidiary of any patent,
trademark, service ▇▇▇▇, trade name, copyright, trade secret, license in or
other intellectual property right or franchise right of any person. The Company
and each Subsidiary has taken all reasonable steps to protect, maintain and
safeguard its rights in all Intellectual Property, including the execution of
appropriate nondisclosure and confidentiality agreements. The consummation of
the transactions contemplated by this Agreement will not result in the loss or
impairment of or payment of any additional amounts with respect to, nor require
the consent of any other person in respect of, the Company’s or any of
Subsidiary’s right to own, use, or hold for use any of the Intellectual Property
as owned, used or held for use in the conduct of the businesses as currently
conducted. To the Company’s knowledge, there is no infringement,
misappropriation or violation by third parties of any such Intellectual
Property, except as such infringement, misappropriation or violation would not
reasonably be expected to result in a Material Adverse Effect. There
is no pending or, to the knowledge of the Company, threatened, action, suit,
proceeding or claim by others challenging the Company’s or any of its
Subsidiaries’ rights in or to any such Intellectual Property, and the Company is
unaware of any facts which would form a reasonable basis for any such
claim. The Intellectual Property owned by the Company and its
Subsidiaries, and to the Company’s knowledge, the Intellectual Property licensed
to the Company and its Subsidiaries, has not been adjudged invalid or
unenforceable, in whole or in part, and, to the Company’s knowledge, there is no
pending or threatened action, suit, proceeding or claim by others challenging
the validity or scope of any such Intellectual Property.
-9-
(cc) No Labor
Disputes. Neither the Company nor any Subsidiary is engaged in
any illegal labor practice. No strike, labor disputes, slowdown or
stoppage is pending, and no labor dispute with the employees of the Company or
any of its Subsidiaries exists or, to the Company’s knowledge, is threatened or
imminent, and, to the Company’s knowledge, there is no existing, threatened or
imminent labor disturbance by the employees of any of its or its Subsidiaries’
principal suppliers, manufacturers, customers or contractors, which would,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. There
has been no violation of any federal, state, local or foreign law relating to
discrimination in the hiring, promotion or pay of employees or
any applicable wage or hour
laws concerning the employees of the Company or any Subsidiary that might reasonably be expected to
result in a Material Adverse Effect.
(dd) Taxes. The Company
and each Subsidiary has (i) timely filed all necessary federal, state, local and
foreign income and franchise tax returns (or timely filed applicable extensions
therefore) that have been required to be filed and (ii) are not in default in
the payment of any taxes which were payable pursuant to said returns or any
assessments with respect thereto, other than any which the Company or any
Subsidiary is contesting in good faith and for which adequate reserves have been
provided and reflected in the Company’s financial statements included in the
Registration Statement and the General Disclosure Package. Neither the Company nor any Subsidiary
has any tax deficiency that has been or, to the knowledge of the Company, might
be asserted or threatened against it that would result in a Material Adverse
Effect. All
national, provincial and local PRC governmental tax relief, concessions,
waivers, holidays and preferential treatments enjoyed by the Company and its
Subsidiaries are valid, binding and enforceable and do not violate any PRC
law.
(ee) ERISA. Neither the
Company nor any of its Subsidiaries is subject to or has any obligations under
the United States Employee Retirement Income Security Act of 1974 (“ERISA”) and the regulations
and published interpretations thereunder.
-10-
(ff) Compliance with Environmental
Laws. The Company and its Subsidiaries (a) are in compliance
with any and all applicable foreign, federal, state and local laws, orders,
rules, regulations, directives, decrees and judgments relating to the use,
treatment, storage and disposal of hazardous or toxic substances or waste and
protection of human health and safety or the environment which are applicable to
their businesses (“Environmental Laws”), except
where the failure to comply would not, singularly or in the aggregate, have a
Material Adverse Effect. There has been no storage, generation,
transportation, handling, treatment, disposal, discharge, emission, or other
release of any kind of toxic or other wastes or other hazardous substances by,
due to, or caused by the Company or any Subsidiary (or, to the Company’s
knowledge, any other entity for whose acts or omissions the Company or any
Subsidiary is or may otherwise be liable) upon any of the property now or
previously owned or leased by the Company or any Subsidiary, or upon any other
property, in violation of any law, statute, ordinance, rule, regulation, order,
judgment, decree or permit or which would, under any law, statute, ordinance,
rule, regulation, order, judgment, decree or permit, give rise to any liability,
except for any violation or liability that would not, singularly or in the
aggregate with all such violations and liabilities, have a Material Adverse
Effect; and there has been no disposal, discharge, emission or other release of
any kind onto such property or into the environment surrounding such property of
any toxic or other wastes or other hazardous substances with respect to which
the Company has knowledge, except for any such disposal, discharge, emission or
other release of any kind which would not have, singularly or in the aggregate
with all such discharges and other releases, a Material Adverse Effect. There
are no proceedings that are pending, or, to the Company’s knowledge,
contemplated, against the Company or any of its Subsidiaries under Environmental
Laws in which a governmental authority is also a party that could, individually
or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(gg) Insurance. The
Company and each Subsidiary maintains or is covered by insurance provided by
recognized, financially sound and reputable institutions with policies in such
amounts and covering such risks as is adequate for the conduct of its business
and the value of its properties and as is customary for companies engaged in
similar businesses in similar industries in the PRC. All such
insurance is fully in force on the date hereof and will be fully in force as of
the Closing Date. Neither the Company nor any Subsidiary has 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 from
similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect. Neither the Company nor any
Subsidiary has been denied any insurance coverage that it sought or for which it
has applied.
(hh) Accounting
Controls. The Company and each Subsidiary maintains a system
of internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management’s general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with U.S. generally accepted
accounting principles and to maintain accountability for assets; (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
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences. The Company’s internal control over financial
reporting is effective and the Company is not aware of any material weaknesses
in its internal control over financial reporting, and since the end of the
latest audited fiscal year, there has been no change in the Company’s internal
control over financial reporting (whether or not remediated) that has materially
affected, or is reasonably likely to materially affect, the Company’s internal
control over financial reporting.
(ii) Disclosure
Controls. The Company has established, maintains and evaluates
“disclosure controls and procedures” (as such term is defined in
Rule 13a-15(e) and 15d-15(e) under the Exchange Act), which (i) are
designed to ensure that material information relating to the Company is made
known to the Company’s principal executive officer and its principal financial
officer by others within those entities, particularly during the periods in
which the periodic reports required under the Exchange Act are being prepared,
(ii) have been evaluated for effectiveness as of the end of the last fiscal
period covered by the Registration Statement; and (iii) such disclosure controls and
procedures are effective to perform the functions for which they were
established. There are no significant deficiencies and material
weaknesses in the design or
operation of internal controls which could adversely affect the
Company’s ability to record, process, summarize,
and report financial data to management and the Board of Directors. The Company is not aware
of any fraud, whether or not material, that involves management or other
employees who have a role in the Company’s internal controls; and since the date
of the most recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective actions with
regard to significant deficiencies and material weaknesses. The Company
has utilized such controls and procedures in preparing and evaluating the
disclosures in the Registration Statement, the General Disclosure Package and
the Prospectus.
-11-
(jj) Contracts;
Instruments. There is no franchise, contract, lease,
instrument or other document of a character required by the Securities Act or
the Rules and Regulations to be described in the General Disclosure Package and
in the Prospectus or a document incorporated by reference therein, or to be
filed as an exhibit to the Registration Statement or document incorporated by
reference therein, which is not described or filed as required; and all
statements summarizing any such franchises, contracts, leases, instruments or
other documents contained in the Registration Statement or a document
incorporated by reference therein fairly present in all material respects the
information required to be shown with respect thereto. The contracts
described in the Company’s regular reports on Forms 10-K, 10-Q and 8-K as filed
by the Company with the Commission or incorporated by reference therein that are
material to the Company are in full force and effect on the date hereof, and
neither the Company, nor to the Company’s knowledge, any other party to such
contracts is in breach of or default under any of such contracts, except any
such breach or default which, individually or in the aggregate, would not have a
Material Adverse Effect.
(kk) No Undisclosed
Relationships. No relationship, direct or indirect, exists
between or among the Company and any of its Subsidiaries on the one hand and the
directors, officers, stockholders, customers or suppliers of the Company or any
of its Subsidiaries or any of their affiliates on the other hand, which is
required to be described in the General Disclosure Package and the Prospectus or
a document incorporated by reference therein and which has not been so described
in all material respects.
(ll) Brokers
Fees. Neither the Company nor any Subsidiary 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 the Subsidiaries or
any Underwriter for a brokerage commission, finder’s fee or other like payment
in connection with the offering and sale of the Shares.
(mm) Forward-Looking
Statements. No forward-looking statements (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained
in either the General Disclosure Package or the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good
faith.
(nn) Nasdaq; Exchange Act
Registration. The Company is subject to and in compliance in
all material respects with the reporting requirements of Section 13 or Section
15(d) of the Exchange Act. The Common Stock is registered pursuant to
Section 12(b) or 12(g) of the Exchange Act and is listed on the Nasdaq Global
Select Market, and the Company has taken no action designed to terminate, or
reasonably likely to have the effect of terminating the registration of the
Common Stock under the Exchange Act or the listing of the Common Stock on the
Nasdaq Global Select Market, nor has the Company received any notification that
the Commission or FINRA is contemplating terminating such registration or
listing. The Company has complied in all material respects with the applicable
requirements of the Nasdaq Global Select Market for maintenance of inclusion of
the Common Stock thereon.
-12-
(oo) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act. The Company, and to its knowledge after due inquiry, all
of the Company’s directors or officers, in their capacities as such, is in
compliance with all applicable effective provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
and any related rules and regulations promulgated by the
Commission.
(pp) Minute Books. The
minute books of the Company and each Subsidiary have been made available to the
several Underwriters and counsel for the Underwriters, and such books (i)
contain an accurate summary of all meetings and actions of the board of
directors (including each board committee) and shareholders of the Company (or
analogous governing bodies and interest holders, as applicable), and each
Subsidiary since February 1, 2006, through the date of the latest meeting and
action, and (ii) accurately in all material respects reflect all
transactions referred to in such minutes.
(qq) Corrupt
Practices. Neither the Company nor, to the Company’s
knowledge, any other person associated with or acting on behalf of the Company,
including without limitation any director, officer, agent or employee of the
Company or its subsidiaries has, directly or indirectly, while acting on behalf
of the Company or its subsidiaries (i) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns from corporate funds, (iii) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended (“FCPA”), or (iv) made any
other unlawful payment or received or retained any other unlawful funds. The
Company has adopted policies and procedures reasonably designed to ensure
compliance with FCPA and has appointed a compliance officer as part of the
Company’s FCPA compliance efforts.
(rr) Statistical or
Market-Related Data. Any statistical,
industry-related and
market-related data included or incorporated by reference in the Registration
Statement, the General Disclosure Package and the Prospectus, are based on or
derived from sources that the Company reasonably and in good faith believes to
be reliable and accurate, and such data
agree with the sources from which they are derived. The Company has
obtained written consents to the use the statistical, industry-related and
market-related data included in the General Disclosure Package and the
Prospectus, and such consents have not been revoked.
(ss) Money Laundering
Laws. The operations of the Company and its subsidiaries are
and have been conducted at all times in compliance in all material respects 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 its
subsidiaries with respect to the Money Laundering Laws is pending, or to the
knowledge of the Company, threatened.
(tt) OFAC. Neither the
Company nor any of its subsidiaries nor, to the knowledge of the Company, any
director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); 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 its Subsidiaries with respect to
U.S. sanctions administered by OFAC is pending or, to the Company’s knowledge,
threatened, except in each case, as would not reasonably be expected to have a
Material Adverse Effect; and the Company will not directly or
indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other
person or entity, which, to the Company’s knowledge, will use such proceeds for
the purpose of financing the activities of any person currently subject to any
U.S. sanctions administered by OFAC.
-13-
(uu) FINRA
Affiliations. There are no affiliations or associations
between (i) any member of FINRA and (ii) the Company or, to the Company’s
knowledge, any of the Company’s officers, directors or 5% or greater security
holders or any beneficial owner of the Company’s unregistered equity securities
that were acquired at any time on or after the 180th day
immediately preceding the date the Registration Statement was initially filed
with the Commission.
(vv) Trading Market. No
approval of the shareholders of the Company under the rules and regulations of
the Nasdaq Global Select Market (including Rule 4350 of the Nasdaq Global
Marketplace Rules) is required for the Company to issue and deliver to the
several Underwriters the Shares.
(ww) FINRA Review. To
enable the Underwriters to rely on Rule 5110(b)(7)(C)(i) of FINRA, the
registration of the Shares registered with the Commission could have been
affected on Form S-3 under the Securities Act pursuant to the standards for such
Form S-3 in effect prior to October 21, 1992.
(xx) Dividends to
Company. Except as disclosed in the General Disclosure Package
and in the Prospectus, none of the Subsidiaries of the Company is currently
prohibited, directly or indirectly, from paying any dividends to the Company,
from making any other distribution on such Subsidiary’s share capital, from
repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary’s property or assets to the
Company or any other Subsidiary of the Company; any dividends and other
distributions declared with respect to after-tax retained earnings on the equity
interests of the Company’s PRC Subsidiaries may under PRC laws and regulations
be paid to the Company; and all such dividends and distributions will not be
subject to withholding or other taxes under PRC laws and regulations and are
otherwise free and clear of any other tax, withholding or deduction in the PRC,
and without the necessity of obtaining any governmental authorization in the
PRC.
(yy) PRC Overseas Investment and Listing
Regulations. Except as disclosed in the General Disclosure
Package and in the Prospectus, the Company and each of its Subsidiaries has
taken or is in the process of taking all reasonable steps (to the extent
required of the Company and each such Subsidiary under PRC laws and regulations)
to comply with, and to ensure compliance by each of (i) its principal
shareholders as disclosed in the Registration Statement, General Disclosure
Package and the Prospectus, and (ii) any other persons known to the Company
that are required to comply (in connection with their interests in the Company)
with applicable rules and regulations of the relevant PRC governmental agencies
(including, without limitation, the Ministry of Commerce, National Development
and Reform Commission and the State Administration of Foreign Exchange (“SAFE”)) relating to overseas
investment by PRC residents and citizens or overseas listing by offshore special
purpose vehicles controlled directly or indirectly by PRC companies and
individuals, such as the Company (the “PRC Overseas Investment and Listing
Regulations”), including, without limitation, requesting such persons to
complete any registration and other procedures required under applicable PRC
Overseas Investment and Listing Regulations.
(zz) Off-Balance Sheet
Transactions. The General Disclosure Package and the
Prospectus each fairly and accurately describe in all material respects all
material trends, demands, commitments and events known to the Company and
uncertainties, and the potential effects thereof, that the Company believes
would materially affect its liquidity and are reasonably likely to occur, and,
except as disclosed in the General Disclosure Package and in the Prospectus,
neither the Company nor any of its Subsidiaries is engaged in any, nor has any
obligations under, any “off-balance sheet transactions or arrangements” as
defined by the Commission. As used herein, the phrase “reasonably
likely” refers to a disclosure threshold lower than “more likely than
not.”
-14-
(aaa) Statement in
Prospectus. The statements set forth in the Statutory
Prospectus and the Prospectus under the caption “Description of Capital Stock”,
insofar as they purport to constitute a summary of the terms of the Shares, are
accurate, complete and fair in all material respects.
(bbb) PRC M&A
Rules. As of the date of the Prospectus and as of the date of
this Agreement, the Rules on Mergers and Acquisitions of Domestic Enterprises by
Foreign Investors 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 and SAFE of the PRC on August 8, 2006 (the “M&A Rules”) did not and
do not apply to the issuance and sale of the Shares, the listing and trading of
the Shares on the Nasdaq Global Select Market, or the consummation of the
transactions contemplated by this Agreement, nor is the China Securities
Regulatory Commission (the “CSRC”) or other PRC
governmental approval required in connection with the above.
(ccc) Employee
Benefits. Except as set forth in the General Disclosure
Package and the Prospectus, the Company has no obligation to provide retirement,
death or disability benefits to any of the present or past employees of the
Company, its Subsidiaries or to any other person; the Company and its
Subsidiaries are in compliance in all material respects with all applicable
laws, rules, regulations, ordinances, codes and other requirements relating to
employee benefits.
(ddd) No Immunity. None
of the Company, any of its Subsidiaries or any of their respective properties or
assets has any immunity from the jurisdiction of any court or from any legal
process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution or otherwise) under the laws of the PRC, New York
or United States federal law; and, to the extent that the Company, any of its
Subsidiaries or any of their respective properties, assets or revenues may have
or may hereafter become entitled to any such right of immunity in any such court
in which proceedings may at any time be commenced, each of the Company and its
Subsidiaries waive and will waive such right to the extent permitted by law and
has consented to such relief and enforcement as provided in Section 17
hereof.
(eee) Dividends to Holders of
Shares. Except as set forth in the General Disclosure Package
and the Prospectus, all dividends and other distributions declared and payable
on the Shares may under current United States and PRC law and regulations be
paid to the holders of Shares in United States dollars and may be converted into
foreign currency that may be transferred out of the United States and the PRC,
and all such payments made to holders thereof or therein who are non-residents
of the United States or the PRC will not be subject to income, withholding or
other taxes under laws and regulations of the United States or the PRC or any
political subdivision or taxing authority thereof or therein and without the
necessity of obtaining any governmental authorization in the United States and
the PRC or any political subdivision or taxing authority thereof or
therein.
(fff) Item 701
Sales. The Company has not effected any sales of the Shares
which are required to be disclosed in response to Item 701 of
Regulation S-K under the Securities Act which have not been so disclosed in
the Registration Statement.
-15-
(ggg) Choice of
Law. Under the laws of the British Virgin Islands, the courts
of the British Virgin Islands recognize and give effect to the choice of law
provisions set forth in Section 17 hereof and
enforce judgments of U.S. courts obtained against the Company to enforce this
Agreement. Under the laws and regulations of the PRC, the courts of
the PRC recognize and give effect to the choice of law provisions set forth in
Section 17
hereof and enforce judgments of U.S. courts obtained against the Company to
enforce this Agreement.
Any certificate signed by any officer
of the Company or any Subsidiary and delivered to any Underwriter or to counsel
for the Underwriters in connection with the offering of the Shares shall be
deemed a representation and warranty by the Company to each Underwriter as to
the matters covered thereby.
3. Purchase, Sale and Delivery of
Shares.
(a) On
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company agrees to
sell 4,000,000 Firm Shares to the several Underwriters, and each Underwriter
agrees, severally and not jointly, to purchase from the Company the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule II
hereto. The purchase price for each Firm Share shall be $13.25 per
Share.
The Firm Shares will be delivered by or
on behalf of the Company to the Representative for the accounts of the several
Underwriters against payment of the purchase price therefor by wire transfer of
same day funds payable to the order of
the Company, at the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such other location as may be mutually acceptable, at
9:00 a.m. Central time on the third (or if the Shares are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, the fourth) full business day following the date hereof, or at such other
time and date as the Representative and the Company determine pursuant to
Rule 15c6-1(a) under the Exchange Act, such time and date of delivery being
herein referred to as the “First Closing Date.” If the Representative
so elects, delivery of Firm Shares may be made by credit through full fast
transfer to the accounts at The Depository Trust Company designated by the
Representative. Certificates representing the Firm Shares, in
definitive form and in such denominations and registered in such names as the
Representative may request upon at least two business days’ prior notice to the
Company, will be made available for checking and packaging not later than 10:30
a.m., Central time, on the business day next preceding the First Closing Date at
the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Minneapolis, Minnesota, or such other
location as may be mutually acceptable.
(b) On
the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company, with
respect to 600,000 of the Option Shares, hereby grants to the several
Underwriters an option to purchase all or any portion of the Option Shares at
the same purchase price as the Firm Shares, for use solely in covering any
over-allotments made by the several Underwriters in the sale and distribution of
the Firm Shares. The option granted hereunder may be exercised in
whole or in part at any time (but not more than once) within 30 days after the
effective date of this Agreement upon notice (confirmed in writing) by the
Representative to the Company setting forth the aggregate number of Option
Shares as to which the several Underwriters are exercising the option, the names
and denominations in which the certificates for the Option Shares are to be
registered and the date and time, as determined by the Representative, when the
Option Shares are to be delivered, such time and date being herein referred to
as the “Second Closing” and “Second Closing Date,” respectively; provided, however, that the Second
Closing Date shall not be earlier than the First Closing Date nor earlier than
the second business day after the date on which the option shall have been
exercised. The number of Option Shares to be purchased by each
Underwriter shall be the same percentage of the total number of Option Shares to
be purchased by the several Underwriters as the percentage of Firm Shares to be
purchased by such Underwriter, as adjusted by the Representative in such manner
as the Representative deems advisable to avoid fractional
shares. No Option Shares shall be sold and delivered unless the
Firm Shares previously have been, or simultaneously are, sold and
delivered.
-16-
The Option Shares will be delivered by
or on behalf of the Company, to the Representative for the accounts of the
several Underwriters against payment of the purchase price therefor by wire
transfer of same day funds payable to the order of the Company, at the offices
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such
other location as may be mutually acceptable at 9:00 a.m., Central time, on
the Second Closing Date. If the Representative so elects, delivery of
the Option Shares may be made by credit through full fast transfer to the
accounts at The Depository Trust Company designated by the
Representative. Certificates representing the Option Shares in
definitive form and in such denominations and registered in such names as the
Representative has set forth in its notice of option exercise, will be made
available for checking and packaging not later than 10:30 a.m., Central time, on
the business day next preceding the Second Closing Date at the office of ▇▇▇▇▇
▇▇▇▇▇▇▇ & Co., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, or such other
location as may be mutually acceptable.
(c) It
is understood that you, individually and not as the Representative of the
several Underwriters, may (but shall not be obligated to) make payment to the
Company on behalf of any Underwriter for the Shares to be purchased by such
Underwriter. Any such payment by you shall not relieve any such
Underwriter of any of its obligations hereunder. Nothing herein
contained shall constitute any of the Underwriters an unincorporated association
or partner with the Company.
4. Covenants.
The Company covenants and agrees with the several Underwriters as
follows:
(a) Reporting Obligations; Exchange Act
Compliance. The Company will (i) use its commercially
reasonable efforts to cause the Registration Statement to remain effective and
any post-effective amendments thereto to become effective as promptly as
possible; (ii) prepare the Prospectus in a form approved by the Underwriters
containing information previously omitted at the time of effectiveness of the
Registration Statement in reliance on Rules 430A, 430B and 430C of the Rules and
Regulations and to file such Prospectus with the Commission within the time
periods specified by Rule 424(b) and Rules 430A and 430B of the Rules and
Regulations, as applicable, (iii) not file any amendment to the Registration
Statement or distribute an amendment or supplement to the General Disclosure
Package or the Prospectus or document incorporated by reference therein of which
any Underwriter shall not previously have been advised and furnished with a copy
or to which the Underwriters shall have reasonably objected in writing or which
is not in compliance with the Rules and Regulations and (iv) promptly file all
reports and any definitive proxy or information statements required to be filed
by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act, in the cases of clauses (i) through (iv) during the period
subsequent to the date of the Prospectus and during such period as the
Prospectus would be required by law to be delivered (whether physically or through
compliance with Rule 172 of the Rules and Regulations or any similar rule) (the “Prospectus Delivery
Period”).
(b) Abbreviated Registration
Statement. If the Company elects to rely upon Rule 462(b) of
the Rules and Regulations, the Company shall file a registration statement under
Rule 462(b) of the Rules and Regulations with the Commission in compliance with
Rule 462(b) by 8:00 a.m., Washington, D.C. time, on the business day next
succeeding the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for such Rule 462(b)
registration statement or give irrevocable instructions for the payment of such
fee pursuant to the Rules and Regulations.
-17-
(c) Issuer Free Writing
Prospectuses. The Company will (i)
not make any offer relating to the Shares that would constitute an Issuer Free
Writing Prospectus or that would otherwise constitute a “free writing
prospectus” (as defined in Rule 405 of the Rules and Regulations) required to be
filed by the Company with the Commission under Rule 433 of the Rules and
Regulations unless you approve its use in writing prior to first use (each, a
“Permitted Free Writing
Prospectus”); provided that your prior
written consent shall be deemed to have been given in respect of the Issuer Free
Writing Prospectus(es) included in Schedule III hereto,
(ii) treat each Permitted Free Writing Prospectus as an Issuer Free Writing
Prospectus, (iii) comply with the requirements of Rules 164 and 433 of the Rules
and Regulations applicable to any Issuer Free Writing Prospectus, including the
requirements relating to timely filing with the Commission, legending and record
keeping and (iv) not take any action that would result in any Underwriter or the
Company being required to file with the Commission pursuant to Rule 433(d) of
the Rules and Regulations a free writing prospectus prepared by or on behalf of
any such Underwriter that such Underwriter otherwise would not have been
required to file thereunder. The Company will satisfy the conditions in Rule 433
of the Rules and Regulations to avoid a requirement to file with the Commission
any electronic road show.
(d) Notice to
Underwriters. During the Prospectus Delivery Period, the
Company will notify the Underwriters promptly, and will, if requested, confirm
such notification in writing: (i) of the receipt of any comments of, or
requests for additional or supplemental information from, the Commission; (ii)
of the time and date of any filing of any post-effective amendment to the
Registration Statement or any amendment or supplement to any Preliminary
Prospectus, the General Disclosure Package or the Prospectus, (iii) the time and
date when any post-effective amendment to the Registration Statement becomes
effective, but only during the Prospectus Delivery Period; (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, or any post-effective amendment thereto or any order
preventing or suspending the use of any Preliminary Prospectus, the General
Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, or the
initiation of any proceedings for that purpose or pursuant to Section 8A of the
Securities Act or the threat thereof, but only during the Prospectus Delivery
Period; (v) of receipt by the Company of any notification with respect to
any suspension or the approval of the Shares from any securities exchange upon
which it is listed for trading or included or designated for quotation, or the
initiation or threatening of any proceeding for such
purpose. The Company will use its reasonable best efforts to
prevent the issuance or invocation of any such stop order or suspension by the
Commission and, if any such stop order or suspension is so issued or invoked, to
obtain as soon as possible the withdrawal or removal
thereof. Additionally, during the Prospectus Delivery Period, the
Company agrees that it shall comply with the provisions of Rules 424(b) and 430A
or 430B, as applicable, of the Rules and Regulations and will use its reasonable
efforts to confirm that any filings made by the Company under Rule 424(b), Rule
433 or Rule 462 of the Rules and Regulations were received in a timely manner by
the Commission.
(e) Filing of Amendments or
Supplements. If, during the Prospectus Delivery Period, any event shall
occur or condition exist as a result of which, in the judgment of the Company or
in the reasonable opinion of the Underwriters or its counsel, it
becomes necessary to amend or supplement the Prospectus (or, if the Prospectus
is not yet available to prospective purchasers, the General Disclosure Package)
in order to make the statements therein, in the light of the circumstances when
the Prospectus (or, if the Prospectus is not yet available to prospective
purchasers, the General Disclosure Package) is delivered to a prospective
purchaser, not misleading, or if it is necessary to amend or supplement the
Prospectus (or, if the Prospectus is not yet available to prospective
purchasers, the General Disclosure Package) to comply with applicable law, the
Company will promptly notify the Underwriters and will prepare, file with the
Commission and furnish, at its own expense, to the Underwriters, either
amendments or supplements to the Prospectus (or, if the Prospectus is not yet
available to prospective purchasers, the General Disclosure Package) so that the
statements in the Prospectus (or, if the Prospectus is not yet available to
prospective purchasers, the General Disclosure Package) as so amended or
supplemented will not, in the light of the circumstances when the Prospectus
(or, if the Prospectus is not yet available to prospective purchasers, the
General Disclosure Package) is delivered to a prospective purchaser, be
misleading or so that the Prospectus (or, if the Prospectus is not yet available
to prospective purchasers, the General Disclosure Package), as amended or
supplemented, will comply with applicable law.
-18-
(f) Conflicting Issuer Free Writing
Prospectus. If at any time during the Prospectus Delivery Period
and following issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information contained in the
Registration Statement relating to the Shares or included or would include an
untrue statement of a material fact or omitted or would omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances prevailing at that subsequent time, not misleading, the Company
promptly will notify the Underwriters and will promptly amend or supplement, at
its own expense, such Issuer Free Writing Prospectus to eliminate or correct
such conflict, untrue statement or omission. The foregoing
sentence does not apply to statements in or omissions from any Issuer Free
Writing Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by any Underwriter through you specifically for
inclusion therein, which information the parties hereto agree is limited to the
Underwriter Information.
(g) Delivery of
Copies. The Company will deliver promptly to the Underwriters
and its counsel such number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the Commission and, during the Prospectus
Delivery Period, each amendment thereto (in each case excluding exhibits), (ii)
copies of each Preliminary Prospectus, if any; (iii) copies of the General
Disclosure Package; (iv) any Issuer Free Writing Prospectus, (v) during the
Prospectus Delivery Period, copies of the Prospectus (or any amendments or
supplements thereto); (vi) during the Prospectus Delivery Period, any document
incorporated by reference in the Prospectus (other than any such document that
is filed with the Commission electronically via ▇▇▇▇▇ or any successor system
and (vii) all correspondence to and from, and all documents issued to and by,
the Commission in connection with the registration of the Shares under the
Securities Act.
(h) Blue Sky Laws. The
Company will promptly take or cause to be taken, from time to time, such actions
as the Underwriters may reasonably request to qualify the Shares for offering
and sale under the state securities, or blue sky, laws of such states or other
jurisdictions as the Underwriters may reasonably request and to maintain such
qualifications in effect so long as the Underwriters may request for the
distribution of the Shares, provided, that in no event
shall the Company be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to file a general consent to
service of process in any jurisdiction or subject itself to taxation as doing
business in any jurisdiction. The Company will advise the
Underwriters promptly of the suspension of the qualification or registration of
(or any exemption relating to) the Shares for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such purpose,
and in the event of the issuance of any order suspending such qualification,
registration or exemption, the Company shall use its best efforts to obtain the
withdrawal thereof at the earliest possible moment.
(i) Earnings Statement. As
soon as practicable, but in any event not later than 18 months after the
effective date of the Registration Statement (as defined in Rule 158(c) of the
Rules and Regulations), the Company will make generally available to holders of
its securities and deliver to the Underwriters, an earnings statement of the
Company (which need not be audited) covering a 12-month period beginning after
the effective date of the Registration Statement that will satisfy the
provisions of Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158 of the Rules and
Regulations).
-19-
(j) Use of
Proceeds. The Company will apply the net proceeds from the
sale of the Shares in the manner set forth in the General Disclosure Package and
the Prospectus under the heading “Use of Proceeds.”
(k) Lock-Up
Period. Beginning on the date hereof and continuing for a
period of 90 days after the date of the Prospectus (the “Lock-Up Period”), the Company
will not (1) offer to sell, hypothecate, 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, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, with respect to,
any shares of Common Stock, any securities convertible into or exercisable or
exchangeable for Common Stock; (2) file or cause to become effective a
registration statement under the Securities Act relating to the offer and sale
of any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock except for a registration statement on Form S-8
relating to employee benefit plans or (3) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic consequences of
ownership of the Common Stock, whether any such transaction described in clause
(1), (2) or (3) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, without the prior written consent of the
Representative (which consent may be withheld in its sole discretion), other
than (i) the Shares to be sold hereunder; (ii) the issuance of restricted Common
Stock or options to acquire Common Stock pursuant to the Company’s employee
benefit plans, qualified stock option plans or other employee compensation plans
as such plans are in existence on the date hereof and described in the
Registration Statement (excluding the exhibits thereto), the General Disclosure
Package and the Prospectus; provided that each recipient
of restricted Common Stock or options to acquire Common Stock pursuant to this
clause (ii) who is an executive officer or director of the Company agrees that
all such restricted Common Stock or options to acquire Common Stock remains
subject to restrictions substantially similar to those contained in the Look-Up
Agreement (as defined below); or (iii) issuances of Common Stock upon the
exercise of options or warrants disclosed as outstanding in the Registration
Statement (excluding the exhibits thereto), the General Disclosure Package and
the Prospectus or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of the date of this Agreement, provided that each recipient
of Common Stock pursuant to this clause (iii) who is an executive officer or
director of the Company agrees that all such Common Stock remains subject to
restrictions substantially similar to those contained in the Look-Up Agreement
(as defined below). Notwithstanding the foregoing, for the purpose of
allowing the Underwriters to comply with NASD Rule 2711(f)(4), if (1) during the
last 17 days of the Lock-Up Period, the Company releases earnings results or
publicly announces other material news or a material event relating to the
Company occurs or (2) prior to the expiration of the Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the Lock-Up Period, then in each case the Lock-Up
Period will be extended until the expiration of the 18-day period beginning on
the date of release of the earnings results or the public announcement regarding
the material news or the occurrence of the material event, as applicable, unless
the Representative waives, in writing, such extension. The Company
agrees not to accelerate the vesting of any option or warrant or the lapse of
any repurchase right prior to the expiration of the Lock-Up Period.
(l) Lock-Up
Agreements. The Company will cause each of the Company’s
executive officers and directors whose names are set forth on Exhibit B hereto to
furnish to the Underwriters, on the date hereof, a letter, substantially in the
form of Exhibit
A hereto (the “Lock-Up
Agreement”). The Company will enforce the terms of each
Lock-Up Agreement and issue stop transfer instructions to the transfer agent for
the Common Stock with respect to any transaction or contemplated transaction
that would constitute a breach or default under the applicable Lock-Up
Agreement.
-20-
(m) Public
Communications. Prior to the Closing Date, the Company will
not issue any press release or other communication directly or indirectly or
hold any press conference with respect to the Company, the Subsidiaries, their
condition, financial or otherwise, or the earnings, business, operations or
prospects of any of them, or the offering of the Shares (except for routine oral
marketing communications in the ordinary course of business and consistent with
the past practices of the Company and of which the Underwriters are notified),
without the prior written consent of the Representative, unless in the
reasonable judgment of the Company and its counsel, and after notification to
the Underwriters, such press release or communication is required by law or
applicable stock exchange, in which case the Company shall use its reasonable
best efforts to allow the Underwriters reasonable time to comment on such
release or other communication in advance of such issuance.
(n) Stabilization. The
Company will not, and the Company will cause the Subsidiaries not to, take
directly or indirectly any action designed, or that might reasonably be expected
to cause or result in, or that will constitute, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of any
of the Shares.
(o) Transfer
Agent. The Company shall engage and maintain, at its expense,
a transfer agent and, if necessary under the jurisdiction of incorporation of
the Company, a registrar for the Shares.
(p) Listing. The
Company shall cause the Shares to be listed for quotation on the Nasdaq Global
Select Market at the Closing Date and to maintain such listing during the
Prospectus Delivery Period.
(q) Filing of
Reports. For two years from the date of this Agreement, the
Company will timely file with the Commission such periodic and special reports
as are required by the Rules and Regulations.
(r) Controls and
Procedures. For two years from the date of this Agreement, the
Company and its Subsidiaries will maintain such controls and other procedures,
including without limitation those required by Sections 302 and 906 of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the applicable regulations thereunder, that are designed
to ensure that information required to be disclosed by the Company in the
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 without limitation, controls and procedures designed
to ensure that information required to be disclosed by the Company in the
reports that it files or submits under the Exchange Act is accumulated and
communicated to the Company’s management, including its principal executive
officer and its principal financial officer, or persons performing similar
functions, as appropriate to allow timely decisions regarding required
disclosure, to ensure that material information relating to the Company,
including its Subsidiaries, is made known to them by others within those
entities.
(s) SAFE Rules and
Regulations. For two years from the date of this Agreement,
the Company shall comply with the SAFE rules and regulations (the ”SAFE Rules and Regulations”)
in all material respects, and shall use best efforts to cause the Company’s
shareholders 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 that is, or is directly or indirectly
owned or controlled by, a PRC resident or PRC citizen to complete any
registration or procedures required under applicable SAFE Rules and
Regulations.
-21-
(t) OFAC. The Company
will not directly or indirectly use the proceeds of the Shares hereunder, or
lend, contribute or otherwise make available such proceeds to any subsidiary,
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.
(u) FCPA. For two
years from the date of this Agreement, the Company, including any parent,
subsidiary, affiliate, employee or agent thereof, will comply with the
FCPA.
(v) Investment Company
Act. The Company shall not invest, or otherwise use, the
proceeds received by the Company from its sale of the Shares in such a manner as
would require the Company to register as an investment company under the
Investment Company Act.
(w) ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act. For two years from the date of this Agreement, the
Company and its Subsidiaries will comply with all effective applicable
provisions of the Sarbanes Oxley Act.
(x) Broker’s
Fee. Except as contemplated hereby, the Company will not incur
any liability for any finder’s or broker’s fee or agent’s commission in
connection with the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
(y) Interim Financial Statements.
Prior to the Closing Date, the Company will furnish to the Underwriters, as soon
as practicable after they have been prepared, copies of any unaudited interim
consolidated financial statements of the Company for any periods subsequent to
the periods covered by the financial statements appearing in the Registration
Statement and the Prospectus.
(z) Performance. The Company
shall use commercially reasonable efforts to do and perform all things required
to be done or performed under this Agreement by them prior to the Closing Date
and to satisfy all conditions precedent to the delivery of the
Shares.
5. Costs and
Expenses. The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is terminated, will pay
or reimburse if paid by the Underwriters all costs and expenses incident to the
performance of the obligations of the Company under this Agreement and in
connection with the transactions contemplated hereby, including but not limited
to costs and expenses of or relating to (i) the preparation, printing, filing, delivery and shipping of
the Registration Statement, any Issuer Free Writing Prospectus, each Preliminary
Prospectus, the General Disclosure Package and the Prospectus, and any amendment
or supplement to any of the foregoing and the printing and furnishing of copies of each
thereof to the Underwriters and dealers (including costs of mailing
and shipment), (ii) the registration, issue, sale and delivery of the
Shares including any stock or transfer taxes and stamp or similar duties payable
upon the sale, issuance or delivery of the Shares and the printing, delivery,
and shipping of the certificates representing the Shares, (iii) the registration or qualification of
the Shares for offer and sale under the securities or Blue Sky laws of such
jurisdictions designated
pursuant to Section 4(h) hereof, (including the reasonable legal fees
and filing fees, and other disbursements of counsel to the Underwriters in connection therewith), and, if
reasonably requested by the Underwriters, the preparation and printing and furnishing of copies of
any blue sky surveys to the Underwriters and to dealers, (iv)
the fees and expenses of any transfer agent or registrar for the Shares, (v)
any filings required to be made by the Underwriters or the Company with FINRA, and the reasonable fees, disbursements
and other charges of counsel for the Underwriters in connection with FINRA’s review and approval of the
Underwriters participation in the offering
(including all COBRADesk fees), (vi) fees, disbursements and other
charges of counsel to the Company, (vii) listing fees, if any, for the listing
or quotation of the Shares on the Nasdaq Global Select Market, (viii) fees and
disbursements of the Company’s auditor incurred in delivering the letter(s)
described in Sections
7(m) and 7(n) hereof, (ix)
fees, disbursements and other charges of U.S. counsel to the Underwriters (in
addition to (iii) and (v) above) in an amount equal to $100,000, and (x) the costs and expenses of the Company
and the Underwriters in connection with the marketing of the offering and the
sale of the Shares to
prospective purchasers including, but not limited
to, those related to any presentations or meetings undertaken in connection
therewith including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged
with the written consent of the Company in connection with the road show
presentations, travel, lodging and other expenses incurred by the officers of
the Company and any such consultants, and the cost of any aircraft or other
transportation chartered in connection with the road show; provided, however, that the
costs and expenses to be paid or reimbursed by the Company in connection with
this Section 5
shall not exceed $150,000 without the Company’s prior written
consent. If this Agreement shall be terminated by the Underwriters
pursuant to Section
9 hereof, the Company will, in addition to paying the amounts described
in this Section
5, reimburse the Underwriters for all of their reasonable out-of-pocket
disbursements (including, but not limited to, the fees and disbursements of its
counsel) incurred by the Underwriters in connection with their investigation,
preparing to market and marketing of the Shares or in contemplation of
performing their obligations hereunder.
-22-
6. Conditions of Underwriters
Obligations. The obligations of the several Underwriters
hereunder are subject to the following conditions:
(a) Filings with the
Commission. Any Preliminary Prospectus, the Prospectus and any
Issuer Free Writing Prospectus required to be filed under the Securities Act or
the Rules and Regulations shall have been filed with the Commission pursuant to
Rule 424(b) or Rule 164 of the Rules and Regulations, as the case may be, in the manner and within the time period so
required.
(b) Abbreviated Registration
Statement. If the Company has elected to rely upon Rule
462(b), the registration statement filed under Rule 462(b) of the Rules and
Regulations shall have become effective under the Securities Act by 8:00 a.m.,
Washington, D.C. time, on the business day next succeeding the date of this
Agreement.
(c) No Stop
Orders. Prior to the Closing: (i) no stop order suspending the
effectiveness of the Registration Statement or any part thereof, preventing or
suspending the use of any Base Prospectus, any Preliminary Prospectus, the
Prospectus or any Permitted Free Writing Prospectus or any part thereof shall
have been issued under the Securities Act and no proceedings for that purpose or
pursuant to Section 8A under the Securities Act shall have been initiated or
threatened by the Commission, (ii) no order suspending the qualification or
registration of the Shares under the securities or blue sky laws of any
jurisdiction shall be in effect and (iii) all requests for additional
information on the part of the Commission (to be included or incorporated by
reference in the Registration Statement, the General Disclosure Package, the
Prospectus or any Issuer Free Writing Prospectus or otherwise) shall have been
complied with to the reasonable satisfaction of the Underwriters.
(d) Action Preventing
Issuance. No action shall have been taken and no statute,
rule, regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date, prevent the
issuance or sale of the Shares or materially and adversely affect or potentially
materially and adversely affect the business or operations of the Company; and
no injunction, restraining order or order of any other nature by any federal or
state court of competent jurisdiction shall have been issued as of the Closing
Date which would prevent the issuance or sale of the Shares or materially and
adversely affect or potentially materially and adversely affect the business or
operations of the Company.
-23-
(e) Objection of
Underwriters. No Prospectus or amendment or supplement to the
Registration Statement shall have been filed to which any Underwriter shall have
objected in writing, which objection shall not be unreasonable. No
Underwriter shall have advised the Company in writing on or prior to the Closing
Date that the Registration Statement or any amendment thereof or supplement
thereto contains an untrue statement of fact which, in its opinion, is material,
or omits to state a fact which, in its opinion, is material and is required to
be stated therein or necessary to make the statements therein not misleading, or
that the General Disclosure Package, any Issuer Free Writing Prospectus or the
Prospectus or any amendment thereof or supplement thereto contains an untrue
statement of fact which, in its opinion, is material, or omits to state a fact
which, in its opinion, is material and is required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
(f) No Material Adverse
Change. Prior to the Closing, there shall not have occurred
any Material Adverse Change or any development involving a prospective Material
Adverse Change (whether or not arising in the ordinary course of business),
that, in the Representative’s judgment, makes it impracticable to
market the Shares on the terms and in the manner contemplated in the General
Disclosure Package.
(g) Representations and
Warranties. Each of the representations and warranties of the
Company contained herein shall be true and correct when made and on and as of
the Closing Date, as if made on such date (except that those representations and
warranties that address matters only as of a particular date shall remain true
and correct as of such date), and all covenants and agreements herein contained
to be performed on the part of the Company all conditions herein contained to be
fulfilled or complied with by the Company at or prior to the Closing Date shall
have been duly performed, fulfilled or complied with.
(h) Opinion of United States Counsel to
the Company. You, as Representative, shall have received from
▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, United States counsel to the Company, such counsel’s written
opinion, addressed to you, as Representative, and dated the Closing Date, in
form and substance as is set forth on Exhibit C attached
hereto. Such counsel
shall also have furnished to you, as Representative, a written statement (“Negative
Assurances”), addressed to you, as Representative, and dated the Closing Date, in form and
substance as set forth in Exhibit
D attached hereto.
(i) Opinion of British Virgin Islands
Counsel to the Company. You, as Representative, shall have
received from ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, British Virgin Islands counsel to the
Company, such counsel’s written opinion, addressed to you, as Representative,
and dated the Closing Date, in form and substance as is set forth on Exhibit E attached
hereto.
(j) Opinion of PRC Counsel to the
Company. You, as Representative, shall have received from
Henan Dedian Law Firm, PRC counsel to the Company, such counsel’s written
opinion, addressed to you, as Representative, and dated the Closing Date, in
form and substance as is set forth on Exhibit F attached
hereto.
(k) Opinion of United States Counsel to
the Underwriters. You, as Representative, shall have received
from O’Melveny & ▇▇▇▇▇ LLP, United States counsel for the Underwriters, such
opinion or opinions (including Negative Assurances), dated the Closing Date and
addressed to you, as Representative, covering such matters as are customarily
covered in transactions of this type.
(l)
Opinion of PRC Counsel to the
Underwriters. You, as Representative, shall have received from
Commerce & Finance Law Offices, PRC counsel for the Underwriters, such
opinion or opinions, dated the Closing Date and addressed to you, as
Representative, covering such
matters as are customarily covered in transactions of this
type.
-24-
(m) Accountant’s Comfort
Letter. You, as Representative, shall have received on the
date of the Applicable Time, a letter dated the date hereof (the “Original Letter”), addressed
to you, as Representative, and in form and substance reasonably satisfactory to
the Representative and its counsel, from each of BDO Guangdong Dahua Delu CPAs
and Child, ▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, PLLC, which letter shall cover, without
limitation, the various financial disclosures, if any, contained in the General
Disclosure Package and shall contain statements and information of the type
customarily included in accountants’ “comfort letters” to underwriters,
delivered according to Statement of Auditing Standards No. 72 and Statement of
Auditing Standard No. 100 (or successor bulletins), with respect to the audited
and unaudited financial statements and certain financial information contained
in or incorporated by reference into the Registration Statement, the General
Disclosure Package and the Prospectus.
(n) Bring-Down Letter. At
the Closing Date, you, as Representative, shall have received from each of BDO
Guangdong Dahua Delu CPAs and Child, ▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, PLLC a letter
(the “Bring-Down
Letter”), dated the Closing Date, addressed to you, as Representative,
which shall confirm, as of the date of the Bring-Down Letter (or, with respect
to matters involving changes or developments since the respective dates as of
which specified financial information is given in the General Disclosure Package
and the Prospectus, as the case may be, as of a date not more than three (3)
business days prior to the date of the Bring-Down Letter) that on the basis of a
review in accordance with the procedures set forth in the Original Letter, that
nothing has come to their attention during the period from the date of the
Original Letter referred to in the prior sentence to a date (specified in the
letter) not more than three days prior to the Closing Date which would require
any change in the Original Letter if it were required to be dated and delivered
at the Closing Date.
(o) Officer’s
Certificate. You, as Representative, shall have received on
the Closing Date a certificate, addressed to you, as Representative, and dated
the Closing Date, of the chief executive or chief operating officer and the
chief financial officer or chief accounting officer of the Company to the effect
that:
(i) each
of the representations, warranties and agreements of the Company in this
Agreement were true and correct when originally made and are true and correct as
of the Closing Date (except that those representations and warranties that
address matters only as of a particular date remain true and correct as of each
such date); and the Company has complied with all agreements and satisfied all
the conditions on its part required under this Agreement to be performed or
satisfied at or prior to the Closing Date;
(ii) subsequent
to the date of the latest audited financial statements included or incorporated
by reference in the General Disclosure Package, (a) neither the Company nor any
of its Subsidiaries has sustained
any material loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in the General
Disclosure Package, (b)
there has not been any change in the capital stock (other than a change
in the number of outstanding shares of Common Stock due to the issuance of
shares upon the exercise of outstanding options or warrants or the conversion of
convertible stock or indebtedness), or material change in the short−term debt or
long−term debt of the Company or any Subsidiary (other than upon conversion of
convertible indebtedness and the change in short-term and long-term debt set
forth in Schedule
V hereto), or any material adverse change in or affecting the business,
assets, general affairs, management, financial position, prospects,
stockholders’ equity or results of operations of the Company and the
Subsidiaries, otherwise than as set forth in the General Disclosure Package, and
(d) there is not pending, or, to the knowledge of the Company, threatened or
contemplated, any action, suit or proceeding to which the Company or any of its
Subsidiaries is a party before or by any court or governmental agency, authority
or body, or any arbitrator, which might result in any Material Adverse
Change.
-25-
(iii) no
stop order suspending the effectiveness of the Registration Statement or any
part thereof or any amendment thereof or the qualification of the Shares for
offering or sale, nor suspending or preventing the use of the General Disclosure
Package, the Prospectus or any Issuer Free Writing Prospectus shall have been
issued, and no proceedings for that purpose or pursuant to Section 8A under the
Securities Act shall be pending or to their knowledge, threatened by the
Commission or any state or regulatory body; and
(iv) the
signers of said certificate have reviewed the Registration Statement, the
General Disclosure Package, any Permitted Free Writing Prospectus and the
Prospectus, and any amendments thereof or supplements thereto (and any documents
filed under the Exchange Act and deemed to be incorporated by reference into the
General Disclosure Package and the Prospectus), and (A) (i) the Registration
Statement and any amendment thereof, at the Applicable Time, as of the date of
this Agreement and as of the Closing Date do not and did not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, (ii)
as of the Applicable Time and the Closing Date, neither the General Disclosure
Package nor any individual Issuer Free Writing Prospectus, when considered
together with the General Disclosure Package, contained any untrue statement of
material fact or omits to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading and (iii) the Prospectus, as amended or supplemented, does not
contain, as of the Closing Date, and did not contain, as of its issue date, any
untrue statement of material fact or omit to state and did not omit to state as
of such date, a material fact necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading, and (B) since
the Applicable Time, there has occurred no event required to be set forth in an
amendment or supplement to the Registration Statement, the General Disclosure
Package or the Prospectus which has not been so set forth and there has been no
document required to be filed under the Exchange Act that upon such filing would
be deemed to be incorporated by reference in to the General Disclosure Package
and into the Prospectus that has not been so filed.
(p) Secretary’s
Certificate. On the Closing Date, the Company shall have
furnished to you, as Representative, a Secretary’s Certificate of the
Company.
(q) CEO’s
Certificate. On the Closing Date, the Company shall have
furnished to you, as Representative, a certificate signed by the chief executive
officer of the Company dated the Closing Date and in form and substance
satisfactory to you.
(r) CFO’s
Certificate. On the Closing Date, the Company shall have
furnished to you, as Representative, a certificate signed by the chief financial
officer of the Company dated the Closing Date and in form and substance
satisfactory to you.
(s) The Nasdaq Global Select
Market. The Shares shall have been listed and authorized for
trading on the Nasdaq Global Select Market.
(t) Other Filings with the
Commission. The Company shall have prepared and filed with the
Commission a Current Report on Form 8-K with respect to the transactions
contemplated hereby, including as an exhibit thereto this Agreement and any
other documents relating thereto.
-26-
(u) Lock-Up
Agreements. You shall have received copies of the executed
Lock-Up Agreements executed by each person listed on Exhibit B hereto, and
such Lock-Up Agreements shall be in full force and effect on the Closing
Date.
(v) Additional
Documents. Prior to the Closing Date, the Company shall have
furnished to the Underwriters such further information, certificates or
documents as any Underwriter shall have reasonably requested.
All
opinions, letters, evidence and certificates 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.
7. Indemnification
and Contribution.
(a) Indemnification of the
Underwriters. The Company agrees to indemnify, defend and hold
harmless each Underwriter, its affiliates, directors and officers, and each
person, if any, who controls such Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against
any loss, damage, claim or liability, which, jointly or severally, such
Underwriter or any such person may become subject under the Securities Act, the
Exchange Act, or other federal or state statutory law or regulation, the common
law or otherwise, (including in settlement of any litigation, if such settlement
is effected with the written consent of the Company), insofar as such loss,
damage, claim or liability (or actions in respect thereof as contemplated below)
arises out of or is based upon: (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or any
amendment thereto (including the information deemed to be a part of the
Registration Statement at the time of effectiveness and at any subsequent time
pursuant to Rules 430A and 430B of the Rules and Regulations, if applicable) or
the omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (ii) any
untrue statement or alleged untrue statement of a material fact contained in the
Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus,
any “issuer information” filed or required to be filed pursuant to Rule 433(d)
of the Rules and Regulations or the Prospectus (or any amendment or supplement
thereto including any documents filed under the Exchange Act and deemed to be
incorporated by reference into the Prospectus), or in any materials or
information provided to investors by, or with the approval of, the Company in
connection with the marketing of the offering of the Shares including, for
example, any audio or visual materials, slides, videos, films or tape recordings
used in any road show or investor presentations made to investors by the Company
(whether in person or electronically) (collectively, “Marketing Materials”),
including any roadshow or investor presentations made to investors by the
Company (whether in person or electronically) or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements made therein, in light of the circumstances
under which they were made, not misleading; and, in the case of (i) and (ii)
above, to reimburse each such Underwriter and each such person for any and all
reasonable expenses (including reasonable fees and disbursements of counsel) as
such expenses are incurred by each such Underwriter or such person in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action, or (iii) any untrue statement or
alleged untrue statement made by the Company in Section 2 or Section 4 hereof
or the failure by the Company to perform when and as required any agreement or
covenant contained herein; provided, however, that the
foregoing indemnity shall not apply to any loss, claim, damage, liability or
expense to the extent, but only to the extent, it arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
or omitted from the Registration Statement, the Base Prospectus, any Preliminary
Prospectus, the Prospectus, or any such amendment or supplement, any Issuer Free
Writing Prospectus, any “issuer information” filed or required to be filed
pursuant to Rule 433(d) of the Rules and Regulations or in any Marketing
Materials, in reliance upon and in conformity with information furnished in
writing by or on behalf of the Underwriters through you to the Company expressly
for use therein, which information the parties hereto agree is limited to the
Underwriter Information.
-27-
(b) Indemnification of the
Company. Each Underwriter agrees, severally and not jointly,
to indemnify, defend and hold harmless the Company, its directors and officers,
and any person, if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons, from and against
any loss, claim, damage, liability or expense, as incurred to which, jointly or
severally, the Company or any such person may become subject under the
Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, the common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) arises out of or is based upon
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or any amendment thereto, or the
omission or alleged omission therefrom to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; (ii)
any untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the General Disclosure Package, the Prospectus, or
any amendment or supplement thereto or any Issuer Free Writing Prospectus, or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements made therein, in light of the
circumstances under which they were made, not misleading, in the case of each of
(i) and (ii) above, to the extent but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, any Preliminary Prospectus, the General
Disclosure Package, the Prospectus (or any amendment or supplement thereto) or
any Issuer Free Writing Prospectus in reliance upon and in conformity with
information concerning the Underwriters furnished in writing by or on behalf of
such Underwriter to the Company expressly for use therein, which information the
parties hereto agree is limited to the Underwriter Information, and shall
reimburse the Company, or any such director, officer or person for any legal and
other expense reasonably incurred by the Company, or any such director, officer
or person, in connection with investigating, defending, settling, compromising
or paying any such loss, claim, damage, liability, expense or
action. Notwithstanding the provisions of this Section 7(b), in no
event shall any indemnity by any Underwriter under this Section 7(b) exceed
the total compensation received by such Underwriter in accordance with the
transactions contemplated by this Agreement.
(c) Notice and
Procedures. If any action, suit or proceeding (each, a “Proceeding”) is brought
against a person (an “indemnified party”) in
respect of which indemnity may be sought against the Company or an Underwriter
(as applicable, the “indemnifying party”) pursuant
to subsection
(a) or (b), respectively, of
this Section 6, such
indemnified party shall promptly notify such indemnifying party in writing of
the institution of such Proceeding and such indemnifying party shall assume the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that
the omission to so notify such indemnifying party shall not relieve such
indemnifying party from any liability which such indemnifying party may have to
any indemnified party or otherwise, except to the extent the indemnifying party
does not otherwise learn of the Proceeding and such failure results in the
forfeiture by the indemnifying party of substantial rights or defenses. The
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying party in
connection with the defense of such Proceeding, (ii) the indemnifying party
shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
one or more legal defenses available to it or them which are different from,
additional to or in conflict with those available to such indemnifying party (in
which case such indemnifying party shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties ), in
any of which events such reasonable fees and expenses shall be borne by such
indemnifying party and paid as incurred (it being understood, however, that such
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). An indemnifying party
shall not be liable for any settlement of any Proceeding effected without its
written consent but, if settled with its written consent or if there be a final
judgment for the plaintiff, such indemnifying party agrees to indemnify and hold
harmless the indemnified party or parties from and against any loss or liability
by reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this Section 7(c),
then the indemnifying party agrees that it shall be liable for any settlement of
any Proceeding effected without its written consent if (i) such settlement
is entered into more than 60 days after receipt by such indemnifying party of
the aforesaid request, (ii) such indemnifying party shall not have fully
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days’ prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault or culpability or a failure to act by or on behalf of such indemnified
party.
-28-
(d) Contribution. If
the indemnification provided for in this Section 7 is
unavailable to an indemnified party under subsections (a) or
(b) of this
Section 7 or
insufficient to hold an indemnified party harmless in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
subsection (a)
or (b) above,
(i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other from the offering of the Shares or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party or
parties on the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages, liabilities or expenses, 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 hand
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Shares (before deducting expenses) received by
the Company and the total Underwriter commissions received by the Underwriters,
in each case as set forth on the cover of the Prospectus, bear to the aggregate
public offering price of the Shares. The relative fault of the
Company on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, on the one hand,
or by an Underwriter, on the other hand, and the parties’ relevant intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement, omission act or failure to act; provided that the parties
hereto agree that the written information furnished to the Company by the
Underwriters through you for use in any Preliminary Prospectus, any Registration
Statement or the Prospectus, or in any amendment or supplement thereto, consists
solely of the Underwriter Information. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (d)
were to be determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the first sentence of this Section 7(d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this Section 7(d)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this Section 7(d). Notwithstanding
the provisions of this Section 7(d),
the Underwriters shall not be required to contribute any amount in excess of the
total commissions received by such Underwriters in accordance with the
transactions contemplated by this Agreement less the amount of any damages which
the Underwriters have otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement, omission or alleged omission, act or alleged
act or failure to act or alleged failure to act. 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.
-29-
(e) Representations and Agreements to
Survive Delivery. The obligations of the Company under this
Section 7
shall be in addition to any liability which the Company may otherwise have. The indemnity and
contribution agreements contained in this Section 7 and the covenants, agreements, warranties and
representations of the Company contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of the Underwriters, any person who controls an Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act or
any affiliate of the Underwriters, or by or on behalf of the Company, its
directors or officers or any person who
controls the Company within
the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, and
(iii) the issuance and delivery of the Shares. The Company and the Underwriters agree promptly to notify each other of
the commencement of any
Proceeding against it and, in the case of the Company, against any of the
Company’s officers or directors in connection with the issuance
and sale of the Shares, or in connection with the Registration Statement, the
General Disclosure Package or the Prospectus.
8. Information Furnished by
Underwriter. The Company acknowledges and agrees that the
statements set forth in the second, seventh and thirteenth paragraphs under the
heading “Underwriting” in the Prospectus (the “Underwriter Information”)
constitute the only information relating to the Underwriters furnished in
writing to the Company by the Underwriters as such information is referred to in
Section 2 and
Section 7
hereof.
9. Substitution of
Underwriters.
(a) If
any Underwriter or Underwriters shall fail to take up and pay for the amount of
Firm Shares agreed by such Underwriter or Underwriters to be purchased
hereunder, upon tender of such Firm Shares in accordance with the terms hereof,
and the amount of Firm Shares not purchased does not aggregate more than 10% of
the total amount of Firm Shares set forth in Schedule II
hereto, the remaining Underwriters shall be obligated to take up and pay for (in
proportion to their respective underwriting obligations hereunder as set forth
in Schedule II
hereto except as may otherwise be determined by you) the Firm Shares that the
withdrawing or defaulting Underwriters agreed but failed to
purchase.
(b) If
any Underwriter or Underwriters shall fail to take up and pay for the amount of
Firm Shares agreed by such Underwriter or Underwriters to be purchased
hereunder, upon tender of such Firm Shares in accordance with the terms hereof,
and the amount of Firm Shares not purchased aggregates more than 10% of the
total amount of Firm Shares set forth in Schedule II
hereto, and arrangements satisfactory to you for the purchase of such Firm
Shares by other persons are not made within 36 hours thereafter, this Agreement
shall terminate. In the event of any such termination, the Company
shall be under no liability to any Underwriter (except to the extent provided in
Section 5
and Section 7
hereof), nor shall any Underwriter (other than an Underwriter who shall have
failed, otherwise than for some reason permitted under this Agreement, to
purchase the amount of Firm Shares agreed by such Underwriter to be purchased
hereunder) be under any liability to the Company (except to the extent provided
in Section 7
hereof).
-30-
If Firm Shares to which a default
relates are to be purchased by the non-defaulting Underwriters or by any other
party or parties, the Representative or the Company shall have the right to
postpone the First Closing Date for not more than seven business days in order
that the necessary changes in the Registration Statement, the General Disclosure
Package, the Prospectus or in any other documents, as well as any other
arrangements, may be effected. As used herein, the term “Underwriter”
includes any person substituted for an Underwriter under this Section
9.
10. Effective Date of this Agreement and
Termination.
(a) This Agreement shall
become effective at 10:00 a.m., Central time, on the first full business
day following the effective date of the Registration Statement, or at such
earlier time after the effective time of the Registration Statement as you in
your discretion shall first release the Shares for sale to the public; provided, that if the
Registration Statement is effective at the time this Agreement is executed, this
Agreement shall become effective at such time as you in your discretion shall
first release the Shares for sale to the public. For the purpose of
this Section, the Shares shall be deemed to have been released for sale to the
public upon release by you of an electronic communication authorizing
commencement of the offering of the Shares for sale by the Underwriters or other
securities dealers. By giving notice as hereinafter specified before
the time this Agreement becomes effective, you, as the Representative of the
several Underwriters, or the Company, may prevent this Agreement from becoming
effective without liability of any party to any other party, except that the
provisions of Section 5, Section 7 and
Section 13
hereof shall at all times be effective.
(b) You, as Representative, shall have
the right to terminate this Agreement by giving notice as hereinafter specified
at any time at or prior to the Closing Date, without liability on the part of
any Underwriter to the Company, if (i) prior to delivery and payment for the
Shares (A) trading in securities generally shall have been suspended on or by
the New York Stock Exchange, the NYSE Amex, the Nasdaq Global Select Market or
in the over the counter market (each, a “Trading Market”),
(B) trading in the Common Stock of the Company shall have been suspended on
any exchange, in the over-the-counter market or by the Commission, (C) a
general moratorium on commercial banking activities shall have been declared by
federal or New York state authorities, or the relevant authorities in China, or
a material disruption shall have occurred in commercial banking or securities
settlement or clearance services in the United States or in China,
(D) there shall have occurred any outbreak or material escalation of
hostilities or acts of terrorism involving the United States or China or there
shall have been a declaration by the United States or China of a national
emergency or war, (E) there shall have occurred any other calamity or crisis or
any material change in general economic, political or financial conditions in
the United States or China or elsewhere, if the effect of any such event
specified in clause (D) or (E), in the judgment of the Representative, is
material and adverse and makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Shares on the Closing Date on the
terms and in the manner contemplated by this Agreement, the General Disclosure
Package and the Prospectus,
(ii) since the time of execution of this Agreement or the earlier respective
dates as of which information is given in the General Disclosure Package or
incorporated by reference therein, there has been any Material Adverse Effect or the
Company or any Subsidiary shall have sustained a loss or interference with its
business by strike, fire, flood, earthquake, accident or other calamity, whether
or not covered by insurance, of such character that in the judgment of the
Representative would, individually or in the aggregate, result in a Material
Adverse Effect and which would, in
the judgment of the Representative, make it impracticable or
inadvisable to proceed with
the offering or the delivery of the Shares on the terms and in the manner
contemplated in the General Disclosure Package, (iii) the Company shall have
failed, refused or been unable to comply with the terms or perform any
agreement or obligation of this Agreement, other than by reason of a default by
the Underwriters, or (iv) any
condition of the Underwriters’ obligations hereunder is not
fulfilled. Any such termination shall be without liability of
any party to any other party except that the provisions of Section 5, Section 7, and
Section 13
hereof shall at all times be effective notwithstanding such termination.
-31-
11. Notices. All
statements, requests, notices and agreements hereunder shall be in writing or by
facsimile, and:
(a) if
to the Underwriters, shall be delivered or sent by mail, telex or facsimile
transmission to:
▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
U.S.
Bancorp Center
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile
No.: ▇▇▇-▇▇▇-▇▇▇▇
with a
copy (which shall not constitute notice) to:
O’Melveny
& ▇▇▇▇▇ LLP
Yin Tai
Centre, Office Tower, 37th
Floor
▇▇.▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
People’s
Republic of China
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Facsimile
No.: ▇▇-▇▇-▇▇▇▇-▇▇▇▇
(b) if
to the Company, shall be delivered or sent by mail, telex or facsimile
transmission to Zhongpin Inc., ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, People’s Republic of China, Attention: ▇▇▇▇▇▇ ▇▇▇, Chairman and Chief
Executive Officer, (Fax: ▇▇-▇▇▇-▇▇▇-▇▇▇▇), with a copy (which shall not
constitute notice) to: ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
U.S.A., Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq., (Fax: ▇▇▇-▇▇▇-▇▇▇▇).
(c) Any
such statements, requests, notices or agreements shall be effective only upon
receipt. Any party to this Agreement may change such address for
notices by sending to the parties to this Agreement written notice of a new
address for such purpose.
12. Persons Entitled to Benefit of
Agreement. This Agreement shall inure to the benefit of and
shall be binding upon the Underwriters, the Company, and their respective
successors and assigns. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, except that the representations, warranties, covenants, agreements
and indemnities of the Company contained in this Agreement shall also be for the
benefit of the persons, affiliates, officers and directors referred to in Section 7(a) hereof
and the indemnities of the Underwriters shall also be for the benefit of the
persons, officers and directors referred to in Section 7(b)
hereof. The term “successors and assigns” as herein used shall not
include any purchaser of the Shares by reason merely of such
purchase.
-32-
13. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of laws provisions thereof.
14. No Fiduciary
Relationship. The Company
hereby acknowledges and agrees that the Underwriters are acting solely as underwriters in connection with the offering of the
Company’s securities. The Company further
acknowledges that the Underwriters are acting pursuant to a contractual
relationship created solely by this Agreement entered into on an arm’s length basis and in no event do the
parties intend that any Underwriter act or be responsible as a fiduciary to the Company, its
management, stockholders, creditors or any other person in connection with any
activity that any Underwriter may undertake or has undertaken in
furtherance of the offering of the Company’s securities, either before or
after the date hereof.
Each Underwriter hereby expressly disclaims any
fiduciary or similar obligations to the Company, either in connection with the
transactions contemplated by this Agreement or any matters leading up to such
transactions, and the Company hereby confirms its understanding and agreement to that
effect. The price of the Shares set forth in this Agreement was established by
the Company following discussions and arms-length negotiations with the
Underwriters, and the Company is capable of
evaluating and
understanding, and understands and accepts, the terms, risks and conditions of
the transactions contemplated by this Agreement. The Company has been
advised that the Underwriters and their affiliates are engaged in a broad range
of transactions which may
involve interests that differ from those of the Company and that the
Underwriters have no obligation to disclose such
interests and transactions to the Company by virtue of any fiduciary, advisory or agency
relationship. The Company hereby waives and releases, to the fullest extent permitted by
law, any claims that it may have against any Underwriter with respect to any breach or alleged
breach of any fiduciary or similar duty to it in connection with the transactions
contemplated by this Agreement or any matters leading up to such
transactions and agrees that no Underwriter shall have liability (whether
direct or indirect) to it in respect of such a fiduciary duty
claim to any person asserting a fiduciary duty claim on behalf of it.
15. Headings. The
Section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
16. Amendments and Waivers. No
supplement, modification or waiver of this Agreement shall be binding unless
executed in writing by the party to be bound thereby. The failure of a party to
exercise any right or remedy shall not be deemed or constitute a waiver of such
right or remedy in the future. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (regardless of whether similar), nor shall any such waiver constitute a
continuing waiver unless otherwise expressly provided.
17. Submission to Jurisdiction.
Except as set forth below, no Proceeding may be commenced, prosecuted or
continued in any court other than the courts of the State of New York located in
the City and County of New York or in the United States District Court for the
Southern District of New York (each, a “New York Court”), which
courts shall have jurisdiction over the adjudication of such matters, and the
Company hereby consents to the jurisdiction of such New York Courts and personal
service with respect thereto. The Company hereby consents to personal
jurisdiction, service and venue in any court in which any Proceeding arising out
of or in any way relating to this Agreement is brought by any third party
against any Underwriter. The Company hereby waives all right to trial by jury in
any Proceeding (whether based upon contract, tort or otherwise) in any way
arising out of or relating to this Agreement. The Company agrees that a final
judgment in any such Proceeding brought in any such court shall be conclusive
and binding upon the Company and may be enforced in any other courts in the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment. The Company has irrevocably appointed ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP as
its authorized agent upon whom process may be served in any action, proceeding
or counterclaim in any way relating to, arising out of or based on this
Agreement or the transactions contemplated hereby which may be instituted in any
New York Court.
-33-
18. Counterparts. This
Agreement may be executed in one or more counterparts and, if executed in more
than one counterpart, the executed counterparts shall each be deemed to be an
original and all such counterparts shall together constitute one and the same
instrument. Delivery of an executed counterpart by facsimile shall be
effective as delivery of a manually executed counterpart thereof.
19. Research Analyst
Independence. The Company acknowledges that the Underwriters’ research
analysts and research departments are required to be independent from their
investment banking divisions and are subject to certain regulations and internal
policies, and that the Underwriters’ research analysts may hold views and make
statements or investment recommendations and/or publish research reports with
respect to the Company and/or the offering that differ from the views of their
respective investment banking divisions. The Company hereby waives and releases,
to the fullest extent permitted by law, any claims that the Company may have
against the Underwriter with respect to any conflict of interest that may arise
from the fact that the views expressed by their independent research analysts
and research departments may be different from or inconsistent with the views or
advice communicated to the Company by the Underwriters’ investment banking
divisions. The Company acknowledges that the Underwriters are full service
securities firms and as such from time to time, subject to applicable securities
laws, rules and regulations, may effect transactions for their own accounts or
the accounts of their customers and hold long or short positions in debt or
equity securities of the Company; provided, however, that
nothing in this Section 19 shall
relieve any Underwriter of any responsibility or liability it may otherwise bear
in connection with activities in violation of applicable securities laws, rules
and regulations.
20. Entire Agreement. This
Agreement constitutes the entire agreement of the parties to this Agreement and
supersedes all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter
hereof.
21. Partial Unenforceability. The
invalidity or unenforceability of any section, paragraph, clause or provision of
this Agreement shall not affect the validity or enforceability of any other
section, paragraph, clause or provision hereof.
[Signature
Page Follows]
-34-
If the
foregoing is in accordance with your understanding of the agreement between the
Company and the Underwriters, kindly indicate your acceptance in the space
provided for that purpose below.
| Very truly yours, | |||
| ZHONGPIN INC. | |||
|
Date
|
By:
|
/s/ ▇▇▇▇▇▇ ▇▇▇ | |
| Name: ▇▇▇▇▇▇ ▇▇▇ | |||
| Title: Chairman and CEO | |||
Accepted
as of the date first above written on
behalf of
themselves and the Underwriters
named in
Schedule I
hereto:
▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO.
| By: |
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
|
|
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
||
|
Title: Managing
Director
|
Schedules
and Exhibits
|
Schedule
I:
|
Underwriters
|
|
|
Schedule
II:
|
Purchase
Allocation
|
|
|
Schedule
III:
|
Issuer
Free Writing Prospectuses
|
|
|
Schedule
IV:
|
Subsidiaries
|
|
|
Schedule
V:
|
Change
in Short-Term and Long-Term Debt
|
|
|
Exhibit
A:
|
Form
of Lock-Up Agreement
|
|
|
Exhibit
B:
|
List of Directors, Executive Officers and Stockholders Executing Lock-Up Agreements | |
|
Exhibit
C:
|
Company
United States Counsel Opinion
|
|
|
Exhibit
D:
|
Negative
Assurance Letter from Company United States Counsel
|
|
|
Exhibit
E:
|
Company
British Virgin Islands Counsel Opinion
|
|
|
Exhibit
F:
|
Company
PRC Counsel Opinion
|
|
|
Exhibit
G:
|
Pricing
Information
|
Schedule
I
Underwriters
▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
Susquehanna
Financial Group, LLLP
Schedule
II
Purchase
Allocation
|
Underwriter
|
Number of Firm
Shares (1)
|
||
|
▇▇▇▇▇
▇▇▇▇▇▇▇ & Co.
|
3,200,000
|
||
|
Susquehanna
Financial Group, LLLP
|
800,000
|
||
|
Total
|
4,000,000
|
||
(1)
The
Underwriters may purchase up to an additional 600,000 Option Shares to the
extent the option described in Section 3(b) of the Agreement is exercised, in
the proportions and in the manner described in the Agreement.
Schedule
III
Issuer
Free Writing Prospectuses
None.
Schedule
IV
List
of Subsidiaries
SUBSIDIAIRES
OF ZHONGPIN INC.
|
Name
|
Place
of Incorporation
|
|
|
Falcon
Link Investment Limited
|
British
Virgin Islands
|
|
|
Henan
Zhongpin Food Co., Ltd.
|
People's
Republic of China
|
|
|
Henan
Zhongpin Food Share Co., Ltd.
|
People's
Republic of China
|
|
|
Zhumadian
Zhongpin Food Co. Ltd.
|
People's
Republic of China
|
|
|
Henan
Zhongpin Import and Export Trading Co., Ltd.
|
People's
Republic of China
|
|
|
Anyang
Zhongpin Food Company, Ltd.
|
People's
Republic of China
|
|
|
Deyang
Zhongpin Food Company, Ltd.
|
People's
Republic of China
|
|
|
Henan
Zhongpin Fresh Food Logistics Company, Ltd.
|
People's
Republic of China
|
|
|
Henan
Zhongpin Business Development Company, Ltd.
|
People's
Republic of China
|
|
|
Heilongjang
Zhongpin Food Company, Ltd.
|
People's
Republic of China
|
|
|
Luoyang
Zhongpin Food Company, Ltd.
|
People's
Republic of China
|
|
|
Yongcheng
Zhongpin Food Company, Ltd.
|
People's
Republic of China
|
|
|
Tianjin
Zhongpin Food Company, Ltd.
|
People's
Republic of China
|
|
|
Hengshui
Zhongpin Food Company, Ltd.
|
People's
Republic of China
|
|
|
Jilin
Zhongpin Food Company, Ltd.
|
People's
Republic of China
|
|
|
Henan
Zhongpin Agriculture and Animal HusbandryIndustry Development Company,
Ltd.
|
People's
Republic of China
|
Schedule
V
Change
in Short-Term and Long-Term Debt
Short-term debt increased to
approximately $96.8 million as of September 30, 2009 and long-term debt
increased to approximately $33.6 million as of September 30,
2009.
Exhibit
A
Form
of Lock-Up Agreement
▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co.
U.S. Bancorp Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies
and Gentlemen:
The
undersigned understands that you (the ”Underwriter”) propose to enter
into an underwriting agreement (the “Underwriting Agreement”) with
Zhongpin Inc., a Delaware corporation (the “Company”), in connection with
the issuance and sale to certain investors (the “Investors”) of a certain
number of shares of the Company’s common stock (the “Common Stock”), par value
$0.001 per share (the “Offering”).
In
consideration of the execution of the Underwriting Agreement by the Underwriter,
and for other good and valuable consideration, the undersigned hereby agrees
that the undersigned will not, without the prior written consent of the
Underwriter, from the date of execution of this lock-up letter agreement (the
“Lock-Up Letter
Agreement”) and continuing to and including the date 90 days after the
date of the final prospectus relating to the Offering (the “Lock-Up Period”), offer for
sale, sell, contract to sell, pledge, grant any option for the sale of, enter
into any transaction which is designed to, or might reasonably be expected to,
result in disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) or otherwise issue or dispose
of, directly or indirectly (or publicly disclose the intention to make any such
offer, sale, pledge, grant, or other disposition), any Common Stock or any
securities convertible into or exchangeable for, or any options or rights to
purchase or acquire, Common Stock, except to the Investors as contemplated under
the Underwriting Agreement. In addition, the undersigned agrees that,
without the prior written consent of the Underwriter, it will not, during the
Lock-Up Period, make any demand for or exercise any right with respect to, the
registration of any Common Stock or any security convertible into or exercisable
or exchangeable for Common Stock. If (1) during the period that
begins on the date that is 18 calendar days before the last day of the Lock-Up
Period and ends on the last day of the Lock-Up Period, (a) the Company issues an
earnings release, (b) the Company publicly announces material news or (c) a
material event relating to the Company occurs; or (2) prior to the expiration of
the Lock-Up Period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the Lock-Up Period, then
the restrictions in this Lock-Up Letter Agreement, unless otherwise waived by
the Underwriter in writing, shall continue to apply until the expiration of the
date that is 18 calendar days after the date on which (i) the Company issues the
earnings release, (ii) the Company publicly announces material news or (iii) a
material event relating to the Company occurs. The undersigned hereby further
agrees that, prior to engaging in any transaction or taking any other action
that is subject to the terms of this Lock-Up Letter Agreement during the period
from the date of this Lock-Up Letter Agreement to and including the 34th day
following the expiration of the Lock-Up Period, it will give notice thereof to
the Company and will not consummate such transaction or take any such action
unless it has received written confirmation from the Company that the Lock-Up
Period (as such may have been extended pursuant to this paragraph) has
expired.
Any
Common Stock received upon exercise of options granted to the undersigned will
also be subject to the above lock-up restrictions. Notwithstanding the
foregoing, a transfer of Common Stock in connection with a bona fide gift or to
a family member or trust may be made, provided the transferee agrees to be bound
in writing by the terms of this Lock-Up Letter Agreement. In
addition, if the undersigned is a corporation, business trust, association,
limited liability company, partnership, limited liability partnership, limited
liability limited partnership or other entity (collectively, the “Entities” or, individually,
the “Entity”), the
undersigned may transfer Common Stock or securities convertible into or
exchangeable or exercisable for any Common Stock to any Entity which is directly
or indirectly controlled by, or is under common control with the undersigned
and, if the undersigned is a partnership or limited liability company, it may
transfer the Common Stock or securities convertible into or exchangeable or
exercisable for any Common Stock to its partners, former partners or an
affiliated partnership (or members, former members or an affiliated limited
liability company) managed by the same manager or managing partner (or managing
member, as the case may be) or management company, or managed by an entity
controlling, controlled by, or under common control with, such manager or
managing partner (or managing member) or management company in accordance
with partnership (or membership) interests; provided, however, that in any
such case, it shall be a condition to the transfer that the transferee execute
an agreement stating that the transferee is receiving and holding such Common
Stock or securities convertible into or exchangeable or exercisable for any
Common Stock subject to the provisions of this Lock-Up Letter Agreement and
there shall be no further transfer of such Common Stock or securities
convertible into or exchangeable or exercisable for any Common Stock except in
accordance with this Lock-Up Letter Agreement, and provided further that any
such transfer shall not involve a disposition for value.
In
furtherance of the foregoing, the Company and its transfer agent are hereby
authorized to decline to make any transfer of securities if such transfer would
constitute a violation or breach of this Lock-Up Letter Agreement.
It is
understood that, if the Company notifies the Underwriter that it does not intend
to proceed with the Offering, or if the Underwriting Agreement does not become
effective prior to November 30, 2009, 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 Common Stock, the
undersigned will be released from its obligations under this Lock-Up Letter
Agreement.
The
undersigned understands that the Company and the Underwriter will proceed with
the Offering in reliance on this Lock-Up Letter Agreement.
Whether
or not the Offering actually occurs depends on a number of factors, including
market conditions, and any Offering will only be made pursuant to the
Underwriting Agreement, the terms of which are subject to negotiation among the
Company and the Underwriter.
The
undersigned hereby represents and warrants that the undersigned has full power
and authority to enter into this Lock-Up Letter Agreement and that, upon
request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the
undersigned shall be binding upon the heirs, personal representatives,
successors and assigns of the undersigned.
Very
truly yours,
By:______________________________
Name:
Title:
Dated: _________________,
2009
Exhibit
B
List
of Directors, Executive Officers and Stockholders
Executing
Lock-Up Agreements
▇▇▇▇▇▇
▇▇▇
Baoke
▇▇▇
▇▇▇▇
Wang
Chaoyang
Liu
▇▇▇
▇▇▇▇
Exhibit
C
Company
United States Counsel Opinion
1. The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware.
2. The
Company is in good standing as a foreign corporation and is duly qualified to do
business in the jurisdictions listed opposite its name on a schedule
thereto.
3. The
Company has the requisite corporate power and authority necessary to own or
lease, as the case may be and operate its properties, to conduct its business as
currently being carried on and as it is described in the Registration Statement,
the General Disclosure Package and the Prospectus, to execute and deliver the
Transaction documents, and to issue, sell and deliver the Shares as contemplated
by the Transaction Documents.
4. The
Company has the authorized and issued capital stock as set forth in the General
Disclosure Package and the Prospectus and such capital stock conforms as to
legal matters to the description thereof contained or incorporated by reference
therein. All of the issued and outstanding shares of capital stock of
the Company have been duly authorized, validly issued and, to the knowledge of
such counsel, are fully paid and nonassessable, were issued in compliance in all
material respects with requirements of federal and applicable state securities
laws and, to the knowledge of such counsel, were not issued in violation of or
subject to any preemptive rights, rights of first refusal or similar rights to
subscribe for or to purchase any securities of the Company.
5. The
Shares have been duly and validly authorized and reserved for issuance by all
necessary corporate action on the part of the Company and, when issued, sold and
delivered by the Company to, and paid for by the Underwriters in accordance with
the terms of the Underwriting Agreement, will be validly issued, fully paid and
nonassessable, and will conform in all material respects to the description
thereof contained in the General disclosure Package and the
Prospectus.
6. There
are no statutory preemptive rights or similar rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any of the Shares
pursuant to the Company’s charter, by-laws, the DGCL or any agreement or other
instrument known to such counsel to which the Company is a party or by which the
Company is bound.
7. Except
as set forth in the Registration Statement, in the General Disclosure Package or
the Prospectus, to such counsel’s knowledge, neither the filing of the
Registration Statement nor the offering or sale of the Shares as contemplated by
this Agreement gives rise to any rights for or relating to the registration of
any shares of Common Stock or other securities of the Company or any of its
Subsidiaries, except for rights which have been waived or
satisfied.
8. The
statements in the General Disclosure Package and the Prospectus under the
caption “Description of Capital Stock”, insofar as they purport to constitute
summaries of the legal matters, documents or proceedings referred to therein,
fairly summarize in all material respects the matters referred to
therein.
9. The
Registration Statement has become effective under the Securities Act, and to
such counsel’s knowledge, no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof has been issued
by the Commission and no proceeding for that purpose is pending before or, to
such counsel’s knowledge, is threatened by the Commission; and all filings
required by Rule 424(b) and Rule 430(A), 430(B) or 430(C) promulgated under the
Securities Act have been made in the manner and within the time period required
by Rule 424(b).
10. The Registration Statement, as of its
effective date, the Statutory Prospectus included in the General Disclosure Package, as of the Applicable
Time and the Prospectus, as of its date, (except as to the financial statements
and schedules, and other financial or statistical data derived therefrom,
contained in the Registration Statement, the General Disclosure Package and the Prospectus, as to
which such counsel expresses no opinion), complied as to form and appear on
their face to be appropriately responsive in
all material respects to the applicable requirements of Form S-3 under the Securities
Act and the applicable Rules and Regulations, and
the documents incorporated by reference in the Registration Statement or the
Prospectus (except as to the financial statements and schedules, and other
financial or statistical data derived therefrom, contained therein, as to which such counsel expresses no
opinion), including any Current Report on Form 8-K filed with the Commission
prior to the Closing Date, when they became effective or were filed with the
Commission, as the case may be, complied as to form and appear on their face to be appropriately responsive in
all material respects with the requirements of the Securities Act or the
Exchange Act and the rules and regulations promulgated
thereunder.
11. The
Transaction Documents have been duly authorized by all necessary corporate
action on the part of the Company and have been duly executed and delivered by
the Company and each constitutes a valid and binding agreement of the company,
and is enforceable against the Company in accordance with the terms
thereof.
12. The
execution and delivery of the Transaction Documents by the Company and the
issuance and sale by the Company of the Shares and the consummation by the
Company of the transactions contemplated by the Transaction Documents to be
consummated by the Company do not and will not result in any breach or a default under
(nor constitute any event that with notice, lapse of time or both would result
in any breach or default under), or conflict with (i) any provisions of the
certificate of incorporation or by-laws of the Company, (ii) any provision
of any material license, permit, indenture, mortgage, deed of trust, note, bank
loan or credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument filed as an exhibit to, or incorporated by reference
into, the Company’s Annual Report on Form 10-K for the
year ended December 31, 2008 or in any filing with the Commission
made thereafter, (iii) any
U.S. federal or New York state law, regulation or rule that, in such counsel’s experience, is generally applicable to
transactions of the nature of those contemplated by the Transaction Documents
and is applicable to the Company, or the Delaware General Corporation Law (other
than the state securities or blue sky laws and the rules of FINRA governing underwriter compensation, as
to which such counsel expresses no opinion), or (iv) any decree, judgment or
order known to such counsel to be applicable to the Company or any
Subsidiary.
13. To
such counsel’s knowledge, the Company is not a party to any contract, agreement
or document of a character that is required to be filed as an exhibit to or
incorporated by reference in the Registration Statement or described in the
Registration Statement or the Prospectus that has not been so filed,
incorporated by reference or described as required, and such contracts,
agreements or documents as are summarized in the Registration Statement or the
Prospectus are fairly summarized in all material respects.
14. The
Company is not, and will not be after the giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as described in the
Prospectus, required to register as an “investment company” as defined in the
Investment Company Act of 1940, as amended.
15. No
approval, authorization, consent or order or filing with any U.S. federal or New
York state court or governmental
or regulatory agency or body in the United States having jurisdiction over the
Company, or approval of the shareholders of the Company, is required to
be obtained or made by the Company for the consummation by the Company of the
transactions contemplated by the Transaction Documents, except for such as have
been duly obtained or made, including without limitation, registration of the
Shares under the Securities Act and of the Common Stock under the Exchange Act,
or such as may be required under (x) the state securities or blue sky laws of
the various states or (y) the bylaws or rules and regulations of the National
Association of Securities Dealers, Inc., as to which such counsel expresses no
opinion.
16. To
such counsel’s knowledge, there is not pending or threatened in writing any
action, suit or proceeding, inquiry or investigation to which the Company or any
of its Subsidiaries is a party, or to which the property of the Company or any
of its Subsidiaries is subject, before or brought by any court or governmental
agency or body that places in question the validity or enforceability of, or
seeks to enjoin the performance of, the Transaction Documents or which is of a
character that is required to be disclosed in the Registration Statement or the
Prospectus and is not so disclosed.
In rendering such opinion such counsel
may rely (i) as to matters of law other than New York law, DGCL and federal law,
upon the opinion or opinions of local counsel provided that the extent of such
reliance is specified in such opinion and that such counsel shall state that
such opinion or opinions of local counsel are satisfactory to them and that they
believe they and you are justified in relying thereon and (ii) as to matters of
fact, to the extent such counsel deems reasonable upon certificates of officers
of the Company and its subsidiaries provided that the extent of such reliance is
specified in such opinion.
Exhibit
D
Negative
Assurance Letter from Company United States Counsel
Such
counsel has acted as U.S. counsel to the Company in connection with the
preparation of the Registration Statement, the General Disclosure Package and
the Prospectus, and each amendment or supplement thereto made by the Company
prior to the Closing Date. Based on (x) such counsel’s examination of
the Registration Statement, the General Disclosure Package and the Prospectus,
and each amendment or supplement thereto made by the Company prior to the
Closing Date and the documents incorporated by reference in the General
Disclosure Package or the Prospectus and any further amendment or supplement to
any such incorporated document made by the Company prior to the Closing Date and
(y) such counsel’s investigation made in connection with the preparation of the
Registration Statement, the General Disclosure Package and the Prospectus, and
each amendment or supplement thereto made by the Company prior to the Closing
Date and discussions with representatives of the Underwriter, counsel to the
Underwriter, the Company’s independent public accountants and certain officers
and other representatives of the Company, in which the business and affairs of
the Company were discussed, nothing has come to such counsel’s attention to
cause such counsel to believe that:
(i) the
Registration Statement or any amendment thereof (including any information
omitted from the Registration Statement at the time it became effective but that
is deemed to be a part of and included in the Registration Statement pursuant to
Rule 430A, 430B or 430C), at the time it (or such amendment) became effective,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading (it being
understood that such counsel expresses no opinion with respect to the financial
statements and schedules, and other financial data, included in any of the
documents mentioned in this
paragraph);
(ii) the
General Disclosure Package, as of the Applicable Time, contained any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading (it being
understood that such counsel expresses no opinion with respect to the financial
statements and schedules, and other financial data, included in any of the
documents mentioned in this paragraph); or
(iii) the
Prospectus, or any amendment or supplement thereto, as of its issue date and as
of the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits 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 (it being understood that such counsel expresses no opinion with
respect to the financial statements and schedules, and other financial data,
included in any of the documents mentioned in this paragraph).
Exhibit
E
Company
British Virgin Islands Counsel Opinion
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1.
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The Company is duly incorporated
and existing under the laws of the British Virgin Islands in good standing
(meaning solely that it has not failed to make any filing with any
British Virgin Islands governmental authority
or to pay any British Virgin Islands government fee or tax
which would make it liable to be struck off the Register of Companies and
thereby cease to exist under the laws of the British Virgin Islands) and possesses the capacity to ▇▇▇ and be
sued in its own name.
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2.
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The Company has the necessary
corporate power and authority to hold the equity interest in Henan
Zhongpin Food Company, Ltd., a wholly foreign owned enterprise formed
under the laws of The People’s Republic of China. The
Company is not restricted under its memorandum of association or articles
of association nor any applicable law, regulation, order or decree in the
British Virgin Islands from establishing subsidiaries
and owning, using, leasing or operating any properties or
assets.
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3.
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Based solely upon a search of the
Index of Civil Suits maintained at the Supreme Court Registry, Road Town,
Tortola, British Virgin Islands conducted at
[ ] on [ ]
October, 2009 (which would
not reveal details of proceedings which have been filed but
not actually entered in the Index of Civil Suits at the time of our
search), there are no judgments against the Company, nor any legal
proceedings pending in the British Virgin Islands to which the Company
is subject.
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4.
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Based
solely on a search of the public records in respect of the Company
maintained at the offices of the Registrar of Corporate Affairs at
[ ] on [ ]
October, 2009 (which would not reveal details of matters which have not
been lodged for registration or have been lodged for registration but not
actually registered at the time of our search) and a search of the Index
of Civil Suits maintained at the Supreme Court Registry, Road Town,
Tortola British Virgin Islands conducted at
[ ] on [ ]
October, 2009 (which would not reveal details of proceedings which have
been filed but not actually entered in the Index of Civil Suits at the
time of our search), there are no judgments against the Company, nor any
legal or governmental proceedings pending in the British Virgin Islands to
which the Company is subject. Further, based solely on the
search of the public records in respect of the Company maintained at the
offices of the Registrar of Corporate Affairs mentioned above, no details
have been lodged of any steps taken in the British Virgin Islands for the
appointment of a receiver, administrator or liquidator to, or for the winding-up,
dissolution, reconstruction or reorganisation of the Company
(however, it should be noted that (i) failure to file notice of
appointment of a receiver does not invalidate the receivership but only
gives rise to penalties on the part of the receiver and (ii) in the case
of the appointment of a liquidator, notice of the appointment of a
liquidator may be filed up to 14 days after the actual
appointment).
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5.
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Based solely upon a review of the
register of members of the Company in the Certificate of
Incumbency: (i) the Company has
10,000 shares of US$1.00 each (the “Shares”) in issue and registered in
the name of the Parent and all the Shares are validly issued,
fully paid and non-assessable (which term when used herein means that no
further sums are required to be paid by the holders
thereof in connection with the issue thereof); and (ii) there are no
entries or notations including any security interests on the
register of members of the Company. However, it should be noted
that there is no requirement for such entries to be
included on the register of members of the
Company.
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6.
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Based solely on a search of the
public records in respect of the Company maintained at the offices of the
Registrar of Corporate Affairs pursuant to Section 163 of the
BVI Business Companies Act, 2004 conducted at
[ am] on [ ]
October, 2009 (which would not reveal details of
matters which have been lodged for registration but not
actually registered at the time of our search), there are no charges
registered on the assets of the Company. Based solely as our
review of the Certificate of Incumbency, no entry has been made in the
Register of Charges maintained at the registered office of
the Company.
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Exhibit
F
Company
PRC Counsel Opinion
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1.
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The
WFOE has been duly organized and is validly existing as a wholly-foreign
owned enterprise with legal person status and limited liability under PRC
Law, is in good standing under PRC Law and its business license is in full
force and effect; each of the Group Companies has been duly organized and
is validly existing with legal person status and limited liability under
PRC Law, is in good standing under PRC Law and its business license is in
full force and effect; Falcon Link Investment Limited, a company organized
under the laws of the British Virgin Islands (“BVI Co.”), owns
100% of the equity interest of WFOE, and to the best of our knowledge
after due inquiry, BVI Co.’s equity interest in WFOE is free and clear of
all liens, encumbrances, equities or claims; the articles of association,
the business license and other constitutional documents of each of the
Group Companies comply with the requirements of the applicable PRC Law,
have been approved by the relevant Governmental Agency and are in full
force and effect. None of the Group Companies has any
branch.
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2.
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All
of the equity interests of each of the Group Companies have been fully
paid up and are legally owned by the respective shareholders as set forth
on Schedule
I hereto; all Governmental Authorizations required under PRC Law
for each shareholder’s ownership interest in each Group Company as set
forth on Schedule I
hereto have been obtained; and to the best of our knowledge after due
inquiry, there are no outstanding rights, warrants or options to acquire,
nor instruments convertible into or exchangeable for, nor any agreements
or other obligations to issue or other rights to convert any obligation
into, any equity interest in any of the Group
Companies.
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3.
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Each
of the Group Companies has legal and valid title to all of its material
properties and assets, in each case, to the best of our knowledge after
due inquiry, free and clear of all liens, charges, encumbrances, equities,
claims, defects, options and restrictions; each lease agreement to which
any of the Group Companies is a party is duly executed and legally
binding; the leasehold interests of each of the Group Companies are fully
protected by the terms of the lease agreements, which are valid, binding
and enforceable in accordance with their terms under PRC Law; and none of
the Group Companies owns, operates, manages or has any other right or
interest in any material real property of any kind, except as described in
the General Disclosure Package and the
Prospectus.
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4.
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To
the best of our knowledge after due inquiry, there are no outstanding
guarantees of any Group Company in respect of indebtedness of third
parties.
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5.
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All
Governmental Authorizations required under PRC Law in connection with the
establishment of the overseas affiliated companies of the Group Companies,
including without limitation the Company and BVI Co., have been obtained;
none of such Governmental Authorizations has been withdrawn or revoked
nor, to the best of our knowledge after due inquiry, are there
circumstances which may give rise to such Governmental Authorizations
being withdrawn or revoked; and no such Governmental Authorizations are
subject to any condition precedent which has not been fulfilled or
performed.
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6.
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Each
of the Group Companies has full legal right, power and authority
(corporate and other) and all necessary Governmental Authorizations of,
from, and with all Governmental Agencies to own, operate, lease, license
and use its properties, assets and conduct its business in the manner
described in the General Disclosure Package and the Prospectus and such
Governmental Authorizations contain no materially burdensome restrictions
or conditions not described in the General Disclosure Package and the
Prospectus; nothing has come to our attention to make us believe that any
Governmental Agency is considering modifying, suspending or revoking any
such Governmental Authorizations and each of the Group Companies is in
compliance with the provisions of all such Governmental Authorizations in
all material respects.
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7.
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Each
of the Company, BVI Co. and the Group Companies is in compliance with all
PRC Laws relating to the filing, reporting, and payment of all applicable
PRC taxes.
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8.
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All
dividends and other distributions declared and payable upon the equity
interests in WFOE may under PRC Law be paid to BVI Co. and the Company in
Renminbi that may be converted into foreign currency and freely
transferred out of the PRC, and may be paid without the necessity of
obtaining any Governmental Authorization in the
PRC.
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9.
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None
of the Group Companies is (a) in violation of any PRC Law, or any decree,
judgment or order of any court in the PRC, applicable to any of the Group
Companies; (b) in breach of or in default under any Governmental
Authorization granted by any Governmental Agency in the PRC; (c) in
violation of its respective articles of association (or similar
constitutional or organizational documents), business licenses or permits;
or (d) to the best of our knowledge after due inquiry, in breach of
or otherwise in default, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default in the performance
or observance of any material obligation, agreement or condition contained
in any bond, debenture, note, indenture, mortgage, deed of trust, bank
loan or credit agreement or any other material contract, lease or other
instrument to which it is subject or by which any of them may be bound, or
to which any of the material property or assets of the Group Companies is
subject.
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10.
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The
statements in the General Disclosure Package and the Prospectus, to the
extent such statements relate to matters of PRC Law or to documents,
agreements or proceedings governed by PRC Law, are true and accurate in
all material respects, are fairly described and correctly set forth
therein, and nothing has been omitted from such statements which would
make the same misleading in any material
respect.
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11.
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To
the best of our knowledge after due inquiry, none of the Company, BVI Co.
or the Group Companies possesses any registered Intellectual Property
except as described in the General Disclosure Package and the Prospectus;
each of the Company, BVI Co. and the Group Companies is the exclusive
owner of all right, title and interest in and to, possesses valid licenses
in full force and effect for, or otherwise has the legal right to use, or
can acquire on reasonable terms, all Intellectual Property necessary to
carry on the business as currently conducted by it; to the best of our
knowledge after due inquiry, the Intellectual Property that any of the
Company, BVI Co. and the Group Companies owns or uses in the PRC is not
currently infringing or conflicting with any third parties’ rights and no
third parties are claiming any infringement of or conflict with their
rights; and none of such Intellectual Property is subject to any
outstanding decree, order, injunction, judgment or ruling restricting the
use of such Intellectual Property in the PRC that would impair the
validity or enforceability of such Intellectual
Property.
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12.
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To
the best of our knowledge after due inquiry, no security interests or
other liens have been created with respect to any of the Intellectual
Property that any of the Company, BVI Co. and the Group Companies owns or
uses in the PRC.
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13.
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Each
of the Company, BVI Co. and the Group Companies is and has been in
compliance with all applicable PRC Laws relating to bribery,
anti-corruption, employment, labor and employee benefits, social insurance
and welfare.
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14.
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Each
of the Group Companies has full power, authority and legal right to enter
into, execute, adopt, assume, deliver and perform its respective
obligations under each of the contracts filed and incorporated by
reference into the Registration Statement governed by PRC Laws (“Material
Contracts”) to which it is a party; Each of the Group
Companies has duly authorized, executed and delivered each of the Material
Contracts to which it is a party, and the Material Contracts (either
individually or in any combination) constitute valid, legal and binding
obligations enforceable against each of the parties thereto in accordance
with their respective terms; Each of the Material Contracts is in
compliance with PRC Law in all material respects and in proper legal form
under PRC Law for the enforcement thereof against each of the parties
thereto, as the case may be, in the PRC without further action by any of
them.
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15.
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The
execution, delivery and performance of the Material Contracts (either
individually or in any combination) by the parties thereto, and the
consummation of the transactions contemplated thereunder, do not and will
not (A) result in any violation of the business license, articles of
association, other constitutional documents (if any) or Governmental
Authorization of any of the Group Companies; (B) result in any violation
of or penalty under any PRC Law; or (C) to the best of our knowledge after
due inquiry, conflict with or result in a breach or violation of any of
the material terms or provisions of, or constitute a material default
under, any other contract, license, bond, debenture, indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or
instrument to which any of the Group Companies is a party or by which any
of them is bound or to which any of their property or assets is
subject.
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16.
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All
Governmental Authorizations required under any PRC Law for the execution,
delivery and performance of the Material Contracts and the consummation of
the transactions contemplated thereunder have been duly obtained and are
in full force and effect, and no stamp duty or similar tax is required to
be paid in connection with any of the Material
Contracts.
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17.
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Each
of the Company, BVI Co. and the Group Companies (i) is and has been in
compliance with any and all applicable PRC Laws relating to the protection
of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental
Laws”), (ii) have obtained and are in compliance with all
Governmental Authorizations required of it under applicable Environmental
Laws to conduct its respective businesses and operations, and (iii) have
not received notice of any actual or potential liability under any
Environmental Law.
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18.
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Each
of the Company, BVI Co. and the Group Companies (i) is and has been in
compliance with any and all applicable PRC Laws relating to the meat and
food processing and distribution business that is or has been undertaken
by them (the “Operation Related PRC
Laws”), (ii) has obtained and is in compliance with all
Governmental Authorizations required of it under applicable Operation
Related PRC Laws to conduct its respective businesses and operations, and
(iii) has not received notice of any actual or potential liability under
any Operation Related PRC Law.
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19.
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No
transaction or stamp tax, duty or similar tax, capital gain, income,
withholding or other taxes are payable by or on behalf of the Company, BVI
Co., the Group Companies and the Underwriter in the PRC with respect to
(a) the creation, issuance, sale and delivery of the Common Stock, (b) the
sale and delivery of the Common Stock by the Company in the manner
contemplated by the Underwriting Agreement, (d) the listing and trading of
the Common Stock as contemplated by the Underwriting Agreement, the
General Disclosure Package and the Prospectus, (e) the execution,
delivery, performance and enforcement of the Underwriting Agreement by the
Company, or (f) the holding, sale, delivery and transfer of the Common
Stock outside the PRC; Under PRC Laws, neither the Company nor BVI Co. is
a tax resident of the PRC, nor does it have a permanent establishment in
the PRC for PRC tax purposes, and accordingly, (x) neither the Company nor
BVI Co. will be subject to income tax imposed in the PRC or any
subdivision thereof (other than PRC withholding tax on payments made to
the Company or BVI Co. by the Group Companies, subject to exemptions or
other relief granted by applicable double-tax treaties), (y) any dividends
or distributions made by the Company to holders or beneficial owners of
the Common Stock will not be subject to any PRC withholding tax or tax of
any other nature, and (z) a holder or beneficial owner of the Common Stock
will not be subject to any PRC transaction tax, stamp duty or similar tax
or duty or any PRC withholding tax or other PRC taxes of any nature in
connection with the acquisition, ownership and disposition of the Common
Stock, including the receipt of any dividends or distributions on the
Common Stock, provided in the case of (y) and (z) that the holder or
beneficial owner has not been physically resident in the PRC for a period
of 183 days or more and therefore become subject to PRC tax (and to the
extent not granted an exemption or other relief under any applicable
double-tax treaty).
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20.
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The
submission of the Company to the jurisdiction of the courts of the State
of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York (the “New York
Courts”) and personal service with respect thereto, the consent of
the Company to personal jurisdiction, service and venue in any New York
Court in which any claim arising out of or in any way relating to the
Underwriting Agreement is brought by any third party against the
Underwriter or any indemnified party, the waiver by the Company of all
right to trial by jury in any action, proceeding or counterclaim (whether
based upon contract, tort or otherwise) in any way arising out of or
relating to the Underwriting Agreement, and the agreement of the Company
that the Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of New York are legal, valid and
binding under PRC Law and will be recognized by PRC courts; service of
process effected in the manner set forth in the Underwriting Agreement
will be effective, insofar as PRC Law is concerned, to confer valid
personal jurisdiction over the Company subject to compliance with relevant
PRC civil procedural requirements (which do not involve a re-examination
of the merits of the claim); and any judgment obtained in a New York Court
arising out of or in relation to the obligations of the Company under the
Underwriting Agreement will be recognized in PRC courts, subject to
compliance with relevant PRC civil procedural
requirements.
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21.
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The
indemnification and contribution provisions set forth in Section 6 of the
Underwriting Agreement do not contravene PRC Law, and insofar as matters
of PRC Law are concerned, constitute legal, valid and binding obligations
of the Company enforceable in accordance with the terms therein, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors’ rights;
the Underwriting Agreement is in proper legal form under PRC Law for the
enforcement thereof against the Company, subject to compliance with
relevant PRC civil procedural requirements; and to ensure the legality,
validity, enforceability or admissibility in evidence of the Underwriting
Agreement in the PRC, it is not necessary that any such document be filed
or recorded with any court or other authority in the PRC or that any stamp
or similar tax be paid on or in respect of any such
document.
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22.
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To
the best of our knowledge after due inquiry, there are no legal,
arbitration, administrative or governmental proceedings before or by any
Governmental Agency in progress or pending, to which the Company, BVI Co.
or any of the Group Companies is a party, or of which the business or any
property of the Group Companies is the subject, and, to the best of our
knowledge after due inquiry, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others; to the
best of our knowledge after due inquiry, none of the directors and
executive officers of the Company, BVI Co. and the Group Companies are
currently subject to any litigation proceedings, bankruptcy proceedings or
any investigation, hearing or proceeding brought or instituted by any
Governmental Agency in the PRC and nor are there any such proceedings
pending or threatening to happen.
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23.
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Each
of the Company, BVI Co. and the Group Companies has completed all relevant
registration, reporting, filing and other procedures required under the
applicable SAFE Rules and Regulations; each of the directors, officers,
holders or beneficiary owners of shares or convertible securities of the
Company, including without limitation Common Stock or any rights, warrants
or options to acquire such shares or securities who are PRC citizens
and/or residents, including shareholders and option holders of the Company
that are directly or indirectly owned or controlled by PRC citizens and
residents, has completed all relevant registration, reporting, filing and
other procedures required under applicable SAFE Rules and
Regulations.
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24.
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The
issuance and sale of the Common Stock being delivered at such time of
delivery, the listing and trading of the Common Stock on the Nasdaq Global
Select Market, the compliance by the Company with all of the provisions of
the Underwriting Agreement, and the consummation of the transactions
contemplated by the Underwriting Agreement will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, bank
loan or credit agreement or other agreement or instrument known to us and
governed by PRC Law to which the Company or any of the Group Companies is
a party or by which the Company or any of the Group Companies is bound or
to which any of the property or assets of the Company or any of the Group
Companies is subject, nor will such action result in any violation of the
provisions of the articles of association, business license or any other
constitutional documents of any of the Group Companies or any PRC Law,
including without limitation the Regulations on Mergers and Acquisitions
of Domestic Enterprises by Foreign Investors (the ”M&A Rule”)
issued on August 8, 2006 by six PRC regulatory agencies and the notice
published by the China Securities Regulatory Commission (“CSRC”) on its
official website on September 21, 2006, which specifies the documents and
materials that are required to be submitted for obtaining CSRC approval,
(together with the M&A Rule, collectively, the “Rules”), having
jurisdiction over any of the Group Companies or any of their respective
properties and assets.
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25.
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No
Governmental Authorization of, from or with any Governmental Agency in the
PRC is required for the issue and sale of the Common Stock, the listing
and trading of the Common Stock on the Nasdaq Global Select Market, or the
consummation of the transactions contemplated by the Underwriting
Agreement. The Rules provide that offshore special purpose
vehicles formed for listing purposes and controlled directly or indirectly
by PRC companies or individuals (“SPVs”) shall
obtain the approval of the CSRC and the Ministry of Commerce (“MOC”) prior to
the listing and trading of their securities on an overseas stock
exchange. While the CSRC and MOC generally have jurisdiction
over overseas listings of SPVs like the Company, neither the CSRC nor MOC
will require any of the Company, BVI Co. and Group Companies to obtain
their approval for the issue and sale of the Common Stock and the listing
and trading of the Common Stock on the Nasdaq Global Select Market given
the fact that the CSRC currently has not issued any definitive rule or
interpretation requiring offerings like the Company’s offering
contemplated by the Underwriting Agreement, the General Disclosure Package
and the Prospectus to be subject to this new procedure, that the overseas
holding structure of the Group Companies was established before September
8, 2006, the effective date of the M&A Rule, and that WFOE was
established as a qualified foreign invested enterprises before that
date.
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26.
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The
application of the net proceeds to be received by the Company from the
issuance and sale of the Common Stock as contemplated by the Underwriting
Agreement, the General Disclosure Package and the Prospectus will not
contravene any provision of applicable PRC Law or the respective bylaws,
or articles of association (or similar constitutional or organizational
documents), business licenses or permits of any of the Group Companies or
contravene the terms or provisions of, or constitute a default under, any
material obligation, agreement or condition contained in any bond,
debenture, note, indenture, mortgage, deed of trust, bank loan or credit
agreement or any other material contract, lease or other instrument to
which any of the Company, BVI Co. or the Group Companies is subject or by
which any of them may be bound, or to which any of the material property
or assets of the Company, BVI Co. or any of the Group Companies is subject
or any judgment, order or decree of any Governmental Agency in the
PRC.
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27.
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The
descriptions of each of the Group Companies set forth in the General
Disclosure Package and the Prospectus are accurate, complete and fair in
all material respects.
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28.
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The
restructuring of the Company, BVI Co. and the Group Companies, as
described in the General Disclosure Package and the Prospectus (including
without limitation the privatization of Changge Meat Factory from a
state-owned enterprise and the acquisition by the Company of the equity
interest of BVI Co., the “Restructuring”)
did not contravene or conflict with (i) the respective constitutional and
other organizational documents of any of the Group Companies, (ii) any
material indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument, to which any of the Group Companies is a
party or by which they or any of their properties and assets may be bound
or affected, or (iii) any PRC Law or any other applicable laws, rules or
regulations of any governmental agency having jurisdiction over the Group
Companies or any of their properties and assets (including, without
limitation, MOC, SAFE, the State-owned Assets Supervision and
Administration Commission of the PRC State Council and the PRC State
Administration of Industry and
Commerce).
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29.
|
All
Governmental Authorizations, including without limitation the Governmental
Authorizations required under PRC Law in connection with the
Restructuring, have been made or unconditionally obtained in writing and
are in full force and effect, and no such Governmental Authorization has
been withdrawn or revoked nor are there any circumstances which may give
rise to any of such Governmental Authorizations being withdrawn or revoked
or is subject to any condition precedent which has not been fulfilled or
performed.
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30.
|
Although
we do not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement, the
General Disclosure Package or the Prospectus, we have no reason to believe
that (a) any part of the Registration Statement or any further amendment
thereto made by the Company prior to such time of delivery (other than the
financial statements and related schedules therein, as to which we need
express no opinion), when such part or amendment became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; (b) any Issuer Free Writing
Prospectus conflicted with the information contained in the Registration
Statement, the General Disclosure Package or the Prospectus, or any Issuer Free Writing
Prospectus, as of its date and as of such time of delivery,
contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; or (c) as of its date and as of such time of
delivery, the General Disclosure Package and the Prospectus or any further
amendment or supplement thereto made by the Company prior to such time of
delivery (other than the financial statements and related schedules
therein, as to which we need express no opinion) contained or contains an
untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
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31.
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The
entry into, delivery, and performance or enforcement of the Underwriting
Agreement in accordance with its terms will not subject the Underwriter to
any requirement to be licensed or otherwise qualified to do business in
the PRC, nor will the Underwriter be deemed to be resident, domiciled,
carrying on business through an establishment or place in the PRC or in
breach of any PRC Law by reason of entry into, delivery, performance or
enforcement of the Underwriting
Agreement.
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32.
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The
execution, delivery and performance of the Underwriting Agreement, the
consummation of the transactions contemplated in the General Disclosure
Package, the Prospectus, the Underwriting Agreement (including the listing
and trading of the Common Stock pursuant to the terms and provisions
thereof, and the use of the proceeds from the listing of the Common Stock
as described in the General Disclosure Package and the Prospectus under
the caption “Use
of Proceeds”) and compliance by the Company with its obligations
under the Underwriting Agreement, insofar as PRC legal matters are
concerned, will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon, any property or assets of the Company, BVI Co. or any
of the Group Companies pursuant to any bond, debenture, note, indenture,
mortgage, deed of trust, bank loan or credit agreement or any other
material contract, lease or other instrument governed by PRC Law, to the
best of our knowledge after due inquiry, to which any of the Group
Companies is a party or by which they may be bound, or to which any of
their property or assets is subject, nor will such action result in any
violation of the provisions of (i) the respective charter or by laws,
memorandum of association or articles of association (or similar
constitutional or organizational documents), business licenses or permits
of any of the Group Companies or (ii) any PRC Law or any judgment, known
to us after due inquiries, of any Governmental Agency, having jurisdiction
over the Company or any of the Group Companies or any of their respective
properties, assets or operations.
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33.
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Under
PRC Law, none of the Company, BVI Co. or the Group Companies nor any of
their respective properties, assets or revenues is entitled to any right
of immunity on the grounds of sovereignty or otherwise from any legal
action, suit or proceeding, from the giving of any relief in any such
legal action, suit or proceeding, from set-off or counterclaim, from the
jurisdiction of any court in the PRC, from service of process, from
attachment upon, prior to or in aid of execution of judgment, from
execution of a judgment, or from other legal process or proceeding for the
granting of any relief or the enforcement of any
judgment.
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34.
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There
are no reporting obligations under PRC Law on non-PRC holders of the
Common Stock.
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35.
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As
a matter of PRC Law, no holder of the Common Stock who is not a PRC
resident will be subject to any personal liability, or be subject to a
requirement to be licensed or otherwise qualified to do business or be
domiciled or resident in the PRC, by virtue of only holding such Common
Stock. There are no limitations under PRC Law on the rights of
holders of the Common Stock who are not PRC residents to hold, vote or
transfer their securities nor any statutory pre-emptive rights or transfer
restrictions applicable to the Common Stock or the holders
thereof.
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Exhibit
G
Pricing
Information
Number of
shares offered: 4,000,000
Overallotment
option: 600,000
Purchase
price to the public: $13.25 per share
Underwriting
discounts and commissions: 6.0%
Net
proceeds to the Company (including estimated offering
expenses): $49.8 million