CHINA CORD BLOOD CORPORATION UNDERWRITING AGREEMENT
CHINA CORD BLOOD
CORPORATION
November __, 2009
Xxxxxx & Xxxxxxx,
LLC
As representative of the Underwriters
named in Schedule I hereto,
c/o Rodman & Xxxxxxx,
LLC
1251 Avenue of the Xxxxxxxx,
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
Ladies and
Gentlemen:
China Cord Blood Corporation, a Cayman
Islands corporation (“Company”), confirms its agreement, subject to the terms and conditions
stated herein, to issue and sell to the Underwriters named in Schedule I
hereto (the “Underwriters”) an aggregate of [*] shares of the Company’s ordinary
shares, $0.0001 par value per share (the “Common
Stock”), and, at the election of the
Underwriters in the circumstances specified in Section 2 hereto, up to _____
additional shares of Common Stock. The ____ shares to be sold by the
Company are herein called the “Firm
Shares” and the _____
additional shares to be sold by the Company are herein called the “Optional
Shares.” The Firm Shares
and the Optional Shares that the Underwriter elects to purchase pursuant to
Section 2 hereof are herein collectively referred to as the “Securities.”
1.
The Company represents and
warrants to, and agrees with, each of the Underwriters that:
(i)
A registration statement on
Form F-1 (File No. 333-161602) (as amended by all pre-effective amendments
thereto, the “Initial Registration
Statement”) in respect of
the Securities has been filed with the Securities and Exchange Commission (the
“Commission”). The Initial Registration Statement and
any post-effective amendment thereto have been declared effective by the
Commission; other than a registration statement, if any, increasing the size of
the offering (a "Rule 462(b)
Registration Statement"),
filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended (the
"Act"), which became effective upon filing, no other document with respect to
the Initial Registration Statement has heretofore been filed under the Act with
the Commission; and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and, to the best of the
Company's knowledge, no proceeding for that purpose has been initiated or
threatened by the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Act is hereinafter called
a "Preliminary
Prospectus"; the various
parts of the Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission pursuant to
Rule 424(b) under the Act in accordance with Section 5(a) hereof and deemed by
virtue of Rule 430A under the Act to be part of the Initial Registration
Statement at the time it was declared effective, each as amended at the time
such part of the Initial Registration Statement became effective or such part of
the Rule 462(b) Registration Statement, if any, became or hereafter becomes
effective, are hereinafter collectively called the "Registration
Statement"; the Preliminary
Prospectus relating to the Securities that was included in the Registration
Statement immediately prior to the Applicable Time (as defined in Section 1(ii)
hereof) is hereinafter called the "Pricing
Prospectus"; such final
prospectus, in the form first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the "Prospectus"; all references in this Agreement to
the Initial Registration Statement, the Rule 462(b) Registration Statement, a
Preliminary Prospectus, the Pricing Prospectus and the Prospectus, or any
amendments or supplements to any of the foregoing, shall be deemed to refer to
and include any copy thereof filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval System);
No order preventing or suspending the
use of any Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by an
Underwriter expressly for use therein. The parties acknowledge and agree that
such information provided by or on behalf of any Underwriter consists solely of
the names of the Underwriters appearing in the
“Underwriting” section of the Prospectus and the following additional disclosure
contained in the “Underwriting ” section of the Prospectus : (i) the eighth and
ninth paragraphs, (ii) the seventeenth through thirty-sixth
paragraphs and (iii) all paragraphs under the
heading “Notice to Canadian Investors” (the “Underwriters’
Information”).
(ii)
For the purposes of this
Agreement, the "Applicable
Time" is 5:30 p.m. (Eastern
time) on the date of this Agreement. The Pricing Prospectus as of the Applicable Time,
did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter expressly for use therein
(iii)
The Registration Statement
conforms, and the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all material respects
with the requirements of the Act and the
rules and
regulations of the
Commission thereunder, and do not and will not, as of the applicable effective date as
to the Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
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. The representations and warranties set
forth in the immediately preceding sentence shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter expressly for use
therein;
(iv)
Since the respective dates
as of which information is given in the Prospectus, except as otherwise
specifically stated therein: (i) there has been no material
adverse change in the condition, financial or otherwise, or business prospects
of the Company; (ii) there have been no material transactions entered into
by the Company, other than as contemplated pursuant to this Agreement; and
(iii) no officer or director of the Company has resigned from any position
with the Company.
(v)
Except as set forth in the
Pricing Prospectus, the
Company and its subsidiaries do not own any real property. Except as set forth in the Pricing
Prospectus, the Company and
its subsidiaries have good and marketable title to all personal property owned
by them, in each case free and clear of all liens, encumbrances and
defects, except such as do not materially affect the value of
such property or do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries or would not
reasonably be expected to result in a Material Adverse Effect; and any real property and buildings
held under lease by the Company and its subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as would not
reasonably be expected to result in a Material Adverse
Effect;
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(vi)
The Company has been duly
incorporated by way of continuation and is validly existing as a corporation in
good standing under the laws of the Cayman Islands, with corporate power and
authority to own its properties and conduct its business as described in the
Pricing Prospectus, and is duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, except where the failure to be so qualified
and in good standing in any such jurisdiction would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect; and each
subsidiary of the Company has been duly formed, incorporated or organized and is
validly existing and in good standing under the laws of its jurisdiction of
formation, incorporation or organization and each subsidiary of the Company has
been duly qualified for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except
where the failure to be so qualified and in good standing in any such
jurisdiction would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;
(vii)
All of the issued and outstanding shares of
capital stock of the Company have been duly authorized and are validly issued,
fully paid and non-assessable, and have been issued in compliance in all material respects with all applicable federal and state
securities laws or an exemption thereto and conform in all material respects to
the description of the capital stock set forth in the Pricing Prospectus and the Prospectus; all of
the shares of capital stock of each subsidiary of the Company owned by the
Company have been duly authorized and are validly issued, fully paid and
non-assessable, have been issued in compliance with all applicable securities laws and
are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, except to such extent as would not,
individually or in the aggregate, have a Material Adverse
Effect. None of the outstanding shares of
capital stock of the Company were issued in violation of any preemptive rights,
rights of first refusal or other similar rights to subscribe for or purchase
securities of the Company. There are no authorized or outstanding
options, warrants, preemptive rights, rights of first refusal or other rights to
purchase, or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or any of its subsidiaries
other than as set forth in
the Pricing Prospectus and
the Prospectus;
(viii)
This Agreement has been
duly authorized, executed and delivered by the Company, and is a valid and
binding agreement of the Company, enforceable in accordance with its terms,
except as rights to indemnification or contribution hereunder may be limited by
applicable law or the public policy underlying such law and except as the
enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles;
(ix)
Except as disclosed in the
Initial Registration Statement, the Pricing Prospectus and the Prospectus, there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company or to require the Company to include such securities with the Securities
registered pursuant to the Initial Registration Statement other than as
described in the Pricing Prospectus and the Prospectus, or as have been satisfied, or waived in
writing, in connection with the offering contemplated
hereby;
(x)
The issue and sale of the
Securities and the compliance by the Company with all of its obligations under
this Agreement and the consummation of the transactions herein contemplated will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or give rise to a right of
termination under, or result in the acceleration of any obligation under any
statute, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, except for such conflicts, breaches, defaults, violations or rights as
would not, individually or in the aggregate, have a Material Adverse Effect, nor will
such action result in any violation of (A) the provisions of the Memorandum and
Articles of Association of the Company or any of its subsidiaries or (B) any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their properties, except in
the case of clause (B) for such violations as would not reasonably be expected
to have a Material Adverse Effect;
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(xi)
No consent, approval,
authorization, order, registration, qualification, permit, license, exemption,
filing or notice (each an “Authorization”) of, from, with or to any court,
tribunal, government, governmental or regulatory authority, self-regulatory
organization or body (each, a “Regulatory
Body ”) is required for the
issue and sale of the Securities by the Company or the consummation by the
Company of the transactions contemplated by this Agreement, except (A) the
registration of the Securities under the Act; (B) such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Securities by the Underwriter; (C) such Authorizations as may be
required under the rules and regulations of the Financial Industry Regulation
Authority, Inc. (“FINRA”); (D) such Authorizations as may be
required under the rules and regulations of The New York Stock Exchange; and
(E) such other Authorizations the absence of
which would not, individually or in the aggregate, have a Material Adverse
Effect; and no event has occurred that has resulted in, or after notice or lapse
of time or both would reasonably be expected to result in, or would otherwise
reasonably be expected to result in revocation, suspension, termination or
invalidation of any such Authorization or any other impairment of the rights of
the holder or maker of any such Authorization;
(xii)
All corporate actions
(including those of stockholders) necessary for the Company to consummate the
transactions contemplated in this Agreement have been obtained and are in
effect;
(xiii)
Neither the Company nor any
of its subsidiaries is (A) in violation of its Memorandum and Articles of
Incorporation or other organizational documents or (B) in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, except for such defaults specified under
subparagraph (B) herein that would not, individually or in the aggregate,
have a Material Adverse
Effect;
(xiv)
Other than as set forth in
the Pricing Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its subsidiaries
is a party or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would
reasonably be expected to, individually or in the aggregate, have a Material
Adverse Effect; and, no such proceedings are threatened or to the Company’s knowledge
contemplated by governmental authorities or threatened by
others;
(xv)
KPMG, who have audited
certain financial statements of the Company, is an independent registered
accounting firm as required by the Act and the rules and regulations of the
Commission thereunder;
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(xvi)
The consolidated financial
statements of the Company and its subsidiaries, including all notes and
schedules thereto, included in or incorporated by reference into the Initial
Registration Statement, the Pricing Prospectus and the Prospectus present fairly the
consolidated financial position of the Company and its consolidated subsidiaries
at the dates indicated and the statement of income, stockholders’ equity and
cash flows of the Company and its subsidiaries for the periods specified in
conformity with generally accepted accounting principles, consistently applied
throughout the periods involved, other than as may be expressly stated in the
related notes thereto and,
with respect to unaudited periods other than routine year-end
adjustments which are not
material individually or in the aggregate; no other financial statements or
supporting schedules are required to be included in the Initial Registration
Statement, the Pricing Prospectus and the Prospectus;
(xvii)
The Company maintains a
system of internal control over financial reporting (as such term is defined in
Rule 13a-15(f) under the
Exchange Act) that complies
with the requirements of the Exchange Act and has been designed by the Company’s
principal executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. The Company’s internal control over
financial reporting is effective and the Company is not aware of any material
weaknesses in its internal control over financial reporting;
(xviii)
Since the date of the
latest audited financial statements of the Company included in or incorporated
by reference into the Pricing Prospectus, there has been no change in
the Company’s internal control over financial reporting that has materially
adversely affected, or is reasonably likely to materially adversely affect, the
Company’s internal control over financial reporting;
(xix)
Except as disclosed in the
Initial Registration Statement, the Pricing Prospectus and the Prospectus, the Company
maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the
Exchange Act. Such disclosure controls and procedures
(A) are designed to ensure that material information relating to the Company and
its subsidiaries is made known to the Company’s principal executive officer and
principal financial officer by others within those entities; and (B) to the
knowledge of the Company are effective to perform the functions for which they
were established;
(xx)
There are no off-balance
sheet arrangements, outstanding guarantees or other contingent obligations of
the Company that could reasonably be expected to have a Material Adverse
Effect;
(xxi)
The Company’s Chief
Executive Officer and Chief Financial Officer have reviewed and agreed with the
selection, application and disclosure of critical accounting policies and such
policies were reviewed by the Company’s independent registered public accounting
firm with regard to such disclosure;
(xxii)
No relationship, direct or indirect,
exists between or among the Company, on the one hand, and any director, officer,
stockholder, customer, licensor or supplier of the Company, on the other hand,
which is required to be described in the Initial Registration Statement, the
Pricing
Prospectus or the
Prospectus and which is not so described. There are no outstanding loans, advances
or guarantees of indebtedness by the Company to or for the benefit of any of the
executive officers or directors of the Company, except as disclosed in the
Initial Registration Statement, the Pricing Prospectus and the Prospectus;
5
(xxiii)
To the knowledge of the
Company, no person associated with or acting on behalf of the Company, including
without limitation any director, officer, agent or employee of the Company or
its subsidiaries has, directly or indirectly, while acting on behalf of the
Company or its subsidiaries (A) used any corporate funds for unlawful
contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (B) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns from corporate funds, (C) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended or (D) made any other unlawful
payment;
(xxiv)
Except as contemplated by
this Agreement and as set
forth in the Initial Registration Statement, the
Pricing Prospectus and the
Prospectus, no person is entitled to receive from the Company a brokerage
commission, finder’s fee or other like payment in connection with the
transactions contemplated herein,;
(xxv)
Neither the Company nor any
of its subsidiaries or controlled affiliates does business with the government
of, or with any person located in any country in a manner that violates in any
material respect any of the economic sanctions programs or similar
sanctions-related measures of the United States as administered by the United
States Treasury Department’s Office of Foreign Assets Control; and the net
proceeds from the offering contemplated by this Agreement will not be used to
fund any operations in, finance any investments in or make any payments to any
country, or to make any payments to any person, in a manner that violates any of
the economic sanctions of the United States administered by the United States
Treasury Department’s Office of Foreign Assets Control;
(xxvi)
Statistical,
industry-related and market-related data included in the Initial Registration
Statement, the Pricing
Prospectus and the
Prospectus are based on or derived from sources that the Company reasonably and
in good faith believes are reliable and accurate in all material
respects;
(xxvii)
The Company has not
distributed and will not distribute prior to the last Time of Delivery (as
defined in Section 4 hereof) and completion of the distribution of the
Securities, any offering
material in connection with the offering and sale of the Securities other than
the Initial Registration
Statement, the Pricing
Prospectus and the Prospectus or such other materials reviewed by the
Underwriter or otherwise required by applicable law;
(xxviii)
Except as set forth in the
Initial Registration Statement, the Pricing Prospectus and the Prospectus,
no material labor dispute
with the employees of the Company or any of its subsidiaries exists, or, to the
knowledge of the Company, is imminent; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers or contractors other than as would not
reasonably be expected to
have a Material Adverse
Effect;
(xxix)
The Company and its
subsidiaries own or possess all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names currently employed by
them in connection with the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to any of the foregoing
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably be expected to
have a Material Adverse
Effect;
(xxx)
None of the Company and its
subsidiaries, nor to the knowledge of the Company, any of the Company’s or its
subsidiaries’ directors, officers or controlling persons, have taken or will
take, directly or indirectly, any action designed to or that might be reasonably
expected to cause or result in stabilization or manipulation of the price of the
Common Stock to facilitate the sale or resale of the Securities which is otherwise prohibited by
Regulation M under the Act;
6
(xxxi)
There is and has not been
any failure on the part of the Company or any of the Company’s directors or
officers, in their capacities as such, to comply with any provision of the
Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Xxxxxxxx-Xxxxx
Act”) applicable to it,
including Section 402 related to loans and Sections 302 and 906 related to
certifications;
(xxxii)
None of the net proceeds of
the offering will be paid by the Company to any participating FINRA member or
its affiliates, except as specifically authorized herein; and.
(xxxiii)
No officer, director or any beneficial
owner of 5% or more of the Company’s unregistered securities has any direct or
indirect affiliation or association with any FINRA member (as determined in
accordance with the rules and regulations of FINRA) except as set forth in the
Initial Registration Statement, the Pricing Prospectus and the
Prospectus. The Company will advise Xxxxxx &
Xxxxxxx, LLC and Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP if it learns that any
officer, director or owner of at least 5% of the Company’s outstanding Common
Stock (or securities convertible into Common Stock) is or becomes an affiliate
or associated person of a FINRA member participating in the
offering.
2. Subject to the terms and conditions
herein set forth, (a) the Company agrees to sell to each of the Underwriters, and each of the Underwriters agree, severally and not jointly, to
purchase from the Company, at a purchase price per Firm Share of $[ ], the number of Firm Shares set forth opposite its name in Schedule I hereto and (b) the Company, as and to the extent indicated
in Schedule I hereto, hereby grants to the Underwriters the right to purchase at
its election up to ________ shares of Common Stock or fifteen percent (15%) of
the Firm Shares sold in the offering from the Company (the “Optional
Shares”) at the purchase
price per Optional Share set forth in clause (a), for the sole purpose of
covering sales of shares in excess of the number of Firm Shares. Any such election to purchase Optional
Shares may be exercised only by written notice from Xxxxxx & Xxxxxxx, LLC to
the Company, given within a period of 45 calendar days after the date of this
Agreement and setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the Time of Delivery or, unless
you and the Company otherwise agree in writing, earlier than two or later than
ten business days after the date of such notice.
3.
Upon the authorization by
you of the release of the Firm Shares, the several Underwriters propose to offer
the Firm Shares for sale upon the terms and conditions set forth in the
Prospectus.
4.
The Company will deliver
the Securities to the
Underwriter against receipt of payment of the purchase price therefore by wire
transfer of Federal (same-day) funds to the account specified by the
Company pursuant to written
instructions of the Company. The time and date of such delivery and
payment shall be, with respect to the Securities, 9:30 a.m., New York time, on
November __, 2009, or such other time and date as the Company and the Underwriter shall
agree, and upon satisfaction by the Company of all of the conditions to closing
set forth in this Agreement (the “Time of
Delivery”). If the Underwriter so requests, delivery
of the Firm Shares and Optional Shares, if any, shall be made by credit through
full fast transfer to the accounts at the Depositary Trust Company designated by
the Underwriter. The documents to be delivered at
the Time of Delivery by or on behalf of the
parties hereto pursuant to Section 6 hereof, will be delivered at the offices of
Sichenzia Xxxx Xxxxxxxx
Xxxxxxx LLP (the
“Closing
Location”). A meeting will be held at the Closing
Location at 3:00 p.m., New
York City time, on the New York Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. The Firm Shares shall be registered in
such name or names and in such authorized denominations as the Representative
may request in writing at least two (2) full Business Days prior to the Time of
Delivery. The Company shall not be obligated to
sell or deliver the Firm Shares except upon tender of payment by the
Representative for all the Firm Shares. The term “Business Day” means any day
other than a Saturday, a Sunday or a legal holiday or a day on which banking
institutions are authorized or obligated by law to close in New York City. For
the purposes of this Section 4, “New York Business Day” means any day other than
a Saturday, a Sunday or a legal holiday or a day on which banking institutions
are authorized or obligated by law to close in New York
City.
7
5.
The Company agrees with
each of the Underwriters:
(a) To prepare the Prospectus in a form
reviewed by you and to file such Prospectus
pursuant to Rule 424(b) under the Act not later than the Commission’s close of
business on the second business day following the execution and delivery of this
Agreement; or, if applicable, such earlier time as may be required by Rule
430(a)(3) under the Act; to make no further amendment or any supplement to the
Registration Statement or
the Prospectus prior to the
Time of Delivery which
shall not be reviewed by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of the time
when any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has been
filed and to furnish you with copies thereof; to file promptly all material
required to be filed by the Company with the Commission pursuant to Rule 433(d)
under the Act; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any preliminary prospectus or other prospectus in respect of the
Securities, of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, of the receipt of any notification with
respect to the suspension of the shares of Common Stock for quotation on The
New York Stock Exchange, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any preliminary prospectus or other prospectus or suspending any
such qualification, to promptly use its best efforts to obtain the withdrawal of
such order; if required by Rule 430B(h) under the Act, to prepare a form of
prospectus in a form approved by you and to file such form of prospectus
pursuant to Rule 424(b) under the Act not later than may be required by Rule
424(b) under the Act, and to make no further amendment or supplement to such
form of prospectus which shall not be reviewed by you promptly after reasonable notice
thereof;
(b) Promptly from time to time to take such
action as you may reasonably request to qualify the Securities for offering and
sale under the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete the
distribution of the Securities, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction;
(c) Prior to 10:00 A.M., New York City time,
on the New York Business Day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with written and electronic copies of
the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) is required at any time prior to the
expiration of nine
months after the time of
issue of the Prospectus in connection with the offering or sale of the
Securities and if at such time any events shall have occurred as a result of
which, in the opinion of counsel for the Company, the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus in order to comply
with the Act, to notify you and upon your request to prepare and furnish without
charge to each
Underwriter and to any
dealer in securities as many written and electronic copies as you may from time
to time reasonably request of an amended Prospectus or a supplement to the
Prospectus which will correct such statement or omission or effect such
compliance (including copies of any Incorporated Documents), and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof, the notice
referred to in Rule 173(a) under the Act) in connection with sales of any of the
Securities at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter, to prepare
and deliver to such Underwriter as many written and electronic copies as you may
request of an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act (including copies of any Incorporated Documents);
8
(d) To make generally available to its
securityholders as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as defined in
Rule 158(c) under the Act), a consolidated earning statement of the Company
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the option of
the Company, Rule 158);
(e) Unless otherwise publicly available in
electronic format on the website of the Company or filed with the Commission, to furnish to its shareholders as soon as practicable after the end of
each fiscal year an annual report (including a consolidated balance sheet and
consolidated statements of income, stockholders’ equity and cash flows of the
Company certified by independent public accountants);
(f) During a period of three years from the
effective date of the Registration Statement, unless otherwise publicly
available in electronic format on the website of the Company or filed with the Commission, to furnish to you copies of all
reports or other communications (financial or other) furnished to
stockholders.
(g) To maintain, at its expense, a registrar
and transfer agent for the Common Stock;
(h) To use the net proceeds received by it
from the sale of the Securities pursuant to this Agreement in the manner
specified in the Pricing Prospectus and the Prospectus under the caption “Use of
Proceeds”;
(i) If the Company elects to rely upon Rule
462(b), the Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time,
on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee pursuant
to Rule 111(b) under the Act;
(j) To refrain from taking at any time,
directly or indirectly, any action designed or that might reasonably be expected
to cause or result in, or that will constitute, stabilization of the price of
the shares of any security of the Company; and;
(k) The Company and its subsidiaries will
comply, in all material respects, with all effective applicable provisions of
the Xxxxxxxx-Xxxxx Act.
9
6.
(a) The Company represents and agrees that,
without the prior consent of Xxxxxx & Xxxxxxx, LLC, it has not made and will
not make any offer relating to the Securities that would constitute a “free
writing prospectus” as defined in Rule 405 under the Act; each Underwriter represents and agrees that, without the
prior consent of the Company and Xxxxxx & Xxxxxxx, LLC, it has
not made and will not make any offer relating to the Securities that would
constitute a free writing prospectus;
(b) The Company agrees that Xxxxxx & Xxxxxxx, LLC shall have an
irrevocable preferential right for a period of six (6) months from the closing
of this offering to act, in the Company’s discretion, as the underwriter and/or
joint bookrunner and/or co-manager for one future offering of securities
(whether public or private in the case of equity or any public debt offering) of
the Company or any such subsidiary or successor. The Company and any such
subsidiary or successor will consult Xxxxxx & Xxxxxxx, LLC with regard to
any such proposed financing and will offer Xxxxxx & Xxxxxxx, LLC such
opportunity on terms not more favorable to the Company or any such subsidiary or
successor, as the case may be, than it or they can secure elsewhere. If Xxxxxx
& Xxxxxxx, LLC fails to accept such offer within 10 business days after the
mailing of a notice containing the material terms of the proposed financing
proposal by registered mail or overnight courier service addressed to Xxxxxx
& Xxxxxxx, LLC, then Xxxxxx & Xxxxxxx, LLC shall have no further claim
or right with respect to the financing proposal contained in such notice. The
right of first refusal, as described herein, will be terminated in the event the
Agreement is terminated pursuant to Section 8 below.
(c) Whether or not the transactions
contemplated by this Agreement are consummated or this Agreement is terminated,
the Company covenants and agrees with the Underwriters that the Company will pay or cause to
be paid the following: (i)
all filing fees and communication expenses relating to the registration of the
Shares to be sold in the
Offering (including the Over-allotment Shares) with the Commission; (ii) all
COBRADesk filing fees associated with the review of the Offering by FINRA; all
fees and expenses relating to the listing of such Shares on the New York Stock
Exchange and on such other stock exchanges as the Company and Xxxxxx
together determine; (iii)
all fees, expenses and disbursements relating to background checks of the
Company’s officers and directors in an amount not to exceed $5,000 per
individual; (iv) all fees,
expenses and disbursements of Xxxxxx’x counsel relating to the registration or
qualification of such Shares under the “blue sky” securities laws of such states
and other jurisdictions as Xxxxxx may reasonably designate; (v) all fees,
expenses and disbursements relating to the registration, qualification or exemption of such
Shares under the securities laws of such foreign jurisdictions as Xxxxxx
may reasonably designate;
(vi) the costs of all mailing and printing of the underwriting documents
(including, without
limitation, the Underwriting Agreement, any Blue Sky Surveys and, if
appropriate, any Agreement Among Underwriters, Selected Dealers’ Agreement,
Underwriters’ Questionnaire and Power of Attorney), Registration Statements, Prospectuses
and all amendments, supplements and exhibits thereto and as many preliminary and final Prospectuses as
Xxxxxx may reasonably deem necessary; (vii) [RESERVED]; (viii) the costs of preparing,
printing and delivering certificates representing the Shares; (ix) fees and
expenses of the transfer agent for the Common Stock; (x) stock transfer and/or stamp
taxes, if any, payable upon the transfer of securities from the Company
to Xxxxxx; (xi) the costs associated with bound
volumes of the public offering materials as well as commemorative
mementos and lucite tombstones, each of which the Company or its designee will
provide within a reasonable
time after the Closing in such quantities as Xxxxxx may reasonably request;
(xii) the fees and expenses
of the Company’s accountants; (xiii) the fees and expenses of the Company’s
legal counsel and other
agents and representatives; (xiv) Xxxxxx’x use of i-Deal’s book-building,
prospectus tracking and compliance software for the Offering; (xv) Xxxxxx’x
actual “road show” expenses for the Offering; and (xvi) Xxxxxx’x costs of
mailing prospectuses to prospective investors. All relevant expenses incurred by Xxxxxx
in items (xi), (xiv) (xv) and (xvi) of this Section 6(c) will be borne by the
Company, up to but no more than $130,000; the remaining balance will be borne by
Xxxxxx.
10
(d) The obligations of the Underwriters hereunder, as to the Securities to be
delivered at the Time of Delivery, shall be subject, in
their discretion, to the condition that all
representations and warranties and other statements of the Company herein are,
at and as of the Time of Delivery, true and
correct (except for such
representations and warranties that are qualified by materiality, which shall be
true and correct as so qualified), the condition that the Company shall have
performed all of its obligations hereunder theretofore to be
performed, and the
following additional conditions:
a. The Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act within the applicable
time period prescribed for such filing by the rules and regulations under the
Act and in accordance with Section 5(a) hereof; all material required to be
filed by the Company pursuant to Rule 433(d) under the Act shall have been filed
with the Commission within the applicable time period prescribed for such filing
by Rule 433; no stop order
suspending the effectiveness of the Initial Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and no stop order suspending or preventing
the use of the Prospectus shall have been initiated or threatened by the
Commission; and all requests for additional
information on the part of the Commission shall have been complied with to your
reasonable satisfaction;
x. Xxxx & Loeb LLP, counsel for the
Company, shall have furnished to you their written opinion, dated the Time of Delivery, in the form attached
as Annex I(a) hereto;
c. The Company shall have executed a
Lock-up Agreement that provides that for a period of 180 days from the Time of
Delivery the Company shall not offer for sale, sell, contract to sell, pledge,
grant any option to purchase, make any short sale or otherwise dispose of or any
options or warrants to purchase the Company’s Common Stock other than the Common
Stock or options to acquire the Company’s Common Stock issued under the
Company’s share option plan any of the Company’s Common Stock, without the prior
written consent of the Representative.
d. The Company’s directors and executive
officers shall have executed a Lock-up Agreement that provides that for a period
of 180 days from the Time of Delivery such persons shall not sell, offer,
contract or grant any option to sell, pledge, transfer or otherwise dispose of
the Company’s Common Stock without the prior written consent of the
Representative.
(a) Comfort
Letter. On the date of the Prospectus
upon the execution of this Agreement, and
also at the Time of Delivery, the Representative shall have received a letter,
in form and substance satisfactory in all respects, from KPMG dated as of the
Time of Delivery.
f. (i) Neither the Company nor any of its
subsidiaries shall have sustained since the date of the latest audited financial
statements filed with the
Commission as part of the Registration Statement and included in the Pricing Prospectus and the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Pricing
Prospectus, and (ii) since the respective dates as of which information is given
in the Pricing
Prospectus and
the Prospectus there shall
not have been any change in the capital stock or long-term debt of the Company
or any of its subsidiaries or any change, or any development involving a
prospective change, in or affecting the business, operations, assets, condition
(financial or otherwise) or results of operations of the Company and its
consolidated subsidiaries, otherwise than as set forth or contemplated in the
Pricing
Prospectus and
the Prospectus, the effect
of which, in any such case described in clause (i) or (ii), is in the judgment
of Xxxxxx & Xxxxxxx, LLC so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Securities being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Pricing Prospectus and the Prospectus;
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g. On or after the Applicable Time there
shall not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange a
general moratorium on commercial banking activities declared by either Federal
or New York or Cayman Island authorities or a material disruption in commercial
banking or securities settlement or clearance services in the United States;
(iii) the outbreak or escalation of hostilities involving the United States or
the declaration by the United States of a national emergency or war or (iv) the
occurrence of any other calamity or crisis or any change in financial, political
or economic conditions in the United States or elsewhere, if the effect of any
such event specified in clause (iii) or (iv) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities being delivered at such Time of Delivery on the terms and in
the manner contemplated in the Prospectus;
h. The Firm Shares and Optional Shares, if any, to be sold
at the Time of Delivery shall have been duly
listed for quotation on The
New York Stock Exchange, Inc. and the Company shall have complied with all
obligations of The New York Stock Exchange, Inc. relating to the sale of the
Securities;
i. The Company shall have complied with the
provisions of Section 5(c) hereof with respect to the furnishing of prospectuses
on the New York Business Day next succeeding the date of this
Agreement;
j. The Company shall have furnished or
caused to be furnished to you at the Time of Delivery certificates of
officers of the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such Time of Delivery, as
to the performance by the Company of all of its respective obligations
hereunder to be performed at or prior to the Time of Delivery, and as to such other matters as you
may reasonably request, and
the Company shall have furnished or caused to be furnished certificates as to
the matters set forth in subsections (a) and (d) of this
Section;
k. FINRA shall have raised no objection to
the fairness and reasonableness of the underwriting terms and
arrangements;
7.
(a) The Company will indemnify and hold
harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act from and against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter or controlling
person may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon: any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or Prospectus 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 arise out of an untrue statement or
alleged untrue statement of a material fact included in any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Incorporated Documents or the omission or alleged
omission therefrom
of a material fact required
to be stated therein or necessary to make the statements therein, in the light of the circumstances
under which they were made,
not misleading and will reimburse each Underwriter for
any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, or any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or supplement thereto,
or any Incorporated
Documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter expressly for use therein. With respect to any untrue statement or
omission or alleged untrue statement or omission made in the Preliminary
Prospectus, the indemnity agreement contained in this paragraph shall not inure
to the benefit of any Underwriter to the extent that any loss, liability, claim,
damage or expense of such Underwriter results from the fact that a copy of the
Prospectus was not given or sent to the person asserting any such loss,
liability, claim or damage at or prior to the written confirmation of sale of
the Public Securities to such person as required by the Securities Act and the
Rules and regulations, and if the untrue statement or omission has been
corrected in the Prospectus, unless such failure to deliver the Prospectus was a
result of non-compliance by the Company with its obligations
hereunder. The Company agrees promptly to notify
the Representative of the commencement of any litigation or proceedings against
the Company or any of its officers, directors or controlling persons in
connection with the issue and sale of the Public Securities or in connection
with the Registration Statement or Prospectus.
12
(b) Each Underwriter will indemnify and hold
harmless the Company and each person, if any, who controls the Company within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act
from and against any losses, claims, damages or liabilities to which the Company
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus 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
arise out of an untrue statement or alleged untrue statement of a material fact
included in any Preliminary Prospectus, the Pricing Prospectus, or the Prospectus, or any amendment or
supplement thereto, or the omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances
under which they were made,
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, or any Preliminary Prospectus, the Pricing
Prospectus, or the
Prospectus, or any amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through Xxxxxx
& Xxxxxxx, LLC expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party except to the extent such indemnifying
party has been materially prejudiced by such failure. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action 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.
13
(d) If the indemnification provided for in
this Section 8 is unavailable to or insufficient to hold harmless an indemnified
party under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters on the other from the offering of the
Securities. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on the one hand or
the Underwriters on the other and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this
subsection (d), the Underwriters shall not be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company under
this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
any Underwriter within the meaning of the
Act; and the obligations of the Underwriters under this Section 8 shall be in
addition to any liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the Company
(including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Act.
14
8. (a) If any Underwriter shall default in
its obligation to purchase the Securities which it has agreed to purchase
hereunder at a Time of Delivery, you may in your discretion arrange for you or
another party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then the
Company shall be entitled to a further period of thirty-six hours within which
to procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company that you have so arranged for the purchase of
such Securities, or the Company notifies you that it has so arranged for the
purchase of such Securities, you or the Company shall have the right to postpone
a Time of Delivery for a period of not more than seven days, in order to effect
whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments or supplements to the Registration
Statement or the Prospectus which in your opinion may thereby be made necessary.
The term "Underwriter" as used in this Agreement shall include any person
substituted under this Section with like effect as if such person had originally
been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any
arrangements for the purchase of the Securities of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a) above, the aggregate
number of such Securities which remains unpurchased does not exceed
one-tenth of the aggregate number of
all the Securities to be purchased at such Time of
Delivery, then the Company shall have the right to require each non-defaulting Underwriter to purchase
the number of Securities which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require
each non-defaulting Underwriter to purchase its pro rata share (based on
the number of Securities which such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any
arrangements for the purchase of the Securities of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection (a) above, the
aggregate number of such Securities which remains unpurchased exceeds one-eleventh
of the aggregate number of all of the Securities to be purchased at such Time of
Delivery, or if the Company shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase Securities of a defaulting Underwriter or
Underwriters, then this Agreement shall thereupon
terminate, without liability on the part of any non-defaulting Underwriter or the
Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section
6 hereof and the indemnity and contribution
agreements in Section 7 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
9. The respective indemnities, agreements,
representations, warranties and other statements of the Company and the
several Underwriters, as set forth in this Agreement or made
by or on behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter, or any controlling person of any
Underwriter, or the Company, or any officer or director or controlling person of
the Company, and shall survive delivery of and payment for the
Securities..
10. If this Agreement shall be terminated
pursuant to Section 8 hereof, the Company shall not then be under any liability
to any Underwriter except as provided in Sections 7 and 8 hereof; but, if for
any other reason any Securities are not delivered by or on behalf of the Company
as provided herein, the Company will reimburse the Underwriters for out-of-pocket expenses not
to exceed $180,000.
15
11. In all dealings hereunder, you shall act
on behalf of each of the Underwriters, and the parties hereto shall be entitled
to act and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by you jointly or by Xxxxxx & Xxxxxxx, LLC on
behalf of you as the representatives. All statements, requests, notices and
agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the representatives in care
of:
Xxxxxx and Xxxxxxx,
LLC
0000 Xxxxxx xx Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
Attn: General Counsel
Fax No.:
000.000.0000
Copy to:
Sichenzia Xxxx Xxxxxxxx Xxxxxxx
LLP
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxxxxx,
Esq.
Fax: 000.000.0000
; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of the
Company set forth in the
Registration Statement,
Attention: Chief Financial
Officer with a copy to the counsel named therein. Any such statements, requests, notices
or agreements shall take effect upon receipt thereof.
12. This Agreement shall be binding upon,
and inure solely to the benefit of, the Underwriters and the Company and, to the extent
provided in Sections 7 and 9 hereof, the officers and directors of the Company
and each person who controls the Company or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities
from any Underwriter shall be deemed a successor
or assign by reason merely of such purchase.
13. Waiver, etc. The failure of any of the parties hereto
to at any time enforce any of the provisions of this Agreement shall not be
deemed or construed to be a waiver of any such provision, nor to in any way
effect the validity of this Agreement or any provision hereof or the right of
any of the parties hereto to thereafter enforce each and every provision of this
Agreement. No waiver of any breach, non-compliance
or non-fulfillment of any of the provisions of this Agreement shall be effective
unless set forth in a written instrument executed by the party or parties
against whom or which enforcement of such waiver is sought; and no waiver of any
such breach, non-compliance or non-fulfillment shall be construed or deemed to
be a waiver of any other or subsequent breach, non-compliance or
non-fulfillment.
14. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
without giving effect to conflict of laws. The Company hereby agrees that any
action, proceeding or claim against it arising out of, or relating in any way to
this Agreement shall be brought and enforced in the courts of the State of New
York of the United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection
to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served
upon the Company may be served by transmitting a copy thereof by registered or
certified mail, return receipt requested, postage prepaid, addressed to it at
the address set forth in Section 11 hereof. Such mailing shall be deemed personal
service and shall be legal and binding upon the Company in any action,
proceeding or claim. The Company agrees that the prevailing
party(ies) in any such action shall be entitled to recover from the other
party(ies) all of its reasonable attorneys’ fees and expenses relating to such
action or proceeding and/or incurred in connection with the preparation
therefore.
16
15. This Agreement may be executed by any
one or more of the parties hereto 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 instrument.
16. Notwithstanding anything herein to the
contrary, the Company is authorized to disclose to any persons the U.S. federal
and state income tax treatment and tax structure of the potential transaction
contemplated by this Agreement and all materials of any kind (including tax
opinions and other tax analyses) provided to the Company relating to that
treatment and structure, without any Underwriter imposing any limitation of any
kind. However, any information relating to the
tax treatment and tax structure shall remain confidential (and the foregoing
sentence shall not apply) to the extent necessary to enable any person to comply
with securities laws. For this purpose, “tax structure” is
limited to any facts that may be relevant to that treatment.
17. This Agreement supersedes all prior
agreements and understandings (whether written or oral) between the Company, on
the one hand, and the Underwriters, on the other, with respect only to the
firm commitment registered offering of the Securities referenced
herein.
[Signature Page Follows]
17
If the foregoing is in accordance with
your understanding, please sign and return to us one for the Company and each of
the Representatives plus one for each counsel, of any counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this letter and
such acceptance hereof shall constitute a binding agreement among each of the
Underwriters and the Company.
|
Very truly
yours,
|
||
|
CHINA CORD BLOOD
CORPORATION
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Accepted as of the date hereof at New
York, New York
Xxxxxx & Xxxxxxx,
LLC, on behalf of each of
the Underwriters
|
By:
|
||
|
Name:
|
||
|
Title:
|
SCHEDULE I
|
Underwriters
|
Total Number
of
Firm Shares
to be
Purchased
|
Total Number
of
Optional
Shares
to be
Purchased
|
||
|
Xxxxxx & Xxxxxxx,
LLC
|
||||
