FORM OF LOCK-UP AGREEMENT
Exhibit
99 (d)(2)
FORM
OF LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this
“Agreement”)
dated as of November ___, 2010, is entered into among China Cord Blood
Corporation, a Cayman Islands company (“Company”)
and ________________ (the “Securityholder”).
WITNESSETH:
WHEREAS, the Company intends
to make an offer (the “Exchange
Offer”) to the holders of the Company’s public warrants (each, a “Warrant”)
for ordinary shares of the Company (“Ordinary
Shares”);
WHEREAS, as of the date
hereof, the Securityholder
beneficially owns the number of Warrants listed on the signature page hereto
(the “Securities”);
WHEREAS, the Company desires
to enter into this Agreement in connection with its efforts to consummate the
Exchange Offer, and in consideration of the value of Ordinary Shares to be
delivered to the Securityholder pursuant to the Exchange Offer, the
Securityholder has agreed to enter into this Agreement; and
NOW, THEREFORE, in
contemplation of the foregoing and in consideration of the mutual agreements,
covenants, representations and warranties contained herein and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Certain
Covenants
1.1 Lock-Up. Subject to
Section 1.2, the Securityholder hereby covenants and agrees that during the term
of this Agreement, the Securityholder will not (a) directly or indirectly, sell,
transfer, assign, pledge, hypothecate, tender, encumber or otherwise dispose of
or limit its right to vote in any manner, any of the Securities, or agree to do
any of the foregoing, or (b) take any action which would have the effect of
preventing or disabling the Securityholder from performing its obligations under
this Agreement. Notwithstanding the foregoing, the Securityholder may transfer
any or all of the Securities as follows: (i) in the case of the Securityholder
that is an entity, to any subsidiary, partner, or member of the Securityholder,
and (ii) in the case of an individual Securityholder, to the Securityholder’s
spouse, ancestors, descendants or any trust for any of their benefits or to a
charitable trust; provided, however, that in any such
case, prior to and as a condition to the effectiveness of such transfer, each
person or entity to which any of such Securities or any interest in any of such
Securities is or may be transferred executes and delivers a letter to the
Company in the form described in, and otherwise complies with, the provisions of
subsection 6.4 of this Agreement.
1.2 Tender of
Securities.
(a) The
Securityholder agrees to tender the Securities to the Company in the Exchange
Offer as soon as practicable following the commencement of the Exchange Offer,
and in any event not later than ten (10) business days following the
commencement of the Exchange Offer, and so long as the Exchange Offer
substantially conforms with the terms of the Exchange Offer Documents (as
defined below and as they may be amended with the consent of the Securityholder
as provided herein), the Securityholder shall not withdraw any Securities so
tendered unless the Exchange Offer is terminated or has expired. Subject to the
terms and conditions of the Exchange Offer, the Company hereby agrees to accept
the Securities so tendered and to issue to the Securityholder one (1) Ordinary
Share for every eight (8) Warrants so tendered.
(b) The
Securityholder further agrees that when it tenders its Securities pursuant to
paragraph (a) of this Section 1.2, it will promptly deliver to the Company at
the address set forth in Section 6.9 of this Agreement, copies of all tender
documents (whether such tender is effected by execution of a Letter of
Transmittal or via instructions to a broker-dealer) together with proof of
delivery of such tender documents to the exchange agent, such that the Company
may verify and track the tender of the Securities.
1.3 Public Announcement.
The Securityholder shall consult with the Company before issuing any press
releases or otherwise making any public statements with respect to the
transactions contemplated herein and shall not issue any such press release or
make any such public statement without the approval of the Company, except as
may be required by law.
1.4 Disclosure. The
Securityholder hereby authorizes the Company to publish and disclose in any
announcement or disclosure required by the Securities and Exchange Commission
(“the “SEC”) and
in the offer documents relating to the Exchange Offer (including all documents
and schedules filed with the SEC in connection with either of the foregoing),
its identity and ownership of the Securities and the nature of its commitments,
arrangements and understandings under this Agreement; provided, however, that the Company shall
(i) afford the Securityholder a reasonable opportunity to review such public
disclosures of its identity and ownership and (ii) make any modifications or
revisions thereto reasonably requested by the Securityholder. The Company hereby
authorizes the Securityholder to make such disclosure or filings as may be
required by the SEC.
1.5 Restriction on changes to
terms of Exchange Offer. The conditions to the Exchange Offer shall be
substantially as set forth on Exhibit A. The Company shall not waive any of the
conditions or otherwise modify any material terms or conditions of the Exchange
Offer without the prior written consent of the Securityholder.
2. Representations and
Warranties of Securityholder. The Securityholder, severally and not
jointly, hereby represents and warrants to the Company, as of the date hereof
and as of the date the Company accepts tenders of Warrants pursuant to the
Exchange Offer, that:
2.1 Ownership. The
Securityholder has good and marketable title to, and is the sole legal and
beneficial owner of the Securities, in each case free and clear of all
liabilities, claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character whatsoever (collectively, “Liens”).
At the time that the Company accepts tenders of Warrants pursuant to the
Exchange Offer, the Securityholder shall have transferred and conveyed to the
Company or its designee good and marketable title to the Securities, free and
clear of all Liens created by or arising through the
Securityholder.
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2.2 Authorization. The
Securityholder has all requisite power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby and has
sufficient voting power and sufficient power of disposition with respect to the
Securities with no restrictions on its voting rights or rights of disposition
pertaining thereto. The Securityholder has duly executed and delivered this
Agreement and this Agreement is a legal, valid and binding agreement of the
Securityholder, enforceable against the Securityholder in accordance with its
terms, subject to the qualification, however, that enforcement of the rights and
remedies created hereby is subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general application
related to or affecting creditors’ rights and to general equity
principles.
2.3 No Violation. Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (a) require the Securityholder to file or
register with, or obtain any material permit, authorization, consent or approval
of, any governmental agency, authority, administrative or regulatory body, court
or other tribunal, foreign or domestic, or any other entity, or (b) violate, or
cause a breach of or default under, any material contract or agreement, any
statute or law, or any judgment, decree, order, regulation or rule of any
governmental agency, authority, administrative or regulatory body, court or
other tribunal, foreign or domestic, or any other entity or any arbitration
award binding upon the Securityholder, except for such violations, breaches or
defaults which are not reasonably likely to have a material adverse effect on
the Securityholder’s ability to satisfy its obligations under this Agreement. No
proceedings are pending which, if adversely determined, will have a material
adverse effect on any ability to vote or dispose of any of the Securities. The
Securityholder has not previously assigned or sold any of the Securities to any
third party.
2.4 The Securityholder Has
Adequate Information. The Securityholder is an “accredited investor” as
such term is defined in Regulation D under the Securities Act of 1933, as
amended (the “Securities
Act”), and has adequate information concerning the business and financial
condition of the Company to make an informed decision regarding the sale of the
Securities. The Securityholder acknowledges that the Company has not made and
does not make any representation or warranty, whether express or implied, of any
kind or character except as expressly set forth in this Agreement and in the
Exchange Offer Documents (as defined below).
2.5 No Setoff. The
Securityholder has no liability or obligation related to or in connection with
the Securities other than the obligations to the Company as set forth in this
Agreement.
3. Representations and
Warranties of the Company. The Company hereby represents and warrants to
the Securityholder, as of the date hereof and as of the date that the Company
accepts tenders of Trust Securities pursuant to the Exchange Offer,
that:
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3.1 Authorization. The
Company has all requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
Exchange Offer and the transactions contemplated thereby have been duly
authorized by the Company’s Board of Directors, the Company has duly executed
and delivered this Agreement and this Agreement is a legal, valid and binding
agreement of the Company, enforceable against it in accordance with its terms,
subject to the qualification, however, that enforcement of the rights and
remedies created hereby is subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general application
related to or affecting creditors’ rights and to general equity
principles.
3.2 No Violation. Neither
the execution and delivery of this Agreement by the Securityholder nor the
consummation by the Securityholder of the transactions contemplated hereby will
(i) violate any provision of the Company’s organizational documents; or (ii)
violate, or cause a breach of or default under, any material contract or
agreement, any statute or law, or any judgment, decree, order, regulation or
rule of any governmental agency, authority, administrative or regulatory body,
court or other tribunal, foreign or domestic, or any other entity or any
arbitration award binding upon the Company, except for such violations, breaches
or defaults which are not reasonably likely to have a Material Adverse Effect. A
“Material Adverse
Effect” shall mean any change, event, occurrence, effect or state of
facts that, individually, or aggregated with other such matters, is materially
adverse to, or otherwise could reasonably be expected to materially adversely
affect, the business, assets (including intangible assets), properties,
financial condition or results of operations of the Company and its subsidiaries
taken as a whole or the ability of the Company to perform its obligations under
this Agreement.
3.3 Company SEC
Documents. Since July 1, 2009, the Company has filed with the SEC all
Company SEC Documents. “Company
SEC Documents” means all forms, reports, schedules, statements and other
documents, as supplemented and amended since the time of filing through the date
hereof, required to be filed by the Company with the SEC under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) or the
Securities Act. The Company’s Exchange Offer documents to be filed with the SEC
(as the same may be amended as provided herein, the “Exchange Offer
Documents”), when filed (and on the dates of any amending or superseding
filing) (a) taken as a whole will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (b) will comply in all material
respects with the applicable requirements of the Exchange Act.
3.4 No Material Adverse
Effect. There has not occurred or become known to the Company any event,
development or circumstance since July 1, 2009 that (i) has caused or could
reasonably be expected to cause a Material Adverse Effect, or (ii) has or could
reasonably be expected to have a material adverse effect on the Company’s
ability to consummate the Exchange Offer that, in the case of clause (i) only,
has not been disclosed in the Company SEC Documents, the Exchange Offer
Documents or disclosed in writing to the Securityholder prior to the date
hereof.
3.5 No Governmental Filings,
etc. Except as required by the Exchange Act and the rules and regulations
promulgated by the SEC thereunder or pursuant to securities regulation of the
various states commonly referred to as “Blue Sky Laws”, the execution, delivery
and performance by the Company of this Agreement, the Exchange Offer and the
transactions contemplated thereby do not and shall not require any registration
or filing with, the consent or approval of, notice to, or any other action with
respect to, any Federal, state or other governmental authority or regulatory
body.
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3.6 Issuance under Section
3(a)(9). The issuance of the Ordinary Shares in the Exchange Offer will
be exempt from registration under the Securities Act pursuant to Section 3(a)(9)
thereof. No commissions or other remuneration has been or will be paid directly
or indirectly for soliciting the exchange pursuant to the Exchange
Offer.
3.7 Issuance of Ordinary
Shares. Upon issuance pursuant to the Exchange Offer, the Ordinary Shares
issued to the Securityholder shall be duly authorized, validly issued, fully
paid and nonassessable shares of capital stock of the Company.
4. Survival of Representations
and Warranties. The respective representations and warranties of the
Securityholder and the Company contained herein shall not be deemed waived or
otherwise affected by any investigation made by the other party hereto, and each
representation and warranty contained herein shall survive the closing of the
transactions contemplated hereby until the expiration of the applicable statute
of limitations, including extensions thereof.
5. Specific Performance.
The Securityholder acknowledges that the Company will be irreparably harmed and
that there will be no adequate remedy at law for a violation of any of the
covenants or agreements of the Securityholder which are contained in this
Agreement. It is accordingly agreed that, in addition to any other remedies
which may be available to the Company upon the breach by the Securityholder of
such covenants and agreements, the Company shall have the right to obtain
injunctive relief to restrain any breach or threatened breach of such covenants
or agreements or otherwise to obtain specific performance of any of such
covenants or agreements.
6. Miscellaneous.
6.1 Term. This Agreement
shall terminate upon the earliest of (i) the consummation or earlier termination
by the Company of the Exchange Offer, (ii) the date that is ten business days
after the date hereof, if the Company has not launched the Exchange Offer by
such date, (iii) the date that is 90 calendar days after the date hereof, if the
Exchange Offer has not been consummated by such date, (iv) the filing of any
voluntary or involuntary bankruptcy or other insolvency case or proceeding
involving the Company or any of its subsidiaries or (v) the commencement of a
proceeding by any court or regulatory authority having jurisdiction over the
Company seeking to enjoin, restrict, modify or prohibit the Exchange Offer (the
“Termination
Date”). At the Termination Date, this Agreement shall thereupon become
void and be of no further force and effect, provided that nothing herein shall
relieve any party from liability hereof for breaches of this Agreement prior to
the Termination Date.
6.2 Expenses. Each of the
parties hereto shall pay its own expenses incurred in connection with this
Agreement. Each of the parties hereto warrants and covenants to the others that
it will bear all claims for brokerage fees attributable to action taken by
it.
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6.3 Binding Effect. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective representatives and permitted
successors and assigns.
6.4 Entire Agreement.
This Agreement contains the entire understanding of the parties and supersedes
all prior agreements and understandings between the parties with respect to its
subject matter, other than prior agreements and understandings set forth in any
confidentiality agreements entered into between the Company and the
Securityholder. This Agreement may be amended only by a written instrument duly
executed by the parties hereto.
6.5 Headings. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Time is
of the essence with respect to all provisions of this Agreement.
6.6 Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties named
herein and their respective successors and permitted assigns. Except as provided
in Section 1.1, no party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval of the
other parties; provided, however, that the
Company may freely assign its rights to a direct or indirect wholly owned
subsidiary of the Company without such prior written approval but no such
assignment shall relieve the Company of any of its obligations hereunder. Any
purported assignment without such consent shall be void.
6.7 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be an
original, but each of which together shall constitute one and the same
Agreement. Delivery of an executed counterpart of a signature page by facsimile
shall be effective as delivery of a manually executed counterpart.
6.8 Notices. All notices,
requests, claims, demands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly given if so given) by
delivery, telegram or telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any national courier service,
provided that any notice delivered as herein provided shall also be delivered by
telecopy at the time of such delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses (or at such other
address for a party as shall be specified by like notice, provided that notices
of a change of address shall be effective only upon receipt
thereof):
If to the
Securityholder:
___________________________
___________________________
___________________________
Attention:
Tel:
Fax:
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If to the
Company:
China
Cord Blood Corporation
48th
Floor, Bank of China Tower
0 Xxxxxx
Xxxx, Xxxxxxx
Xxxx Xxxx
S.A.R.
Attention:
Xxxxxx Xxxx, Chief Financial Officer
Tel: (000)
0000-0000
Fax: (000)
0000-0000
6.9 Governing Law. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of New York, without regard to its principles of conflicts of
laws.
6.10 Enforceability. The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
6.11 Further Assurances.
From time to time at or after the date accepted tendered Securities pursuant to
the Exchange Offer, at the Company’s request and without further consideration,
the Securityholder shall execute and deliver to the Company such documents and
take such action as the Company may reasonably request in order to consummate
more effectively the transactions contemplated hereby and to vest in the Company
good, valid and marketable title to the Securities, including, but not limited
to, using its best efforts to cause the appropriate transfer agent or registrar
to transfer of record the Securities.
6.12 Remedies Not
Exclusive. All rights, powers and remedies provided under this Agreement
or otherwise available in respect hereof at law or in equity will be cumulative
and not alternative, and the exercise of any thereof by either party will not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
6.13 Waiver of Jury Trial.
EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
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IN WITNESS WHEREOF, the
Company and the Securityholder have caused this Agreement to be duly executed as
of the day and year first above written.
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CHINA
CORD BLOOD CORPORATION
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By:
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Name:Xxxxxx
Xxxx
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Title:
Chief Financial Officer
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[SECURITY
HOLDER]
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By:
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Name:
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Title:
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Number of Warrants:
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EXHIBIT A
Conditions
of the Exchange Offer
The
Exchange Offer is conditioned upon the following:
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§
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no
action or event shall have occurred, no action shall have been taken, and
no statute, rule, regulation, judgment, order, stay, decree or injunction
shall have been promulgated, enacted, entered or enforced applicable to
the Exchange Offer or the exchange of Trust Securities for Ordinary Shares
under the Exchange Offer by or before any court or governmental regulatory
or administrative agency, authority or tribunal of competent jurisdiction,
including, without limitation, taxing authorities, that challenges the
making of the Exchange Offer or the exchange of Trust Securities for
Ordinary Shares under the Exchange Offer or would reasonably be expected
to, directly or indirectly, prohibit, prevent, restrict or delay
consummation of, or would reasonably be expected to otherwise adversely
affect in any material manner, the Exchange Offer or the exchange of Trust
Securities for Ordinary Shares under the Exchange
Offer;
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§
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there
shall not have occurred:
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any
general suspension of or limitation on trading in securities on the
over-the-counter market, whether or not
mandatory,
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a
declaration of a banking moratorium or any suspension of payments in
respect of banks by federal or state authorities in the United States,
whether or not mandatory,
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a
commencement of a war, armed hostilities, a terrorist act or other
national or international calamity directly or indirectly relating to the
United States, or
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in
the case of any of the foregoing existing at the time of the commencement
of the Exchange Offer, a material acceleration or worsening thereof;
and
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at
least 50% of the Warrants being tendered in the Exchange
Offer.
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Subject
to the terms of the Lock-up Agreement, the Company may, in its sole and
reasonable discretion, waive any of the conditions to the Exchange Offer prior
to expiration of the Exchange Offer. The conditions to the Exchange Offer are
for the sole benefit of the Company, and may be waived at any time prior to
expiration of the exchange offer for any reason. Failure by the Company to
exercise any of its rights will not be a waiver of those rights. If the Company
waives a material condition to the Exchange Offer, it will notify holders of
securities of such waiver and hold the offer open for acceptances and
withdrawals for at least five business days after the notification of the waiver
of such condition.
