Exhibit 1.1
LINKTONE LTD.
- AMERICAN DEPOSITARY SHARES EACH REPRESENTING TEN ORDINARY SHARES,
PAR VALUE US$0.0001 PER SHARE
UNDERWRITING AGREEMENT
March o, 2004
CREDIT SUISSE FIRST BOSTON LLC,
As Representative of the Several U.S. Underwriters,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
and
CREDIT SUISSE FIRST BOSTON (HONG KONG) LIMITED,
As Representative of the Several International Underwriters
45/F, Two Exchange Square,
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Dear Sirs:
1. Introductory. Linktone Ltd., a Cayman Islands corporation (the
"COMPANY"), proposes to issue and sell and the persons listed in Schedule A
hereto (the "SELLING SHAREHOLDERS") propose to sell to the several Underwriters
(as defined below) an aggregate of o (the "FIRM ADSs") American Depositary
Shares ("ADSs"), each representing ten ordinary shares, par value US$0.0001 per
share, of the Company (each an "ORDINARY SHARE"), consisting of o ADSs to be
sold by the Company and o ADSs to be sold by the Selling Shareholders. The
Company also proposes to issue and sell and the Selling Shareholders propose to
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than o ADSs (the "OPTIONAL ADSs"), consisting of o ADSs to be sold by the
Company and o ADSs to be sold by the Selling Shareholders, as set forth below.
The Firm ADSs and the Optional ADSs are hereinafter collectively referred to as
the "OFFERED SECURITIES," which term, unless otherwise specified, also includes
the Ordinary Shares underlying the Firm ADSs and the Optional ADSs.
It is understood that, on the terms and subject to the conditions
hereinafter stated (i) o Firm ADSs (the "U.S. FIRM ADSs") will be sold to the
several U.S. Underwriters named in Schedule B hereto (the "U.S. UNDERWRITERS")
in connection with the offering and sale of such U.S. Firm ADSs in the United
States and Canada to United States and Canadian Persons (as such terms are
defined below) (the "U.S. OFFERING") and (ii) o Firm ADSs (the "INTERNATIONAL
FIRM ADSs") will be sold to the several International Underwriters named in
Schedule C hereto (the "INTERNATIONAL UNDERWRITERS") in connection with the
offering and sale of such International Firm ADSs outside the United States and
Canada, [including to professional and institutional investors in Hong Kong and
to certain corporate investors outside the United States and Canada] (the
"INTERNATIONAL OFFERING"). Credit Suisse First Boston LLC shall act as
representative (the "U.S. REPRESENTATIVE") of the several U.S. Underwriters;
Credit Suisse First Boston (Hong Kong) Limited shall act as representative (the
"INTERNATIONAL REPRESENTATIVE") of the several International Underwriters. The
U.S. Underwriters and the International Underwriters are hereinafter
collectively referred to as the "UNDERWRITERS." The U.S. Representative and the
International Representative are hereinafter
collectively referred to as the "REPRESENTATIVES." As used herein, (A) "UNITED
STATES OR CANADIAN PERSON" shall mean any national or resident of the United
States or Canada, or any corporation, pension, profit-sharing or other trust or
other entity organized under the laws of the United States or Canada or of any
political subdivision thereof (other than a branch located outside the United
States and Canada of any United States or Canadian Person), and shall include
any United States or Canadian branch of a person who is otherwise not a United
States or Canadian Person, (B) "UNITED STATES" shall mean the United States of
America, its territories, its possessions and all areas subject to its
jurisdiction, and (C) "CANADA" shall mean Canada, its provinces, its territories
and all areas subject to its jurisdiction.
As part of the offering contemplated by this Agreement, Credit Suisse
First Boston LLC (the "DESIGNATED UNDERWRITER") has agreed to reserve out of the
Firm ADSs purchased by it under this Agreement, up to o shares, for sale to
the Company's directors, officers, employees and other parties associated with
the Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus (as
defined herein) under the heading "Underwriting" (the "DIRECTED SHARE PROGRAM").
The Firm ADSs to be sold by the Designated Underwriter pursuant to the Directed
Share Program (the "DIRECTED ADSs") will be sold by the Designated Underwriter
pursuant to this Agreement at the public offering price. Any Directed ADSs not
subscribed for by the end of the business day on which this Agreement is
executed will be offered to the public by the Underwriters as set forth in the
Prospectus.
The Ordinary Shares to be represented by the Offered Securities will be
evidenced by American Depositary Receipts (the "ADRs") to be issued pursuant to
the Deposit Agreement dated as of March o , 2004 (the "DEPOSIT AGREEMENT")
among the Company, The Bank of New York, as depositary (the "DEPOSITARY"), and
the holders from time to time of the ADRs.
The Company and the Selling Shareholders hereby agree with the
Underwriters as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form F-1 (No. 333- o ),
including a form of prospectus, relating to the registration of certain
of the Ordinary Shares and the offering thereof in the form of the
Offered Securities, has been filed with the Securities and Exchange
Commission ("COMMISSION") and either (i) has been declared effective
under the Securities Act of 1933 ("ACT") and is not proposed to be
amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If such registration statement (the "INITIAL
REGISTRATION STATEMENT") has been declared effective, either (i) an
additional registration statement (the "ADDITIONAL REGISTRATION
STATEMENT") relating to certain of the Ordinary Shares may have been
filed with the Commission pursuant to Rule 462(b) ("RULE 462(b)") under
the Act and, if so filed, has become effective upon filing pursuant to
such Rule and such Ordinary Shares and the Offered Securities all have
been duly registered under the Act pursuant to the initial registration
statement, the ADS Registration Statement (as defined below) and, if
applicable, the additional registration statement or (ii) such an
additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon
filing pursuant to such Rule and, upon such filing and the
effectiveness of the ADS Registration Statement, such Ordinary Shares
and the Offered Securities will all have been duly registered under the
Act pursuant to the initial registration statement, the ADS
Registration Statement and such additional registration statement. If
the Company does not propose to amend the initial registration
statement or if an additional registration statement has been filed and
the Company does not propose to amend it, and if any post-effective
amendment to either such registration statement has been filed with the
Commission prior to the execution and delivery of this Agreement, the
most recent amendment (if any) to each such registration statement has
been declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("RULE 462(c)") under the Act or, in the
case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to the
initial registration statement or, if filed prior to the execution and
delivery of this Agreement, the additional registration statement means
(i) if the Company has advised the Representative that it does not
propose to amend such registration statement, the date and time as of
which such registration statement, or the most recent
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post-effective amendment thereto (if any) filed prior to the execution
and delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c),
or (ii) if the Company has advised the Representative that it proposes
to file an amendment or post-effective amendment to such registration
statement, the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment, as the case
may be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the
Representative that it proposes to file one, "EFFECTIVE TIME" with
respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are hereinafter referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to certain of the Ordinary
Shares and the Offered Securities, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under
the Act or (if no such filing is required) as included in a
Registration Statement, is hereinafter referred to as the "PROSPECTUS".
No document has been or will be prepared or distributed in reliance on
Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (i)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement conformed in all material respects to
the requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") thereunder and did not include 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) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed,
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations thereunder and did not include, or
will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading and (iii) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all material
respects to the requirements of the Act and the Rules and Regulations
thereunder, and neither of such documents includes, or will include,
any untrue statement of a material fact or omits, or will omit, to
state any material fact required to be stated therein or necessary to
make the statements therein not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the execution and
delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all material respects to the requirements of
the Act and the Rules and Regulations thereunder, neither of such
documents will include any untrue statement of a material fact or will
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to statements in or omissions from a
Registration Statement or the Prospectus based upon written
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information furnished to the Company by any Underwriter through the
Representative specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 8(c) hereof.
(c) A registration statement on Form F-6 (No. 333- o )
relating to the ADSs has been filed with the Commission (such
registration statement, including all exhibits thereto, as amended at
the time such registration statement becomes effective, being
hereinafter called the "ADS REGISTRATION STATEMENT"); the ADS
Registration Statement as of its effective date, complied or will
comply, and each amendment or supplement thereto, when it is filed with
the Commission or becomes effective, as the case may be, will comply,
in all material respects, with the applicable requirements of the Act
and the Rules and Regulations thereunder, and did not or will not, as
of its effective date, 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.
(d) A registration statement on Form 8-A (No. 1- o ) relating
to the registration of the Ordinary Shares and the Offered Securities
has been filed with the Commission, has been declared effective under
the Securities and Exchange Act of 1934, as amended (the "EXCHANGE
Act") and the Ordinary Shares and the Offered Securities have been duly
registered under the Exchange Act pursuant to such registration
statement. The various parts of such registration statement on Form 8-A
for the registration of the Ordinary Shares and the Offered Securities,
including all exhibits thereto, each as amended at the time such part
of the registration statement became effective, are hereinafter called
the "8-A REGISTRATION STATEMENT." The 8-A Registration Statement, when
it became effective and on the date of this Agreement, conformed and
conforms in all material respects to the requirements of the Exchange
Act and the Rules and Regulations thereunder and did not and does 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
(e) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Cayman Islands, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except
where the failure to be so qualified would not individually or in the
aggregate have a material adverse effect on the condition (financial or
other), business, properties or results of operations of the Company
and its Subsidiaries taken as a whole ("MATERIAL ADVERSE EFFECT"). The
Memorandum of Association and Articles of Association of the Company
comply with the requirements of Cayman Islands law and are in full
force and effect.
(f) Each of Shanghai Linktone Consulting Co., Ltd. ("SHANGHAI
LINKTONE") and Shanghai Huitong Information Co., Ltd. ("SHANGHAI
HUITONG"), which constitute all subsidiaries of the Company within the
meaning of Rule 1-02 of Regulation S-X under the Act (together with the
Affiliated Companies (as defined below), the "SUBSIDIARIES"), has been
duly incorporated and is an existing corporation in good standing under
the laws of the jurisdiction of its incorporation, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus and is duly qualified to do
business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified would not individually or in the aggregate
have a Material Adverse Effect; all of the issued and outstanding
capital stock or equity interest of each such Subsidiary has been duly
authorized and validly issued, is fully paid and nonassessable; the
capital stock or equity interest of each such Subsidiary (except for
the Affiliated Companies), is owned by the Company free from liens,
encumbrances and defects; and none of the outstanding shares of capital
stock or equity interest of any Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such
Subsidiary.
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(g) Except as otherwise discussed in the Prospectus, all of
the issued and outstanding capital stock or equity interest of each of
Shanghai Weilan Computer Co., Ltd. ("SHANGHAI WEILAN") and Shanghai
Unilink Computer Co., Ltd. ("SHANGHAI UNILINK", together with Shanghai
Weilan, the "AFFILIATED COMPANIES") (which constitute all the entities,
excluding Subsidiaries, that are consolidated in the Company's
financial statements included in the Registration Statements and the
Prospectus) has been duly authorized and validly issued, is fully paid
and nonassessable and is owned by Ankai Hu, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Du or Shanghai Weilan, as the case may be, in the amount
set forth in the Prospectus, directly, free from liens, encumbrances
and defects.
(h) The description set forth in the Prospectus, including,
but not limited to, under the caption "Management's Discussion and
Analysis of Financial Condition and Results of Operations Our Corporate
Structure" and "Arrangements with Consolidated Affiliates" of the
events and transactions concerning the Company's arrangements with the
Affiliated Companies and the operations of any of the Affiliated
Companies (collectively, the "Structuring") does not, and will not, as
of the applicable Effective Date as to the Registration Statement and
any amendment thereof and as of the applicable filing date of the
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact required to be stated therein or that is
necessary to an understanding of the Company's corporate structure,
financial condition and operating performance, as well as its prospects
for the future.
(i) Each of Messrs. Ankai Hu, ▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Du is a citizen of the People's Republic of China
("PRC"), excluding Taiwan, Hong Kong SAR and Macau SAR, and no
application is pending in any other jurisdiction by him or on his
behalf for naturalization or citizenship thereof.
(j) The Company has the registered capital as set forth in the
Prospectus, and all of the issued shares of capital stock of the
Company (i) have been duly authorized, (ii) are validly issued, fully
paid and non-assessable, (iii) were not issued in violation of any
preemptive or similar rights and (iv) conform in all material respects
to the description thereof contained in the Prospectus. Except as
otherwise disclosed in the Prospectus, there are no outstanding
securities issued by the Company convertible into or exchangeable for,
rights, warrants or options to acquire from the Company, or obligations
of the Company to issue, Ordinary Shares or any other capital stock of
the Company.
(k) The Ordinary Shares underlying the Offered Securities to
be sold by the Company to the Underwriters have been duly and validly
authorized, and, when issued and delivered against payment therefore
pursuant to this Agreement will be duly and validly issued and
delivered, fully paid and non-assessable and will be issued free and
clear of all liens, encumbrances, equities or claims; the Ordinary
Shares and the Offered Securities conform in all respects to the
descriptions thereof contained in the Registration Statements and the
Prospectus, including statements under the captions "Description of
Share Capital" and "Description of American Depositary Shares"; the
holders of outstanding shares of capital stock of the Company are not,
and at the First Closing Date and at each Optional Closing Date, if
applicable, will not be, entitled to preemptive or other similar rights
to acquire the Ordinary Shares or Offered Securities; the Ordinary
Shares may be freely deposited by the Company with the Depositary in
accordance with the Deposit Agreement against issuance of the ADRs
evidencing Offered Securities so deposited and sold hereunder by the
Company; the Offered Securities and the Ordinary Shares are freely
transferable by the Company to or for the account of the Underwriters;
and, except as described in the Prospectus, there are no restrictions
on subsequent transfers of the Ordinary Shares or the Offered
Securities under the laws of the Cayman Islands or the United States;
and except as disclosed in the Prospectus or the Registration
Statements, no holder of the Offered Securities or Ordinary Shares is
or will be subject to personal liability by reason of being such a
holder.
(l) All the outstanding shares of Series A Preferred Shares,
Series B Preferred Shares, Series C Preferred Shares, Series D
Preferred Shares and Series E Preferred Shares of the Company
(collectively, the "PREFERRED SHARES") have been duly authorized and
validly issued and are fully paid and non-assessable.
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(m) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(n) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statements or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act.
(o) The Offered Securities have been approved for listing on
the Nasdaq Stock Market's National Market ("NASDAQ"), subject to notice
of issuance.
(p) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required
to be obtained or made by the Company for the consummation of the
transactions contemplated by this Agreement or the Deposit Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and
the Exchange Act and under state or foreign securities or blue sky
laws.
(q) All consents, approvals, authorizations, orders,
registrations and qualifications required for the Structuring and the
execution, delivery and performance of the documents in connection
therewith (the "STRUCTURING DOCUMENTS") have been made or
unconditionally obtained in writing and no such consent, approval,
authorization, order, registration or qualification has been withdrawn
or is subject to any condition precedent which has not been fulfilled
or performed.
(r) Except as disclosed in the Prospectus, the Subsidiaries
are not currently prohibited, directly or indirectly, from making any
payments, dividends or other distributions to the Company, Shanghai
Linktone or Shanghai Huitong, as applicable, or from making any other
distribution on the Subsidiaries' equity interest or from transferring
any of the Subsidiaries' property or assets to the Company, Shanghai
Linktone or Shanghai Huitong, as applicable. Except as described in or
contemplated by the Prospectus;, all dividends and other distributions
declared and payable upon the equity interest in Shanghai Linktone and
Shanghai Huitong to the Company may be converted into foreign currency
that may be freely transferred out of the PRC, and all such dividends
and other distributions are not and, except as disclosed in the
Registration Statements and the Prospectus, will not be subject to
income, withholding or other taxes under the current laws and
regulations of the PRC or any political subdivision or taxing authority
thereof or therein and, except as disclosed in the Registration
Statements and the Prospectus, are otherwise free and clear of any
other tax, duty, withholding or deduction in the PRC or any political
subdivision or taxing authority thereof or therein, in each case
without the necessity of obtaining any governmental or regulatory
authorization in the PRC or any political subdivision or taxing
authority thereof or therein.
(s) Except as set forth in the Prospectus, there are no
limitations on the rights of holders of Ordinary Shares, the Offered
Securities or ADRs evidencing the Offered Securities to hold or vote or
transfer their respective securities, and no approvals are currently
required in the Cayman Islands in order for the Company to pay
dividends declared by the Company to the holders of Ordinary Shares,
including the Depositary and, except as disclosed in the Prospectus,
under current laws and regulations of the Cayman Islands and any
political subdivision thereof, all dividends and other distributions
declared and payable on the Offered Securities may be paid by the
Company to the holder thereof in United States dollars or Caymanian
dollars that may be converted into foreign currency and freely
transferred out of the Cayman Islands and all such payments made to
holders thereof who are non-residents of the Cayman Islands will not be
subject to income withholding or other taxes under laws and regulations
of the Cayman Islands or any political subdivision or taxing authority
thereof or therein and
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will otherwise be free and clear of any other tax, duty, withholding or
deduction in the Cayman Islands or any political subdivision or taxing
authority thereof or therein and without the necessity of obtaining any
governmental authorization in the Cayman Islands or any political
subdivision or taxing authority thereof or therein.
(t) Neither the Company nor any of the Subsidiaries is (i) in
violation of its respective charter or by-laws or other constituent or
organizational documents or (ii) in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, deed of trust, loan or
credit agreement, note lease or other agreement or instrument to which
the Company or any of the Subsidiaries is a party or by which it or any
of them may be bound, or to which any of the property or assets of the
Company or any Subsidiary is subject (collectively, "AGREEMENTS AND
INSTRUMENTS") except in this clause (ii) for such defaults that would
not individually or in the aggregate result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement,
the Deposit Agreement and the Structuring Documents, and the
consummation of the transactions contemplated in each of the Agreement,
the Deposit Agreement, the Registration Statements (including the
issuance and sale of the Ordinary Shares and the Offered Securities)
and the Structuring Documents, and compliance by the Company or any
Subsidiary with its or their obligations under each of the Agreement,
the Deposit Agreement and the Structuring Documents have been duly
authorized by all necessary corporate action and received all approvals
from any governmental or regulatory body and the sanction or consent of
its shareholders and do not and will not conflict with or constitute a
breach of or default under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the
Company or any Subsidiary pursuant to, the Agreements and Instruments
(except for such conflicts, breaches, liens, charges or encumbrances
that (i) would not materially hinder consummation of the transactions
contemplated thereunder and (ii) would not have a Material Adverse
Effect), nor will such action result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over the
Company or any Subsidiary or any of their properties, or any agreement
or instrument to which the Company or any Subsidiary is a party or by
which the Company or any such Subsidiary is bound or to which any of
the properties of the Company or any such Subsidiary is subject, or the
charter or by-laws or other constituent or organizational documents of
the Company or any Subsidiary.
(u) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Deposit Agreement has been duly authorized, executed
and delivered by the Company and, assuming due authorization, execution
and delivery by the Depositary, constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
subject to enforceability to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; upon due
issuance by the Depositary of the ADRs evidencing the Offered
Securities against the deposit of the underlying Ordinary Shares in
respect thereof in accordance with the provisions of the Deposit
Agreement, such ADRs will be duly and validly issued and the persons in
whose names the ADRs are registered will be entitled to the rights
specified therein and in the Deposit Agreement; and the Deposit
Agreement and the ADRs conform in all material respects to the
descriptions thereof contained in the Prospectus.
(w) Each of the Structuring Documents has been duly
authorized, executed and delivered by the Company, the Subsidiaries,
Ankai Hu, ▇▇▇▇ ▇▇, Shanghai ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Du, as the case may be, and assuming due authorization, execution and
delivery by any other party thereto, constitutes a valid and legally
binding obligation on the Company, the Subsidiaries, Ankai Hu, ▇▇▇▇ ▇▇,
Shanghai ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Du, as the case
may be, enforceable in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights
generally and to general equity principles.
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(x) Subject to the provisions of the Deposit Agreement, the
Depositary, as registered shareholder of the Company, shall have all
rights of other shareholders of the Company.
(y) Except as disclosed in the Prospectus, the Company and its
Subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects of title that would materially affect
the value thereof or materially interfere with the use made or to be
made thereof by them; and except as disclosed in the Prospectus, the
Company and its Subsidiaries hold any leased real or personal property
under valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof by them.
(z) The Company and its Subsidiaries possess adequate
certificates, authorities or permits (the "GOVERNMENTAL LICENSES")
issued by appropriate governmental agencies or bodies necessary to
conduct the business now operated by them, except for such Government
Licenses the failure of which to possess would not individually or in
the aggregate have a Material Adverse Effect; the Company and the
Subsidiaries are in compliance in all material respects with the terms
and conditions of all such Governmental Licenses; all of the
Governmental Licenses are valid and in full force and effect; none of
the Governmental Licenses contains any materially burdensome
restrictions or conditions not described in the Prospectus; and neither
the Company nor any of the Subsidiaries have received any notice of
proceedings relating to the revocation or modification of any
Governmental License that, if determined adversely to the Company or
any of its Subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(aa) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a Material Adverse Effect.
(bb) Except as disclosed in the Prospectus, the Company and
its Subsidiaries own, possess or can acquire on reasonable terms,
adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of
or conflict with asserted rights of others with respect to any
intellectual property rights that, if determined adversely to the
Company or any of its Subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(cc) Except as disclosed in the Prospectus, neither the
Company nor any of its Subsidiaries is in violation of any statute, any
rule, regulation, decision or order of any governmental agency or body
or any court, domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to the protection
or restoration of the environment or human exposure to hazardous or
toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(dd) Except as disclosed in the Prospectus, there are no
pending actions, suits, inquiries, investigations or proceedings before
or brought by an court or governmental agency or body, domestic or
foreign, against or affecting the Company, any of its Subsidiaries or
any of their respective properties, or challenging the effectiveness of
the Structuring, that, if determined adversely to the Company or any of
its Subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect
properties or assets thereof or the consummation of the transactions
contemplated in this Agreement, the Deposit Agreement or the
Structuring Documents or the ability of the Company to perform its
obligations hereunder or thereunder, or which are otherwise material in
the
8
context of the sale of the Offered Securities; and no such actions,
suits or proceedings are threatened or, to the Company's knowledge,
contemplated.
(ee) The financial statements included in the Registration
Statements and the Prospectus present fairly the financial position of
the Company and its consolidated Subsidiaries as of the dates shown and
their results of operations and cash flows for the periods shown, and
such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States ("US
GAAP") applied on a consistent basis and the schedules included in each
Registration Statement present fairly the information required to be
stated therein; and the assumptions used in preparing the pro forma
financial statements included in the Registration Statements and the
Prospectus provide a reasonable basis for presenting the significant
effects directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate effect to
those assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(ff) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus
there has been no material adverse change, nor, to the Company's
knowledge, any development or event involving a prospective material
adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its Subsidiaries
taken as a whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
(gg) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"INVESTMENT COMPANY" as defined in the Investment Company Act of 1940
(the "INVESTMENT COMPANY ACT").
(hh) There are no legal or governmental proceedings, statutes,
contracts or documents that are required to be described in the
Registration Statements or the Prospectus which have not been so
described. The description in the Registration Statements and the
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents is accurate and presents the information
required to be shown in all material respects. The Prospectus will
contain, when issued, all information and particulars required to
comply with all statutory and other provisions (including, without
limitation, the relevant laws and regulations of Cayman Islands and the
PRC) so far as applicable in the Prospectus, which is or might
reasonably be considered to be material for disclosure to a potential
subscriber, investor, underwriter or sub-underwriter of the Offered
Securities or for the purpose of making an informed assessment of the
assets and liabilities, financial position, and profits and losses of
the Company and the Subsidiaries including, but without prejudice to
the generality of the foregoing, any special trade factors or risks
known to the Company and the Subsidiaries or any of their directors
and/or executive officers and which would reasonably be expected to
have a Material Adverse Effect. All material information which ought to
have been supplied or disclosed by the Company and its directors and/or
executive officers to the Underwriters, PricewaterhouseCoopers or the
legal or other professional advisers to the Underwriters or the Company
for the purposes of or in the course of preparation of the Prospectus
or the Registration Statements has been supplied or disclosed by the
Company and its directors and executive officers and nothing has
occurred since the date the same was supplied or disclosed which
requires the same to be amended or updated in any material respect.
(ii) Except as disclosed in the Prospectus, under the laws and
regulations of the Cayman Islands, no transaction, stamp, capital or
other issuance, registration or transfer taxes or duties are payable in
the Cayman Islands by or on behalf of the Underwriters to any Cayman
Islands taxing authority in connection with (i) the issuance, sale and
delivery by the Company to or for the account of the Underwriters of
the Offered Securities, (ii) the initial sale and delivery by the
Underwriters of the Offered Securities to purchasers thereof, (iii) the
holding or transfer of the Offered Securities outside the
9
Cayman Islands, (iv) the deposit of the Ordinary Shares with the
custodian and the issuance and delivery of the ADRs, or (v) the
execution and delivery of the this Agreement or the Deposit Agreement
(jj) The choice of the laws of the State of New York as the
governing law of this Agreement is a valid choice of law under the laws
of the Cayman Islands and will be honored by courts in the Cayman
Islands. The Company has the power to submit, and pursuant to Section
17 of this Agreement, has legally, validly, effectively and irrevocably
submitted, to the personal jurisdiction of each United States federal
court and New York state court located in the Borough of Manhattan, in
The City of New York, New York, U.S.A. (each, a "NEW YORK COURT"), and
the Company has the power to designate, appoint and empower, and
pursuant to Section 17 of this Agreement, has legally, validly,
effectively and irrevocably designated, appointed and empowered, the
Authorized Agent (as defined in Section 17 hereof) for service of
process in any action arising out of or relating to this Agreement or
the Offered Securities in any New York Court, and service of process
effected on such Authorized Agent will be effective to confer valid
personal jurisdiction over the Company as provided in Section 17
hereof.
(kk) Neither the Company, any of the Subsidiaries nor any of
its or their properties, assets or revenues has any right of immunity
under Cayman Islands or New York law, 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 Cayman Islands, New York or U.S. federal court, from service of
process, attachment upon or prior to judgment, or attachment in aid of
execution of judgment, or from execution of a judgment, or other legal
process or proceeding for the giving of any relief or for the
enforcement of a judgment, in any such court, with respect to its
obligations, liabilities or any other matter under or arising out of or
in connection with this Agreement; and, to the extent that the Company,
any of the Subsidiaries or any of its or their 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 the Subsidiaries waives or will
waive such right to the extent permitted by law and has consented to
such relief and enforcement as provided in Section 13 of this
Agreement.
(ll) Any final judgment for a fixed or readily calculable sum
of money rendered by a New York Court having jurisdiction under its own
domestic laws in respect of any suit, action or proceeding against the
Company based upon this Agreement and the Deposit Agreement would be
declared enforceable against the Company by Cayman Islands courts
without re-examining the merits of the case under the common law
doctrine of obligation; provided that (i) adequate service of process
has been effected and the defendant has had a reasonable opportunity to
be heard, (ii) such judgments or the enforcement thereof are not
contrary to the law, public policy, security or sovereignty of the
Cayman Islands, (iii) such judgments were not obtained by fraudulent
means and do not conflict with any other valid judgment in the same
matter between the same parties, and (iv) an action between the same
parties in the same matter is not pending in any Cayman Islands court
at the time the lawsuit is instituted in the foreign court.
(mm) Neither the Company nor, to the Company's knowledge, any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company is using any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expenses;
is making any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds; or is in
violation of any provision of the United States Foreign Corrupt
Practices Act of 1977; or is making any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(nn) Based on the projected composition of the Company's
income and valuation of its assets, including goodwill, the Company
does not expect to be a "passive foreign investment company" ("PFIC")
within the meaning of section 1297 of the United States Internal
Revenue Code of 1986, as amended, for the year ended December 31, 2003
and the Company has no plan or intention to conduct its business in a
manner that would reasonably be expected to result in the Company
becoming a PFIC in the future under current law and regulations.
10
(oo) Except as disclosed in the Prospectus, no material
indebtedness (actual or contingent) and no material contract or
arrangement is outstanding between the Company or any of its
Subsidiaries and any director or executive officer of the Company or
any of its Subsidiaries or any person connected with such director or
executive officer (including his/her spouse, infant children, any
company or undertaking in which he/she holds a controlling interest).
There are no relationships or transactions between the Company or any
of its Subsidiaries on the one hand and its affiliates, offices and
directors or their shareholders, customers or suppliers on the other
hand which, although required to be disclosed, are not disclosed in the
Prospectus.
(pp) There are no contracts or documents that are required to
be described in the Registration Statements or the Prospectus or to be
filed as exhibits thereto that have not been so described and filed as
required.
(qq) The Company and the Subsidiaries have filed all material
tax returns required to have been filed by them or have duly requested
extensions thereof and all such returns are up to date, correct, and on
a proper basis and have paid all material taxes required to be paid by
them and any related assessments, charges, levies, fines or penalties,
except for (i) any such taxes, assessments, charges, levies, fines or
penalties that are being contested in good faith and by appropriate
proceedings or that would not individually or in the aggregate have a
Material Adverse Effect and (ii) those returns which the failure to
file would not have a Material Adverse Effect; and there is no known
proposed tax deficiency, assessment, charge, levy, fine or penalty
against it as to which a reserve would be required to be established
under US GAAP which has not been so reserved or which is required to be
disclosed in the Prospectus which has not been so disclosed and so far
as the Company is aware, there are no facts or circumstances in
existence which would reasonably be expected to give rise to any such
deficiency, assessment, charge, levy, fine or penalty.
(rr) Each of the Company and the Subsidiaries (A) makes, keeps
and prepares books, records and accounts which fairly reflect
transactions and dispositions of its assets and (B) has devised and
maintained a system of internal and accounting controls which provide
reasonable assurance that (i) transactions are executed in accordance
with management's general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements
in conformity with US GAAP and to maintain asset accountability; (iii)
accountability of assets is maintained, including regular
reconciliations with existing assets and taking of appropriate action
with respect to any differences; (iv) access to its assets is permitted
only in accordance with management's general or specific
authorizations; and (v) financial reports are prepared on a timely
basis based on the transactions recorded pursuant to clause (ii) above
under US GAAP. These reports provide the basis for the preparation of
the Company's consolidated financial statements under US GAAP and have
been maintained in compliance with applicable laws.
(ss) PricewaterhouseCoopers, who have audited the financial
statements of the Company and the Subsidiaries and delivered their
report with respect to the audited consolidated financial statements
and notes thereto included in the Prospectus, is an independent public
accountant within the meaning of the Act and the Exchange Act and the
applicable Rules and Regulations thereunder.
(tt) The section entitled "Management's Discussion and
Analysis of Financial Condition and Results of Operations" in the
Prospectus accurately and fully describes (A) accounting policies that
the Company believes are the most important in the portrayal of the
Company's financial condition and results of operations and that
require management's most difficult, subjective or complex judgments
("CRITICAL ACCOUNTING POLICIES"); (B) judgments and uncertainties
affecting the application of critical accounting policies; and (C) the
likelihood that materially different amounts would be reported under
different conditions or using different assumptions and an explanation
thereof.
11
(uu) The Company's management have reviewed and agreed with
the selection, application and disclosure of critical accounting
policies and have consulted with its legal advisers and independent
accountants with regards to such disclosure.
(vv) The Prospectus fairly and accurately describes (i) all
material trends, demands, commitments and events known to the Company,
and uncertainties, and the potential effects thereof, that the Company
believes would be materially affect liquidity and are reasonably likely
to occur; and (ii) neither the Company nor any Subsidiary is engaged in
any transactions with, or have any obligations to, its unconsolidated
entities (if any) that are contractually limited to narrow activities
that facilitate the transfer of or access to assets by the Company or
such Subsidiary, including, without limitation, structured finance
entities and special purpose entities, or otherwise engage in, or have
any obligations under, any off-balance sheet transactions or
arrangements. As used herein, the phrase "reasonably likely" refers to
a disclosure threshold lower than "more likely than not."
(ww) The business, undertakings, properties and assets of the
Company and the Subsidiaries are adequately insured against all such
risks as are normally insured by persons carrying on similar
businesses, and such insurances include all the insurances which the
Company and the Subsidiaries are required under terms of any lease or
any contract in respect of any of its their respective properties to
undertake and such insurances are in full force and effect and, so far
as the Company is aware, there are no circumstances which would
reasonably be expected to render any of such insurances void or
voidable and there is no material insurance claim made by or against
the Company or any Subsidiaries, pending, threatened or outstanding and
so far as the Company is aware, no facts or circumstances exist which
would reasonably be expected to give rise to any such claim and all due
premiums in respect thereof have (if due) been paid.
(xx) The Company has not taken, nor is it aware that any of
its affiliates has taken, directly or indirectly, any action that is
designed to or that constitutes or that might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company.
(yy) Furthermore, the Company represents and warrants to the
Underwriters that (i) the Registration Statements, the Prospectus and
any preliminary prospectus comply, and any further amendments or
supplements thereto will comply, in all material respects, with any
applicable laws or regulations of foreign jurisdictions in which the
Prospectus or any preliminary prospectus, as amended or supplemented,
if applicable, are distributed in connection with the Directed Share
Program, and that (ii) no authorization, approval, consent, license,
order, registration or qualification of or with any government,
governmental instrumentality or court, other than such as have been
obtained and are currently in effect, is necessary under the securities
law and regulations of foreign jurisdictions in which the ADSs are
offered outside the United States pursuant to the Directed Share
Program.
(zz) The Company has not offered, or caused the Underwriters
to offer, any offered Securities to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
(aaa) The Company is a "foreign private issuer" within the
meaning of Rule 405 under the Act.
3. Representations and Warranties of the Selling Shareholders. Each
Selling Shareholder severally but not jointly represents and warrants to, and
agrees with, the several Underwriters that
(a) Such Selling Shareholder has and on each Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Offered Securities to be delivered by such Selling Shareholder on such
Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver the Offered
Securities to be delivered by such Selling Shareholder on such Closing
12
Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder the several Underwriters will
acquire valid and unencumbered title to the Offered Securities to be
delivered by such Selling Shareholder on such Closing Date.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement: (A)
on the Effective Date of the Initial Registration Statement, the
Initial Registration Statement was complete and accurate and did not
include 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, (B) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
was, or will be, complete and accurate and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will be complete and accurate, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. If
the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement: on the Effective Date
of the Initial Registration Statement, the Initial Registration
Statement and the Prospectus will be complete and accurate, neither of
such documents will include 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. Except for
those Selling Shareholders that are officers or directors of the
Company, the two preceding sentences apply only to the extent that any
statements in or omissions from a Registration Statement or the
Prospectus are based on written information furnished to the Company by
such Selling Shareholder specifically for use therein.
(c) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Shareholder and any person that would give rise to a valid claim
against such Selling Shareholder or any Underwriter for a brokerage
commission, finder's fee or other like payment.
(d) Such Selling Shareholder has the full right, power and
authority to enter into this Agreement and a Power of Attorney (the
"POWER OF ATTORNEY") and Custody Agreement (the "CUSTODY AGREEMENT")
with the Company, and to sell, transfer and deliver the Offered
Securities to be sold by such Selling Shareholder hereunder. The
execution and delivery of this Agreement and the Power of Attorney and
Custody Agreement and the sale and delivery of the Offered Securities
to be sold by such Selling Shareholder and the consummation of the
transactions contemplated herein and compliance by such Selling
Shareholder with its obligations hereunder have been duly authorized by
the Selling Shareholder and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with
or constitute a breach of, or default under, or result in the creation
or imposition of any tax, lien, charge or encumbrance upon the Offered
Securities to be sold by such Selling Shareholder or any property or
assets of such Selling Shareholder pursuant to any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease
or other agreement or instrument to which such Selling Shareholder is a
party or by which such Selling Shareholder may be bound, or to which
any of the property or assets of the Selling Shareholder is subject,
nor will such action result in any violation of the provisions of the
charter or by-laws or other organizational instrument of the Selling
Shareholder, if applicable, or any applicable treaty, law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Selling Shareholder or any of its properties.
(e) The execution, delivery and performance of each of this
Agreement and the consummation of the transactions contemplated in each
of this Agreement, the Registration Statement and the Structuring
Documents have been duly authorized by all necessary corporate action
by such Selling Shareholder, to the extent applicable, and received all
approvals from any governmental or regulatory
13
body and the sanction or consent of its shareholders, to the extent
applicable, and do not and will not, whether with or without the giving
of notice or passage of time or both, result in any violation of the
provisions of its charter or by-laws or business license or other
organizational document of such Selling Shareholder, to the extent
applicable, or any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of its assets, properties or
operations.
(f) Such Selling Shareholder has duly executed and delivered,
in the form heretofore furnished to the Representative, the Power of
Attorney and Custody Agreement with ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ as
attorney-in-fact (the "ATTORNEY-IN-FACT") and the Company, as custodian
(the "CUSTODIAN"); the Custodian is authorized to deliver the Offered
Securities to be sold by such Selling Shareholder hereunder and to
accept payment therefor; and the Attorney-in-Fact is authorized to
execute and deliver this Agreement and the certificate referred to in
Section 7(r) or that may be required pursuant to Section 7(t) on behalf
of such Selling Shareholder, to sell, assign and transfer to the
Underwriters the Offered Securities to be sold by such Selling
Shareholder hereunder, to determine the purchase price to be paid by
the Underwriters to such Selling Shareholder, as provided in Section 4
hereof, to authorize the delivery of the Offered Securities to be sold
by such Selling Shareholder hereunder, to accept payment therefor, and
otherwise to act on behalf of such Selling Shareholder in connection
with this Agreement.
(g) Such Selling Shareholder has not taken, and will not take,
directly or indirectly, any action that is designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities.
(h) No filing with, or consent, approval, authorization,
order, registration, qualification or decree of, any court or
governmental authority or agency, domestic or foreign, is necessary or
required for the performance by such Selling Shareholder of its
obligations hereunder or in the Power of Attorney and Custody
Agreement, or in connection with the sale and delivery of the
Securities hereunder or the consummation of the transactions
contemplated by this Agreement, except such as may have previously been
made or obtained or as may be required under the Act or the Rules and
Regulations thereunder or state securities laws.
(i) Certificates for all of the Offered Securities to be sold
by such Selling Shareholder pursuant to this Agreement, in suitable
form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Custodian with
irrevocable conditional instructions to deliver such Securities to the
Underwriters pursuant to this Agreement.
(j) Except as disclosed in the Registration Statement, neither
such Selling Shareholder nor any of his, her or its affiliates
directly, or indirectly through one or more intermediaries, controls,
or is controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section 1(dd) of the
By-laws of the National Association of Securities Dealers, Inc.
("NASD")), any member firm of the NASD.
(k) In the case of Selling Shareholders who are officers or
directors of the Company, (A) such Selling Shareholder has reviewed the
Registration Statement and the representations and warranties of the
Company contained in Section 2 hereof and has no reason to believe that
such representations and warranties are not true and correct and (B)
the sale of the Offered Securities by such Selling Shareholder pursuant
hereto is not prompted by any information concerning the Company or any
of its subsidiaries which is not set forth in the Prospectus or any
supplement thereto.
(l) In the case of Selling Shareholders who are not officers
or directors of the Company, the sale of the Offered Securities by such
Selling Shareholder pursuant hereto is not prompted by any
14
information concerning the Company or any of its subsidiaries which is
not set forth in the Prospectus or any supplement thereto.
4. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company and each Selling
Shareholder agrees, severally and not jointly, to sell to each Underwriter, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and each Selling Shareholder, at a purchase price of $- per ADS, that number of
Firm ADSs (rounded up or down, as determined by the Representatives in their
discretion, in order to avoid fractions) obtained by multiplying Firm ADSs in
the case of the Company and the number of Firm ADSs set forth opposite the name
of such Selling Shareholder in Schedule A hereto, in the case of a Selling
Shareholder, in each case by a fraction, the numerator of which is the number of
Firm ADSs set forth opposite the name of such Underwriter in Schedule B or C
hereto and the denominator of which is the total number of Firm ADSs.
Certificates in negotiable form for the Ordinary Shares (including
Preferred Shares convertible into Ordinary Shares) in respect of the Offered
Securities to be sold by the Selling Shareholders hereunder have been placed in
custody, for delivery under this Agreement and under Custody Agreements made
with the Custodian. Each Selling Shareholder agrees that the Ordinary Shares or
Preferred Shares represented by the certificates held in custody for the Selling
Shareholders under such Custody Agreements are subject to the interests of the
Underwriters hereunder, that the arrangements made by the Selling Shareholders
for such custody are to that extent irrevocable, and that the obligations of the
Selling Shareholders hereunder shall not be terminated by operation of law,
whether by the death of any individual Selling Shareholder or the occurrence of
any other event, or in the case of a trust, by the death of any trustee or
trustees or the termination of such trust. If any individual Selling Shareholder
or any such trustee or trustees should die, or if any other such event should
occur, or if any of such trusts should terminate, before the delivery of the
Ordinary Shares hereunder, certificates for such Ordinary Shares shall be
delivered by the Custodian in accordance with the terms and conditions of this
Agreement as if such death or other event or termination had not occurred,
regardless of whether or not the Custodian shall have received notice of such
death or other event or termination.
The Firm ADSs to be purchased by the Underwriters hereunder and the
ADRs evidencing such Firm ADSs, in definitive form, and in such authorized
denominations and registered in such names as the Underwriters request shall be
delivered by or on behalf of the Company and Selling Shareholders to the
Representative on the First Closing Date (as defined below) through the
facilities of The Depository Trust Company ("DTC"), New York, New York, for the
accounts of the several Underwriters or as such Underwriters may direct against
payment of the purchase price in Federal (same day) funds by, as the Company may
request in writing at least three business days prior to the First Closing Date
(as defined below), official bank checks or wire transfers to accounts at a bank
acceptable to the Representatives drawn to the order of in respect of
proceeds to the Company and in respect of proceeds to the Selling Shareholders
at the office of , at A.M., New York time, on , or at such
other time not later than seven full business days thereafter as the
Representatives and the Company determine, such time being herein referred to as
the "FIRST CLOSING DATE". For the avoidance of doubt, the purchase price for the
Firm ADSs due to the Selling Shareholders shall be made by the Underwriters as a
single payment to the Company as Custodian for the Selling Shareholders. For
purposes of Rule 15c6-1 under the Exchange Act, the First Closing Date (if later
than the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering. The Company and Selling Shareholders will cause the
ADRs representing the Firm ADSs to be made available for checking at least
twenty-four (24) hours prior to the First Closing Date at the office of DTC or
its designated custodian.
The Ordinary Shares underlying the Firm ADSs to be delivered hereunder
shall be delivered to The Hong Kong and Shanghai Banking Corporation Limited,
Custody and Clearing (the "DEPOSITARY HONG KONG CUSTODIAN"), as custodian for
the Depositary, against delivery of a copy of a letter confirming that the
Underwriters have given irrevocable instructions to its correspondent bank in
New York to make the wire transfer payment for the Firm ADSs on the First
Closing Date.
15
In addition, upon written notice from the Representatives given to the
Company and Selling Shareholders from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may purchase all or
less than all of the Optional ADSs at the purchase price to be paid for the Firm
ADSs. The Company and the Selling Shareholders agree, severally and not jointly,
to sell to the Underwriters the respective numbers of Optional ADSs obtained by
multiplying the number of Optional ADSs specified in such notice by a fraction
the numerator of which is [ ], in the case of the Company, and is the
number of shares set forth opposite the names of such Selling Shareholders in
Schedule A hereto under the caption "Number of Optional ADSs to be Sold," in the
case of the Selling Shareholders, and the denominator of which is the total
number of Optional ADSs (subject to adjustment by the Representatives to
eliminate fractions). Such Optional ADSs shall be purchased from the Company and
each Selling Shareholder for the account of each Underwriter in the same
proportion as the number of Firm ADSs set forth opposite such Underwriter's name
bears to the total number of Firm ADSs (subject to adjustment by the
Representatives to eliminate fractions) and may be purchased by the Underwriters
only for the purpose of covering over-allotments made in connection with the
sale of the Firm ADSs. No Optional ADSs shall be sold or delivered unless the
Firm ADSs previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional ADSs or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by the Representatives to the Company and
Selling Shareholders.
Each time for the delivery of and payment for the Optional ADS, being
herein referred to as an "OPTIONAL CLOSING DATE", which may be the First Closing
Date (the First Closing Date and each Optional Closing Date, if any, being
sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representatives but shall be not later than five full business days after
written notice of election to purchase Optional ADSs is given pursuant to the
preceding paragraph. The Optional ADSs to be purchased by the Underwriters
hereunder and the ADRs evidencing such Optional ADSs, in definitive form, and in
such authorized denominations and registered in such names as the Underwriters
request shall be delivered by or on behalf of the Company and Selling
Shareholders to the Representative on each Optional Closing Date through the
facilities of DTC, for the accounts of the several Underwriters or as such
Underwriters may direct following payment of the purchase price therefor in
Federal (same day) funds by, as the Attorney-in-Fact may request in writing at
least three business days prior to the Closing Date, official bank check or
checks or wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of in respect of proceeds to the
Company and in respect of proceeds to the Selling Shareholders, at
the above office of . The Company and Selling Shareholders will cause
the ADRs representing the Optional ADSs to be made available for checking at
least twenty-four (24) hours prior to the Optional Closing Date at the office of
DTC or its designated custodian.
The Ordinary Shares underlying the Optional ADSs to be delivered
hereunder shall be delivered to the Depositary Hong Kong Custodian against
delivery of a copy of a letter confirming that the Underwriters have given
irrevocable instructions to its correspondent bank in New York to make the wire
transfer payment for the Optional ADSs on the Optional Closing Date.
5. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
6. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following he execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement. The Company will
advise the Representatives promptly of any such filing pursuant to Rule
424(b). If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion of the
Offered Securities under the Act but the Effective Time thereof has not
occurred as of such execution and delivery, the Company will file the
additional registration statement or, if filed, will
16
file a post-effective amendment thereto with the Commission pursuant to
and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, on or prior to the
time the Prospectus is printed and distributed to any Underwriter, or
will make such filing at such later date as shall have been consented
to by the Representatives.
(b) The Company will advise the Representatives promptly of
any proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement
(if any), the Prospectus, the ADS Registration Statement, or the 8-A
Registration Statement and will not effect such amendment or
supplementation without the Representatives' consent, which shall not
be unreasonably withheld; and the Company will also advise the
Representatives promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement), of the ADS Registration Statement (if it
became effective subsequent to the execution and delivery of this
Agreement), of the 8-A Registration Statement (if it became effective
subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of a Registration Statement, the ADS
Registration Statement, the 8-A Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement, the ADS
Registration Statement or the 8-A Registration Statement and will use
its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify the Representatives of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 7.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representative copies of
each Registration Statement, ADS Registration Statement and 8-A
Registration Statement (two of each will be signed and will include all
exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as the Representatives
requests. The Prospectus shall be so furnished on or prior to 3:00
P.M., New York time, on the business day following the later of the
execution and delivery of this Agreement or the Effective Time of the
Initial Registration Statement. All other such documents shall be so
furnished as soon as available. The Company and the Selling
Shareholders will pay the expenses of printing and distributing to the
Underwriters all such documents.
(f) The Company will arrange, in cooperation with the
Representatives, to qualify the Offered Securities for offering and
sale under the applicable securities laws of such states and other
jurisdictions as the Representatives may reasonably designate and to
maintain such qualifications in effect for as long
17
as may be necessary to complete the distribution of the Offered
Securities which period shall in no event extend for more than one year
from the later of the effective date of the Registration Statement and
any Registration Statement filed pursuant to Rule 462(b); provided,
however, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise subject.
(g) For a period of 180 days after the date of the initial
public offering of the Offered Securities, the Company will not offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Ordinary Shares or
Offered Securities or securities convertible into or exchangeable or
exercisable for any shares of its Ordinary Shares or Offered
Securities, or publicly disclose the intention to make any such offer,
sale, pledge, disposition or filing, without the prior written consent
of the Representatives, except grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof, issuances
of Ordinary Shares pursuant to the exercise of such options or the
exercise of any other employee stock options outstanding on the date
hereof.
(h) The Company will use its best efforts to effect and
maintain the quotation of the Offered Securities on the Nasdaq and will
file with the Nasdaq all documents and notices required by the Nasdaq
of companies that are traded on the Nasdaq and quotations for which are
reported by the Nasdaq.
(i) The Company, during the period when any Prospectus is
required to be delivered under the Act or the Exchange Act, will file
all documents required to be filed with the Commission pursuant to the
Exchange Act within the time periods required by the Exchange Act and
the Rules and Regulations thereunder.
(j) The Company agrees to file with the NASD, the Nasdaq, the
Commission and any other governmental or regulatory agency, authority
or instrumentality in the Cayman Islands, the United States and the
PRC, as may be required, such reports, documents, agreements and other
information which the Company may from time to time be required to
file, including those relating to the implementation and payment of
dividends or other distributions on the Offered Securities.
(k) The Company will not be or become, within one year of the
First Closing Date, an "investment company" as defined in the
Investment Company Act.
(l) The Company agrees not to (and to use its best efforts to
cause its affiliates not to) take, directly or indirectly, any action
which is designed to or which constitutes or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company.
(m) The Company agrees that except as disclosed in the
Prospectuses and except for those which are not material to the
Company, prior to the First Closing Date, it will not incur any
liabilities or enter into any material agreements (except in the
ordinary course of its business) without the prior written consent of
the Underwriters.
(n) The Company agrees that (i) it will not attempt to avoid
any judgment obtained by it or denied to it in a court of competent
jurisdiction outside the Cayman Islands; (ii) following the
consummation of the offering of the Offered Securities, it will use its
best efforts to obtain and maintain all approvals required in the
Cayman Islands to pay and remit outside the Cayman Islands all
dividends declared by the Company and payable on the Ordinary Shares;
and (iii) it will use its best efforts to obtain and maintain all
approvals required in the Cayman Islands for the Company to acquire
sufficient foreign exchange for the payment of dividends and all other
relevant purposes.
(o) The Company agrees to abide by the covenants set forth in
the Deposit Agreement.
18
(p) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company under this Agreement, for any filing fees
and other expenses (including fees and disbursements of counsel) in
connection with qualification of the Offered Securities for sale under
securities laws in accordance with the provisions of Section 3(f)
hereof and the printing of memoranda relating thereto, for the filing
fee incident to the review by the NASD of the Offered Securities, for
any travel expenses of the Company's officers and employees and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters. In addition to the foregoing, the Company will pay to the
Representative on behalf of the Underwriters on the First Closing Date
the sum of up to $250,000 as an accountable reimbursement of the
Underwriters' other expenses. Such amount may be deducted from the
purchase price for the Offered Securities set forth in Section 4.
(q) The Company will indemnify and hold harmless the
Underwriters against any documentary, stamp or similar issue tax,
including any interest and penalties, on the creation, issue and sale
of the Offered Securities and on the execution and delivery of this
Agreement. All payments to be made by the Company hereunder shall be
made without withholding or deduction for or on account of any present
or future taxes, duties or governmental charges whatsoever unless the
Company are compelled by law to deduct or withhold such taxes, duties
or charges. In that event, the Company shall pay such additional
amounts as may be necessary in order that the net amounts received
after such withholding or deduction shall equal the amounts that would
have been received if no withholding or deduction had been made.
(r) In connection with the Directed Share Program, the Company
will ensure that the Directed ADSs will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date
of the effectiveness of the Registration Statements. The Designated
Underwriter will notify the Company as to which Participants will need
to be so restricted. The Company will direct the transfer agent to
place stop transfer restrictions upon such securities for such period
of time.
(s) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the Underwriters in connection with the Directed Share
Program.
(t) Furthermore, the Company covenants with the Underwriters
that the Company will comply with all applicable securities and other
applicable laws, rules and regulations in each foreign jurisdiction in
which the Directed ADSs are offered in connection with the Directed
Share Program.
6A. Certain Agreements of the Selling Shareholders. The Selling
Shareholders agree with the several Underwriters that:
(a) The Selling Shareholders, severally and not jointly, will
pay all expenses incident to the performance of their respective
obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i) any stamp duties, capital
duties and stock transfer taxes, if any, payable upon the sale of the
Offered Securities to the Underwriters, (ii) the fees and disbursements
of their respective counsel and accountants, except for the fees and
expenses, if any, incurred by ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP on behalf of the
Selling Shareholders which will be borne by the Company and (iii) any
fees and expenses of the Custodian and the Depositary in connection
with the sale by the Selling Shareholders of the Offered Securities.
(b) The Selling Shareholders will indemnify and hold harmless
the Underwriters against any documentary, stamp or similar issue tax,
including any interest and penalties, on the creation, issue and sale
of the Offered Securities and on the execution and delivery of this
Agreement. All payments to be made by the Selling Shareholders
hereunder shall be made without withholding or deduction for or on
account of any present or future taxes, duties or governmental charges
whatsoever unless the Selling
19
Shareholders are compelled by law to deduct or withhold such taxes,
duties or charges. In that event, the Selling Shareholders shall pay
such additional amounts as may be necessary in order that the net
amounts received after such withholding or deduction shall equal the
amounts that would have been received if no withholding or deduction
had been made.
7. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm ADSs on the First
Closing Date and the Optional ADSs to be purchased on each Optional Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Company and the Selling Shareholders herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Shareholders of their obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have each received a letter,
dated the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of PricewaterhouseCoopers confirming that they are independent
public accountants within the meaning of the Act and the applicable
published Rules and Regulations thereunder and stating to the effect
that:
(i) in their opinion the financial statements and schedules
examined by them and included in the Registration Statements
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published
Rules and Regulations thereunder;
(ii) They have inquired of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that
caused them to believe that:
(A) at a subsequent specified date not more
than three business days prior to the date of this
Agreement, there was any change in the capital stock
or any increase in short-term indebtedness or
long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any
decrease in consolidated net total current assets or
net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(B) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year, in
consolidated net sales, or net operating income, or
in the total or per share amounts of consolidated
income except in all cases set forth above for
changes, increases or decreases which the Prospectus
discloses have occurred or may occur or which are
described in such letter; and
(iii) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts,
percentages and other financial information are derived from
the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and
other procedures specified in such letter and have found such
dollar amounts, percentages and other financial information to
be in agreement with such results, except as otherwise
specified in such letter.
20
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration Statement is
subsequent to such execution and delivery, "REGISTRATION STATEMENTS"
shall mean the Initial Registration Statement and the additional
registration statement as proposed to be filed or as proposed to be
amended by the post-effective amendment to be filed shortly prior to
its Effective Time, and (iii) "PROSPECTUS" shall mean the prospectus
included in the Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by the Representatives. If the Effective Time of
the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by the Representatives. If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement, the Prospectus shall have
been filed with the Commission in accordance with the Rules and
Regulations and Section 6(a) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of any Selling
Shareholder, the Company or the Representative, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and the Subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters including the
Representative, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities; (ii) any downgrading in
the rating of any debt securities or preferred stock of the Company by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating
of any debt securities or preferred stock of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any
change in U.S., PRC, Cayman Islands or international financial,
political or economic conditions or currency exchange rates or exchange
controls as would, in the judgment of a majority in interest of the
Underwriters including the Representative, be likely to prejudice
materially the success of the proposed issue, sale or distribution of
the Offered Securities, whether in the primary market or in respect of
dealings in the secondary market; (iv) any material suspension or
material limitation of trading in securities generally on the New York
Stock Exchange or Nasdaq, or any setting of minimum prices for trading
on such exchange; (v) or any suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market; (vi) any
banking moratorium declared by U.S. Federal, New York, or PRC
authorities; (vi) any major disruption of settlements of securities or
clearance services in the United States or the Cayman Islands or (viii)
any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, the PRC or the Cayman Islands,
any declaration of war by Congress or any other national or
international calamity or emergency if, in the judgment of a majority
in interest of the Underwriters including the Representative, the
effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for
the Offered Securities.
(d) The Representative shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel
for the Company, to the effect that:
21
(i) This Agreement has been duly executed and
delivered by the Company under New York law.
(ii) The Deposit Agreement has been duly executed and
delivered by the Company under New York law and, assuming due
authorization, execution and delivery by the Depositary
constitutes a valid and legally binding obligation of the
Company.
(iii) Upon the due issuance of the Offered Securities
evidenced by the ADRs against the deposit of Ordinary Shares
in accordance with the Deposit Agreement and payment therefor
in accordance with the provisions of this Agreement and the
Deposit Agreement, such Offered Securities will be validly
issued and persons in whose names such ADRs are duly
registered will be entitled to the rights specified therein
and in the Deposit Agreement.
(iv) The Offered Securities to be sold by the Company
pursuant to this Agreement, when issued to and paid for by the
Underwriters in accordance with the terms of this Agreement,
will be fully paid and non-assessable.
(v) The execution and delivery of this Agreement and
the Deposit Agreement and the issuance and sale of the Offered
Securities by the Company to the Underwriters pursuant to this
Agreement on the Closing Date do not violate any statute, rule
or regulation of any U.S. or New York governmental agency
which, in such firm's experience, are normally applicable to
transactions of the type contemplated by this Agreement and
the Deposit Agreement.
(vi) Other than as set forth in the Registration
Statements, there are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such
securities in the securities registered pursuant to the
Registration Statements or in any securities being registered
pursuant to any other registration statement filed by the
Company under the Act.
(vii) The Company is not, and after giving effect to
the transactions contemplated by this Agreement and the
application of the net proceeds therefrom, as described in the
Prospectus, will not be, an "investment company", as such term
is defined in the Investment Company Act.
(viii)No consent, approval, authorization or order
of, or filing with, any U.S. federal or New York state
governmental agency or body or any court that is required to
be obtained by the Company or any Selling Shareholder for the
consummation of the transactions contemplated by this
Agreement, the Deposit Agreement or the Custody Agreement in
connection with the issuance or sale of the Offered
Securities, except such as have been obtained and made under
the Act and the Exchange Act and such as may be required under
state or foreign securities or blue sky laws.
(ix) The Initial Registration Statement, the ADS
Registration Statement and the 8-A Registration Statement
became effective under the Act or the Exchange Act, as
applicable, as of the date and time specified in such opinion,
the Additional Registration Statement (if any) were filed and
became effective under the Act as of the date and time (if
determinable) specified in such opinion, the Prospectus either
was filed with the Commission pursuant to the subparagraph of
Rule 424(b) specified in such opinion on the date specified
therein or was included in the Initial Registration Statement
or the Additional Registration Statement (as the case may be),
and, to the best of the knowledge of such counsel, no stop
order suspending the effectiveness of a Registration
Statement, the ADS Registration Statement, the 8-A
Registration Statement or any part of such registration
statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the
Act or Exchange Act, as applicable.
22
(x) Each of the Registration Statement, the ADS
Registration Statement, the 8-A Registration Statement and the
Prospectus, and each amendment or supplement thereto, as of
their respective effective or issue dates, complied as to form
in all material respects with the requirements of the Act or
the Exchange Act, as applicable, and the Rules and Regulations
thereunder (except as to the financial statements, the notes
thereto and other financial data included therein as to which
such counsel shall express no opinion).
(xi) Such counsel shall state that based on such
counsel's participation in conferences with the Underwriters,
the representatives of the Company and the Company's
accountants concerning the Registration Statement, the ADS
Registration Statement, the 8-A Registration Statement and the
Prospectus and having considered the matters and statements
contained therein, although such counsel has not independently
verified the accuracy, completeness or fairness of such
statements, nothing has come to such counsel's attention that
leads such counsel to believe that the Registration Statement,
the ADS Registration Statement, the 8-A Registration Statement
and the Prospectus, as of their respective effective [or
issue] dates, contained an 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 not
misleading or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing
Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading; and such counsel
does not know of any contracts or documents of a character
required to be described in a Registration Statement or the
Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required; (it
being understood that such counsel has not been requested to
and does not make any comment with respect to the financial
statements, footnotes and other financial data contained in
the Registration Statement, the ADS Registration Statement,
the 8-A Registration Statement and the Prospectus).
(xii) The information in the Prospectus under "Shares
Eligible for Future Sale" and "Taxation--United States Federal
Income Taxation," to the extent that such information
constitutes matters of U.S. federal or New York state laws or
legal conclusions based on such laws, is a fair and accurate
summary in all material respects of such matters and
conclusions.
(xiii) Such counsel does not know of any material
pending or threatened actions, suits or proceedings before any
U.S. federal or New York state court or governmental agency,
authority or any arbitrator involving the Company required to
be described in a Registration Statement or the Prospectus
which are not described as required;
(xiv) The statements set forth in the Prospectus
under the caption "Description of American Depositary Shares"
and "Underwriting", insofar as they purport to describe or
summarize certain provisions of the Deposit Agreement, are
accurate descriptions or summaries in all material respects.
(xv) Under the laws of the State of New York relating
to personal jurisdiction, (i) the Company has, under this
Agreement, validly submitted to the personal jurisdiction of
any state or federal court located in the State of New York,
County of New York in any action arising out of or relating to
the Agreement and the transactions contemplated therein and
has validly and effectively waived any objection to the venue
of a proceeding in any such court as provided in Section 17 of
this Agreement, (ii) its appointment thereunder of CT
Corporation as its authorized agent for service of process is
valid, legal and binding, and (iii) service of process in the
matter set forth in Section 17 of this Agreement will be
effective to confer valid personal jurisdiction of such court
over the Company.
(xvi) Upon payment for the Offered Securities and the
delivery to DTC or its agent of the Offered Securities in book
entry form registered in the name of Cede & Co. or such other
23
nominee designated by DTC, both as provided for in this
Agreement, and the crediting of the Offered Securities to the
Underwriters' accounts with DTC, Cede & Co. or such other
nominee designated by DTC, DTC, the Underwriters will acquire
a valid "security entitlement" (within the meaning of New York
Uniform Commercial Code Section 8-102) to the Offered
Securities, and no action based on an "adverse claim" (as
defined in New York Uniform Commercial Code Section 8-102) may
be asserted against the Underwriters with respect to such
security entitlement if, at such time, the Underwriters do not
have notice of any adverse claim within the meaning of New
York Uniform Commercial Code Section 8-105.
(xvii) There is no contract or other document known
to such counsel of a character required to be described in the
Prospectuses or to be filed as an exhibit to the Registration
Statement that is not described or filed as required.
In rendering such opinion, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as
to the incorporation of the Company and all other matters governed by
Cayman Islands law upon the opinion of ▇▇▇▇▇▇ and Calder Asia, referred
to below, and may rely as to all matters governed by PRC law upon the
opinion of Commerce & Finance Law Offices, referred to below.
(e) The Representative shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Asia, Cayman Islands counsel
for the Company, to the effect that:
(i) The Company has been duly incorporated as an
exempted company with limited liability and is validly
existing and in good standing under the laws of the Cayman
Islands, with full corporate power and authority to own its
property and assets and to carry on its business in accordance
with the Memorandum and Articles of Association (together, the
"MEMORANDUM AND ARTICLES") and as described in the Prospectus;
and the Company has full corporate power and authority to
enter into and perform its obligations under this Agreement,
the Deposit Agreement and the Registration Statement.
(ii) The Company is in good standing with the
Registrar of Companies in the Cayman Islands.
(iii) The Company has an authorized capital as set
forth in the Prospectus, and all of the issued shares in the
capital of the Company (including the Ordinary Shares when
issued and delivered in accordance with the terms of this
Agreement and the Deposit Agreement) have been duly and
validly authorized and issued, are fully paid and
non-assessable, are not subject to any pre-emptive or similar
rights under Cayman Islands law or the Memorandum and Articles
and conform to the description thereof contained in the
Prospectus.
(iv) All the outstanding issued Preferred Shares of
the Company have been duly authorized and validly issued as
fully paid and non-assessable.
(v) The execution and delivery of this Agreement and
the Deposit Agreement by the Company and the performance of
its obligations thereunder, the Registration Statements, the
ADS Registration Statement, the 8-A Registration Statements,
the Prospectus, the issuance and sale of the Offered
Securities and the filing of the Registration Statements, the
ADS Registration Statement and the 8-A Registration Statement
and the Prospectus have been duly authorized and approved by
all necessary corporate action of the Company, and the
execution and delivery of this Agreement and the Deposit
Agreement by the Company and the performance of its
obligations thereunder do not violate, conflict with or result
in a breach of any of the terms or provisions of its
Memorandum and Articles or any law, public rule or regulation
applicable to the Company in the Cayman Islands currently in
force and do not violate, conflict with or result in a breach
of any existing order or decree authority or agency or any
official body in the Cayman Islands.
24
(vi) This Agreement and the Deposit Agreement have
been duly executed and delivered for and on behalf of the
Company and constitute legal, valid and binding obligations of
the Company enforceable in the Cayman Islands in accordance
with its terms except and in so far as such enforcement may be
limited as hereinafter set forth.
(vii) The Registration Statements, the ADS
Registration Statement and the 8-A Registration Statement have
been duly executed by and on behalf of the Company.
(viii) No authorizations, consents, orders,
permissions or approvals are required from any governmental
authorities or agencies or other official bodies in the Cayman
Islands and no notice to or other filing with or action by any
Cayman Islands governmental authority or regulatory body is
required in connection with:
(a) the execution and delivery of this
Agreement and the Deposit Agreement;
(b) the performance of any obligation under
this Agreement and the Deposit Agreement;
and
(c) the payment of any amount under this
Agreement and the Deposit Agreement.
(ix) It is not necessary to ensure the legality,
validity, enforceability or admissibility in evidence of this
Agreement or the Deposit Agreement that any document be filed,
recorded or enrolled with any governmental department, agency
or other authority in the Cayman Islands.
(x) The statements in the Prospectus under "Dividend
Policy", "Enforceability of Civil Liabilities", "Management",
"Description of Share Capital", "Principal Shareholders",
"Capitalization", and "Taxation" and the statements in the
Registration Statement under Item 14, insofar as such
statements constitute summaries of the legal matters,
documents or proceedings referred to therein, in each case to
the extent, and only to the extent, governed by the laws of
the Cayman Islands, fairly present the information and
summarize the matters referred to therein.
(xi) No stamp duties or other similar taxes or
charges are payable under the laws of the Cayman Islands in
respect of:
(a) the execution or delivery of this
Agreement and the Deposit Agreement or the
performance by any of the parties of their
respective obligations or enforcement of
this Agreement or the Deposit Agreement
unless they are executed in or thereafter
brought within the jurisdiction of the
Cayman Islands (e.g. for the purposes of
enforcement) in which case stamp duty of
CI$2.00 (US$2.44) for each of this Agreement
and the Deposit Agreement will be payable;
or
(b) the issuance and sale of the Ordinary
Shares by the Company or the sale by Selling
Shareholders of their respective shares
pursuant to the terms of this Agreement; or
(c) the entering of the custodian as the
registered holder of the Shares; or
(d) the deposit with the custodian on behalf
of the Depository of the Shares against the
issuance of Offered Securities for the
account of the Underwriters on the date
hereof; or
(e) the sale and delivery outside of the
Cayman Islands by the Underwriters of the
Offered Securities to the initial purchasers
thereof.
25
(xii) There are currently no taxes or other charges
or deductions payable (by withholding or otherwise) to the
Cayman Islands government or any taxing authority thereof on
or by virtue of:
(a) the execution, delivery, performance or
enforcement of this Agreement and the
Deposit Agreement;
(b) any payment of any nature to be made by
the Company under this Agreement or the
Deposit Agreement;
(c) the issuance and sale of the Ordinary
Shares by the Company; or
(d) the payment of dividends and other
distributions declared and payable on the
Ordinary Shares.
The Cayman Islands currently have no income, corporate or
capital gains tax and no estate duty, inheritance tax or gift
tax.
(xiii) The choice of the laws of New York to govern
this Agreement and the Deposit Agreement will be upheld as a
valid choice of law under the laws of the Cayman Islands and
the courts of the Cayman Islands would uphold such choice of
law in a suit on this Agreement or the Deposit Agreement
brought in the courts of the Cayman Islands, assuming it is so
pleaded. An action against the Company in the Cayman Islands
under this Agreement or the Deposit Agreement could be
instituted in the Grand Court, which has jurisdiction over the
Company, without first having to obtain a judgment in respect
of this Agreement or the Deposit Agreement in a court of New
York or any other relevant jurisdiction. In the event of any
proceedings being brought in the Cayman Islands courts in
respect of a monetary obligation expressed to be payable in a
currency other than Cayman Islands dollars, a Cayman Islands
court would give judgment expressed as an order to pay such
currency or its Cayman Islands dollar equivalent at the time
of payment or enforcement of the judgment.
(xiv) The submission to the jurisdiction of the
courts sitting in New York, the appointment of CT Corporation
to accept service of process in such jurisdiction and the
waiver by the Company of any objection to the venue of a
proceeding in a New York court, pursuant to this Agreement or
the Deposit Agreement, is legal, valid and binding on the
Company.
(xv) No approvals are currently required from any
governmental department, agency or other authority in the
Cayman Islands in order for the Company to pay dividends
declared by the Company to the holders of Ordinary Shares,
including the Depositary.
(xvi) Although there is no statutory enforcement in
the Cayman Islands of judgments obtained in New York, the
courts of the Cayman Islands will recognize and enforce a
judgment of a foreign court of competent jurisdiction in
respect of any legal suit or proceeding arising out of or
relating to this Agreement or the Deposit Agreement without
retrial on the merits based on the principle that a judgment
of a competent foreign court imposes upon the judgment debtor
an obligation to pay the sum for which judgment has been given
provided that such judgment is final and conclusive, for a
liquidated sum, not in respect of taxes or a fine or penalty,
is not inconsistent with a Cayman Islands judgment in respect
of the same matter, and was not obtained in a manner and is
not of a kind the enforcement of which is contrary to the
public policy of the Cayman Islands. A Cayman Islands court
may stay proceedings if concurrent proceedings are being
brought elsewhere. A foreign judgment may be final and
conclusive even if subject to appeal. However, if appealable,
a Cayman Islands court may stay enforcement until such appeal
has been heard.
(xvii) Based solely on such counsel's inspection of
the Register of Writs and Other Originating process in the
Grand Court of the Cayman Islands from the date of
incorporation of the
26
Company there were no actions or petitions pending against the
Company in the courts of the Cayman Islands as at close of
business in the Cayman Islands on [ ], 2004. A search at the
Companies Registry in the Cayman Islands would not reveal any
order or resolution for the winding up of the Company because
under Cayman Islands law the records kept by the Registrar of
Companies are not documents of public record. The enquiries
referred to above which such counsel has made at the Grand
Court of the Cayman Islands have revealed no record of the
presentation of any winding up petition in respect of the
Company. Such counsel assumes that there has been no change in
this position since the date on which the enquiries were made.
(xviii) There is no exchange control legislation
under Cayman Islands law and accordingly there are no exchange
control regulations imposed under Cayman Islands law.
(xix) The Company is not entitled to any immunity
under the laws of the Cayman Islands whether characterized as
sovereign immunity or otherwise for any legal proceedings in
the Cayman Islands to enforce or to collect upon this
Agreement and the Deposit Agreement.
(xx) So far as the law of the Cayman Islands is
concerned, this Agreement and the Deposit Agreement is in
proper form under the laws of the Cayman Islands for the
enforcement thereof against the Company, subject in so far as
such enforcement may be limited as more particularly set forth
in such counsel's legal opinion.
(xxi) Such counsel has reviewed the register of
members of the Company. As of the date hereof there are no
entries or notations indicating any third party interests
including any security interest on the register of members of
the Company.
(xxii) The Underwriters will not be treated as
resident, domiciled or carrying on or transacting business or
subject to taxation in the Cayman Islands or in violation of
any law thereof solely by reason of the negotiation,
preparation or execution of this Agreement or the entering
into of or the exercise of their rights or the performance of
their obligations under this Agreement.
(xxiii) The Underwriters will not be required to be
licensed, qualified or otherwise entitled to carry on business
in the Cayman Islands in order to enforce their rights under,
or as a consequence of the execution, delivery and performance
of this Agreement or the Deposit Agreement.
(f) The Representative shall have received an opinion, dated
such Closing Date, of Commerce & Finance Law Offices, special PRC
counsel for the Company, to the effect that (all capitalized terms used
in this subsection to be defined in such opinion as agreed to by the
Representative and their counsel):
(i) Shanghai Unilink has been duly incorporated and
is validly existing as a company with limited liability with
legal person status in good standing under the laws of the
PRC. RMB5,000,000 of the registered capital of Shanghai
Unilink has been paid for and 5%, 5 % and 90% of the equity
interest in the registered capital of Shanghai Unilink is
respectively owned by Du Minsheng and Yang Lei and Shanghai
Weilan Computer Co., Ltd. and such equity interests are each,
free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity, or any third party right,
save for pursuant to the pledge created under the Loan
Arrangements and the Contractual Arrangements.
(ii) Shanghai Huitong has been duly incorporated and
is validly existing as a company with limited liability with
legal person status in good standing under the laws of the
PRC. All of the registered capital of Shanghai Huitong has
been fully paid for and 100% of the equity interest in the
registered capital of Shanghai Huitong is owned by Linktone
Ltd. and such equity interest is
27
free and clear of any security interest, mortgage, pledge,
lien, encumbrance, claim or equity, or any third party right.
(iii) Each of Shanghai Unilink and Shanghai Huitong
is duly qualified to transact business and is in good standing
in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a
Material Adverse Effect.
(iv) All Approvals in the PRC required for the
establishment and the maintenance of the enterprise legal
person status of each of Shanghai Unilink and Shanghai
Huitong, respectively, have been duly issued and obtained and
all such Approvals are in full force and effect, have not been
revoked, withdrawn, suspended or cancelled and are not subject
to any condition. Each of Shanghai Unilink and Shanghai
Huitong respectively has complied with all applicable
registration and filing requirements under PRC laws for its
establishment and the maintenance of its status and existence
as an enterprise legal person.
(v) Each of Shanghai Unilink and Shanghai Huitong has
the power and authority and has satisfied all conditions and
done all things required by the laws of the PRC (including the
making and obtaining of all necessary Approvals, if any) in
order for it to own, use, lease and operate its assets and to
conduct its existing and proposed business as set out in its
business license and in the Prospectus. Such Approvals being
in full force and effect and no violation exists in respect of
any such Approvals.
(vi) Each of Shanghai Unilink and Shanghai Huitong
has full power, authority and legal right to enter into,
execute, adopt, assume, issue, deliver and perform their
respective obligations under each of the Documents to which it
is expressed to be a party and such obligations constitute
valid, legal and binding obligations enforceable in accordance
with the terms of each of the Documents (taken both
individually and together as a whole) against each of them in
accordance with terms of each of the Documents (taken both
individually and together as a whole). No Approvals are
required to be done or obtained for the performance of
Shanghai Unilink and Shanghai Huitong of their obligations and
the transactions contemplated under the Documents (taken both
individually and together as a whole) other than those already
obtained.
(vii) Each of the Ultimate Shareholders (as defined
in such opinion), Shanghai Unilink and Shanghai Huitong has
taken all necessary corporate and other actions and fulfilled
and done all conditions and things required by the Laws of the
PRC (including the making and obtaining of all relevant
Approvals, if any), for the entering into, execution,
adoption, assumption, issue, delivery or the performance of
their respective obligations under each of the Documents to
which it is expressed to be a party, and the representatives
of, Shanghai Unilink and Shanghai Huitong (as the case may be)
have been duly authorized to do so and no such Approval has
been revoked or amended.
(viii) The execution and performance by each of the
Ultimate Shareholders, Shanghai Unilink and Shanghai Huitong
of their respective obligations under each of the Documents to
which one of them is a party (taken both individually and
together as a whole) does not and will not contravene or
result in a breach or violation of (i) the articles of
association of Shanghai Unilink and Shanghai Huitong (ii) any
Laws or public policy of the PRC as applicable; and (iii) any
agreement, instrument, arbitration award or judgment, order or
decree of any court of the PRC having jurisdiction over to
which Shanghai Unilink and/or Shanghai Huitong, as the case
may be, is expressed to be a party or which is binding on it
or any of its assets and none has been amended or revoked or
is liable to be set aside under any existing PRC Laws.
(ix) Each of the Documents is legal, valid,
enforceable and admissible as evidence under the Laws and
public policy of the PRC and is binding on the persons
expressed to be parties
28
thereto. No provisions in any of the Documents (taken both
individually and together as a whole) contravene in any way
any applicable Laws or public policy of the PRC, (including
without limitation and notwithstanding the legal structure of
Shanghai Unilink described in such opinion):
(a) the right of Shanghai Huitong under the Business
Operation Agreement (as defined in such opinion) to
nominate the board of directors of Shanghai Unilink
and the Chief Executive Officer, the Chief Financial
Officer and other senior officers and individuals of
Shanghai Unilink as Shanghai Huitong may decide;
(b) the irrevocable proxy given by the Ultimate
Shareholders in favour of ▇▇. ▇▇▇▇ ▇▇▇▇▇▇ or any
other nominated employee of Shanghai Huitong from
time to time to cast the votes of the Ultimate
Shareholders on all corporate matters of Shanghai
Unilink (including the sale and transfer of any
equity interest in Shanghai Unilink) under the Power
of Attorney;
(c) the grant of the pledge by the Ultimate
Shareholder of their equity interests under the
Equity Pledge Agreement (as defined in such opinion),
and the right of enforcement of such pledge of the
equity interests by Shanghai Huitong.
(x) Neither Shanghai Unilink nor Shanghai Huitong is
in breach of or in default under (i) any Laws of the PRC or
(ii) any Approvals granted by any PRC governmental or
regulatory body or its business license or, (iii) their
respective articles of association or any contracts to which
either entity is a party, such breach or default which has not
been corrected, remedied, rectified or waived and there exists
no such breach or default the result of which would have a
material affect on the business, properties, operations and
conditions (financial or otherwise) or results of operation of
Shanghai Unilink or Shanghai Huitong. Neither Shanghai Unilink
nor Shanghai Huitong are subject to any material contingent or
actual liabilities.
(xi) Neither Shanghai Unilink nor Shanghai Huitong
has taken any action nor have any steps been taken or legal or
administrative proceedings been commenced or threatened for
the winding up, dissolution or liquidation of Shanghai Unilink
or (as the case may be) Shanghai Huitong, or for the
suspension, withdrawal, revocation or cancellation of Shanghai
Unilink's or Shanghai Huitong's business licenses.
(xii) Each of Shanghai Unilink and Shanghai Huitong
possesses such certificates, authorities or permits issued by
the appropriate national, provincial, municipal local
regulatory agencies or bodies necessary to conduct the
business now operated by it and contemplated to be operated by
it as described in the Prospectus, and neither Shanghai
Unilink nor Shanghai Huitong has received any oral or written
notice of proceedings relating to the suspension, revocation
or modification of any such certificate, authority or permit.
After due inquiry and to the best of such counsel's knowledge,
neither Shanghai Unilink nor Shanghai Huitong is subject to
any claims, suits, demands, actions threatened or initiated by
or before any PRC governmental or public body, authority or
regulatory body.
(xiii) All Approvals, required for effecting the Loan
Arrangements and the Contractual Arrangements and all
transactions contemplated thereunder, if any, have been
issued, obtained and made and all such Approvals are in full
force and effect, and none has been amended or revoked or is
liable to be set aside under any existing PRC Laws.
(xiv) All registrations, filings and recordings have
been fulfilled in order for each pledgee under each Equity
Pledge Agreement to enjoy the first preemptive rights against
all other secured or unsecured creditors of each pledgor under
each Equity Pledge.
29
(xv) No Approvals are currently required in the PRC
for the shares to be effectively pledged pursuant to the
Equity Pledge Agreement or for the proposed manner of
repayment of the principal and interest in the Loan
Agreements.
(xvi) None of the Loan Arrangements or Contractual
Arrangements taken both individually and together as a whole
has:
(a) resulted or results in a breach of any of the
terms or provisions of, in the case of Shanghai
Unilink and Shanghai Huitong, their respective
articles of association at the time at which any of
the Loan Arrangements or Contractual Arrangements was
effected;
(b) resulted or results in a breach of, or
constituted or constitutes a default under or
resulted or results in the creation or imposition of
any lien, charge, encumbrance or claim pursuant to
any instrument to which Shanghai Unilink or Shanghai
Huitong was or is a party or by which Shanghai
Unilink or Shanghai Huitong or any of their
respective properties or assets was or is bound;
(c) resulted or results in a breach of any laws or
applicable regulations or public policy to which
Shanghai Unilink or Shanghai Huitong was or is
subject or by which Shanghai Unilink or Shanghai
Huitong or any of their respective properties or
assets was or is bound.
(xvii) Each of the Loan Arrangements or Contractual
Arrangements by itself or all the Loan Arrangements or
Contractual Arrangements taken as a whole has been duly
authorized and does not and will not:
(a) result in a violation or breach of any provision
of, the respective articles of association or the
respective business license of Shanghai Unilink or
Shanghai Huitong, or
(b) result in a material breach of, or constitute a
material default under, or result in the creation or
imposition of any lien, charge, encumbrance or claim
pursuant to, any instrument or agreement to which
Shanghai Unilink and Shanghai Huitong is a party or
by which Shanghai Unilink and Shanghai Huitong or any
of its properties is bound; or
(c) result in a material breach of any Laws or public
policy to which Shanghai Unilink and Shanghai Huitong
is subject to or by which Shanghai Unilink and
Shanghai Huitong or any of its properties is bound.
(xviii) The choice of PRC Laws as the governing law
in each Document is valid choice of governing law and will be
binding on the parties to the relevant Document, and all
conditions to which such Approvals have been fulfilled.
(xix) Each of the Documents is, and all the Documents
taken as a whole is legal, valid, enforceable and admissible
as evidence under the Laws and public policy of the PRC and is
binding on the persons expressed to be parties thereto. No
provisions in any of the Documents contravene in any way any
applicable Laws or public policy of the PRC.
(xx) There are no legal, administrative, arbitration
or other proceedings which has challenged the legality,
effectiveness or validity of the Loan Arrangements,
Contractual Arrangements and/or the transactions or any of the
Documents by itself or taken as a whole or to the best of such
counsel's knowledge after making due and reasonable enquiries,
no such
30
proceedings are threatened or contemplated by any governmental
or regulatory authority or by any other person.
(xxi) Save for those disclosed in the Prospectus, no
further action from shareholders or directors of Shanghai
Unilink and Shanghai Huitong is required to approve and
implement in full the Loan Arrangements and the Contractual
Arrangements contemplated thereunder.
(xxii) No third party Approvals are required for the
implementation of the Contractual Arrangements, Loan
Arrangements or for the operation of Shanghai Unilink and
Shanghai Huitong following the Contractual Arrangements or
Loan Arrangements other than those already obtained.
(xxiii) Each of Shanghai Unilink and Shanghai Huitong
is not in breach of the terms and conditions of any Approvals
and none thereof is subject to suspension, revocation or
withdrawal and to the best of such counsel's knowledge, having
made all due and reasonable enquiries, there are no
circumstances, existing which might lead to suspension,
revocation or withdrawal of any such Approvals or any
conditions attached thereto being adversely altered.
(xxiv) The summaries of each of the Loan Arrangements
and the Contractual Arrangement set out in this opinion are
true and accurate.
(xxv) Neither Shanghai Unilink nor Shanghai Huitong
is entitled to any immunity from any legal proceedings or
other legal process or from enforcement execution or
attachment in respect of their obligation in the transaction
contemplated under the Arrangements.
(xxvi) The obligations undertaken by and the rights
granted to each party to the Contractual Arrangements and Loan
Arrangements are legally permissible under PRC Laws and
Regulations.
(xxvii) Each of Shanghai Unilink and Shanghai Huitong
possesses valid licenses in full force and effect or otherwise
has the legal right to use, or can acquire on reasonable
terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks,
service marks and trade names currently employed by them, and
none of either Shanghai Unilink or Shanghai Huitong has
received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing
that, individually or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in any
Material Adverse Effect.
(xxviii) Such counsel does not know of any Chinese
legal or governmental proceedings pending or threatened to
which the Company, Shanghai Unilink or Shanghai Huitong is a
party or to which any of the properties of the Company,
Shanghai Unilink or Shanghai Huitong is subject that are
required to be described in the Registration Statements or the
Prospectus and are not so described or of any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(xxix) There are no outstanding guarantees or
contingent payment obligations of Shanghai Unilink or Shanghai
Huitong in respect of indebtedness of third parties except as
disclosed in the Prospectus.
(xxx) The execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement and the Deposit Agreement will not contravene
any provision of applicable law or the certificate of
incorporation, by-laws or other governing documents of either
Shanghai Unilink or Shanghai Huitong or any agreement or other
instrument
31
binding upon Shanghai Unilink or Shanghai Huitong that is
material to the Company and its Subsidiaries, taken as a
whole, or any judgment, policy, order or decree of any
governmental body, agency or court of the PRC having
jurisdiction over the Company or any Subsidiary, and no
consent, approval, authorization or order of or qualification
with, any such governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement or the Deposit Agreement.
(xxxi) The choice of law provisions in this Agreement
and the Deposit Agreement will be recognized by PRC courts;
each of the Company, Shanghai Unilink and Shanghai Huitong can
be sued in its own name under the laws of the PRC.
(xxxii) The Underwriters would be permitted to
commence proceedings in PRC courts of competent jurisdiction
based on this Agreement for the claim related to either
Shanghai Unilink or Shanghai Huitong and such courts would
accept jurisdiction over any such action or proceeding.
(xxxiii) Any judgment obtained in a New York court
arising out of or in relation to the obligations of the
Company under this Agreement would be enforceable against the
Company in the courts of the PRC, subject to the applicable
provisions of the Civil Procedure Law of the PRC relating to
the enforceability of foreign judgments.
(xxxiv) Shanghai Weilan has been duly incorporated
and is validly existing as a company with limited liability
with legal person status in good standing under the laws of
the PRC. All of the registered capital of Shanghai Weilan RMB
10,000,000 has been fully paid for and 50% and 50 % of the
equity interest in the registered capital of Shanghai Weilan
is respectively owned by Hu Ankai and ▇▇ ▇▇▇▇ and such equity
interests are each, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, or any
third party right, save for pursuant to the pledge created
under the Loan Arrangements and the Contractual Arrangements.
(xxxv) Linktone Consulting has been duly incorporated
and is validly existing as a company with limited liability
with legal person status in good standing under the laws of
the PRC. All of the registered capital of Linktone Consulting
has been fully paid for and 100% of the equity interest in the
registered capital of Linktone Consulting is owned by Linktone
Ltd. and such equity interest is free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim
or equity, or any third party right.
(xxxvi) Each of Shanghai Weilan and Linktone
Consulting is duly qualified to transact business and is in
good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure
so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(xxxvii) All Approvals in the PRC required for the
establishment and the maintenance of the enterprise legal
person status of each of Shanghai Weilan and Linktone
Consulting, respectively, have been duly issued and obtained
and all such Approvals are in full force and effect, have not
been revoked, withdrawn, suspended or cancelled and are not
subject to any condition. Each of Shanghai Weilan and Linktone
Consulting respectively has complied with all applicable
registration and filing requirements under PRC laws for its
establishment and the maintenance of its status and existence
as an enterprise legal person.
(xxxviii) Each of Shanghai Weilan and Linktone
Consulting has the power and authority and has satisfied all
conditions and done all things required by the Laws of the PRC
(including the making and obtaining of all necessary
Approvals, if any) in order for it to own, use, lease and
operate its assets and to conduct its existing and proposed
business as set out in its business license and in the
Prospectus. Such Approvals being in full force and effect and
no violation exists in respect of any such Approvals.
32
(xxxix) Each of Shanghai Weilan and Linktone
Consulting has full power, authority and legal right to enter
into, execute, adopt, assume, issue, deliver and perform their
respective obligations under each of the Documents to which it
is expressed to be a party and such obligations constitute
valid, legal and binding obligations enforceable in accordance
with the terms of each of the Documents (taken both
individually and together as a whole) against each of them in
accordance with terms of each of the Documents (taken both
individually and together as a whole). No Approvals are
required to be done or obtained for the performance of
Shanghai Weilan and Linktone Consulting of their obligations
and the transactions contemplated under the Documents (taken
both individually and together as a whole) other than those
already obtained.
(xxxx) Each of the Ultimate Shareholders, Shanghai
Weilan and Linktone Consulting has taken all necessary
corporate and other actions and fulfilled and done all
conditions and things required by the Laws of the PRC
(including the making and obtaining of all relevant Approvals,
if any), for the entering into, execution, adoption,
assumption, issue, delivery or the performance of their
respective obligations under each of the Documents to which it
is expressed to be a party, and the representatives of,
Shanghai Weilan and Linktone Consulting (as the case may be)
have been duly authorized to do so and no such Approval has
been revoked or amended.
(xl) The execution and performance by each of the
Ultimate Shareholders, Shanghai Weilan and Linktone Consulting
of their respective obligations under each of the Documents to
which one of them is a party (taken both individually and
together as a whole) does not and will not contravene or
result in a breach or violation of (i) the articles of
association of Shanghai Weilan and Linktone Consulting (ii)
any Laws or public policy of the PRC as applicable; and (iii)
any agreement, instrument, arbitration award or judgment,
order or decree of any court of the PRC having jurisdiction
over to which Shanghai Weilan and/or Linktone Consulting, as
the case may be, is expressed to be a party or which is
binding on it or any of its assets and none has been amended
or revoked or is liable to be set aside under any existing PRC
Laws.
(xli) Each of the Documents is legal, valid,
enforceable and admissible as evidence under the Laws and
public policy of the PRC and is binding on the persons
expressed to be parties thereto. No provisions in any of the
Documents (taken both individually and together as a whole)
contravene in any way any applicable Laws or public policy of
the PRC, including without limitation and notwithstanding the
legal structure of Shanghai Weilan described in paragraph 1
above:
(a) the right of Linktone Consulting under the
Business Operation Agreement to nominate the board of
directors of Shanghai Weilan and the Chief Executive
Officer, the Chief Financial Officer and other senior
officers and individuals of Shanghai Weilan as
Linktone Consulting may decide;
(b) the irrevocable proxy given by the Ultimate
Shareholders in favour of ▇▇. ▇▇▇▇ Lei or any other
nominated employee of Linktone Consulting from time
to time to cast the votes of the Ultimate
Shareholders on all corporate matters of Shanghai
Weilan (including the sale and transfer of any equity
interest in Shanghai Weilan) under the Power of
Attorney;
(c) the grant of the pledge by the Ultimate
Shareholder of their equity interests under the
Equity Pledge Agreement, and the right of enforcement
of such pledge of the equity interests by Linktone
Consulting.
(xlii) Neither Shanghai Weilan nor Linktone
Consulting is in breach of or in default under (i) any Laws of
the PRC or (ii) any Approvals granted by any PRC governmental
or regulatory body or its business license or, (iii) their
respective articles of association or any contracts to which
either entity is a party, such breach or default which has not
been corrected,
33
remedied, rectified or waived and there exists no such breach
or default the result of which would have a material affect on
the business, properties, operations and conditions (financial
or otherwise) or results of operation of Shanghai Weilan or
Linktone Consulting. Neither Shanghai Weilan nor Linktone
Consulting are subject to any material contingent or actual
liabilities.
(xliii) Neither Shanghai Weilan nor Linktone
Consulting has taken any action nor have any steps been taken
or legal or administrative proceedings been commenced or
threatened for the winding up, dissolution or liquidation of
Shanghai Weilan or (as the case may be) Linktone Consulting,
or for the suspension, withdrawal, revocation or cancellation
of Shanghai Weilan's or Linktone Consulting's business
licenses.
(xliv) Each of Shanghai Weilan and Linktone
Consulting possesses such certificates, authorities or permits
issued by the appropriate national, provincial, municipal
local regulatory agencies or bodies necessary to conduct the
business now operated by it and contemplated to be operated by
it as described in the Prospectus, and neither Shanghai Weilan
nor Linktone Consulting has received any oral or written
notice of proceedings relating to the suspension, revocation
or modification of any such certificate, authority or permit.
After due inquiry and to the best of such counsel's knowledge,
neither Shanghai Weilan nor Linktone Consulting is subject to
any claims, suits, demands, actions threatened or initiated by
or before any PRC governmental or public body, authority or
regulatory body.
(xlv) All Approvals, required for effecting the Loan
Arrangements and the Contractual Arrangements and all
transactions contemplated thereunder, if any, have been
issued, obtained and made and all such Approvals are in full
force and effect, and none has been amended or revoked or is
liable to be set aside under any existing PRC Laws.
(xlvi) All registrations, filings and recordings have
been fulfilled in order for each pledgee under each Equity
Pledge Agreement to enjoy the first preemptive rights against
all other secured or unsecured creditors of each pledgor under
each Equity Pledge.
(xlvii) No Approvals are currently required in the
PRC for the shares to be effectively pledged pursuant to the
Equity Pledge Agreement or for the proposed manner of
repayment of the principal and interest in the Loan
Agreements.
(xlviii) None of the Loan Arrangements or Contractual
Arrangements taken both individually and together as a whole
has:
(a) resulted or results in a breach of any of the
terms or provisions of, in the case of Shanghai
Weilan and Linktone Consulting, their respective
articles of association at the time at which any of
the Loan Arrangements or Contractual Arrangements was
effected;
(b) resulted or results in a breach of, or
constituted or constitutes a default under or
resulted or results in the creation or imposition of
any lien, charge, encumbrance or claim pursuant to
any instrument to which Shanghai Weilan or Linktone
Consulting was or is a party or by which Shanghai
Weilan or Linktone Consulting or any of their
respective properties or assets was or is bound;
(c) resulted or results in a breach of any laws or
applicable regulations or public policy to which
Shanghai Weilan or Linktone Consulting was or is
subject or by which Shanghai Weilan or Linktone
Consulting or any of their respective properties or
assets was or is bound.
34
(xlix) Each of the Loan Arrangements or Contractual
Arrangements by itself or all the Loan Arrangements or
Contractual Arrangements taken as a whole has been duly
authorized and does not and will not:
(a) result in a violation or breach of any provision
of, the respective articles of association or the
respective business license of Shanghai Weilan or
Linktone Consulting, or
(b) result in a material breach of, or constitute a
material default under, or result in the creation or
imposition of any lien, charge, encumbrance or claim
pursuant to, any instrument or agreement to which
Shanghai Weilan and Linktone Consulting is a party or
by which Shanghai Weilan and Linktone Consulting or
any of its properties is bound; or
(c) result in a material breach of any Laws or public
policy to which Shanghai Weilan and Linktone
Consulting is subject to or by which Shanghai Weilan
and Linktone Consulting or any of its properties is
bound.
(xlx) Save for those disclosed in the Prospectus, no
further action from shareholders or directors of Shanghai
Weilan and Linktone Consulting is required to approve and
implement in full the Loan Arrangements and the Contractual
Arrangements contemplated thereunder.
(l) No third party Approvals are required for the
implementation of the Contractual Arrangements, Loan
Arrangements or for the operation of Shanghai Weilan and
Linktone Consulting following the Contractual Arrangements or
Loan Arrangements other than those already obtained.
(li) Each of Shanghai Weilan and Linktone Consulting
is not in breach of the terms and conditions of any Approvals
and none thereof is subject to suspension, revocation or
withdrawal and to the best of such counsel's knowledge, having
made all due and reasonable enquiries, there are no
circumstances, existing which might lead to suspension,
revocation or withdrawal of any such Approvals or any
conditions attached thereto being adversely altered.
(lii) Neither Shanghai Weilan nor Linktone Consulting
is entitled to any immunity from any legal proceedings or
other legal process or from enforcement execution or
attachment in respect of their obligation in the transaction
contemplated under the Arrangements.
(liii) Each of Shanghai Weilan and Linktone
Consulting possesses valid licenses in full force and effect
or otherwise has the legal right to use, or can acquire on
reasonable terms, all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary
or confidential information, systems or procedures),
trademarks, service marks and trade names currently employed
by them, and none of either Shanghai Weilan or Linktone
Consulting has received any notice of infringement of or
conflict with asserted rights of others with respect to any of
the foregoing that, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would
result in any Material Adverse Effect.
(liv) Such counsel does not know of any Chinese legal
or governmental proceedings pending or threatened to which the
Company, Shanghai Weilan or Linktone Consulting is a party or
to which any of the properties of the Company, Shanghai Weilan
or Linktone Consulting is subject that are required to be
described in the Registration Statements or the Prospectus and
are not so described or of any statutes, regulations,
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed as required.
35
(lv) There are no outstanding guarantees or
contingent payment obligations of Shanghai Weilan or Linktone
Consulting in respect of indebtedness of third parties except
as disclosed in the Prospectus.
(lvi) The execution and delivery by the Company of,
and the performance by the Company of its obligations under,
this Agreement and the Deposit Agreement will not contravene
any provision of applicable law or the certificate of
incorporation, by-laws or other governing documents of either
Shanghai Weilan or Linktone Consulting or any agreement or
other instrument binding upon Shanghai Weilan or Linktone
Consulting that is material to the Company and its
Subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court of the PRC
having jurisdiction over the Company or any Subsidiary, and no
consent, approval, authorization or order of or qualification
with, any such governmental body or agency is required for the
performance by the Company of its obligations under this
Agreement or the Deposit Agreement.
(lvii) The choice of law provisions in this Agreement
and the Deposit Agreement will be recognized by PRC courts;
each of the Company, Shanghai Weilan and Linktone Consulting
can be sued in its own name under the laws of the PRC.
(lviii) The Underwriters would be permitted to
commence proceedings in PRC courts of competent jurisdiction
based on this Agreement for the claim related to either
Shanghai Weilan or Linktone Consulting and such courts would
accept jurisdiction over any such action or proceeding.
(g) The Representative shall have received from ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the Underwriters, an
opinion, dated such Closing Date, covering such matters as the
Underwriters may require, and the Company shall have furnished to such
counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters. In rendering such opinion,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as to the incorporation of the
Company and all other matters governed by Cayman Islands law upon the
opinion of ▇▇▇▇▇▇ and Calder Asia, referred to above and all other
matters governed by PRC law upon the opinion of Haiwen & Partners
referred to below.
(h) The Representative shall have received an opinion, dated
such Closing Date, of Haiwen & Partners, special PRC counsel for the
Underwriters, covering such matters as the Underwriters may reasonably
request, and such counsel shall have received such documents and
information as they may reasonably request to enable them to pass upon
such matters.
(i) The Representative shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, United States
counsel for the Depositary, to the effect that:
(i) The Deposit Agreement has been duly authorized,
executed and delivered by the Depositary and constitutes a
valid and binding agreement of the Depositary enforceable
against the Depositary in accordance with its terms.
(ii) Upon execution and delivery by the Depositary of
ADRs evidencing the Offered Securities against deposit of the
Ordinary Shares in accordance with the provisions of the
Deposit Agreement, the Offered Securities will be validly
issued and will entitle the holders of the Offered Securities
to the rights specified in those ADRs and in the Deposit
Agreement.
(iii) The legal entity for the issuance of ADRs filed
a registration statement for the Offered Securities under the
Act and the staff of the Commission has informed such counsel
that the ADS Registration Statement has been declared
effective under the Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the
ADS Registration Statement or any part thereof has been issued
and no proceedings for that purpose have been
36
instituted or are pending or contemplated under the Act, and
the ADS Registration Statement, and each amendment as of their
respective effective dates, complied as to form in all
material respects with the requirements of the Act and the
Rules and Regulations.
(j) The Representative shall have received one or more
opinions, as contemplated in the Power of Attorney dated such Closing
Date, of counsel for each Selling Shareholder to the effect that:
(i) The Selling Shareholder had valid and
unencumbered title to the Ordinary Shares delivered by the
Selling Shareholder to the Depositary in accordance with the
Deposit Agreement, had full right, power and authority to
sell, assign, transfer and deliver the Offered Securities
delivered by the Selling Shareholder on such Closing Date
hereunder and the Offered Securities received by the
Depositary were unencumbered; and the several Underwriters
have acquired valid and unencumbered title to the Offered
Securities purchased by them on such Closing Date hereunder;
(ii) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required to be obtained or made by the Selling Shareholder
for the consummation of the transactions contemplated by the
Custody Agreement and this Agreement in connection with the
sale of the Offered Securities, except such as have been
obtained and made under the Act and the Exchange Act and such
as may be required under state or foreign securities or blue
sky laws;
(iii) The execution, delivery and performance of the
Custody Agreement and this Agreement and the consummation of
the transactions therein and herein contemplated will not
result in a material breach or violation of any of the terms
and provisions of, or constitute a default under, any statute,
any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Selling
Shareholder or any of his/her/its properties or any agreement
or instrument to which the Selling Shareholder is a party or
by which the Selling Shareholder is bound or to which any of
the properties of the Selling Shareholder is subject, or the
charter or by-laws of any Selling Shareholder which is a
corporation;
(iv) The Power of Attorney and related Custody
Agreement with respect to the Selling Shareholder has been
duly authorized, executed and delivered by the Selling
Shareholder and constitute valid and legally binding
obligations of the Selling Shareholder enforceable in
accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
and
(v) This Agreement has been duly authorized, executed
and delivered under New York law by an Attorney-in-Fact on
behalf of the Selling Shareholder.
(k) The Representative shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers in such capacity, to the best of their knowledge after
reasonable investigation, shall state that: the representations and
warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements
of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
date of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or
37
other), business, properties or results of operations of the Company
and its Subsidiaries taken as a whole except as set forth in the
Prospectus or as described in such certificate.
(l) The Representatives shall have each received a letter,
dated such Closing Date, of PricewaterhouseCoopers which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(m) On or prior to the date of this Agreement, the
Representative shall have received lockup letters from each of the
executive officers, directors and all shareholders of the Company.
(n) The Company and the Depositary shall have executed and
delivered the Deposit Agreement, in form and substance satisfactory to
the Underwriters, and the Deposit Agreement shall be in full force and
effect.
(o) The Depositary shall have delivered to the Company (i) a
letter confirming the furnishing of certain information about the
Depositary for inclusion in the Registration Statements, and (ii) at
such Closing Date, certificates satisfactory to the Underwriters
evidencing the deposit with the Depositary of the Ordinary Shares being
so deposited against issuance of ADRs evidencing the Offered Securities
to be delivered by the Company at such Closing Date, and the execution,
countersignature (if applicable), issuance and delivery of ADRs
evidencing such Offered Securities pursuant to the Deposit Agreement.
(p) The Offered Securities shall have been approved for
listing on the Nasdaq, subject only to official notice of issuance.
(q) At or prior to the First Closing Date, the NASD shall have
confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(r) On the Closing Date, the Representative shall have
received a certificate of an Attorney-in-Fact on behalf of each Selling
Shareholder, dated as of the Closing Date, to the effect that (i) the
representations and warranties in Section 3 hereof are true and correct
with the same force and effect as though expressly made at and as of
such Closing Date, and (ii) each Selling Shareholder has complied with
all agreements and satisfied all conditions contained herein on its
part to be performed or satisfied at or prior to the Closing Date.
(s) The Custodian will deliver to the Representatives a letter
stating that they will deliver to each Selling Shareholder a United
States Treasury Department Form 1099 (or other applicable form or
statement specified by the United States Treasury Department
regulations in lieu thereof) on or before January 31 of the year
following the date of this Agreement.
(t) The Representative shall have received such other
documents and certificates as they or their counsel have reasonably
requested, after consultation with the Company, the Selling
Shareholders and Company's counsel.
The Company and Selling Shareholders will furnish the Representative with such
conformed copies of such opinions, certificates, letters and documents as the
Representative reasonably requests. The Representatives may in its sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of an Optional
Closing Date or otherwise.
8. Indemnification and Contribution. (a) The Company and each Selling
Shareholder that is an officer or director of the Company will severally and not
jointly indemnify and hold harmless each Underwriter, its partners, members,
directors and officers and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act, against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter
38
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement, the ADS Registration Statement, the 8-A
Registrations Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company and such Selling Shareholders will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below; and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Offered Securities
concerned, to the extent that a prospectus relating to such Offered Securities
was required to be delivered by such Underwriter under the Act in connection
with such purchase and any such loss, claim, damage or liability of such
Underwriter results from the fact that there was not sent or given to such
person, at or prior to the written confirmation of the sale of such Offered
Securities to such person, a copy of the Prospectus if the Company had
previously furnished copies thereof to such Underwriter; provided further that
the liability of each indemnifying Selling Shareholder pursuant to this
subsection shall not exceed the product of the number of shares of Offered
Securities sold by such indemnifying Selling Shareholder and the price per share
of Offered Securities set forth in Section 4 hereof; and provided, further, that
a Selling Shareholder will only be liable to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by the Selling Shareholder.
The Company and such Selling Shareholders agree to indemnify and hold
harmless the Designated Underwriter and each person, if any, who controls the
Designated Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act (the "DESIGNATED ENTITIES"), from and against any
and all losses, claims, damages and liabilities (including, without limitation,
any legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed ADSs that
the Participant agreed to purchase; or (iii) related to, arising out of, or in
connection with the Directed Share Program, other than losses, claims, damages
or liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted from the bad faith or gross negligence of the
Designated Entities.
(b) The Selling Shareholders, severally and not jointly, will indemnify
and hold harmless each Underwriter, its partners, members, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the ADS Registration Statement, the 8-A Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Selling Shareholders will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by an Underwriter through the
Representatives specifically for use
39
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below, provided further that the liability of each indemnifying Selling
Shareholder pursuant to this subsection shall not exceed the product of the
number of shares of Offered Securities sold by such indemnifying Selling
Shareholder and the price per share of Offered Securities set forth in Section 4
hereof.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Shareholder against any losses, claims, damages or liabilities to which
the Company or such Selling Shareholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the ADS Registration Statement, the 8-A Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary prospectus,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representative specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company and each Selling Shareholder
in connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
(i) the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the [ ]
paragraph under the caption "Underwriting" and (ii) the following information in
the Prospectus furnished on behalf of [insert name of Underwriter]: [ ]
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a), (b) or (c)
above except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to the last paragraph in
Section 8(a) hereof in respect of such action or proceeding, then in addition to
such separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for the Designated Underwriter for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 of the Act of Section 20 of
the Exchange Act. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in
40
subsection (a), (b) or (c) above (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Selling
Shareholder on the one hand and the Underwriters on the other from the offering
of the Securities 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 Company and the Selling Shareholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Shareholders on the one hand and the Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Selling
Shareholders bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Selling Shareholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint. The Selling Shareholders' obligations in this
subsection (e) to contribute are several in proportion to the respective number
of Offered Securities being offered by each of them and not joint.
(f) The obligations of the Company and the Selling Shareholders under
this Section shall be in addition to any liability which the Company and the
Selling Shareholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act (provided, that the liability of each Selling Shareholder
shall not exceed the product of the number of shares of Offered Securities sold
by such Selling Shareholder and the price per share of Offered Securities set
forth in Section 4 hereof); and the obligations of the Underwriters under this
Section shall be in addition to any liability which the respective Underwriters
may otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
9. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date, the Representatives
may make arrangements satisfactory to the Company and the Selling Shareholders
for the purchase of such Offered Securities by other persons, including any of
the Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of Offered
Securities with respect to which such default or defaults occur exceeds 10% of
the total number of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to the
Representatives, the Company and the Selling Shareholders for the purchase of
such Offered Securities by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Shareholders, except as
provided in Section 10 (provided that if such default occurs with respect to
Optional ADSs after the First Closing Date, this Agreement will not terminate as
to the Firm ADSs or any Optional ADSs purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
41
10. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers, the Selling Shareholders and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Shareholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
9 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Shareholders shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 6 and the respective obligations of the Company, the Selling
Shareholders and the Underwriters pursuant to Section 8 shall remain in effect,
and if any Offered Securities have been purchased hereunder the representations
and warranties in Sections 2 and 3 and all obligations under Section 6 shall
also remain in effect. If the purchase of the Offered Securities by the
Underwriters is not consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 9 or the occurrence of any
event specified in clause (iii), (iv), (vi), (vii) or (viii) of Section 7(c),
the Company and the Selling Shareholders will, jointly and severally, reimburse
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
11. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives at Eleven Madison Avenue, New York, N.Y. 10010-3629,
Attention: Transactions Advisory Group and 45/F, Two Exchange Square, ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇: Transaction Advisory Group, or,
if sent to the Company, will be mailed, delivered or telegraphed and confirmed
to it at , Attention: , or, if sent to the Selling
Shareholders, will be mailed, delivered or telegraphed and confirmed to
at ; provided, however, that any notice to an Underwriter
pursuant to Section 8 will be mailed, delivered or telegraphed and confirmed to
such Underwriter.
12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 8, and no other person will have any right or obligation
hereunder.
13. Waiver of Immunities. To the extent that the Company or any of its
respective properties, assets or revenues may have or may hereafter become
entitled to, or have attributed to the Company, 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
setoff or counterclaim, from the jurisdiction of any Cayman Islands, New York or
U.S. federal court, from service of process, from attachment upon or prior to
judgment, from attachment in aid of execution of judgment, or from execution of
judgment, or other legal process or proceeding for the giving of any relief or
for the enforcement of any judgment, in any such court in which proceedings may
at any time be commenced, with respect to the obligations and liabilities of the
Company, or any other matter under or arising out of or in connection with, this
Agreement or the Deposit Agreement or any of them, the Company hereby
irrevocably and unconditionally waives or will waive such right to the extent
permitted by law, and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement.
14. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the transactions contemplated by this
Agreement, and any action under this Agreement taken by the Representative will
be binding upon all the Underwriters. The Attorneys-in-Fact will act for the
Selling Shareholders in connection with such transactions, and any action under
or in respect of this Agreement taken by either of them will be binding upon all
the Selling Shareholders.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
16. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
42
17. Authorized Agent. The Company and each Selling Shareholder hereby
submits to the non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
The Company and each Selling Shareholder irrevocably appoints CT Corporation
System, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("AUTHORIZED AGENT"), as its
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served in any such suit or proceeding, and agrees that service of
process upon such agent, and written notice of said service to the Company or
the Selling Shareholder by the person serving the same to the address provided
in Section 11, shall be deemed in every respect effective service of process
upon the Company or the Selling Shareholder in any such suit or proceeding. The
Company and each Selling Shareholder further agrees to take any and all action
as may be necessary to maintain such designation and appointment of such agent
in full force and effect for a period of seven years from the date of this
Agreement.
18. Judgment Currency. The obligation of the Company or any Selling
Shareholder in respect of any sum due to any Underwriter shall, notwithstanding
any judgment in a currency other than United States dollars, not be discharged
until the first business day, following receipt by such Underwriter of any sum
adjudged to be so due in such other currency, on which (and only to the extent
that) such Underwriter may in accordance with normal banking procedures purchase
United States dollars with such other currency; if the United States dollars so
purchased are less than the sum originally due to such Underwriter hereunder,
the Company and such Selling Shareholder agree, as a separate obligation and
notwithstanding any such judgment, to indemnify such Underwriter against such
loss. If the United States dollars so purchased are greater than the sum
originally due to such Underwriter hereunder, such Underwriter agrees to
promptly pay to the Company and such Selling Shareholder an amount equal to the
excess of the dollars so purchased over the sum originally due to such
Underwriter hereunder.
43
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Shareholders and the several Underwriters in accordance
with its terms.
Very truly yours,
LINKTONE LTD.
By:___________________________
Name:
Title:
ATTORNEY-IN-FACT FOR SELLING SHAREHOLDERS
By:___________________________
Name:
As Attorney-in-Fact acting on behalf
of each of the Selling Shareholders
named in Schedule A to this Agreement.
The foregoing Underwriting Agreement is hereby confirmed and accepted
as of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By__________________________
[Insert title]
Acting on behalf of itself and as the
Representative of the several
U.S. Underwriters.
CREDIT SUISSE FIRST BOSTON (HONG KONG) LIMITED
By__________________________
[Insert title]
Acting on behalf of itself and as the
Representative of the several
International Underwriters.
44
SCHEDULE A
NUMBER OF FIRM ADSs NUMBER OF OPTIONAL
SELLING SHAREHOLDER TO BE SOLD ADSs TO BE SOLD
------------------- ------------------- ------------------
-----------
Total.............................................
===========
SCHEDULE B
NUMBER OF
U.S. UNDERWRITER FIRM ADSs
---------------- ---------
Credit Suisse First Boston LLC........................................... $
---------
Total......................................... [$]
=========
SCHEDULE C
NUMBER OF
INTERNATIONAL UNDERWRITER FIRM ADSs
------------------------- ---------
Credit Suisse First Boston (Hong Kong) Limited........................... $
---------
Total......................................... [$]
=========
Side letter for charter flights (50%)
RENTAL LEASE AGREEMENT:
Date:
To:
From:
Re:
I, CORPORATE OFFICER OF ISSUER, hereby authorize ISSUER to provide payment to
CHARTER COMPANY for 50% of all charges relating to the charter flight(s)
arranged by Credit Suisse First Boston on behalf of the Company for the
transportation during the marketing period of the transaction. I understand that
Credit Suisse First Boston will be used as a credit reference source, but we are
responsible for direct payment of our portion of such services. I also
understand that payment is due within 20 days of the date of invoice and may be
made by wire transfer or company check.
Further, to the extent that I or anyone on the management team charters a plane
independently from the Roadshow logistics to travel home during the Roadshow,
the Representatives will provide the value of a commercial flight equivalent for
the described use toward the cost. Commercial flight equivalents will be
determined by ▇▇▇▇▇▇▇▇▇▇ Travel Agency.
Accepted and agreed this _____ day of ________, 200 .
-------------------------------------
Signature of Corporate Officer
-------------------------------------
Print Name
-------------------------------------
Title
Company Address: _________________________
_________________________
Phone/Fax Number: _________________________