MIE Holdings Corporation (a Cayman Islands exempted limited liability company) 12,000,000 American Depositary Shares Representing 30,000,000 Ordinary Shares (Par Value US$0.001 Per Ordinary Share) UNDERWRITING AGREEMENT
MIE Holdings Corporation
(a Cayman Islands exempted limited liability company)
12,000,000 American Depositary Shares
Representing 30,000,000 Ordinary Shares
(Par Value US$0.001 Per Ordinary Share)
May [•], 2010
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
X.X. Xxxxxx Securities Inc.
383 Madison Avenue, Floor 4
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
as Representatives of the several Underwriters named in Schedule A hereto
Ladies and Gentlemen:
MIE Holdings Corporation, an exempted limited liability company incorporated under the laws of
the Cayman Islands (the “Company”), hereby confirms its agreement with Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”), X.X. Xxxxxx Securities Inc.
(“X.X. Xxxxxx”) and each of the other Underwriters named in Schedule A hereto
(collectively, the “Underwriters,” which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom Xxxxxxx Xxxxx and X.X. Xxxxxx
are acting as representatives (in such capacity, the “Representatives”), with respect to
(i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly,
of the respective numbers of American Depositary Shares of the Company (the “ADSs”), each
two ADSs representing five of the Company’s ordinary shares, par value US$0.001 per ordinary share
(the “Ordinary Shares”) set forth in Schedules A and B hereto and (ii) the grant by the
Company to the Underwriters of the option described in Section 2(b) hereof to purchase all or any
part of 1,800,000 additional ADSs to cover over-allotments, if any. The aforesaid 12,000,000 ADSs
(the “Initial Securities”) to be purchased by the Underwriters from the Company and all or
any part of the 1,800,000 ADSs subject to the option described in Section 2(b) hereof (the
“Option Securities”) are hereinafter called, collectively, the “Securities.”
The Company understands that the Underwriters propose to make a public offering of the
Securities in the United States and internationally outside of the People’s Republic of China (the
“PRC”) as soon as the Representatives deem advisable after this Agreement has been executed
and delivered. Solely for purposes of this Agreement, the term “PRC” excludes Taiwan, The
Hong Kong Special Administrative Region and The Macau Special Administrative Region.
The Company and the Underwriters agree that up to 5% of the Initial Securities to be purchased
by the Underwriters (the “Reserved Securities”) shall be reserved for sale by the
Underwriters to certain persons designated by the Company (the “Invitees”), as part of the
distribution of the Initial Securities by the Underwriters, subject to the terms of this Agreement,
the applicable rules, regulations and interpretations of the Financial Industry Regulatory
Authority, Inc. (“FINRA”)
and all other applicable laws, rules and regulations. To the
extent that such Reserved Securities are not orally confirmed for purchase by the Invitees by 8:00
A.M. (New York City Time) on the first business day after the date of this Agreement, such Reserved
Securities may be offered to the public as part of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form F-1 (No. 333-166143), including the related preliminary prospectus
or prospectuses, covering the registration of the Securities under the Securities Act of 1933, as
amended (the “1933 Act”). The Company has filed with the Commission a registration
statement on Form F-6 (No. 333-166247) covering the registration of the ADSs under the 1933 Act.
Promptly after execution and delivery of this Agreement, the Company will prepare and file a
prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of the rules and
regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and paragraph
(b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations. The information included in
such prospectus that was omitted from such registration statement at the time it became effective
but that is deemed to be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as “Rule 430A Information.” Each
prospectus used before such registration statement became effective, and any prospectus that
omitted the Rule 430A Information, which was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a “preliminary prospectus.”
Such registration statement, including the amendments thereto, the exhibits and any schedules
thereto, at the time it became effective, and including the Rule 430A Information, is herein called
the “Registration Statement.” The registration statement relating to the ADSs, as amended
at the time it became effective, is hereinafter referred to as the “ADS Registration
Statement.” Any registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the “Rule 462(b) Registration Statement,” and after
such filing the term “Registration Statement” shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Securities is herein called the “Prospectus.” The
Company has filed, in accordance with Section 12 of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “1934 Act”), a
registration statement as amended (the “1934 Act Registration Statement”) on Form 8-A (File
No. 001-34730) under the 1934 Act to register, under Section 12(b) of the 1934 Act, the Ordinary
Shares. For purposes of this Agreement, all references to the Registration Statement, the ADS
Registration Statement, the 1934 Act Registration Statement, any preliminary prospectus, the
Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system (“XXXXX”).
All references in this Agreement to financial statements and other information which is
“contained,” “included” or “stated” in the Registration Statement, the ADS Registration Statement,
any preliminary prospectus or the Prospectus (or other references of like import) shall be deemed
to mean and include all such financial statements and other information which is incorporated by
reference in or otherwise deemed by 1933 Act Regulations to be a part of or included in the
Registration Statement, the ADS Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to amendments or supplements
to the Registration Statement, the ADS Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include the filing of any
document under the 1934 Act which is incorporated by reference in or otherwise deemed by the 1933
Act Regulations to be a part of or included in the Registration Statement, the ADS Registration
Statement, such preliminary prospectus or the Prospectus, as the case may be.
The ADSs purchased by the Underwriters will be evidenced by American Depositary Receipts
(“ADRs”) to be issued pursuant to a deposit agreement dated as of on or about May [•], 2010
(the “Deposit Agreement”), to be entered into among the Company, Citibank N.A., as
depositary (the “Depositary”) and all owners and beneficial owners from time to time of the
ADSs.
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SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company hereby represents and warrants
to each Underwriter as of the date hereof, the Applicable Time referred to in Section 1(a)(i)
hereof, the Closing Time referred to in Section 2(c) hereof, and each Date of Delivery (if any)
referred to in Section 2(b) hereof, and agrees with each Underwriter, as follows:
(i) Compliance with Registration Requirements. Each of the Registration
Statement, the ADS Registration Statement, any Rule 462(b) Registration Statement and any
post-effective amendment thereto has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement, the ADS Registration Statement,
any Rule 462(b) Registration Statement or any post-effective amendment thereto has been
issued under the 1933 Act and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been complied with;
and the 1934 Act Registration Statement has become effective, as provided in Section 12 of
the 1934 Act.
At the respective times the Registration Statement, the ADS Registration Statement,
any Rule 462(b) Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery as defined below), the Registration Statement, the ADS Registration Statement,
the Rule 462(b) Registration Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations and did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, any preliminary prospectus and any
supplement thereto or prospectus wrapper prepared in connection therewith, at their
respective times of issuance and at the Closing Time, complied and will comply in all
material respects with any applicable laws or regulations of foreign jurisdictions in which
the Prospectus and such preliminary prospectus, as amended or supplemented, if applicable,
are distributed in connection with the offer and sale of Reserved Securities. Neither the
Prospectus nor any amendments or supplements thereto (including any prospectus wrapper), at
the time the Prospectus or any such amendment or supplement was issued and at the Closing
Time (and, if any Option Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As of the Applicable Time (as defined below), neither (A) the Issuer General Use Free
Writing Prospectus(es) (as defined below) issued at or prior to the Applicable Time and the
Statutory Prospectus (as defined below) as of the Applicable Time and the information (if
any) included on Schedule B hereto, all considered together (collectively, the “General
Disclosure Package”), nor (B) any individual Issuer Limited Use Free Writing Prospectus
(as defined below), when considered together with the General Disclosure Package, included
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.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means [l]:00 [a/p]m (New York City Time) on May [6],
2010 or such other time as agreed by the Company and the Representatives.
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“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,”
as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the
Securities that (A) is required to be filed with the Commission by the Company, (B) is a
“road show that is a written communication” within the meaning of Rule 433(d)(8)(i),
whether or not required to be filed with the Commission or (C) is exempt from filing
pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the
offering that does not reflect the final terms, in each case in the form filed or required
to be filed with the Commission or, if not required to be filed, in the form retained in
the Company’s records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective investors (other than a
Bona Fide Electronic Road Show (as defined below)), as evidenced by its being specified in
Schedule D hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus relating to the
Securities that is included in the Registration Statement immediately prior to that time,
including any document incorporated by reference therein.
The Company has made available a “bona fide electronic road show,” as defined in Rule
433, in compliance with Rule 433(d)(8)(ii) (the “Bona Fide Electronic Road Show”)
such that no filing of any “road show” (as defined in Rule 433(h)) is required in
connection with the offering of the Securities.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date that the issuer notified or notifies the Representatives as described in the next
sentence, did not, does not and will not include any information that conflicted, conflicts
or will conflict with the information contained in the Registration Statement, the General
Disclosure Package or the Prospectus, and any preliminary or other prospectus deemed to be
a part thereof that has not been superseded or modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the General Disclosure Package or the
Prospectus or any Issuer Free Writing Prospectus made in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through the
Representatives expressly for use therein.
Each preliminary prospectus (including the prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto) complied
when so filed in all material respects with the 1933 Act Regulations and each preliminary
prospectus and the Prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T under the
1933 Act (“Regulation S-T”).
(A) At the time of filing the Registration Statement, the ADS Registration Statement,
any 462(b) Registration Statement and any post-effective amendments thereto, (B) as of the
date of the execution and delivery of this Agreement (with such date being used as the
determination date for purpose of this paragraph (B)), the Company was not and is not an
“ineligible issuer,” as defined in Rule 405 of the 1933 Act Regulations.
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(ii) Independent Accountants. PricewaterhouseCoopers Xxxxx Xxxx CPAs Company
Limited, who certified the financial statements and supporting schedules included in the
Registration Statement, are independent public accountants as required by the 1933 Act and
the 1933 Act Regulations and the standards and rules of the United States Public Company
Accounting Oversight Board.
(iii) Financial Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with
the related notes, comply as to form in all material aspects with the requirements of
Regulation S-X under the 1934 Act and present fairly the financial position of the Company
and its consolidated subsidiary, MI Energy Corporation (“MIE”), a limited liability
company incorporated in the Cayman Islands, at the dates indicated and the statements of
operations, stockholders’ equity and cash flows of the Company and MIE for the periods
specified; said financial statements have been prepared in conformity with International
Financial Reporting Standards (“IFRS”) applied on a consistent basis throughout the
periods involved. The selected financial data and the summary financial information
included in the Registration Statement, the General Disclosure Package and the Prospectus
present fairly the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements included in the Registration Statement. The
pro forma financial statements and the related notes thereto included in the Registration
Statement, the General Disclosure Package and the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission’s rules and guidelines
with respect to pro forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. All disclosures contained in the Registration
Statement, the General Disclosure Package and the Prospectus regarding “non-IFRS financial
measures” comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the
1933 Act, to the extent applicable.
(iv) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package
and the Prospectus, except as otherwise stated therein (including the dividends on the
Ordinary Shares as already disclosed in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment or supplement to any of the foregoing), (A)
there has been no material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Company and MIE considered as
one enterprise (a “Material Adverse Effect”), whether or not arising in the
ordinary course of business, (B) there have been no transactions entered into by the
Company or MIE, other than those in the ordinary course of business, which are material
with respect to the Company and MIE considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company on any class of
its share capital.
(v) Good Standing of the Company. The Company has been duly organized and is
validly existing as an exempted limited liability company in good standing under the laws
of the Cayman Islands and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration Statement, the
General Disclosure Package and the Prospectus and to enter into and perform its obligations
under this Agreement; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each other 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.
(vi) Good Standing of MIE. The Company does not own or control, directly or
indirectly, any corporation, association, assets or entity other than MIE. MIE has been
duly
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organized and is validly existing as a limited liability company in good standing
under the laws of the Cayman Islands, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Registration
Statement, the General Disclosure Package and the Prospectus and is duly qualified as a
foreign corporation 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; except as otherwise disclosed
in the Registration Statement, the General Disclosure Package and the Prospectus, all of
the issued and outstanding share capital of MIE has been duly authorized and validly
issued, is fully paid and non-assessable and is directly owned by the Company, free and
clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none
of the outstanding shares of the share capital of MIE was issued in violation of the
preemptive or similar rights of any shareholder of MIE. MIE does not have and has never
had any subsidiaries, and is not and has never been a legal or beneficial owner of any
share or equity interests in any person.
(vii) Capitalization. The Securities and all other outstanding share capital
of the Company have been duly authorized; the authorized equity capitalization of the
Company is as set forth in the Registration Statement, the General Disclosure Package and
the Prospectus and upon the issuance and sale of the Initial Securities, the Company shall
have an authorized and outstanding capital as set forth in the Registration Statement, the
General Disclosure Package and the Prospectus in the column entitled “Actual” under the
caption “Capitalization”; except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, no person has any preemptive rights
with respect to the outstanding share capital of the Company, and none of the outstanding
share capital of the Company have been issued in violation of any preemptive or similar
rights of any person; the Securities and the underlying Ordinary Shares to be sold by the
Company, when issued and delivered against payment heretofore pursuant to this Agreement
and the Deposit Agreement, will not be subject to any security interest, other encumbrance
or adverse claims, and have been issued in compliance with all federal and state securities
laws and were not issued in violation of any preemptive right, right of first refusal or
similar right; upon payment of the purchase price in accordance with this Agreement at the
Closing Time or each Date of Delivery, the Depositary or its nominee, as the registered
holder of the Ordinary Shares represented by the Securities, will be, subject to the terms
of the Deposit Agreement, entitled to all the rights of a shareholder conferred by the
Memorandum and Articles of Association of the Company; except as disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus and subject to
the terms and provisions of the Deposit Agreement, there are no restrictions on transfers
of Ordinary Shares represented by the Securities or the Securities under the laws of the
Cayman Islands or the United States or otherwise, as the case may be; the Ordinary Shares
represented by the Securities, when issued and delivered against payment thereof, may be
freely deposited by the Company with the Depositary or its nominee against issuance of ADRs
evidencing the Securities as contemplated by the Deposit Agreement.
(viii) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(ix) Authorization and Description of Ordinary Shares to be Offered. The
Ordinary Shares underlying the Securities to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale to the Underwriters pursuant to
this Agreement and, when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly issued and fully
paid and non-assessable, and will conform to all statements relating thereto contained in
the General Disclosure Package and the Prospectus and such description conforms to the
rights set forth in the instruments defining the same; no holder of the Securities will be
subject to personal
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liability by reason of being such a holder; and the issuance of the
Ordinary Shares underlying the Securities is not subject to any preemptive rights, resale
rights, rights of first refusal or other similar rights.
(x) Authorization of Deposit Agreement. 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, as 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 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; the Deposit Agreement and the ADRs conform in all
material respects to the descriptions thereof contained in the General Disclosure Package
and the Prospectus.
(xi) Listing. The ADSs have been approved for listing on New York Stock
Exchange, subject only to notice of issuance.
(xii) Absence of Defaults and Conflicts. Neither the Company nor MIE is in
violation of its Organizational Documents (as defined below) or in default (or with the
giving of notices or lapse of time would be 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 MIE is a party or by which either of them may be bound,
or to which any of the property or assets of the Company or MIE is subject (collectively,
“Agreements and Instruments”), except 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 and the Deposit Agreement, and the consummation
of the transactions contemplated herein or therein and in the Registration Statement
(including the issuance and sale of the Securities and Ordinary Shares underlying the
Securities and the use of the proceeds from the sale of the Securities as described in the
Statutory Prospectus included in the Registration Statement, the General Disclosure Package
and the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with
its obligations hereunder have been duly authorized by all necessary corporate action 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 or Repayment Event (as defined
below) under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or MIE pursuant to, the Agreements and
Instruments (except for such conflicts, breaches, defaults or Repayment Events or liens,
charges or encumbrances that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the Organizational Documents of the
Company or MIE or any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or MIE or any of their assets, properties or operations. As
used herein, “Organizational Documents” means, with respect to any person, the
memorandum of association, articles of association or other organizational documents of
such entity and any amendments thereto. A “Repayment Event” means any event or
condition that gives the holder of any note, debenture or other evidence of indebtedness
(or any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company or MIE.
(xiii) Absence of Labor Dispute. No labor dispute with the employees of the
Company or MIE exists or, to the knowledge of the Company, is imminent, and the Company is
not aware of any existing or imminent labor disturbance by the employees of any of its or
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MIE’s principal suppliers, manufacturers, customers or contractors, which, in either case,
would result in a Material Adverse Effect.
(xiv) Absence of Proceedings. There is no action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened against or affecting
the Company or MIE, which is required to be disclosed in the Registration Statement (other
than as disclosed therein), or which might result in a Material Adverse Effect, or which
might materially and adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the Deposit Agreement or the
performance by the Company of its obligations hereunder or thereunder; the aggregate of all pending legal or governmental proceedings to which
the Company or MIE is a party or of which any of their respective property or assets is the
subject which are not described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not result in a Material Adverse Effect.
(xv) Accuracy of Exhibits. There are no contracts or other documents which
are required to be described in the Registration Statement, any Rule 462(b) Registration
Statement or the most recent preliminary prospectus or, in the case of documents, to be
filed as exhibits to the Registration Statement, that have not been described and filed as
required.
(xvi) Possession of Intellectual Property. The Company and MIE own or
possess, or can acquire on reasonable terms, adequate 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, trade names or other intellectual property (collectively, “Intellectual
Property”) necessary to carry on the business now operated by them, and neither the
Company nor MIE has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property invalid or inadequate
to protect the interest of the Company or MIE therein, and which infringement or conflict
(if the subject of any unfavorable decision, ruling or finding) or invalidity or
inadequacy, individually or in the aggregate, would result in a Material Adverse Effect.
(xvii) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any person
(including any counterparty to the Agreements and Instruments and any court or governmental
authority or agency), including without limitation consent from China National Petroleum
Corporation or PetroChina Company Limited for the accurate and lawful disclosure of the PRC
PSC Projects (as defined below) contained in the Registration Statement, the General
Disclosure Package and the Prospectus, is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering, issuance or sale of
the Securities hereunder or the consummation of the transactions contemplated by this
Agreement or the Deposit Agreement, except (A) such as have been already obtained or as may
be required by state securities laws, (B) such as have been obtained under the laws and
regulations of jurisdictions outside the United States and the Cayman Islands in which the
Reserved Securities are offered, and (C) any waivers, consents and releases obtained or
will be obtained in connection with the restructuring of security under a credit facility
agreement between the Company and Citic Ka Wah Bank and Citic Bank Guangzhou as disclosed
in the Registration Statement, the General Disclosure Package and the Prospectus, which
will be completed by the trading of the Initial Securities on the New York Stock Exchange.
(xviii) Absence of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected to cause or
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result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(xix) Possession of Licenses and Permits. The Company and MIE possess such
permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate national, provincial, local or
foreign regulatory agencies or bodies necessary to conduct the business now operated by
them, except where the failure so to possess would not, individually or in the aggregate,
result in a Material Adverse Effect; the Company and MIE are in compliance with the terms
and conditions of all such Governmental Licenses, except where the failure so to comply
would not, individually or in the aggregate, result in a Material Adverse Effect; all of
the Governmental Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be
in full force and effect would not, individually or in the aggregate, result in a Material
Adverse Effect; and neither the Company nor MIE has received any notice of proceedings
relating to the revocation or modification of any such Governmental Licenses which,
individually or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xx) Title to Property. The Company and MIE have good and marketable title to
all real property owned by the Company and MIE and good title to all other properties owned
by them, in each case, free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except such as (A) are described in the
Registration Statement, the General Disclosure Package and the Prospectus or (B) do not,
individually or in the aggregate, materially affect the value of such property or interfere
with the use made and proposed to be made of such property by the Company or MIE; and all
of the leases and subleases material to the business of the Company and MIE, considered as
one enterprise, and under which the Company or MIE holds properties described in the
General disclosure Package and the Prospectus, are in full force and effect, and neither
the Company nor MIE has any notice of any material claim of any sort that has been asserted
by anyone adverse to the rights of the Company or MIE under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or MIE to the
continued possession of the leased or subleased premises under any such lease or sublease.
(xxi) Investment Company Act. The Company is not required, and upon the
issuance and sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Registration Statement, the General Disclosure
Package and the Prospectus will not be required, to register as an “investment company”
under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xxii) Environmental and Safety Laws. Except as described in the Registration
Statement, the General Disclosure Package and the Prospectus, and except as would not,
individually or in the aggregate, result in a Material Adverse Effect, (A) neither the
Company nor MIE is in violation of any national, local or foreign statute, law, rule,
regulation, ordinance, code or policy, any judicial or administrative interpretation
thereof, or any industry guidelines generally complied with by companies of established
repute engaged in the same or similar business, including any judicial or administrative
order, consent, decree, judgment or best industry practice standards relating to pollution
or protection of human health and workplace safety, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including, without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental and Safety Laws”), (B) the Company and MIE
have all permits, authorizations and approvals required under any
9
applicable Environmental and Safety Laws and are each in compliance with their requirements, (C) there are no
pending or threatened administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of noncompliance or violation, investigation or
proceedings relating to any Environmental and Safety Law against the Company or MIE and (D)
there are no events or circumstances that would reasonably be expected to form the basis of
an order for clean-up or remediation, or an action, suit or proceeding by any private party
or governmental body or agency, against or affecting the Company or MIE relating to
Hazardous Materials or any Environmental and Safety Laws.
(xxiii) Registration Rights. Except as disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, there are no persons with
registration rights or other similar rights to have any securities registered pursuant to
the Registration Statement or otherwise registered by the Company under the 1933 Act.
Except as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus, (A) no person has the right, contractual or otherwise, to cause the Company to
issue or sell to it any Securities or any other share capital of or other equity interests
in the Company; and (B) no person has the right to act as an underwriter or as a financial
advisor to the Company in connection with the offer and sale of the Securities.
(xxiv) Accounting Controls. Except as disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus, the Company and
MIE maintain a system of internal accounting controls, including, but not limited to,
disclosure controls and procedures, internal controls over accounting matters and financial
reporting and legal and regulatory compliance controls (collectively, “Internal
Controls”) that are sufficient to provide reasonable assurances that (A) transactions
are executed in accordance with management’s general or specific authorization; (B)
transactions are recorded as necessary to permit preparation of financial statements in
conformity with IFRS and to maintain accountability for assets; (C) access to assets is
permitted only in accordance with management’s general or specific authorization; and (D)
the recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Except as
disclosed in the Registration Statement, the General Disclosure Package and the Prospectus,
since the end of the Company’s most recent audited fiscal year, there has been (x) no
material weakness in the Company’s internal control over financial reporting (whether or
not remediated) and (y) no change in the Company’s internal control over financial
reporting that has materially affected, or is reasonably likely to materially affect, the
Company’s internal control over financial reporting.
(xxv) Critical Accounting Policies. The section entitled “Management’s
Discussion and Analysis of Financial Condition and Results of Operations — Critical
Accounting Policies” in the Registration Statement, the General Disclosure Package and 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 the 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; and the Company’s management have reviewed and
agreed with the selection, application and disclosure of the Critical Accounting Policies
as described in the Registration Statement, the General Disclosure Package and the
Prospectus.
(xxvi) Production Sharing Contracts and the PRC PSC Projects. With respect to
the production sharing contracts for Daan oilfield, Moliqing oilfield and Miao 3 oilfield
as disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus under the captions “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” and “Business” (the “Production Sharing Contracts”):
10
(A) the terms and conditions of the Production Sharing Contracts pursuant to
which each of the PRC PSC Projects has been established, maintained and operated
are in compliance with all applicable laws and regulations, and the execution and
assignment of the Production Sharing Contracts, the consummation of transactions
contemplated therein and the implementation of the terms and conditions thereunder
constitute legal, valid and binding obligations of and are enforceable against all
the parties therein; all consents required from respective parties have been
obtained and are in full force and effect, and all Governmental Licenses required
for the execution, assignment and implementation of the Production Sharing
Contracts have been obtained, made and taken and are in full force and effect; and
the obligations undertaken by and the rights granted to each party to the
Production Sharing Contracts are legally permissible under all applicable laws and
regulations;
(B) the execution, delivery, assignment, assumption and performance of each
Production Sharing Contract does not and will not, with or without the giving of
notice or the lapse of time or both, contravene or result in a breach, violation
or default under (a) any applicable law or regulation, (b) any Organizational
Documents of the Company and MIE or (c) the terms of any Agreements and
Instruments;
(C) each Production Sharing Contract is in full force and effect and none of
the parties thereto is in breach or default in the performance of any of the terms
or conditions of such Production Sharing Contract; except as described in the
Registration Statement, the General Disclosure Package and the Prospectus, no
Production Sharing Contract has been amended or revoked or is to be set aside
under any applicable law or regulation;
(D) there are no legal, administrative, arbitration or other proceedings
through which any party has challenged the legality, effectiveness or validity of
the Production Sharing Contracts, individually or taken as a whole, and to the
knowledge of the Company, no such proceedings are threatened by any governmental
authority or by any other persons; and
(E) the statements in the General Disclosure Package and the Prospectus under
“Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and “Business — Production Sharing Contracts,” insofar as such
statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal
matters, agreements, documents or proceedings and present the material information
required to be shown.
With respect to the oil development projects conducted by the Company and MIE as
described under the caption “Business — Production Sharing Contracts” (each a “PRC PSC
Project” and collectively the “PRC PSC Projects”), (A) each PRC PSC Project has
been duly approved and established, and is validly maintained and operated; (B) the Company
and MIE have obtained all necessary Governmental Licenses for each of the PRC PSC Projects,
issued by the appropriate national, provincial or local authorities, in connection with the
existence and maintenance of each PRC PSC Project as required by all applicable laws and
regulations and necessary to conduct their respective operations; such Governmental
Licenses remain in full force and effect on the date hereof, and the Company and MIE are in
compliance with the terms and conditions of all such Governmental Licenses in relation to
each of the PRC PSC Projects and has not received notice of any proceedings relating to the
revocation, suspension, cancellation, withdrawal or modification of any such Governmental
Licenses, except for any noncompliance that would not result in a Material Adverse Effect;
and (C) based on
11
information available to and obtained by the Company and MIE after due
inquiry and investigation, there is no ground for any of such Governmental Licenses to be
revoked, suspended, cancelled, withdrawn or modified or, where relevant, not renewable upon
its expiry date.
(xxvii) Compliance with the Xxxxxxxx-Xxxxx Act. The Company has taken all
necessary actions to ensure that, upon the effectiveness of the Registration Statement, it
will be in compliance with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all rules
and regulations promulgated thereunder or implementing the provisions thereof (the
“Xxxxxxxx-Xxxxx Act”) that are then in effect and which the Company is required to
comply with as of the effectiveness of the Registration Statement, and, in respect of
provisions of the Xxxxxxxx-Xxxxx Act that are not then but will later become applicable to
it, is actively taking steps to ensure that it will be in compliance with such other
provisions of the Xxxxxxxx-Xxxxx Act when these provisions become applicable to the Company
after the effectiveness of the Registration Statement.
(xxviii) Payment of Taxes. The Company and MIE have filed all tax returns
that are required to have been filed by them pursuant to applicable national, provincial,
local or other tax law except insofar as the failure to file such returns would not result
in a Material Adverse Effect, and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company and MIE, except for such taxes, if any,
as are being contested in good faith and as to which adequate reserves have been provided.
The charges, accruals and reserves on the books of the Company in respect of any income and
corporation tax liability for any years not finally determined are adequate to meet any
assessments or re-assessments for additional income tax for any years not finally
determined, except to the extent of any inadequacy that would not result in a Material
Adverse Effect.
(xxix) Insurance. The Company and MIE carry or are entitled to the benefits
of insurance, with financially sound and reputable insurers, in such amounts and covering
such risks as is generally maintained by companies of established repute engaged in the
same or similar business, and all such insurance is in full force and effect. The Company
does not have any reason to believe that the Company or MIE will not be able (A) to renew
its existing insurance coverage as and when such policies expire or (B) to obtain comparable coverage from similar institutions as may be necessary or appropriate to
conduct its business as now conducted and at a cost that would not result in a Material
Adverse Change. Neither of the Company nor MIE has been denied any insurance coverage
which it has sought or for which it has applied.
(xxx) Statistical and Operating Data. Any statistical and market-related data
included in the Registration Statement, the General Disclosure Package and the Prospectus
are based on or derived from sources that the Company believes to be reliable and accurate,
and the Company has obtained the written consent to the use of such data from such sources
to the extent required, and such consent has not been revoked; all statistical and
operating data included in the Registration Statement, the General Disclosure Package and
the Prospectus regarding the Company and MIE are true and accurate in all material aspects.
(xxxi) Payments in Foreign Currency. Except as disclosed in the Registration
Statement, the General Disclosure Package and 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 Securities and the underlying Ordinary
Shares may be paid by the Company to the holder thereof in United States dollars and freely
transferred out of the Cayman Islands and all such payments made to holders thereof or
therein 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 will otherwise be free and
clear of any
12
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.
(xxxii) Foreign Corrupt Practices Act. Neither the Company nor MIE nor, to
the knowledge of the Company, any of their respective directors, officers, agents,
employees, affiliates or other persons acting on behalf of the Company and MIE is aware of
or has taken any action, directly or indirectly, that would result in a violation by such
persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including, without limitation, using any
corporate funds for any unlawful contribution, gift, entertainment or other unlawful
expenses, making any direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds, or making any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment; the Company and MIE have conducted
their businesses in compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to ensure,
continued compliance therewith.
(xxxiii) No Violation of Sanctions. (i) None of the Company, MIE or any of
their respective directors, officers, agents, employees, affiliates or other persons acting
on behalf of the Company and MIE: (a) does any business with or involving the government
of, or any person or project located in, any country targeted by any of the economic
sanctions promulgated by any Executive Order issued by the President of the United States
or administered by the United States Treasury Department’s Office of Foreign Assets Control
(“OFAC”); or (b) supports or facilitates any such business or project, in each case
other than as permitted under such economic sanctions; and (ii) neither the Company nor MIE
is currently subject to any sanctions administered by OFAC (including but not limited to the designation as a “specially designated national or
blocked person” thereunder), Her Majesty’s Treasury of the United Kingdom, the United
Nations Security Council, or the European Union (the “Sanctions”) or is located,
organized or resident in a country or territory that is the subject of OFAC-administered
sanctions, including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and
Syria.
(xxxiv) Anti-Money Laundering Laws. Neither the Company nor MIE nor,
to the knowledge of the Company, any of their respective officers and executive directors,
nor any of their affiliates, supervisors, managers, agents and employees has violated, and
the Company’s participation in the offering of the Securities pursuant to this Agreement
will not violate, any Anti-Money Laundering Laws (as defined below). The Company has
instituted and maintains policies and procedures designed to ensure continued compliance
with all applicable Anti-Money Laundering Laws. As used herein, “Anti-Money Laundering
Laws” means all applicable federal, state, national, provincial, international, foreign
or other laws, regulations or government guidance regarding anti-money laundering,
including, without limitation, Title 18 U.S. Code section 1956 and 1957, the USA Patriot
Act, the Bank Secrecy Act, and international anti-money laundering principals or procedures
published by an intergovernmental group or organization, such as the Financial Action Task
Force on Money Laundering, of which the United States is a member and with which
designation the United States representative to the group or organization continues to
concur, in each case as amended, and any executive order, directive, or regulation pursuant
to the authority of any of the foregoing, or any orders or licenses issued thereunder.
(xxxvi) No Finder’s Fee. 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.
13
(xxxvii) Related Party Transactions. There has been no material relationships
or transactions between the Company or MIE on one hand and their respective 10% or greater
shareholders, affiliates, directors or officers, or any affiliates or members of the
immediate families of such persons, on the other hand, that are not disclosed in the
Registration Statement, General Disclosure Package and the Prospectus.
(xxxviii) Passive Foreign Investment Company. The Company does not expect to
be a Passive Foreign Investment Company (“PFIC”) within the meaning of Section
1297(a) of the United States Internal Revenue Code of 1986, as amended, and the regulations
and published interpretations thereunder for the taxable year ending December 31, 2010, and
has no plan or intention to conduct its business in a manner that would be reasonably
expected to result in the Company becoming a PFIC in the future under current laws and
regulations.
(xxxix) Foreign Private Issuer. The Company is a “foreign private issuer”
within the meaning of Rule 405 under the 1933 Act.
(xl) No Transaction or Other Taxes. No transaction, stamp, capital or other
issuance, registration, transaction, transfer or withholding taxes or duties are payable in
the Cayman Islands by or on behalf of the Underwriters to any Cayman Islands tax authority
in connection with (A) the issuance, sale and delivery of the Ordinary Shares represented by the Securities by the Company, the issuance of the Securities by the
Depositary, and the delivery of the Securities to or for the account of the Underwriters,
(B) the purchase from the Company and the initial sale and delivery by the Underwriters of
the Securities to purchasers thereof, (C) the deposit of the Ordinary Shares with the
Depositary and the Custodian (as defined in the Deposit Agreement) and the issuance and
delivery of the ADRs evidencing the Securities, or (D) the execution and delivery of this
Agreement or the Deposit Agreement.
(xli) Proper Form of Agreements. This Agreement and the Deposit Agreement are
in proper form under the laws of the Cayman Islands for the enforcement thereof against the
Company in accordance with the laws of the Cayman Islands and to ensure the legality,
validity, enforceability or admissibility into evidence in the Cayman Islands of this
Agreement and the Deposit Agreement; it is not necessary that this Agreement, the Deposit
Agreement, the Registration Statement, the ADS Registration Statement, the General
Disclosure Package, the Prospectus, the Power of Attorney and the Custody Agreement (as
defined below) or any other document be filed or recorded with any court or other authority
in the Cayman Islands.
(xlii) Validity of Choice of Law. The choices of the law of the State of New
York as the governing law of this Agreement and the Deposit Agreement are valid choices of
law under the laws of the Cayman Islands and the PRC and will be honored by courts in the
Cayman Islands and the PRC. The Company has the power to submit, and pursuant to Section
16 of this Agreement and Section 7.6 of the Deposit 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 Xxx Xxxx xx
Xxx Xxxx, Xxx Xxxx, Xxxxxx Xxxxxx (each, a “New York Court”), and the Company has
the power to designate, appoint and authorize, and pursuant to Section 16 of this Agreement
and Section 7.6 of the Deposit Agreement, has legally, validly, effectively and irrevocably
designated, appointed an authorized agent for service of process in any action arising out
of or relating to this Agreement, the Deposit Agreement or the 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 16 of this Agreement
and Section 7.6 of the Deposit Agreement.
(xliii) No Immunity. Neither the Company nor MIE nor any of their respective
properties, assets or revenues has any right of immunity under Cayman Islands, the PRC,
14
New York or U.S. federal 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, the PRC, 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, the Deposit Agreement or the Securities; and, to the extent
that the Company, MIE or any of their respective properties, assets or revenues may have or
may hereafter become entitled to any such right of immunity in any such court in which
proceedings may at any time be commenced, each of the Company and MIE waives or will waive
such right to the extent permitted by law and has consented to such relief and enforcement
as provided in Section 16 of this Agreement and Section 7.6 of the Deposit Agreement.
(xliv) No Unapproved Marketing Documents. The Company has not distributed
and, prior to the later of the Closing Time or any Date of Delivery and completion of the
distribution of the Securities, will not distribute any offering material in connection
with the offering and sale of the Securities other than any preliminary prospectus, the
Prospectus, any Issuer Free Writing Prospectus to which the Representatives have consented
in accordance with this Agreement and any Issuer Free Writing Prospectus set forth on
Schedule D hereto.
(xlv) Employee Benefits. Except as set forth in the Registration Statement,
the General Disclosure Package and the Prospectus, the Company has no obligation to provide
retirement, death or disability benefits to any of the present or past employees of the
Company or MIE, or to any other person, except for any obligation that, if not fulfilled,
would not result in a Material Adverse Effect, and the Company and MIE are in compliance
with all applicable laws and regulations relating to employee benefits, except for any
noncompliance that would not result in a Material Adverse Effect.
(xlvi) No Broker-Dealer Affiliation. Except as set forth in the Registration
Statement, the General Disclosure Package and the Prospectus, there are no affiliations or
associations between any member of FINRA and any of the officers or directors of the
Company or MIE, or holders of 5% or greater of the securities of the Company.
(xlvii) No Trading. Except as disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, neither the Company nor MIE is engaged in
any trading activities involving commodity contracts or other trading contracts that are
not currently traded on a securities or commodities exchange and for which the market value
cannot be determined.
(xlviii) Forward-Looking Statement. Each “forward-looking statement” (within
the meaning of Section 27A of the 1944 Act or Section 21E of the 0000 Xxx) contained in the
Registration Statement, the General Disclosure Package and the Prospectus has been made or
reaffirmed with a reasonable basis and in good faith.
(xlix) Dividend Payment. Except as disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus, MIE is not currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making any other
distribution on MIE’s share capital, from repaying to the Company any loans or advances to
MIE from the Company or from transferring MIE’s property or assets to the Company.
(l) Reserved Share Program. The Company has not offered, or caused the
Underwriters to offer, the Reserved Securities to any person pursuant to the Reserved Share
Program with the intent to influence unlawfully (A) a customer or supplier of the Company
or MIE to alter the customer’s or supplier’s level or type of business with the Company or
MIE,
15
or (B) a trade journalist or publication to write or publish favorable information
about the Company or MIE or any of their respective products or services.
(li) No Additional Sale of Securities. Except as disclosed in the
Registration Statement, the General Disclosure Package and the Prospectus, the Company has
not sold, issued or distributed any shares during the six-month period preceding the date
hereof, including any sales pursuant to Rule 144A, Regulation D or Regulation S promulgated
under the 1933 Act.
(lii) Lock-Up Agreement. Each officer, director and principal shareholder of
the Company set forth on Schedule C hereto has furnished to the Representatives, prior to
the date of this Agreement, a letter or letters, substantially in the form of Exhibit B
hereto (each such letter a “Lock-Up Agreement”).
(b) Officer’s Certificates. Any certificate signed by any officer of the Company or MIE
delivered to the Representatives or to the Underwriters shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Initial Securities. On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company at the price per ADS set forth in Schedule B (which price shall reflect
all underwriting discounts and commissions agreed to be paid by the Company to the Underwriters),
such number of Initial Securities set forth in Schedule A opposite the name of such Underwriter,
plus any additional number of Initial Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof, bears to the total number of Initial
Securities, subject, in each case, to such adjustments among the Underwriters as the
Representatives in their sole discretion shall make to eliminate any sales or purchases of
fractional securities.
(b) Option Securities. In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company hereby grants an
option to the Underwriters, acting severally and not jointly, to purchase up to an additional
1,800,000 Option Securities, at the price per ADS as set forth in Schedule B, less an amount per
ADS equal to any dividends or distributions declared by the Company and payable on the Initial
Securities but not payable on the Option Securities. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Representatives to the Company setting
forth the number of Option Securities as to which the several Underwriters are then exercising the
option and the time and date of payment and delivery for such Option Securities. Any such time and
date of delivery (a “Date of Delivery”) shall be determined by the Representatives, but
shall not be later than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is exercised as to all or
any portion of the Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Option Securities then being purchased which
the number of Initial Securities set forth in Schedule A opposite the name of such Underwriter
bears to the total number of Initial Securities, subject in each case to such adjustments as the
Representatives in their discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment. Payment of the purchase price for, and delivery of certificates for, the Initial
Securities shall be made at the offices of Shearman & Sterling LLP at 12th Floor, East
Tower, Twin Towers, X-00 Xxxxxxxxxxxxx Xxxxx, Xxxxxxx 000000, Xxxxxx’s Republic of China, or at
such other place as shall be agreed upon by the Representatives and the Company, at 9:00 A.M. (New
York
16
City Time) on the third (fourth, if the pricing occurs after 4:30 P.M. (New York City Time) on
any given day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days after such date as shall be agreed upon by the Representatives, the Company (such time and date of
payment and delivery being herein called “Closing Time”).
In addition, in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates for, such Option
Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representatives and the Company, on each Date of Delivery as specified in the notice
from the Representatives to the Company.
Payment shall be made to the Company by wire transfer of immediately available funds to bank
accounts designated by the Company, against delivery to the Representatives for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. [Payment
under this paragraph shall be made after the deduction of any reimbursement of expenses by the
Company under Section 4(a) of this Agreement.] It is understood that each Underwriter has
authorized the Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Initial Securities and the Option Securities, if any, which
it has agreed to purchase. Either Xxxxxxx Xxxxx or X.X. Xxxxxx, individually and not as
Representatives of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities and the Option
Securities, if any, shall be in such denominations and registered in such names as the
Representatives may request in writing at least one full business day before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the Initial Securities and
the Option Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (New York City Time) on the
business day prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company. The Company covenants with each Underwriter as
follows:
(a) Compliance with Securities Regulations and Commission Requests. The Company, subject to
Section 3(b), will comply with the requirements of Rule 430A, and will notify the Representatives
immediately, and confirm the notice in writing, (A) when any post-effective amendment to the
Registration Statement, the 1934 Act Registration Statement or the ADS Registration Statement shall
become effective, or any supplement to the Prospectus (including any prospectus wrapper) or any
amended Prospectus shall have been filed, (B) of the receipt of any comments from the Commission,
(C) of any request by the Commission for any amendment to the Registration Statement, the 1934 Act
Registration Statement, the ADS Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (D) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, the 1934 Act Registration Statement or
the ADS Registration Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of
any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement or
the ADS Registration Statement and (E) if the Company becomes the subject of a proceeding under
Section 8A of the 1933 Act in connection with the offering of the Securities. The Company will effect the filings required under Rule 424(b), in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for filing
17
under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company will use its best efforts to prevent the issuance of
any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) Filing of Amendments and Exchange Act Documents. The Company will give the
Representatives notice of its intention to file or prepare any amendment to the Registration
Statement, the ADS Registration Statement or the 1934 Act Registration Statement (including any
filing under Rule 462(b) of the 1933 Act Regulations) or any amendment, supplement or revision to
either the prospectus included in the Registration Statement, the ADS Registration Statement and
the 1934 Act Registration Statement at the time it became effective or to the Prospectus, and will
furnish the Representatives with copies of any such documents a reasonable amount of time prior to
such proposed filing or use, as the case may be, and will not file or use any such document to
which the Representatives or counsel for the Underwriters shall object. The Company has given the
Representatives notice of any filings made pursuant to the 1934 Act or rules and regulations of the
Commission under the 1934 Act within 48 hours prior to the Applicable Time; and the Company will
give the Representatives notice of its intention to make any such filing from the Applicable Time
to the Closing Time and will furnish the Representatives with copies of any such documents a
reasonable amount of time prior to such proposed filing, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the Underwriters shall object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the
Representatives and counsel for the Underwriters, without charge, signed copies of the Registration
Statement, the ADS Registration Statement and the 1934 Act Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith) and signed copies of all
consents and certificates of experts, and will also deliver to the Representatives, without charge,
conformed copies of the Registration Statement, the ADS Registration Statement and the 1934 Act
Registration Statement as originally filed and of each amendment thereto (without exhibits) for
each of the Underwriters. The copies of the Registration Statement, the ADS Registration Statement,
the 1934 Act Registration Statement and each amendment thereto furnished to the Underwriters will
be identical to the electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge,
as many copies of each preliminary prospectus as such Underwriter reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when the Prospectus is
required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or
supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act and
the 1933 Act Regulations so as to permit the completion of the distribution of the Securities as
contemplated in this Agreement and in the Prospectus. If at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which it is necessary, in
the opinion of counsel for the Underwriters or for the Company, to amend the Registration Statement
or the ADS Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to state a material
fact necessary in order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it shall be necessary, in
the opinion of such counsel, at any such time to amend the Registration Statement or the ADS
Registration Statement or amend or supplement the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or
18
supplement or Issuer Free Writing Prospectus as may be necessary to correct such statement or omission or to make the
Registration Statement, the ADS Registration Statement or the Prospectus comply with such
requirements, and the Company will furnish to the Underwriters such number of copies of such
amendment, supplement or Issuer Free Writing Prospectus as the Underwriters may reasonably request.
If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an
event or development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement or the ADS Registration
Statement relating to the Securities or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances, prevailing at that subsequent time, not misleading, the
Company will promptly notify the Representatives and will promptly amend or supplement, at its own
expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
(f) Blue Sky Qualifications. The Company will use its best efforts, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions within or outside of the United States as the
Representatives may designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; 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 so subject.
(g) Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its shareholders as soon as practicable an
earnings statement for the purposes of, and to provide to the Underwriters the benefits
contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds. The Company will use the net proceeds received by it from the sale of
the Securities in the manner specified in the Registration Statement, the General Disclosure
Package and the Prospectus under “Use of Proceeds” and file such reports with the Commission with
respect to the sale of the Securities and the application of the proceeds therefrom as may be
required by Rule 463 under the 1933 Act.
(i) No Violation of Sanctions. The Company will not directly or indirectly use the proceeds
of the offering, or lend, contribute or otherwise make available such proceeds to any person, for
the purpose of financing the activities of any person currently subject to any Sanctions.
(j) Listing. The Company will use its best efforts to effect and maintain the listing of the
Securities on the New York Stock Exchange.
(k) Restriction on Sale of ADSs and Ordinary Shares. During a period of 180 days from the
date of the Prospectus, the Company will not, without the prior written consent of the
Representatives, (i) directly or indirectly, offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of any ADSs or Ordinary Shares or any
securities convertible into or exercisable or exchangeable for ADSs or Ordinary Shares or file any
registration statement under the 1933 Act with respect to any of the foregoing or (ii) enter into
any swap or any other agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of ADSs or Ordinary Shares, whether any such swap
or transaction described in paragraph (i) or (ii) above is to be settled by delivery of ADSs or
Ordinary Shares or such other securities, in cash or otherwise. The foregoing sentence shall not
apply to (A) the Securities to be sold hereunder, (B) any ADSs or Ordinary Shares issued by the
Company upon the exercise of an option or warrant or the conversion of a security outstanding on
the date hereof and
19
referred to in the Prospectus, (C) any ADSs or Ordinary Shares issued or
options to purchase ADSs or Ordinary Shares granted or to be granted pursuant to the existing
employee share option plan of the Company referred to in the Prospectus, (D) the filing with the
Commission of Form S-8 relating to Ordinary Shares granted under the Company’s existing employee
share option plan referred to in the Prospectus, or (E) any ADSs or Ordinary Shares issued pursuant
to any non-employee director stock plan or dividend reinvestment plan. Notwithstanding the
foregoing, if (1) during the last 17 days of the 180-day restricted period the Company issues an
earnings release or material news or a material event relating to the Company occurs or (2) prior
to the expiration of the 180-day restricted period, the Company announces that it will release
earnings results or becomes aware that material news or a material event will occur during the
16-day period beginning on the last day of the 180-day restricted period, the restrictions imposed
in this subsection (k) shall continue to apply until the expiration of the 18-day period beginning
on the issuance of the earnings release or the occurrence of the material news or material event.
(l) Reporting Requirements. The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder. During the three-year period after the date of this
Agreement, the Company will furnish to the Representatives and, to each of the other Underwriters,
as soon as practicable after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the Representatives (A) as soon as
available, a copy of each report of the Company filed with the Commission under the 1934 Act or
mailed to stockholders, and (B) from time to time, such other information concerning the Company as
the Representatives may reasonably request. However, so long as the Company is subject to the
reporting requirements of either Section 13 or Section 15(d) of the 1934 Act and is timely filing
reports with the Commission on its XXXXX reporting system, it is not required to furnish such
reports or statements filed through XXXXX to the Underwriters.
(m) No Stabilization. The Company will not take, and will cause its affiliates (within the
meaning of Rule 144 under the 0000 Xxx) not to take, directly or indirectly, any action that
constitutes or is designed to cause or result in, or which could reasonably be expected to
constitute, cause or result in, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(n) SAFE Compliance. The Company shall comply with the SAFE Rules and Regulations, and shall
use its best efforts to ensure compliance by all of its shareholders that are, or that are directly
owned or controlled by, PRC residents or PRC citizens, with any applicable SAFE Rules and
Regulations, including without limitation, requesting each such shareholder, that is directly owned
or controlled by, a PRC resident or PRC citizen, to complete any registration and other procedures
required under applicable SAFE Rules and Regulations.
(o) Transfer Restrictions. The Company shall at all times maintain transfer restrictions with
respect to the Company’s ADSs and Ordinary Shares that are subject to transfer restrictions
pursuant to this Agreement and the Lock-Up Agreements and shall ensure compliance with such
restrictions on transfer of restricted ADSs and Ordinary Shares.
(p) Deposit Agreement. The Company will comply with the terms of the Deposit Agreement.
(q) Cayman Islands Approvals. The Company agrees (i) not to 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 Securities, it will use its best efforts to
obtain and maintain all approvals as may be 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 the
ADSs, and (iii) it will use its best efforts to obtain and maintain all approvals as may be
required
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in the Cayman Islands for the Company to acquire sufficient foreign exchange for the
payment of dividends and all other relevant purposes.
(r) Xxxxxxxx-Xxxxx Act. The Company will use its best efforts to comply with the
Xxxxxxxx-Xxxxx Act, and to use its best efforts to cause MIE and their respective directors and
officers, in their capacities as such, to comply with the applicable provisions of Xxxxxxxx-Xxxxx
Act.
(s) Compliance with FINRA Rules. The Company hereby agrees that it will ensure that the
Reserved Securities will be restricted as required by FINRA or the FINRA rules from sale, transfer,
assignment, pledge or hypothecation for a period of three months following the date of this
Agreement. The Underwriters will notify the Company as to which persons will need to be so
restricted. At the request of the Underwriters, the Company will direct the transfer agent to
place a stop transfer restriction upon such securities for such period of time. Should the Company
release, or seek to release, from such restrictions any of the Reserved Securities, the Company
agrees to reimburse the Underwriters for any reasonable expenses (including, without limitation,
legal expenses) they incur in connection with such release.
(t) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless it
obtains the prior consent of the Representatives, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Company and the Representatives, it has not made and
will not make any offer relating to the Securities that would constitute an “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act Regulations, or that would otherwise constitute
a “free writing prospectus,” as defined in Rule 405 of the 1933 Act Regulations, required to be
filed with the Commission. Any such free writing prospectus consented to by the Company and the
Representatives is hereinafter referred to as a “Permitted Free Writing Prospectus.” The
Company represents that it has treated or agrees that it will treat each Permitted Free Writing
Prospectus as an “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act
Regulations, and has complied and will comply with the requirements of Rule 433 of the 1933 Act Regulations applicable to any Permitted Free Writing Prospectus, including timely
filing with the Commission where required, legending and record keeping.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay or cause to be paid all expenses incident to the
performance of their obligations under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and exhibits), the ADS
Registration Statement, the General Disclosure Package and the Prospectus as originally filed and
of each amendment thereto, (ii) the preparation, printing and delivery to the Underwriters of this
Agreement, the Deposit Agreement and any Agreement among Underwriters and such other documents as
may be required in connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the ADRs evidencing the Securities to
the Underwriters, including any stock or other transfer taxes and any stamp or other duties payable
upon the sale, issuance or delivery of the Securities to the Underwriters, (iv) the fees and
disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of
the Securities under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Permitted Free Writing Prospectus and of the Prospectus and any
amendments or supplements thereto and any costs associated with electronic delivery of any of the
foregoing by the Underwriters to investors, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii) the fees and
expenses of any transfer agent or registrar for the Securities, (ix) the costs and expenses of the
Company relating to investor presentations on any “road show” undertaken in connection with the
marketing of the Securities, including without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations, travel and lodging expenses of the Underwriters and officers of the
Company and any such consultants, and the cost of aircraft and other
21
transportation chartered in
connection with the road show (all items covered in this paragraph (ix) collectively, the “Road
Show Expenses”), provided, however, that the Underwriters shall pay the first
US$300,000 in the Road Show Expenses subject only to Section 4(b) of this Agreement and
provided further that the total Road Show Expenses paid by the Company in excess of
the US$300,000 to be paid by the Underwriters shall not exceed US$450,000; (x) the filing fees
incident to the review by FINRA of the terms of the sale of the Securities, and (xi) the fees and
expenses incurred in connection with the listing of the Securities on the New York Stock Exchange.
For avoidance of doubt, the Underwriters will pay for all fees and disbursements of the
Underwriters’ counsels, subject to Section 4(b) of this Agreement.
(b) Termination of Agreement. If this Agreement is terminated by the Representatives in
accordance with the provisions of Section 5, Section 9(a)(i) or Section 11 hereof, the Company
shall reimburse the Underwriters for all fees and disbursements of the Underwriters’ counsels up to
US$295,000 and all of the Underwriters’ other reasonable out-of-pocket expenses up to US$300,000,
provided that the reimbursement for the air travel expenses only applies to economy class
airfares (for due diligence meetings to Beijing) incurred by the Underwriters in relation to the
transactions contemplated hereunder.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company contained in Section 1 hereof or in certificates of any officer of the Company or MIE
delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement, including any Rule
462(b) Registration Statement, and the ADS Registration Statement have become effective and at the
Closing Time no stop order suspending the effectiveness of the Registration Statement or the ADS
Registration Statement shall have been issued under the 1933 Act or proceedings therefor initiated
or threatened by the Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have been filed with the
Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule
424(b)(8) or a post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A.
(b) Opinion of U.S. Counsel for the Company. At the Closing Time, the Representatives shall
have received the favorable opinion, dated as of the Closing Time, of Xxxxxx & Xxxxxxx, U.S.
counsel for the Company, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit A-1 hereto and to such further effect as the Underwriters may
reasonably request.
(c) Opinion of Cayman Islands Counsel for the Company and MIE. At the Closing Time, the
Representatives shall have received the favorable opinion, dated as of the Closing Time, of Xxxxxx
and Calder, Cayman Islands counsel for the Company and MIE, in form and substance satisfactory to
counsel of the Underwriters, together with signed or reproduced copies of such letter for each of
the other Underwriters, to the effect set forth in Exhibit A-2 hereto and to such further effect as
the Underwriters may reasonably request.
(d) Opinion of PRC Counsel for the Company. At the Closing Time, the Representatives shall
have received an opinion addressed to the Representatives, dated as of the Closing Time, of Zhong
Lun Law Firm, PRC counsel for the Company, in form and substance satisfactory to counsel of the
Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters, to the effect set forth in Exhibit A-3 hereto and to such further effect as the
Underwriters may reasonably request.
22
(e) Opinion of Depositary’s Counsel. At the Closing Time, the Representatives shall have
received an opinion, dated as of the Closing Time, of Xxxxxxxxx Xxxxxxx Xxxx & Xxxxx LLP, counsel
for the Depositary, in form and substance satisfactory to counsel of the Underwriters, together
with signed or reproduced copies of such letter for each of the other Underwriters, to the effect
set forth in Exhibit A-4 hereto and to such further effect as the Underwriters may reasonably
request.
(f) Opinion of U.S. Counsel for the Underwriters. At the Closing Time, the Representatives
shall have received an opinion, dated as of the Closing Time, of Shearman & Sterling LLP, U.S.
counsel for the Underwriters, in form and substance satisfactory to the Representatives.
(g) Opinion of PRC Counsel for the Underwriters. At the Closing Time, the Representatives
shall have received an opinion, dated as of the Closing Time, of Jingtian & Gongcheng, PRC counsel
for the Underwriters, in form and substance satisfactory to the Representatives.
(h) Execution of Deposit Agreement. The Company and the Depositary shall have executed and
delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the
Company and the Depositary shall have taken all action necessary to permit the deposit of the
Ordinary Shares and the issuance of the Securities in accordance with the Deposit Agreement.
(i) Depositary’s Certificate. The Depositary shall have furnished or caused to be furnished
to the Underwriters a certificate satisfactory to the Representatives of one of its authorized
officers with respect to the deposit with it of the Ordinary Shares represented by the Securities
against issuance of the ADRs evidencing the Securities, the execution, issuance, countersignature
and delivery of the ADRs evidencing the Securities pursuant to the Deposit Agreement and such other
matters related thereto as the Representatives may reasonably request.
(j) No Issuer Free Writing Prospectus. No Issuer Free Writing Prospectus, Prospectus or
amendment or supplement to the Registration Statement, the ADS Registration Statement or the
Prospectus shall have been filed to which the Representatives object in writing.
(k) Officers’ Certificates. The Representatives shall have received certificates of the chief
executive officer and the chief financial officer of the Company, dated as of the Closing Time, to
the effect that (i) there shall not have been, since the date hereof or since the respective dates
as of which information is given in the General Disclosure Package or the Prospectus, any material
adverse change in the business, properties, condition, financial or otherwise, or in the earnings,
business affairs or prospects of the Company and MIE taken as a whole, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and effect as though
expressly made at and as of the Closing Time, (iii) the Company has complied with all agreements
and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration Statement or the ADS
Registration Statement has been issued and no proceedings for that purpose have been instituted or
are pending or, to their knowledge, contemplated by the Commission. The Representatives shall have
also received a certificate of the chief financial officer of the Company, dated as of the Closing
Time, to the effect that the operating and financial data in the Registration Statement, the
General Disclosure Package and the Prospectus have been derived from and verified against the
Company’s accounting and business records, and the chief financial officer has no reason to believe
that such data is not true and correct.
(l) Accountant’s Comfort Letter at the Execution of this Agreement. At the time of the
execution of this Agreement, the Representatives shall have received from PricewaterhouseCoopers
Xxxxx Xxxx CPAs Company Limited a letter dated such date, in form and substance satisfactory to the
Representatives, together with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily included in accountants’
“comfort letters” to underwriters with respect to the financial statements and certain financial
23
information contained in the Registration Statement, the General Disclosure Package and the
Prospectus.
(m) Bring-down Comfort Letter. At the Closing Time, the Representatives shall have received
from PricewaterhouseCoopers Xxxxx Xxxx CPAs Company Limited a letter, dated as of the Closing Time,
to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection
(m) of this Section 5, except that the specified date referred to shall be a date not more than
three business days prior to the Closing Time.
(n) Oil Reserve Consultant’s Comfort Letter. At the Closing Time, the Representatives shall
have received from Xxxxx Xxxxx Company Petroleum Consultants a letter dated such date, in form and
substance satisfactory to the Representatives, together with signed or reproduced copies of such
letter for each of the other Underwriters containing statements and information of the type
ordinarily included in independent oil reserve consultants’ “comfort letters” to underwriters with
respect to the Company’s oil reserve information contained in the Registration Statement, the
General Disclosure Package and the Prospectus.
(o) Approval of Listing. At the Closing Time, the Securities shall have been approved for
listing on the New York Stock Exchange, subject only to official notice of issuance.
(p) No Objection. FINRA has confirmed that it has not raised any objection with respect to
the fairness and reasonableness of the underwriting terms and arrangements.
(q) Lock-up Agreements. At the date of this Agreement, the Lock-Up Agreements signed by the
persons listed on Schedule C hereto shall remain in force and not have been repudiated by any of
the parties to such agreements.
(r) Conditions to Purchase of Option Securities. In the event that the Underwriters exercise
their option provided in Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company contained herein and the statements
in any certificates furnished by the Company and MIE hereunder shall be true and correct as of each
Date of Delivery and, at each Date of Delivery, the Representatives shall have received:
(i) Officers’ Certificate. A certificate, dated such Date of Delivery, of the
chief executive officer and the chief financial officer of the Company confirming that the
certificate delivered at the Closing Time pursuant to Section 5(k) hereof remains true and
correct as of such Date of Delivery;
(iii) Opinion of Counsels for the Company. The favorable opinions of Xxxxxx &
Xxxxxxx, U.S. counsel for the Company, together with the favorable opinions of Xxxxxx and
Calder, Cayman Islands counsel for the Company and MIE, and of Zhong Lun Law Firm, PRC
counsel for the Company, each in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the opinions required by
Sections 5(b), 5(c) and 5(d) hereof;
(v) Opinion of Counsels for the Underwriters. The favorable opinion of
Shearman & Sterling LLP, U.S. counsel for the Underwriters, together with the favorable
opinion of Jingtian & Gongcheng, PRC counsel for the Underwriters, each dated such Date of
Delivery, relating to the Option Securities to be purchased on such Date of Delivery and
otherwise to the same effect as the opinion required by Sections 5(f) and 5(g) hereof;
(vi) Opinion of Depositary’s Counsel. The favorable opinion of Xxxxxxxxx
Xxxxxxx Xxxx & Xxxxx LLP, counsel for the Depositary, relating to the Option Securities to
24
be purchased on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(e); and
(vii) Bring-down Comfort Letter. A letter from PricewaterhouseCoopers Xxxxx
Xxxx CPAs Company Limited, in form and substance satisfactory to the Representatives and
dated such Date of Delivery, substantially in the same form and substance as the letter
furnished to the Representatives pursuant to Section 5(m) hereof.
(s) Additional Documents. At the Closing Time and at each Date of Delivery, counsel
for the Underwriters shall have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and sale of the
Securities as herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions, herein
contained; and all proceedings taken by the Company in connection with the issuance and sale
of the Securities as herein contemplated shall be satisfactory in form and substance to the
Representatives and counsel for the Underwriters. The Company will furnish the
Representatives with such conformed copies of such opinions, certificates, letters and
documents as the Representatives reasonably request. The Representatives may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters hereunder, whether in respect of a Closing time, a Delivery
Date or otherwise.
(t) Termination of Agreement. If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, this Agreement, or, in the case of
any condition to the purchase of Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several Underwriters to purchase the relevant Option
Securities may be terminated by the Representatives by notice to the Company at any time at
or prior to the Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7, 8, 16 and 17 shall survive any such termination
and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company agrees to indemnify and hold harmless each
Underwriter, its affiliates, as such term is defined in Rule 501(b) under the 1933 Act, its selling
agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, and the successors and assignees of all of the
foregoing persons, as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the ADS Registration Statement (or any amendment
thereto), including the Rule 430A Information or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus, any Issuer Free Writing Prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened,
25
or of any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission;
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use in the Registration Statement (or any amendment thereto), including the Rule 430A Information,
or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto).
(b) Indemnification of Company, Directors and Officers. Each Underwriter severally agrees to
indemnify and hold harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity contained in Section 6(a) above, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto), including the Rule 430A Information
or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written information
relating to such Underwriter furnished to the Company by such Underwriter through the
Representatives expressly for use therein.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Sections 6(a) above, counsel to the indemnified parties shall be selected
by the Representatives, and, in the case of parties indemnified pursuant to Section 6(b) above,
counsel to the indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior written consent of
the indemnified parties, settle or compromise or consent to the entry of any judgment with respect
to any litigation, or any investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and
26
expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement
of the nature contemplated by Section 6(a)(ii) or settlement of any claim in connection with any
violation referred to in Section 6(e) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall
not have reimbursed such indemnified party in accordance with such request prior to the date of
such settlement.
(e) Indemnification for Reserved Securities. In connection with the offer and sale of the
Reserved Securities, the Company agrees to indemnify and hold harmless the Underwriters, their
affiliates and selling agents and each person, if any, who controls any Underwriter within the
meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act, from and against any
and all loss, liability, claim, damage and expense (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending, investigating or settling any such
action or claim), as incurred, (i) arising out of the violation of any applicable laws or
regulations of foreign jurisdictions where Reserved Securities have been offered; (ii) arising out
of any untrue statement or alleged untrue statement of a material fact contained in any prospectus
wrapper or other material prepared by or with the consent of the Company for distribution to
Invitees in connection with the offering of the Reserved Securities 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; (iii) caused by the failure of any Invitee to pay for
and accept delivery of Reserved Securities which have been orally confirmed for purchase by such
Invitee by 8:00 A.M. New York City Time on the first business day after the date of the Agreement;
or (iv) related to, or arising out of or in connection with, the offering of the Reserved
Securities.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying
party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the Underwriters on
the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by Section 7(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in Section 7(i) above but also
the relative fault of the Company on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions, or in connection with any violation of the nature
referred to in Section 6(e) hereof, which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the
other hand in connection with the offering of the Securities pursuant to this Agreement shall be
deemed to be in the same respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by the Company and the
total underwriting discount received by the Underwriters, in each case as set forth on the cover of
the Prospectus bear to the aggregate initial public offering price of the Securities as set forth
on the cover of the Prospectus.
The relative fault of the Company on the one hand and the Underwriters on the other hand shall
be determined by reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission,
or any violation of the nature referred to in Section 6(e) hereof.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if the
27
Underwriters were treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, 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 any 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
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The
Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or MIE submitted pursuant hereto, shall remain operative and in full force
and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its
affiliates or selling agents, any person controlling any Underwriter, its officers or directors,
any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) if there has been, since the time of
execution of this Agreement or since the respective dates as of which information is given in the
Prospectus or General Disclosure Package, any material adverse change or any development involving
a prospective change in the business, properties, condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and MIE considered as one
enterprise, whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation thereof or other act of
terrorism, calamity or crisis or any change or development involving a prospective change in any of
U.S., Cayman Islands, PRC or international political, financial, economic, taxation or regulatory
conditions or currency exchange rates or controls, in each case the effect of which is such as to
make it, in the sole judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the Commission or by the New
York Stock Exchange, or if trading generally on the American Stock Exchange or the New York Stock
Exchange or the Nasdaq Global Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any
of said exchanges or by such system or by
28
order of the Commission, FINRA or any other governmental authority, or (iv) if a material
disruption has occurred in commercial banking or securities settlement or clearance services in the
United States, or (v) if a banking moratorium has been declared by either U.S. federal or New York
authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section 9, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6, 7, 8, 16 and 17 shall survive such termination and remain
in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time or a Date of Delivery to purchase the Securities which
it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the
Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representatives shall not have completed such arrangements
within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to
be purchased on such date, this Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the Underwriters to purchase and of the
Company to sell the Option Securities to be purchased and sold on such Date of Delivery, as
the case may be, shall terminate without liability on the part of any non-defaulting
Underwriter.
No action taken pursuant to this Section 10 shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement,
either (A) the Representatives or (B) the Company shall have the right to postpone the Closing Time
for a period not exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements; in the event of any such default
in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Company to sell the relevant
Option Securities, either the Representatives or the Company shall have the right to postpone the
relevant Date of Delivery for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or arrangements. As
used herein, the term “Underwriter” includes any person substituted for an Underwriter under this
Section 10.
SECTION 11. Default by the Company. If the Company shall fail at Closing Time or at
the Date of Delivery to sell the number of Securities that it is obligated to sell hereunder, then
this Agreement shall terminate without any liability on the part of any nondefaulting party;
provided, however, that the provisions of Sections 1, 4(b), 6, 7 and 8 shall remain
in full force and effect. No action taken pursuant to this Section 11 shall relieve the Company
from liability, if any, in respect of such default.
SECTION 12. Tax Disclosure. Notwithstanding any other provision of this Agreement,
immediately upon commencement of discussions with respect to the transactions contemplated
29
hereby, the Company (and each employee, representative or other agent of the Company) may
disclose to any and all persons, without limitation of any kind, the tax treatment and tax
structure of the transactions contemplated by this Agreement and all materials of any kind
(including opinions or other tax analyses) that are provided to the Company relating to such tax
treatment and tax structure. For purposes of the foregoing, the term “tax treatment” is the
purported or claimed U.S. federal income tax treatment of the transactions contemplated hereby, and
the term “tax structure” includes any fact that may be relevant to understanding the purported or
claimed U.S. federal income tax treatment of the transactions contemplated hereby.
SECTION 13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to Xxxxxxx Xxxxx at Xxx Xxxxxx
Xxxx, Xxx Xxxx, XX 00000, Xxxxxx Xxxxxx, to the attention of Equity Capital Markets and to X.X.
Xxxxxx at 000 Xxxxxxx Xxxxxx, Xxxxx 0, Xxx Xxxx, XX 00000, to the attention of Equity Capital &
Derivatives Markets, Americas; notices to the Company shall be directed to the Company, at Xxxxx
000, Xxxxx X, Xxxxx Xxxxx, 0 Xxx Xxxxx Road, Chaoyang District, Beijing 100101, People’s Republic
of China, to the attention of Chief Financial Officer.
SECTION 14. No Advisory or Fiduciary Relationship. The Company acknowledges and
agrees that (i) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the public offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company and the several
Underwriters, (ii) in connection with the offering contemplated hereby and the process leading to
such transaction each Underwriter is and has been acting solely as a principal and is not the agent
or fiduciary of the Company, or its respective stockholders, creditors, employees or any other
party, (iii) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in
favor of the Company with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
on other matters) and no Underwriter has any obligation to the Company with respect to the offering
contemplated hereby except the obligations expressly set forth in this Agreement, (iv) the
Underwriters and their respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company, and (v) the Underwriters have not provided
any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby
and the Company has consulted its own respective legal, accounting, regulatory and tax advisors to
the extent it deemed appropriate.
SECTION 15. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company
and their respective successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or corporation. No
purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of
such purchase.
SECTION 16. Governing Law and Jurisdiction. (a) THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(b) The Company 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 irrevocably and
unconditionally waives any objection to the laying of venue of any suit or proceeding arising out
of or
30
relating to this Agreement or the transactions contemplated hereby in federal and state courts in
the Borough of Manhattan in The City of New York and irrevocably and unconditionally waive and
agree not to plead or claim in any such court that any such suit or proceeding in any such court
has been brought in an inconvenient forum.
(c) The Company irrevocably appoints CT Corporation System, currently of 000 Xxxxxx Xxxxxx,
Xxx Xxxx, XX, 00000, 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 by the person serving the same
to the address provided in Section 13 hereof, shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. The Company 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.
SECTION 17. Judgment Currency The obligations of the Company pursuant to this Agreement 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 agrees, as a separate obligation and notwithstanding any
such judgment, to indemnify such Underwriter against such loss.
SECTION 18. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS
OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 19. 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.
SECTION 20. Effect of Headings. The section headings herein are for convenience only
and shall not affect the construction hereof.
31
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Underwriters and the Company in accordance with its
terms.
Very truly yours,
MIE Holdings Corporation |
||||
By: | ||||
Name: | Xxxxxx Xxxxx | |||
Title: | Chairman and Chief Executive Officer |
32
CONFIRMED AND ACCEPTED,
as of the date first above written:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
||||
By: | ||||
Name: | ||||
Title: | ||||
X.X. Xxxxxx Securities Inc. |
||||
By: | ||||
Name: | ||||
Title: | ||||
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
33
SCHEDULE A
SCHEDULE OF UNDERWRITERS
Number of | ||||
Initial Securities | ||||
Underwriters |
||||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated |
[•] | |||
X.X. Xxxxxx Securities Inc. |
[•] | |||
Macquarie Capital (USA) Inc. |
[•] | |||
RBC Capital Markets Corporation |
[•] | |||
Total |
12,000,000 | |||
Sch A-1
SCHEDULE B
MIE Holdings Corporation
12,000,000 American Depositary Shares
Representing 30,000,000 Ordinary Shares
(Par Value US$0.001 Per Ordinary Share)
12,000,000 American Depositary Shares
Representing 30,000,000 Ordinary Shares
(Par Value US$0.001 Per Ordinary Share)
1. The initial public offering price per ADS for the Securities, determined as provided in said
Section 2, shall be US$[l].
2. The purchase price per ADS for the Securities to be paid by the several Underwriters shall be
US$[l], being an amount equal to the initial public offering price set forth above less
US$[l] per ADS; provided that the purchase price per ADS for any Option Securities purchased
upon the exercise of the over-allotment option described in Section 2(b) shall be reduced by an
amount per ADS equal to any dividends or distributions declared by the Company and payable on the
Initial Securities but not payable on the Option Securities.
Sch B-1
SCHEDULE C
List of Persons and Entities subject to Lock-Up
Directors and Executive Officers:
Xxxxxx Xxxxx
Xxxxxxxx Xxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxx
Xxxxxxxx Xxx
Xxxxxxx X. Xxxxxx
Xuancheng Shou
Xx Xxxx
Xxxxxx Xxxx
Xxxxxx X. Xxxxxx
Xxxxxxxx Xxxx
Xxxxxxx X. Xxxxxxxx
Xxxxx Xxx
Xxxxxxxx Xxx
Xxxxxxx X. Xxxxxx
Xuancheng Shou
Xx Xxxx
Xxxxxx Xxxx
Xxxxxx X. Xxxxxx
Shareholders:
Far East Energy Limited
TPG Star Energy Ltd.
TPG Star Energy Co-Invest, LLC
Harmony Energy Limited
Sino Link Limited
TPG Star Energy Ltd.
TPG Star Energy Co-Invest, LLC
Harmony Energy Limited
Sino Link Limited
Sch C-1
SCHEDULE D
[SPECIFY EACH ISSUER GENERAL USE FREE WRITING PROSPECTUS]
Sch D-1
Exhibit A-1
FORM OF OPINION OF U.S. COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(b)
Exhibit X-0-0
Xxxxxxx X-0
FORM OF OPINION OF CAYMAN ISLANDS COUNSEL FOR THE COMPANY AND MIE
TO BE DELIVERED PURSUANT TO SECTION 5(c)
Exhibit X-0-0
Xxxxxxx X-0
FORM OF OPINION OF PRC COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 5(d)
Exhibit X-0-0
Xxxxxxx X-0
FORM OF OPINION OF COUNSEL FOR THE DEPOSITARY
TO BE DELIVERED PURSUANT TO SECTION 5(e)
Exhibit A-4-1
Exhibit B
[Form of lock-up from directors, officers or other stockholders]
May [•], 2010
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Incorporated
Xxx Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
X.X. Xxxxxx Securities Inc.
383 Madison Avenue, Floor 4
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
as Representatives of the several Underwriters
Re: Proposed Public Offering by MIE Holdings Corporation
Dear Sirs:
The undersigned, [a shareholder] [[and] an officer and/or director] of MIE Holdings
Corporation, an exempted limited liability company incorporated under the laws of the Cayman
Islands (the “Company”), understands that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (“Xxxxxxx Xxxxx”) and X.X. Xxxxxx Securities Inc. (“X.X. Xxxxxx,” and
together with Xxxxxxx Xxxxx, the “Representatives”) propose to enter into an Underwriting
Agreement (the “Underwriting Agreement”) with the Company providing for the public offering
of the American Depositary Shares of the Company (the “ADSs”), each two ADSs representing
five of the Company’s ordinary shares, par value US$0.001 per ordinary share (the “Ordinary
Shares”). In recognition of the benefit that such an offering will confer upon the undersigned
as [a shareholder] [[and] an officer and/or director] of the Company, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the Underwriting Agreement that, except for
the securities to be sold under the Underwriting Agreement, during a period of 180 days from the
date of the Underwriting Agreement, the undersigned will not, without the prior written consent of
the Representatives, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, or otherwise dispose of or transfer any ADSs or Ordinary Shares or any
securities convertible into or exchangeable or exercisable for ADSs or Ordinary Shares, whether now
owned or hereafter acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or file, or cause to be filed, any registration
statement under the Securities Act of 1933, as amended, with respect to any of the foregoing
(collectively, the “Lock-Up Securities”) or (ii) enter into any swap or any other agreement
or any transaction that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Lock-Up Securities, whether any such swap or transaction described
in (i) or (ii) above is to be settled by delivery of ADSs, Ordinary Shares or other securities, in
cash or otherwise. Notwithstanding the foregoing, ADSs or Ordinary Shares acquired by the
undersigned on the open market after the date of the Closing Time shall not constitute Lock-Up
Securities. Capitalized terms used herein and not otherwise defined have the meanings assigned
them in the Underwriting Agreement.
Exhibit B-1
Notwithstanding the foregoing, and subject to the conditions below, the undersigned may
transfer the Lock-Up Securities without the prior written consent of the Representatives,
provided that (1) the Representatives receive a signed lock-up agreement for the balance of
the lockup period from each donee, trustee, distributee, or transferee, as the case may be, (2) any
such transfer shall not involve a disposition for value, (3) such transfers are not required to be
reported in any public report or filing with the Securities and Exchange Commission, or otherwise,
and (4) the undersigned does not otherwise voluntarily effect any public filing or report regarding
such transfers:
(i) | as a bona fide gift or gifts; or | ||
(ii) | to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned (for purposes of this lock-up agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin), as a distribution to limited partners or stockholders of the undersigned, or to the undersigned’s affiliates or to any investment fund or other entity controlled or managed by the undersigned. |
Notwithstanding the foregoing, if:
(1) during the last 17 days of the 180-day lock-up period, the Company issues an earnings
release or material news or a material event relating to the Company occurs; or
(2) prior to the expiration of the 180-day lock-up period, the Company announces that it will
release earnings results or becomes aware that material news or a material event will occur during
the 16-day period beginning on the last day of the 180-day lock-up period, the restrictions imposed
by this lock-up agreement shall continue to apply until the expiration of the 18-day period
beginning on the issuance of the earnings release or the occurrence of the material news or
material event, as applicable, unless the Representatives waive, in writing, such extension.
The undersigned hereby acknowledges and agrees that written notice of any extension of the
180-day lock-up period pursuant to the previous paragraph will be delivered by the Representatives
to the Company (in accordance with Section 13 of the Underwriting Agreement) and that any such
notice properly delivered will be deemed to have been given to, and received by, the undersigned.
The undersigned further agrees that, prior to engaging in any transaction or taking any other
action that is subject to the terms of this lock-up agreement during the period from the date of
this lock-up agreement to and including the 34th day following the expiration of the
initial 180-day lock-up period, it will give notice thereof to the Company and will not consummate
such transaction or take any such action unless it has received written confirmation from the
Company that the 180-day lock-up period (as may have been extended pursuant to the previous
paragraph) has expired.
Exhibit B-2
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in
compliance with the foregoing restrictions.
Very truly yours,
Signature:_______________________
Print Name:______________________
Exhibit B-3