VANCEINFO TECHNOLOGIES INC. 2,200,000 Ordinary Shares (par value US$0.001 per share) Each represented by American Depositary Shares FORM OF UNDERWRITING AGREEMENT
Exhibit 1.1
2,200,000 Ordinary Shares (par value US$0.001 per share)
Each represented by American Depositary Shares
Each represented by American Depositary Shares
FORM OF UNDERWRITING AGREEMENT
November [ • ], 2010
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
VanceInfo Technologies Inc. , an exempted company with limited liability organized under the
laws of the Cayman Islands (the “Company”), proposes to sell to Citigroup Global Markets Inc. (the
“Underwriter”) 2,200,000 ordinary shares, par value US$0.001 per share (“Ordinary Shares”), of the
Company (said shares to be issued and sold by the Company being hereinafter called the
“Underwritten Shares”). The Company also proposes to grant to the Underwriter an option to
purchase up to 330,000 additional Ordinary Shares to cover over-allotments, if any (the “Option
Shares” and together with the Underwritten Shares, the “Shares”).
The Underwriter has also advised the Company that the Underwriter may elect to cause the
Company to deposit on its behalf all or any portion of the Ordinary Shares to be purchased by it
hereunder pursuant to the Deposit Agreement, dated as of December 11, 2007 (the “Deposit
Agreement”), entered into among the Company, JPMorgan Chase Bank N.A., as depositary (the
“Depositary”) and all holders from time to time of American Depositary Shares (the “ADSs”). Upon
deposit of any Ordinary Shares, the Depositary will issue the ADSs representing the Shares so
deposited. The ADSs will be evidenced by American Depositary Receipts (the “ADRs”). Each ADS will
represent one Ordinary Share and each ADR may represent any number of ADSs. Unless the context
otherwise requires, the terms “Underwritten Securities”, “Option Securities” and “Securities” (as
defined in Section 23 below) shall be deemed to refer, respectively, to Underwritten Shares, Option
Shares and Shares as well as, in each case, to any ADSs representing such securities and the ADRs
evidencing such ADSs.
The use of the neuter in this Agreement shall include the feminine and masculine wherever
appropriate. Any reference herein to the Registration Statement, the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 6 of Form F-3 which were filed under
the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of
the Base Prospectus, any Preliminary Prospectus or the Final Prospectus, as the case may be; and
any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the
Registration Statement, the Base Prospectus, any Preliminary Prospectus or the Final Prospectus
shall be deemed to refer to and include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of the Base Prospectus, any
Preliminary Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated
therein by reference. Certain terms used in this Agreement are defined in Section 23 hereof.
1. Representations and Warranties. The Company represents and warrants to, and agrees
with, the Underwriter as set forth below in this Section 1.
(a) The Company meets the requirements for use of Form F-3 under the Act and has
prepared and filed with the Commission an automatic shelf registration statement, as
defined in Rule 405 (file number 333-170632) on Form F-3, including a related Base
Prospectus, for registration under the Act of the offering and sale of the Securities.
Such Registration Statement, including any amendments thereto filed prior to the Execution
Time, became effective upon filing. The Company may have filed with the Commission, as part
of an amendment to the Registration Statement or pursuant to Rule 424(b), one or more
preliminary prospectus supplements relating to the Securities, each of which has previously
been furnished to you. The Company will file with the Commission a final prospectus
supplement relating to the Securities in accordance with Rule 424(b). As filed, such final
prospectus supplement shall contain all information required by the Act and the rules
thereunder, and, except to the extent the Underwriter shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you prior to
the Execution Time or, to the extent not completed at the Execution Time, shall contain
only such specific additional information and other changes (beyond that contained in the
Base Prospectus and any Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x). The initial
Effective Date of the Registration Statement was not earlier than the date three years
before the Execution Time.
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(b) (i) On each Effective Date, the Registration Statement did, and when the Final
Prospectus is first filed in accordance with Rule 424(b) under the Act and on the Closing
Date and on any date on which Option Securities are purchased, if such date is not the
Closing Date (a “settlement date”), the Final Prospectus (and any supplement thereto) will,
comply in all material respects with the applicable requirements of the Act and the
Exchange Act and the respective
rules thereunder; (ii) on each Effective Date and at the Execution Time, the
Registration Statement did not and will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and on the date of any filing pursuant to
Rule 424(b) under the Act and on the Closing Date and any settlement date, the Final
Prospectus (together with any supplement thereto) will not include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties
as to the information contained in or omitted from the Registration Statement or the Final
Prospectus (or any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriter specifically for inclusion in the
Registration Statement or the Final Prospectus (or any supplement thereto), it being
understood and agreed that the only such information furnished by the Underwriter consists
of the information described as such in Section 8(b) hereof.
(c) The Company, together with the Depositary, has filed with the Commission a
registration statement (file number 333-147602) on Form F-6 for the registration under the
Act of the offering and sale of the ADSs. The Company together with the Depositary may
have filed one or more amendments thereto, each of which has previously been furnished to
you. Such ADR Registration Statement at the time of its effectiveness did comply and on
the Closing Date, will comply, in all material respects with the applicable requirements of
the Act and the rules thereunder and at the time of its Effective Date and at the Execution
Time, did not contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not
misleading.
(d) The Registration Statement, the ADR Registration Statement, the Preliminary
Prospectus and the Final Prospectus, and the filing of the Registration Statement, the ADR
Registration Statement, the Preliminary Prospectus and the Final Prospectus with the
Commission, have each been duly authorized by and on behalf of the Company, and each of the
Registration Statement and the ADR Registration Statement has been duly executed pursuant
to such authorization by and on behalf of the Company.
(e) Upon issuance by the Depositary of ADSs evidenced by ADRs against deposit of
Underlying Shares in accordance with the provisions of the Deposit Agreement, such ADRs
will be duly and validly issued and persons in whose names the ADRs are registered will be
entitled to the rights specified in the ADRs and in the Deposit Agreement; and upon the
sale and delivery to the Underwriter of the Securities, and payment therefor, pursuant to
this Agreement, the Underwriter will acquire good, marketable and valid title to such
Securities, free and clear of all pledges, liens, security interests, charges, claims or
encumbrances of any kind.
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(f) The Deposit Agreement, the ADSs and the ADRs conform as to legal matters to the
description thereof contained in the Disclosure Package and the Final Prospectus.
(g) Except as disclosed in the Disclosure Package and the Final Prospectus, no stamp
or other issuance or transfer taxes or duties and no capital gains, income, withholding or
other taxes are payable in the PRC or the Cayman Islands by or on behalf of the Underwriter
to any PRC or Cayman Islands taxing authority in connection with (A) the delivery of the
Ordinary Shares in the manner contemplated by this Agreement, (B) the deposit with the
Depositary of the Underlying Shares against issuance of the ADRs evidencing the ADSs or
(C) the sale and delivery by the Underwriter of the Securities, as the case may be, as
contemplated herein.
(h) Except as described in the Disclosure Package and the Final Prospectus, no
subsidiary of the Company is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such subsidiary’s capital
stock, from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary’s property or assets to the Company or
any other subsidiary of the Company, provided that any such repayment or transfer shall be
in accordance with applicable PRC foreign exchange regulations.
(i) All dividends and other distributions declared and payable on the Ordinary Shares
may under current Cayman Islands laws and regulations be paid in cash to the Depositary and
to the holders of Securities, as the case may be, may be freely transferred out of the
Cayman Islands and may be freely converted into U.S. dollars, in each case without there
being required any consent, approval, authorization or order of, or qualification with, any
court or governmental agency or body in the Cayman Islands; and all such dividends and
other distributions will not be subject to withholding, value-added or other taxes under
the laws and regulations of the Cayman Islands. Except as otherwise described in the
Disclosure Package and the Final Prospectus, under the current laws and regulations of the
PRC, (i) all dividends and other distributions declared and payable in cash on the equity
interests in the Company’s subsidiaries in the PRC may be freely transferred, directly or
indirectly, out of the PRC and may be freely converted into United States dollars, in each
case without there being required any consent, approval, authorization or order of, or
qualification with, any court or governmental agency or body in the PRC; and (ii) all such
dividends and other distributions will not be subject to withholding, value-added or other
taxes under the laws and regulations of the PRC.
(j) The Company (i) was not a Passive Foreign Investment Company (“PFIC”) within the
meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended, and
the regulations and published interpretations thereunder for the taxable year ended
December 31, 2009, (ii) does not expect to become a PFIC for the current taxable year
ending December 31, 2010 and (iii) has no plan or intention to conduct its business in a manner that could
be expected to result in the Company becoming a PFIC in the future.
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(k) (i) The Disclosure Package and (ii) each electronic road show or Road Show Script,
when taken together as a whole with the Disclosure Package, do not contain 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. The preceding sentence does not apply to statements in or omissions from the
Disclosure Package based upon and in conformity with written information furnished to the
Company by the Underwriter specifically for use therein, it being understood and agreed
that the only such information furnished by the Underwriter consists of the information
described as such in Section 8(b) hereof.
(l) (i) At the time of filing the Registration Statement, (ii) at the time of the most
recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Sections 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the
Company or any person acting on its behalf (within the meaning, for this clause only, of
Rule 163(c)) made any offer relating to the Securities in reliance on the exemption in Rule
163, and (iv) at the Execution Time (with such date being used as the determination date
for purposes of this clause (iv)), the Company was or is (as the case may be) a “well-known
seasoned issuer” as defined in Rule 405. The Company agrees to pay the fees required by
the Commission relating to the Securities within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r).
(m) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Securities and (ii) as of the Execution Time (with such date being used
as the determination date for purposes of this clause (ii)), the Company was not and is not
an Ineligible Issuer (as defined in Rule 405 under the Act), without taking account of any
determination by the Commission pursuant to Rule 405 under the Act that it is not necessary
that the Company be considered an Ineligible Issuer. Neither the Company nor the
Underwriter are disqualified, by reason of subsection (f) or (g) of Rule 164 under the Act,
from using, in connection with the offer and sale of the Securities, Free Writing
Prospectuses pursuant to Rules 164 and 433 under the Act. Any Free Writing Prospectus that
the Company is required to file pursuant to Rule 433(d) under the Act has been, or will be,
filed with the Commission in accordance with the requirements of the Act and the applicable
rules and regulations of the Commission thereunder. Each Free Writing Prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the Act or that
was prepared by or on behalf of or used or referred to by the Company complies or will
comply in all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder. Except for the
Free Writing Prospectuses identified in Schedule I hereto, and electronic road shows,
if any, furnished to the Underwriter before first use, the Company has not prepared, used
or referred to, and will not, without the Underwriter’s prior consent, prepare, use or
refer to, any Free Writing Prospectus. The Company agrees and understands that the content
of all “road shows” (as defined in Rule 433 under the Act) relating to the offering of the
Securities contemplated by this Agreement is solely the property of the Company.
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(n) 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 Company notified or notifies the Underwriter 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 ADR
Registration Statement or the Final Prospectus, including any document incorporated therein
by reference and any prospectus supplement deemed to be a part thereof that has not been
superseded or modified. If at any time following the 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 then
contained in the Registration Statement or the ADR Registration Statement or as a result of
which such Issuer Free Writing Prospectus, if republished immediately following such event
or development, 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 under which they were made, not misleading, (i) the Company has
promptly notified or will promptly notify the Underwriter and (ii) the Company has promptly
amended or will promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
The representations and warranties in this Section 1(n) above do not apply to
statements in or omissions from any Issuer Free Writing Prospectus based upon and in
conformity with written information furnished to the Company by the Underwriter
specifically for use therein, it being understood and agreed that the only such information
furnished by the Underwriter consists of the information described as such in Section 8(b)
hereof.
(o) Each of the Company and its significant subsidiaries as defined by Rule 1-02 of
Regulation S-X under the Act (the “Significant Subsidiaries”) (i) has been duly
incorporated and is validly existing and in good standing under the laws of the
jurisdiction in which it is organized, with full corporate power and authority to own or
lease, as the case may be, and to operate its properties and conduct its business as
described in the Disclosure Package and the Final Prospectus, and (ii) is duly qualified to
do business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except to the extent that the failure to be
so qualified or to be in good standing would not have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of business (a
“Material Adverse Effect”).
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(p) The Securities and all other outstanding shares of capital stock of the Company
have been duly authorized; the authorized equity capitalization of the Company is as set
forth in the Disclosure Package and the Final Prospectus. As of the date hereof, the
Company has authorized and outstanding capitalization as set forth under the headings
“Capitalization” and “Description of Share Capital” in the Preliminary Prospectus and the
Final Prospectus, and upon the issuance and sale of the Underwritten Securities, the
Company shall have an authorized and outstanding capital as set forth in the Final
Prospectus under the column headed “As Adjusted” in the table in the “Capitalization”
section.
(q) All outstanding shares of capital stock of the Company are, and, when the
Securities have been issued, delivered and paid for in accordance with this Agreement and
the Deposit Agreement on the Closing Date, such Securities will have been, validly issued,
fully paid and nonassessable and will conform to the information in the Disclosure Package
and to the description of such Securities contained in the Final Prospectus.
(r) There is no franchise, contract or other document of a character required to be
described in the Registration Statement, the ADR Registration Statement or the Final
Prospectus, or to be filed as an exhibit thereto, which is not described or filed as
required (and the Disclosure Package contains in all material respects the same description
of the foregoing matters contained in the Final Prospectus).
(s) All the outstanding shares of capital stock of each subsidiary of the Company have
been duly and validly authorized and issued and are fully paid and nonassessable, and,
except as otherwise set forth in the Disclosure Package and the Final Prospectus, all
outstanding shares of capital stock of the subsidiaries are owned by the Company either
directly or through wholly owned subsidiaries free and clear of any security interests,
claims, liens or encumbrances.
(t) The shareholders of the Company have no preemptive rights with respect to the
Securities, and none of the outstanding shares of capital stock of the Company have been
issued in violation of any preemptive or similar rights of any security holder; the
Securities to be sold by the Company, when issued and delivered against payment therefor
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 on the Closing Date, the Depositary or its nominee, as the registered
holder of 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
Disclosure Package and the Final Prospectus and subject to the terms and provisions of the
Deposit Agreement, there are no restrictions on transfers of the Securities under the laws
of the Cayman Islands or the United States, as the case may be; the Shares represented by
the ADSs may be freely deposited by the Company with the Depositary or its nominee against
issuance of ADRs evidencing the ADSs as contemplated by the Deposit Agreement.
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(u) The Company is not and, after giving effect to the offering and sale of the
Securities and the application of the proceeds thereof as described in the Disclosure
Package and the Final Prospectus, will not be an “investment company” as defined in the
Investment Company Act of 1940, as amended.
(v) No consent, approval, authorization, filing with or order of any court or
governmental agency or body is required in connection with the transactions contemplated
herein or in the Deposit Agreement, except such as have been obtained under the Act and
such as may be required under the blue sky laws of any jurisdiction in connection with the
purchase and distribution of the Securities by the Underwriter in the manner contemplated
herein and in the Disclosure Package and the Final Prospectus.
(w) This Agreement has been duly authorized, executed and delivered by the Company.
(x) The Deposit Agreement has been duly authorized, executed and delivered by the
Company, and is a valid and binding agreement of the Company.
(y) Neither the issue and sale of the Securities nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms hereof or of the
Deposit Agreement will conflict with, result in a breach or violation of, or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the organizational documents of the Company or any of its
subsidiaries, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or any of its subsidiaries is a party or bound or to which
its or their property is subject, or (iii) subject to the risks and uncertainties relating
to the M&A Rules and Clarifications (as defined below) as disclosed in the Disclosure
Package and the Final Prospectus, any statute, law, rule, regulation, judgment, order or
decree applicable to the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority having jurisdiction
over the Company or any of its subsidiaries or any of its or their properties, except for,
in the case of (ii) and (iii) above, such conflict, breach or violation that would not have
a Material Adverse Effect or a material adverse effect on the transactions contemplated
hereunder.
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(z) The consolidated historical financial statements of the Company and its
consolidated subsidiaries included in the Preliminary Prospectus, the Final Prospectus and
the Registration Statement, together with the related schedules and notes, comply as to
form in all material respects with the requirements of Regulation S-X, and present fairly
the financial condition, results of operations and cash flows of the Company as of the
dates and for the periods indicated, comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods involved. (A)
The selected financial data set forth under the caption “Key Information—Selected Financial
Data” in the Company’s annual report on Form 20-F for the year ended December 31, 2009,
incorporated by reference in the Preliminary Prospectus, the Final Prospectus and
Registration Statement, and (B) the summary consolidated financial information set forth
under the caption “Recent Developments” in the Preliminary Prospectus, the Final Prospectus
and Registration Statement, each fairly presents, on the basis stated in the Preliminary
Prospectus, the Final Prospectus and the Registration Statement, the information included
therein. All disclosures contained in the Registration Statement, the Disclosure Package
and the Final Prospectus regarding “non-GAAP financial measures” (as such term is defined
by the rules and regulations of the Commission) comply with Regulation G and Item 10 of
Regulation S-K under the Act.
(aa) Since the respective dates as of which information is given in the Registration
Statement, the Disclosure Package and the Final Prospectus, except as otherwise stated
therein, (A) there has been no Material Adverse Effect, (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the ordinary
course of business, that are material with respect to the Company and its subsidiaries,
taken as a whole, (C) there has been no dividend or distribution of any kind declared, paid
or made by the Company on any class of shares of its capital stock, (D) there has been no
material adverse change in the capital stock, short-term indebtedness, long-term
indebtedness, net current assets or net assets of the Company and its subsidiaries, and (E)
there has been no obligation, direct or contingent (including any off-balance sheet
obligations), incurred by the Company or any subsidiary that would have a Material Adverse
Effect.
(bb) No action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries or its
or their property is pending or, to the best knowledge of the Company, threatened that
(i) could reasonably be expected to have a material adverse effect on the performance of
this Agreement or the consummation of any of the transactions contemplated hereby or
(ii) could reasonably be expected to have a Material Adverse Effect, except as set forth in
or contemplated in the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
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(cc) The Company and its subsidiaries have good title to all 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 Disclosure
Package and the Final Prospectus or statutory restrictions imposed by PRC law, or (b) do
not, singly or in the aggregate, materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the Company or any
of its subsidiaries; and all of the leases and subleases material to the business of the
Company and its subsidiaries, taken as a whole, and under which the Company or any of its
subsidiaries holds properties described in the Disclosure Package and the Final Prospectus,
are in full force and effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone adverse to the rights of
the Company or any subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or such subsidiary to the continued
possession of the leased or subleased premises under any such lease or sublease.
(dd) Neither the Company nor any of its Significant Subsidiaries is in violation or
default of (i) any provision of its organizational documents, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any statute, law, rule, regulation,
judgment, order or decree of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over the Company or
such subsidiary or any of its properties, as applicable, except, in the case of clauses
(ii) and (iii), for such violations or defaults as would not have a Material Adverse Effect
and except as otherwise disclosed in the Disclosure Package and the Final Prospectus.
(ee) Deloitte Touche Tohmatsu CPA Ltd., who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules included in the
Disclosure Package and the Final Prospectus, are independent public accountants with
respect to the Company within the meaning of the Act and the applicable published rules and
regulations thereunder.
(ff) The Company has filed all tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file would not
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto)) and has paid all
taxes required to be paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or as would not
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto). Except as otherwise
disclosed in the Disclosure Package and the Final Prospectus, all local and
national PRC governmental tax holidays, exemptions, waivers, financial subsidies, and
other local and national PRC tax relief, concessions and preferential treatment enjoyed by
the Company or any of its subsidiaries as described in the Disclosure Package and the Final
Prospectus are valid, binding and enforceable and do not violate any laws, regulations,
rules, orders, decrees, guidelines, judicial interpretations, notices or other legislation
of the PRC.
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(gg) No labor problem or dispute with the employees of the Company or any of its
subsidiaries exists or, to the Company’s best knowledge, is threatened or imminent that
could have a Material Adverse Effect, except as set forth in or contemplated in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto).
(hh) Except as set forth in the Disclosure Package and the Final Prospectus, the
Company and each of its Significant Subsidiaries are insured by insurers of recognized
financial responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged; all policies of insurance
insuring the Company or any of its Significant Subsidiaries or their respective businesses,
assets, employees, officers and directors are in full force and effect; the Company and its
Significant Subsidiaries are in compliance with the terms of such policies and instruments
in all material respects; and there are no claims by the Company or any of its Significant
Subsidiaries under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause; and neither the
Company nor any such Significant Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect, except as set forth in or
contemplated in the Disclosure Package and the Final Prospectus (exclusive of any
supplement thereto).
(ii) The Company and its Significant Subsidiaries possess all licenses, certificates,
permits and other authorizations issued by all applicable authorities necessary to conduct
their respective businesses, and neither the Company nor any such Significant Subsidiary
has received any notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would have a Material Adverse Effect, except
as set forth in or contemplated in the Disclosure Package and the Final Prospectus
(exclusive of any supplement thereto).
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(jj) The Company and each of its Significant Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any differences.
Except as described in the Disclosure Package and the Final Prospectus, since the end of
the Company’s most recent audited fiscal year, there has been (i) no material weakness in
the Company’s internal control over financial reporting (whether or not remediated) and
(ii) no change in the Company’s internal control over financial reporting that has
materially and adversely affected, or is reasonably likely to materially and adversely
affect, the Company’s internal control over financial reporting.
(kk) The Company and its Significant Subsidiaries’ internal accounting controls are
overseen by the audit committee of the Board of Directors of the Company in accordance with
the rules of the New York Stock Exchange. The Board of Directors of the Company has
confirmed to the chief executive officer and chief financial officer that, except as set
forth in the Disclosure Package and the Final Prospectus, the Board of Directors is not
reviewing or investigating, and neither the Company’s independent auditors nor its internal
auditors have recommended that the Board of Directors review or investigate, (i) adding to,
deleting, changing the application of, or changing the Company’s disclosure with respect
to, any of the Company’s material accounting policies; (ii) any matter that could result in
a restatement of the Company’s financial statements for any annual or interim period during
the current or prior three fiscal years; or (iii) any Internal Control Event (as defined
below). Except as set forth in the Disclosure Package and the Final Prospectus, the
Company has not publicly disclosed or reported to the audit committee or the Board of
Directors a significant deficiency, material weakness, change in internal accounting
controls or fraud involving management or other employees who have a significant role in
internal accounting controls (each, an “Internal Control Event”), any violation of, or
failure to comply with, the securities laws, or any matter that, if determined adversely,
would have a Material Adverse Effect.
(ll) The Company has not taken, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.
(mm) Each of the Company and its Significant Subsidiaries is (i) in compliance with
any and all applicable foreign, Federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic substances
or wastes, pollutants or contaminants (“Environmental Laws”), (ii) has received and is in
compliance with all permits, licenses or other approvals required of it under applicable
Environmental Laws to conduct its business and (iii) has not received notice of any actual
or potential liability under any Environmental Law, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals, or liability would not, individually or in the aggregate, have a Material
Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the
Final Prospectus (exclusive of any supplement thereto). Except as set forth in the
Disclosure Package and the Final Prospectus, neither the Company nor any of the
subsidiaries has been named as a “potentially responsible party” under the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended.
12
(nn) In the ordinary course of its business, the Company periodically reviews the
effect of Environmental Laws on the business, operations and properties of the Company and
its subsidiaries, in the course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating expenditures required
for clean-up, closure of properties or compliance with Environmental Laws, or any permit,
license or approval, any related constraints on operating activities and any potential
liabilities to third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or in the aggregate,
have a Material Adverse Effect, except as set forth in or contemplated in the Disclosure
Package and the Final Prospectus (exclusive of any supplement thereto).
(oo) The Company has taken all necessary actions to ensure that the Company and its
subsidiaries and their respective officers and directors, in their capacities as such, are
and will at all times be in compliance in all material respects with the applicable
provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and the rules and
regulations promulgated thereunder. The Company has provided or made available to the
Underwriter true, correct and complete copies of all documentation pertaining to any
extension of credit in the form of a personal loan made, directly or indirectly, by the
Company or any of its subsidiaries to any of their respective directors or executive
officers. There are no outstanding personal loans from the Company to any of its directors
or executive officers.
(pp) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent or employee of the Company or any of its subsidiaries
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, making use of
the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office or any person, while knowing
that all or a portion of such money or thing of value will be offered, given, or promised,
directly or indirectly, to any foreign official, to any foreign political party or official
thereof, or to any candidate for foreign political office, in contravention of the
13
FCPA,
for purposes of (A) (i) influencing any act or decision of such foreign official, political party, party official, or
candidate in his/its official capacity, (ii) inducing such foreign official, political
party, party official, or candidate to do or omit to do any act in violation of the lawful
duty of such official, party or candidate or (iii) securing any improper advantage; or (B)
inducing such foreign official, political party, party official, or candidate to use his or
its influence with a foreign government or instrumentality thereof to affect or influence
any act or decision of such government or instrumentality, in order to assist the Company
or any of its subsidiaries in obtaining or retaining business for or with, or directing
business to, any person; and the Company, its subsidiaries and, to the knowledge of the
Company, its affiliates have conducted their businesses in compliance with the FCPA.
Neither the Company or any of its subsidiaries nor, to the best knowledge of the Company,
any of their respective officers, employees, directors, representatives or agents has
offered, promised, authorized or made, directly or indirectly, any payments or other
inducements as specified in the proceeding sentence to a government official, political
party, party official or candidate in violation of either Cayman Islands or PRC law against
improper payments. Notwithstanding provisions under the proceeding sentences, any
facilitating or expediting payment made to a government official, political party, party
official or candidate for the purpose of expediting or securing the performance of a
routine governmental action by such official, party or candidate shall not constitute a
breach of the representation made in this paragraph.
(qq) The operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements
and the money laundering statutes and the rules and regulations thereunder and any related
or similar rules, regulations or guidelines, issued, administered or enforced by any
governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or
proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(rr) Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any sanctions administered by the Office of Foreign
Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly
or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
(ss) The only subsidiaries of the Company are (i) the subsidiaries listed on Exhibit
8.1 to the Company’s annual report on Form 20-F for the year ended December 31, 2009 and
under the caption “Summary—Corporate Structure” in the Preliminary Prospectus, the Final
Prospectus and the Registration Statement,
and (ii) certain other subsidiaries which, considered in the aggregate as a single
subsidiary, do not constitute a “significant subsidiary” as defined in Rule 1-02 of
Regulation S-X.
14
(tt) Except as set forth in the Disclosure Package and the Final Prospectus, the
Company and its subsidiaries own, possess, license or have other rights to use, on
reasonable terms, all patents, patent applications, trade and service marks, trade and
service xxxx registrations, trade names, copyrights, licenses, inventions, trade secrets,
technology, know-how and other intellectual property (collectively, the “Intellectual
Property”) necessary for the conduct of the Company’s business as now conducted or as
proposed in the Final Prospectus to be conducted. Except as set forth in the Preliminary
Prospectus and the Final Prospectus under the caption “Information on the
Company—Intellectual Property,” (a) there are no rights of third parties to any such
Intellectual Property; (b) to the best knowledge of the Company, there is no material
infringement by third parties of any such Intellectual Property; (c) to the best knowledge
of the Company, there is no pending or threatened action, suit, proceeding or claim by
others challenging the Company’s rights in or to any such Intellectual Property, and the
Company is unaware of any facts which would form a reasonable basis for any such claim; (d)
to the best knowledge of the Company, there is no pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of any such Intellectual
Property, and the Company is unaware of any facts which would form a reasonable basis for
any such claim; (e) to the best knowledge of the Company, there is no pending or threatened
action, suit, proceeding or claim by others that the Company infringes or otherwise
violates any patent, trademark, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any other fact which would form a reasonable basis
for any such claim; (f) to the best knowledge of the Company, there is no U.S. patent or
published U.S. patent application which contains claims that dominate or may dominate any
Intellectual Property described in the Disclosure Package and the Final Prospectus as being
owned by or licensed to the Company or that interferes with the issued or pending claims of
any such Intellectual Property; and (g) there is no prior art of which the Company is aware
that may render any U.S. patent held by the Company invalid or any U.S. patent application
held by the Company unpatentable which has not been disclosed to the U.S. Patent and
Trademark Office, except any effect, in each case under (a) through (g), that would not
have a Material Adverse Effect either individually or in the aggregate.
(uu) The statements contained in the Registration Statement, the Preliminary
Prospectus and the Final Prospectus under the captions “Enforceability of Civil
Liabilities”, “Description of Share Capital” and “Description of American Depositary
Shares” and “Taxation”, and the statements contained in the section entitled “Information
on the Company—Intellectual Property”, “—Government Regulations”, “Operating and Financial
Review and Prospects—Taxes” and “Additional Information—Taxation” in the Company’s annual
report on Form 20-F for the year ended December 31, 2009 incorporated
by reference in the Registration Statement, the Preliminary Prospectus and the Final
Prospectus, 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.
15
(vv) There are no contracts or documents which are required to be described in the
Registration Statement or the Final Prospectus or to be filed as exhibits to the
Registration Statement that have not been so described or filed as required.
(ww) Except as disclosed in the Disclosure Package and the Final Prospectus, the
Company (i) does not have any material lending or other relationship with any bank or
lending affiliate of the Underwriter and (ii) does not intend to use any of the proceeds
from the sale of the Securities hereunder to repay any outstanding debt owed to any
affiliate of the Underwriter.
(xx) The Company has not distributed and, prior to the later of the Closing Date 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 Final Prospectus, any Issuer Free Writing Prospectus to which the
Underwriter has consented in accordance with this Agreement and any Issuer Free Writing
Prospectus set forth on Schedule I hereto.
(yy) Except as described in the Disclosure Package and the Final 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 Shares registered pursuant to the Registration Statement.
(zz) Except as described in the Disclosure Package and the Final Prospectus, (i) no
person has the right, contractual or otherwise, to cause the Company to issue or sell to it
any Securities or shares of any other capital stock or other equity interests of the
Company, (ii) no person has, upon the consummation of the offering contemplated hereunder,
any preemptive rights, resale rights, rights of first refusal or other rights to purchase
or otherwise acquire any Securities or shares of any other capital stock of the Company and
(iii) 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.
(aaa) The ADSs are listed on the New York Stock Exchange (the “NYSE”) under the symbol
“VIT”.
(bbb) The section entitled “Operating and Financial Review and Prospects” in the
Company’s annual report on Form 20-F for the year ended December 31, 2009, incorporated by
reference in the Registration Statement, the
Preliminary Prospectus and the Final Prospectus, accurately and fully describes (i)
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, (ii) judgments and uncertainties affecting
the application of critical accounting policies and (iii) the likelihood that materially
different amounts would be reported under different conditions or using different
assumptions and an explanation thereof.
16
(ccc) The Company’s directors and management have reviewed and agreed with the
selection, application and disclosure of the Company’s critical accounting policies as
described in the Registration Statement, the Disclosure Package and the Final Prospectus
and have consulted with its independent accountants with regard to such disclosure.
(ddd) (i) The Registration Statement, the Disclosure Package and the Final Prospectus
fairly and accurately describe all material trends, demands, commitments and events known
to the Company, and uncertainties, and the potential effects thereof, that the Company
believes would materially affect its liquidity and are reasonably likely to occur and (ii)
neither the Company nor any of its subsidiaries is engaged in any off-balance sheet
transactions or arrangements.
(eee) Each “forward-looking statement” (within the meaning of Section 27A of the Act
or Section 21E of the Exchange Act) contained in the Registration Statement, the Disclosure
Package and the Final Prospectus has been made or reaffirmed with a reasonable basis and in
good faith.
(fff) All statistical or market-related data included in the Registration Statement,
the Disclosure Package and the Final Prospectus are based on or derived from sources that
the Company reasonably 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.
(ggg) The entering into and performance or enforcement of this Agreement in accordance
with its terms will not subject the Underwriter to a requirement to be licensed or
otherwise qualified to do business in the Cayman Islands or in the PRC, nor will the
Underwriter be deemed to be resident, domiciled, carrying on business through an
establishment or place in the Cayman Islands or in the PRC or in breach of any laws or
regulations in the Cayman Islands or in the PRC by reason of the entering into, performance
or enforcement of this Agreement.
(hhh) Except as described in the Disclosure Package and the Final Prospectus, the
Company has not sold, issued or distributed any Ordinary Shares during the six-month period
preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D
or S of, the Act, other than Ordinary Shares issued pursuant to employee benefit plans, qualified share option
plans or other employee compensation plans or pursuant to outstanding options, rights or
warrants.
17
(iii) The Company is a “foreign private issuer” within the meaning of Rule 405 under
the Act.
(jjj) To the Company’s knowledge, except as disclosed in the Disclosure Package and
the Final Prospectus, there are no affiliations or associations between (i) any member of
the Financial Industry Regulatory Authority (“FINRA”) and (ii) the Company or any of the
Company’s officers, directors or 5% or greater security holders or any beneficial owner of
the Company’s unregistered equity securities that were acquired at any time on or after the
180th day immediately preceding the date the Registration Statement was
initially submitted to the Commission.
(kkk) The choice of laws of the State of New York as the governing law of this
Agreement and the Deposit Agreement is a valid choice 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 17 of this Agreement, has legally,
validly, effectively and irrevocably submitted, to the non-exclusive jurisdiction of the
New York Courts, and the Company has the power to designate, appoint and authorize, and
pursuant to Section 17 of this Agreement, has legally, validly, effectively and irrevocably
designated, appointed and authorized, the Authorized Agent (as defined in Section 17 below)
for service of process in any action arising out of or relating to this Agreement, the
Deposit Agreement, the Preliminary Prospectus, the Final Prospectus, the Registration
Statement, the ADR Registration Statement, 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 17 hereof.
(lll) None of the Company, its subsidiaries or any of their respective properties,
assets or revenues has any right of immunity, under the laws of the Cayman Islands, the PRC
or New York State, from any legal action, suit or proceeding, the giving of any relief in
any such legal action, suit or proceeding, set-off or counterclaim, the jurisdiction of any
Caxxxx Xxxxxxx, XXX, Xxx Xxxx Xxxxx xx Xxxxxx Xxxxxx Xederal court, service of process,
attachment upon or prior to judgment, or attachment in aid of execution of judgment, or
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 or the Deposit Agreement; and, to the extent that the Company, any of its
subsidiaries or any of their respective properties, assets or revenues may have or may
hereafter become entitled to any such right of immunity in any such court in which
proceedings may at any time be commenced, each of the Company and its subsidiaries waives
or will waive such right to the extent permitted by law and has consented to such relief and enforcement as provided in Section 17 of this
Agreement.
18
(mmm) Any final judgment for a fixed sum of money rendered by a New York Court having
jurisdiction under its own domestic laws in respect of any suit, action or proceeding
against the Company based upon this Agreement and the Deposit Agreement would be recognized
and enforced by (A) Cayman Islands courts without re-examining the merits of the case under
the common law doctrine of obligation; provided that (i) adequate service of
process has been effected and the defendant has had a reasonable opportunity to be heard,
(ii) such judgments or the enforcement thereof are not contrary to the law, public policy,
security or sovereignty of the Cayman Islands, (iii) such judgments were not obtained by
fraudulent means and do not conflict with any other valid judgment in the same matter
between the same parties and (iv) an action between the same parties in the same matter is
not pending in any Cayman Islands court at the time the lawsuit is instituted in the
foreign court; and (B) PRC courts, subject to compliance with relevant civil procedural
requirements under the PRC Civil Procedures Law and PRC public policy, including
sovereignty, national security and public interest. It is not necessary that this
Agreement, the Deposit Agreement, the Preliminary Prospectus, the Final Prospectus or any
other document be filed or recorded with any court or other authority in the Cayman Islands
or the PRC.
(nnn) Except as disclosed in the Disclosure Package and the Final Prospectus, each of
the Company and its subsidiaries has taken all reasonably necessary steps to comply with,
and to ensure reasonable compliance by all of the Company’s direct or indirect shareholders
and optionholders who are PRC residents with, any applicable rules and regulations of the
State Administration of Foreign Exchange of the PRC (the “SAFE Rules and Regulations”),
including, without limitation, requiring each shareholder and optionholder that is, or is
directly or indirectly owned or controlled by, a PRC resident to complete any registration
and other procedures required under applicable SAFE Rules and Regulations.
(ooo) (i) The Company is aware of, and has been advised as to, the content of the
Rules on Mergers and Acquisitions of Domestic Enterprises by Foreign Investors jointly
promulgated on August 8, 2006 by the Ministry of Commerce, the State Assets Supervision and
Administration Commission, the State Administration of Taxation, the State Administration
of Industry and Commerce, the China Securities Regulatory Commission (“CSRC”) and the State
Administration of Foreign Exchange of the PRC (the “M&A Rules”), in particular the relevant
provisions thereof that purport to require offshore special purpose vehicles controlled
directly or indirectly by PRC-incorporated companies or PRC residents and established for
the purpose of obtaining a stock exchange listing outside of the PRC to obtain the approval
of the CSRC prior to the listing and trading of their securities on any stock exchange
located outside of the PRC. The Company has received legal advice specifically with
respect to the M&A Rules from its PRC counsel and the Company understands such legal advice. In addition, the
Company has communicated such legal advice in full to each of its directors that signed the
Registration Statement and each such director has confirmed that he or she understands such
legal advice.
19
(ii) (A) The issuance and sale of the Company’s ADSs in connection with its
initial public offering in December 2007, the initial listing and trading of the
ADSs on the NYSE and the consummation of the Company’s initial public offering, (B)
the issuance and sale of the Company’s ADSs in connection with its follow-on public
offering in July 2009, the listing and trading of the ADSs on the NYSE and the
consummation of the follow-on public offering, and (C) the issuance and sale of the
Securities in connection with this offering, the listing and trading of the ADSs on
the NYSE and the consummation of the transactions contemplated by this Agreement,
the Registration Statement, the Preliminary Prospectus, the Deposit Agreement, the
Power of Attorney (as defined below) and the Custody Agreement (as defined below),
were not, are not and will not be, as of the date hereof and on the Closing Date,
affected by the M&A Rules or any official clarifications, guidance, interpretations
or implementation rules in connection with or related to the M&A Rules, including
the guidance and notices issued by the CSRC on September 8 and September 21, 2006
(together with the M&A Rules, the “M&A Rules and Related Clarifications”).
(iii) The M&A Rules and Related Clarifications do not require the Company to
obtain the approval of the CSRC prior to (A) the issuance and sale of the Company’s
ADSs in connection with its initial public offering in December 2007, the initial
listing and trading of the ADSs on the NYSE and the consummation of the Company’s
initial public offering, (B) the issuance and sale of the Company’s ADSs in
connection with its follow-on public offering in July 2009, the listing and trading
of the ADSs on the NYSE and the consummation of the follow-on public offering, or
(C) the issuance and sale of the Securities in connection with this offering, the
listing and trading of the ADSs on the NYSE, or the consummation of the
transactions contemplated by this Agreement, the Registration Statement, the
Preliminary Prospectus, the Deposit Agreement, the Power of Attorney or the Custody
Agreement.
(iv) The statements set forth under the captions “Key Information—Risk
Factors—Risks Related to Doing Business in China,” when taken together with the
statements under “Information on the Company—Government Regulations—New M&A
Regulations and Overseas Listings” in Company’s annual report on Form 20-F for the
year ended December 31, 2009 incorporated by reference in the Registration
Statement, the Preliminary Prospectus and the Final Prospectus are fair and
accurate summaries of the matters described therein, and nothing has
been omitted from such summaries that would make them misleading in any
material respect.
20
(ppp) The Company has obtained for the benefit of the Underwriter “lock-up” agreements
relating to sales and certain other dispositions of Ordinary Shares, ADSs or certain other
securities by and between the Underwriter and certain executive officers and directors of
the Company including Xxxxx Xxxxxxx Xxxx, Xxxxx Xxxxxx Xxxx and Xxxxxx Xuande Xxxxx,
substantially in the form of Exhibit A hereto (collectively, the “Lock-up Agreements”).
(qqq) 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 the Underwriter for a
brokerage commission, finder’s fee or other like payment in connection with this offering.
(rrr) During the past three years, there have been no material relationships or
transactions between the Company or any of its subsidiaries, on the 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 Disclosure Package and the Final Prospectus.
(sss) To the best knowledge of the Company after due inquiry, none of the directors or
executive officers of the Company listed under “Management” in the Preliminary Prospectus
and the Final Prospectus is or has been subject to criminal or bankruptcy proceedings in
the last five years.
(ttt) The Company is subject to Section 13 or 15(d) of the Exchange Act.
Any certificate signed by any officer of the Company and delivered to the Underwriter or
counsel for the Underwriter in connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to the Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in reliance upon
the representations and warranties set forth in this Agreement, the Company agrees to sell to the
Underwriter, and the Underwriter agrees, severally and not jointly, to purchase from the Company,
at a purchase price of $ per ADS, the Underwritten Securities.
(b) Subject to the terms and conditions and in reliance upon the representations and
warranties set forth in this Agreement, the Company hereby grants an option to the Underwriter to
purchase up to 330,000 Option Securities, at the same purchase price per share as the Underwriter
shall pay for the Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the Underwriter. Said option may be
exercised in whole or in part at any time on or before the 30th day after the date of the Final Prospectus
upon written or telegraphic notice by the Underwriter to the Company setting forth the number of
the Option Securities as to which the Underwriter is exercising the option and the settlement date.
21
3. Delivery and Payment. Delivery of and payment for the Underwritten Securities and
the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised
on or before the third Business Day immediately preceding the Closing Date) shall be made at
10:00 AM, New York City time, on November 29, 2010, or at such time on such later date not more
than three Business Days after the foregoing date as the Underwriter shall designate, which date
and time may be postponed by agreement between the Underwriter and the Company (such date and time
of delivery and payment for the Securities being called in this Underwriting Agreement the “Closing
Date”). Delivery of the Securities shall be made to the Underwriter for the account of the
Underwriter against payment by the Underwriter of the purchase price thereof to or upon the order
of the Company by wire transfer payable in same-day funds to an account specified by the Company.
Delivery of the Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Underwriter shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the third Business Day
immediately preceding the Closing Date, the Company will deliver (at the expense of the Company) to
the Underwriter, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Underwriter (which shall be within three Business Days after exercise of said option) certificates
for the Option Securities in such names and denominations as the Underwriter shall have requested
for the account of the Underwriter, against payment by the Underwriter of the purchase price
thereof to or upon the order of the Company by wire transfer payable in same-day funds to an
account specified by the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Underwriter on the settlement date for the Option Securities,
and the obligation of the Underwriter to purchase the Option Securities shall be conditioned upon
receipt of, supplemental opinions, certificates and letters confirming as of such date the
opinions, certificates and letters delivered on the Closing Date pursuant to Section 6 hereof.
The ADR certificates evidencing the Underwritten Securities and Option Securities shall be
registered in such names and in such denominations as the Underwriter may request not less than one
full business day prior to the applicable Closing Date.
4. Offering by Underwriter. It is understood that the Underwriter proposes to offer
the Securities for sale to the public as set forth in the Final Prospectus.
22
5. Agreements. The Company agrees with the Underwriter that:
(a) Prior to the termination of the offering of the Securities, the Company will not
file any amendment of the Registration Statement or the ADR
Registration Statement or supplement (including the Final Prospectus or any
Preliminary Prospectus) to the Base Prospectus unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed amendment or supplement
to which you reasonably object. The Company will cause the Final Prospectus, properly
completed, and any supplement thereto to be filed in a form approved by the Underwriter
with the Commission pursuant to the applicable paragraph of Rule 424(b) under the Act
within the time period prescribed and will provide evidence satisfactory to the Underwriter
of such timely filing. The Company will promptly advise the Underwriter (i) when the Final
Prospectus, and any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) under the Act or when the ADR Registration Statement
shall have been filed with the Commission, (ii) when, prior to termination of the offering
of the Securities, any amendment to the Registration Statement or the ADR Registration
Statement shall have been filed or become effective, (iii) of any request by the Commission
or its staff for any amendment of the Registration Statement or the ADR Registration
Statement, or for any supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the ADR Registration Statement or of any notice objecting to
their use or the institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the institution or
threatening of any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order or the occurrence of any such suspension or
objection to the use of the Registration Statement and, upon such issuance, occurrence or
notice of objection, to obtain as soon as possible the withdrawal of such stop order or
relief from such occurrence or objection, including, if necessary, by filing an amendment
to the Registration Statement or the ADR Registration Statement or a new registration
statement and using its best efforts to have such amendment or new registration statement
declared effective as soon as practicable.
(b) If, at any time prior to the filing of the Final Prospectus pursuant to Rule
424(b) under the Act, any event occurs as a result of which the Disclosure Package would
include any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances under which they
were made at such time not misleading, the Company will (i) notify promptly the Underwriter
so that any use of the Disclosure Package may cease until it is amended or supplemented;
(ii) amend or supplement the Disclosure Package to correct such statement or omission; and
(iii) supply any amendment or supplement to you in such quantities as you may reasonably
request.
23
(c) If, at any time when a prospectus relating to the Securities is required to be
delivered under the Act (including in circumstances where such requirement may be satisfied
pursuant to Rule 172 under the Act), any event occurs as a result of which the Final
Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances under which they
were made or the circumstances then prevailing not misleading, or if it shall be necessary
to amend the Registration Statement, file a new registration statement or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the respective rules
thereunder, including in connection with use or delivery of the Final Prospectus, the
Company promptly will (i) notify the Underwriter of any such event, (ii) prepare and file
with the Commission, subject to the second sentence of paragraph (i)(a) of this Section 5,
an amendment or supplement or new registration statement which will correct such statement
or omission or effect such compliance, (iii) use its best efforts to have any amendment to
the Registration Statement or new registration statement declared effective as soon as
practicable in order to avoid any disruption in use of the Final Prospectus and
(iv) supply any supplemented Final Prospectus to you in such quantities as you may
reasonably request.
(d) As soon as practicable, the Company will make generally available to its security
holders and to the Underwriter an earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act.
(e) The Company will furnish (i) to the Underwriter and counsel for the Underwriter,
without charge, signed copies of the Registration Statement and the ADR Registration
Statement (including exhibits thereto) and signed copies of all consents and certificates
of experts and (ii) to each other Underwriter a copy of the Registration Statement and the
ADR Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act (including in
circumstances where such requirement may be satisfied pursuant to Rule 172 under the Act),
as many copies of each Preliminary Prospectus, the Final Prospectus and each Issuer Free
Writing Prospectus and any supplement thereto as the Underwriter may reasonably request.
The Company will pay the expenses of printing or other production of all documents relating
to the offering.
(f) The Company will arrange, if necessary, for the qualification of the Securities
for sale under the laws of such jurisdictions as the Underwriter may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Securities; provided that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any action that
would subject it to service of process in suits, other than those arising out of the
offering or sale of the Securities, in any jurisdiction where it is not now so subject.
24
(g) The Company will not, other than as contemplated by this Agreement, without the
prior written consent of the Underwriter, offer, sell, contract to sell, pledge, or
otherwise dispose of (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or indirectly,
including the filing (or participation in the filing) of a registration statement with the
Commission in respect of, or establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the Exchange
Act, any Ordinary Shares or ADSs or any securities convertible into, or exercisable, or
exchangeable for, Ordinary Shares or ADSs; or publicly announce an intention to effect any
such transaction, for a period of 90 days after the date of this Agreement,
provided, however, that the Company may issue and sell Ordinary Shares
pursuant to any employee stock option plan, stock ownership plan or dividend reinvestment
plan of the Company in effect at the Execution Time and the Company may issue Ordinary
Shares issuable upon the conversion of securities or the exercise of warrants outstanding
at the Execution Time. Notwithstanding the foregoing, if (x) during the last 17 days of
the 90-day restricted period the Company issues an earnings release or material news or a
material event relating to the Company occurs, or (y) prior to the expiration of the 90-day
restricted period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 90-day period, the restrictions imposed in
this clause 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. The Company will provide the Underwriter and each individual or other person
subject to the restricted period pursuant to the Lock-up Agreements described in Section
1(ppp) with prior written notice of any such announcement that gives rise to an extension
of the restricted period.
(h) The Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Ordinary Shares or the ADSs.
(i) The Company agrees to pay the costs and expenses relating to the following
matters: (i) the preparation, printing or reproduction and filing with the Commission of
the Registration Statement (including financial statements and exhibits thereto), each
Preliminary Prospectus, the Final Prospectus and each Issuer Free Writing Prospectus, and
each amendment or supplement to any of them; (ii) the deposit of the Underlying Shares to
be sold by the Company hereunder under the Deposit Agreement, the issuance thereunder of
ADSs representing such deposited Underlying Shares, the issuance of ADRs evidencing such
ADSs and the related fees of the Depositary; (iii) the printing (or reproduction) and
delivery (including postage, air freight charges and charges for counting and packaging) of
such copies of the Registration Statement, each Preliminary Prospectus, the Final
Prospectus and each Issuer Free Writing Prospectus, and all amendments or supplements to
any of them, as may, in each case, be
25
reasonably requested for use in connection with the
offering and sale of the Securities and any costs associated with electronic delivery of any of the
foregoing by the Underwriter to investors; (iv) the preparation, printing, authentication,
issuance and delivery of certificates for the Securities, including any stamp or transfer
taxes in connection with the original issuance and sale of the Securities; (v) the printing
(or reproduction) and delivery of this Agreement, any blue sky memorandum and all other
agreements or documents printed (or reproduced) and delivered in connection with the
offering of the Securities; (vi) the registration of the Securities under the Exchange Act
and the listing of the ADSs on the New York Stock Exchange; (vii) any registration or
qualification of the Securities for offer and sale under the blue sky laws of the several
states; (viii) any filings required to be made with the FINRA (including filing fees
relating to such filings); (ix) the fees and expenses of the Company’s accountants and the
fees and expenses of counsel (including local and special counsel) for the Company; (x) the
fees and expenses of any transfer agent or registrar for the Securities; and (xi) all other
costs and expenses incident to the performance by the Company of its obligations under this
Agreement. For the avoidance of doubt, the Company is not obligated to pay 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 representatives and officers of the Company and any such consultants, and
the cost of aircraft and other transportation chartered in connection with the road show,
unless pursuant to Section 7 hereof.
(j) The Company agrees that, unless it has or shall have obtained the prior written
consent of the Underwriter, and the Underwriter agrees with the Company that, unless it has
or shall have obtained the prior written consent of the Company, it has not made and will
not make any offer relating to the Securities that would constitute an Issuer Free Writing
Prospectus or that would otherwise constitute a “free writing prospectus” (as defined in
Rule 405 under the Act) required to be filed by the Company with the Commission or retained
by the Company under Rule 433 under the Act; provided that the prior written
consent of the parties hereto shall be deemed to have been given in respect of the Free
Writing Prospectuses included in Schedule I hereto and any electronic road show. Any such
free writing prospectus consented to by the Underwriter or the Company is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company agrees that (x) it has
treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an
Issuer Free Writing Prospectus and (y) it has complied and will comply, as the case may be,
with the requirements of Rules 164 and 433 under the Act applicable to any Permitted Free
Writing Prospectus, including in respect of timely filing with the Commission, legending
and record keeping.
26
(k) The Company will use the net proceeds received by it from the sale of the
Securities in the manner specified in the Disclosure Package and the Final Prospectus under
the caption “Use of Proceeds”.
(l) The Company will effect and maintain the listing of the ADSs on the New York Stock
Exchange.
(m) Except as disclosed in the Disclosure Package and the Final Prospectus, the
Company shall use its best efforts to comply with the SAFE Rules and Regulations, and shall
use reasonable efforts to cause its shareholders that are, or that are directly or
indirectly owned or controlled by, PRC residents or citizens, to comply with the SAFE Rules
and Regulations as applicable to them, including without limitation, requiring each such
shareholder to complete any registration and other procedures required under applicable
SAFE Rules and Regulations.
(n) 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.
(o) The Company agrees to use its best efforts to (i) obtain and maintain all
approvals required in the Cayman Islands to pay and remit outside the Cayman Islands all
dividends declared by the Company and payable on the Ordinary Shares; and (iii) obtain and
maintain all approvals required in the Cayman Islands for the Company to acquire sufficient
foreign exchange for the payment of dividends and all other relevant purposes.
(p) The Company will use its best efforts to comply with the Xxxxxxxx-Xxxxx Act, and
to use its best efforts to cause the Company’s directors and officers, in their capacities
as such, to comply with the Xxxxxxxx-Xxxxx Act.
(q) The Company will not directly or indirectly use the proceeds of the Securities
hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.
(r) Prior to the Closing Date, the Company will not, without the Underwriter’s prior
consent, issue any press release or other communication directly or indirectly or hold any
press conference with respect to the Company or any of its subsidiaries, the financial
condition, results of operations, business, properties, assets or liabilities of the
Company or any of its subsidiaries, or the offering of the ADSs.
(s) The Company will use its best efforts to do and perform all things required to be
done or performed under this Agreement by the Company prior to
the Closing Date and to satisfy all conditions precedent to the delivery of the
Securities.
27
(t) The Company agrees to cause each optionholder of the Company that has not entered
into a Lock-up Agreement contemplated in Section 1(ppp) to be subject to and comply with
all of the same restrictions as set forth in the form of the Lock-up Agreement attached
hereto as Exhibit A-2, including (A) delivering notices with respect to such restrictions
to all such optionholders immediately upon closing of the offering contemplated hereunder
and (B) including a legend with respect to such restrictions on the certificates evidencing
the Ordinary Shares to be issued to any such optionholder upon exercise of the options
during the 60-day period after the date of this Agreement.
6. Conditions to the Obligations of the Underwriter. The obligations of the
Underwriter to purchase the Underwritten Securities and the Option Securities, as the case may be,
shall be subject to the accuracy of the representations and warranties on the part of the Company
contained in this Agreement as of the Execution Time, the Closing Date and any settlement date
pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any
certificates pursuant to the provisions hereof, to the performance by the Company of its
obligations under this Agreement and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, have been filed in the manner
and within the time period required by Rule 424(b) under the Act; any other 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 periods prescribed for such filings by
Rule 433 under the Act; and no stop order suspending the effectiveness of the Registration
Statement or the ADR Registration Statement or any notice objecting to their use shall have
been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxxx LLP, United States
counsel for the Company, to have furnished to the Underwriter (i) its opinion dated the
Closing Date and addressed to the Underwriter, substantially in the form of Exhibit B
hereto, and (ii) its tax opinion dated the Closing Date and and addressed to the
Underwriter, in form and substance satisfactory to the Underwriter.
(c) The Company shall have requested and caused Xxxxxxx Xxxx & Xxxxxxx, Cayman Islands
counsel for the Company, to have furnished to the Underwriter its opinion dated the Closing
Date and addressed to the Underwriter, substantially in the form of Exhibit C hereto.
(d) The Company shall have requested and caused Fangda Partners, PRC counsel for the
Company, to have furnished to the Company its opinion dated the Closing Date, substantially
in the form of Exhibit D hereto, together with a consent letter permitting the Company to
provide its opinion to the Underwriter; such consent letter shall be in form and substance satisfactory to the
Underwriter.
28
(e) The Depositary shall have requested and caused Xxxxxxx, Xxxxxxx & Associates, LLP,
counsel for the Depositary, to have furnished to the Underwriter its opinion dated the
Closing Date and addressed to the Underwriter, substantially in the form of Exhibit E
hereto.
(f) The Underwriter shall have received from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP,
United States counsel for the Underwriter, such opinion or opinions, dated the Closing Date
and addressed to the Underwriter, with respect to the issuance and sale of the Securities,
the Registration Statement, the ADR Registration Statement, the Disclosure Package, the
Final Prospectus (together with any supplement thereto) and other related matters as the
Underwriter may reasonably require, and the Company shall have furnished to Xxxxxx Xxxxxxxx
Xxxxx & Xxxxxxxx LLP such documents as it may reasonably request for the purpose of
enabling it to pass upon such matters.
(g) The Underwriter shall have received from King and Wood, PRC counsel for the
Underwriter, such opinion or opinions, dated the Closing Date and addressed to the
Underwriter, with respect to certain issues under PRC law relating to the transactions
contemplated hereunder and other related matters as the Underwriter may reasonably require,
and the Company shall have furnished to King and Wood such documents as it may reasonably
request for the purpose of enabling it to pass upon such matters.
(h) The Company shall have furnished to the Underwriter a certificate of the Company,
signed by the chairman of the board or the chief executive officer and the principal
financial or accounting officer of the Company, dated the Closing Date, to the effect that
the signers of such certificate have carefully examined the Registration Statement, the ADR
Registration Statement, the Disclosure Package, the Final Prospectus and any amendment or
supplement thereto, as well as each electronic road show used in connection with the
offering of the Securities, and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are
true and correct on and as of the Closing Date with the same effect as if made on
the Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the ADR Registration
Statement or the Registration Statement or of any notice objecting to its use has
been issued and no proceedings for that purpose have been instituted or, to the
Company’s knowledge, threatened;
29
(iii) since the date of the most recent financial statements included in the
Disclosure Package and the Final Prospectus (exclusive of any supplement thereto),
there has been no Material Adverse Effect, except as set forth in or contemplated
in the Disclosure Package and the Final Prospectus (exclusive of any supplement
thereto); and
(iv) a true and complete copy of the legal opinion of Fangda Partners, PRC
counsel for the Company, dated the Closing Date, is attached as an exhibit to such
certificate and such opinion has not been amended or withdrawn.
(i) The Company shall have requested and caused Deloitte Touche & Tohmatsu CPA Ltd. to
have furnished to the Underwriter at the Execution Time and at the Closing Date, letters,
dated respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Underwriter, to the effect set forth in Exhibit F, with
respect to the financial statements and certain financial information contained in the
Preliminary Prospectus dated November 22, 2010, the Registration Statement, the Disclosure
Package and the Final Prospectus; provided that the letter delivered on the Closing
Date shall use a “cut-off date” not earlier than the date hereof.
(j) Subsequent to the Execution Time or, if earlier, the dates as of which information
is given in the Registration Statement (exclusive of any amendment thereof) and the Final
Prospectus (exclusive of any amendment or supplement thereto), there shall not have been
(i) any change or decrease specified in the letter or letters referred to in paragraph (l)
of this Section 6 or (ii) any change, or any development involving a prospective change, in
or affecting the condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or contemplated in
the Disclosure Package and the Final Prospectus (exclusive of any amendment or supplement
thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in
the sole judgment of the Underwriter, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as contemplated by
the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and
the Final Prospectus (exclusive of any amendment or supplement thereto).
(k) The Deposit Agreement shall be in full force and effect.
(l) The Depositary shall have furnished or caused to be furnished to the Underwriter
certificates satisfactory to the Underwriter evidencing the deposit with the Custodian of
the Underlying Shares in respect of which ADSs to be purchased by the Underwriter on such
Closing Date are to be issued, and the execution, issuance, countersignature (if
applicable) and delivery of the ADRs evidencing such ADSs pursuant to the Deposit Agreement
and such other matters related thereto as the Underwriter may reasonably request.
30
(m) Prior to the Closing Date, the Company shall have furnished to the Underwriter
such further information, certificates and documents as the Underwriter may reasonably
request.
(n) The ADSs shall have been approved for listing on the NYSE, subject only to
official notice of issuance.
(o) The FINRA shall have confirmed that it has not raised any objection with respect
to the fairness or reasonableness of the underwriting, or other arrangements of the
transactions, contemplated hereby.
(p) There shall not be any adverse legislative or regulatory developments related to
the M&A Rules and Related Clarifications which in the reasonable judgment of the
Underwriter would make it inadvisable to proceed with the public offering or the delivery
of the Shares and the ADSs on the terms and in the manner contemplated in this Agreement.
(q) The Lock-up Agreements shall be in full force and effect on the Closing Date.
If any of the conditions specified in this Section 6 shall not have been fulfilled in all
material respects when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in
form and substance to the Underwriter and counsel for the Underwriter, this Agreement and all
obligations of the Underwriter under this Agreement may be canceled at, or at any time prior to,
the Closing Date by the Underwriter. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered at the offices of
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Underwriter, at Bank of China Tower, 39/F,
One Garden Road, Central, Hong Kong, on the Closing Date.
7. Reimbursement of Underwriter’s Expenses. If the sale of the Securities provided
for in this Agreement is not consummated because of any refusal, or failure on the part of the
Company to (i) satisfy any condition to the obligations of the Underwriter set forth in Section 6
hereof, (ii) perform any agreement in this Agreement or (iii) comply with any provision hereof, in
each case other than by reason of (x) a default, or circumstances caused, by any of the
Underwriter, or (y) circumstances outside the control of the Company (for purposes of this
subclause (y), circumstances within the control of legal counsel to the Company shall not be deemed
as within the control of the Company), the Company will reimburse the Underwriter on demand for all
expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by
it in connection with the proposed purchase and sale of the Securities.
31
If this Agreement is terminated pursuant to Section 10 hereof and the sale of the Securities
provided for in this Agreement is not consummated on or prior to December 31, 2010, the Company
agrees to reimburse the Underwriter on demand for 50% of the Underwriter’s reasonable out-of-pocket
expenses incurred in connection with the transactions contemplated hereunder, including, without
limitation, the Underwriter’s fees, expenses and travel and accommodation costs (but excluding the
fees and expenses of the Underwriter’s legal counsels), only to the extent that such fees, expenses
and costs were incurred on or prior to December 31, 2010.
For the avoidance of doubt, the expenses incurred by the Underwriter for purposes of this
Section 7 shall include all costs and expenses of the Company that are paid by the Underwriter
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 representatives and officers of the Company
and any such consultants, and the cost of aircraft and other transportation chartered in connection
with the road show.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Underwriter, the directors,
officers, employees and agents of the Underwriter and each person who controls the
Underwriter within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law 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 for the registration of the Securities as originally filed or in any amendment
thereof, or in the ADR Registration Statement as originally filed or in any amendment
thereof, or in the Base Prospectus, any Preliminary Prospectus or any other preliminary
prospectus supplement relating to the Securities, the Final Prospectus, any Issuer Free
Writing Prospectus, any Road Show Script, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and agrees to reimburse each such indemnified party, as incurred,
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the
Company by the Underwriter specifically for inclusion therein. This indemnity agreement
will be in addition to any liability that the Company may otherwise have.
32
(b) The Underwriter agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement or the ADR
Registration Statement, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing indemnity to the
Underwriter, but only with reference to written information relating to the Underwriter
furnished to the Company by on the Underwriter specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in addition to
any liability which the Underwriter may otherwise have. The Company acknowledges that the
statements set forth (i) in the last sentence of the fifth paragraph of the cover page
regarding certain intention of the Underwriter, (ii) in the last paragraph of the cover
page regarding the delivery of the Securities, and, under the heading “Underwriting”, (iii)
the name of Underwriter and its participation in the sale of the Securities, (iv) in the
last sentence of the third paragraph related to resale commission, (v) in the second and
third sentences in the third paragraph relating to certain intention of the Underwriter and
(vi) in the paragraph related to stabilization, syndicate covering transactions and penalty
bids in any Preliminary Prospectus and the Final Prospectus constitute the only information
furnished in writing by the Underwriter for inclusion in any Preliminary Prospectus, the
Final Prospectus or any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8 of notice of
the commencement of any action, such indemnified party will, if a claim in respect thereof
is to be made against the indemnifying party under this Section 8, notify the indemnifying
party in writing of the commencement thereof; but the failure so to notify the indemnifying
party (i) will not relieve it from liability under paragraph (a), (b) or (c) above unless
and to the extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses and (ii) will not,
in any event, relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a), (b) or (c) above.
The indemnifying party shall be entitled to appoint counsel of the indemnifying party’s
choice at the indemnifying party’s expense to represent the indemnified party in any action
for which indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel retained by the
indemnified party or parties except as set forth below); provided, however,
that such counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs and
expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such action
include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, (iii) the indemnifying party shall
not have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of such action
or (iv) the indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought under this
Agreement (whether or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
33
(d) In the event that the indemnity provided in paragraph (a), (b) or (c) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified party for any
reason, the Company and the Underwriter severally agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending the same) (collectively “Losses”) to
which the Company and the Underwriter may be subject in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and by the
Underwriter on the other from the offering of the Securities; provided,
however, that in no case shall the Underwriter be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities purchased by
the Underwriter under this Agreement. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the Underwriter severally
shall contribute 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 of the Underwriter
on the other in connection with the statements or omissions which resulted in such Losses
as well as any other relevant equitable considerations. Benefits received by the Company
shall be deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriter shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as set forth on the
cover page of the Final Prospectus. Relative fault shall be determined by reference to,
among other things, whether any untrue or any alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriter on the other, the intent of the
parties and their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriter agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of this
paragraph (e), 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. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (e).
34
9. Default. If the Company shall fail on the Closing Date 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 non-defaulting party; provided, however, that the
provisions of Sections 1, 5(i)(i), 5(i)(t), 7, 8, 11 and 17 shall remain in full force and effect.
No action taken pursuant to this Section shall relieve the Company from liability, if any, in
respect of such default.
10. Termination. This Agreement shall be subject to termination in the absolute
discretion of the Underwriter, by notice given to the Company prior to delivery of and payment for
the Securities, if at any time prior to such delivery and payment (i) trading in the Company’s ADSs
shall have been suspended by the Commission or the NYSE or trading in securities generally on any
of the NYSE or the Nasdaq Global Market shall have been suspended or limited or minimum prices
shall have been established on such exchanges, (ii) a banking moratorium shall have been declared
by U.S. Federal, New York State, the United Kingdom, the Cayman Islands, or PRC authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the
United States, the Cayman Islands or PRC of a national emergency or war, or other calamity or
crisis the effect of which on financial markets is such as to make it, in the sole judgment of the
Underwriter, impractical or inadvisable to proceed with the offering or delivery of the Securities
as contemplated by any Preliminary Prospectus or the Final Prospectus (exclusive of any amendment
or supplement thereto).
11. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or its officers and of
the Underwriter set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of the Underwriter or the Company or
any of the officers, directors, agents or controlling persons referred to in Section 8 hereof, and
will survive delivery of and payment for the Securities. The provisions of Sections 7 and 8 hereof
shall survive the termination or cancellation of this Agreement.
12. Notices. All communications under this Agreement will be in writing and effective
only on receipt, and, if sent to the Underwriter, will be mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax
no.:(000) 000-0000) and confirmed to such General Counsel at Citigroup Global Markets Inc.,
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel; or, if sent to the
Company, will be mailed, delivered or telefaxed to x00(00) 0000-0000 and confirmed to it at 3/F
Xxxxxxxx 0 Xxxxxxxxxxxx Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxx, Xxxxxxx
000000, P.R. China, Attention:
Legal Department.
35
13. Successors. This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and the officers, directors, employees, agents and
controlling persons referred to in Section 8 hereof, and no other person will have any right or
obligation under this Agreement.
14. No fiduciary duty. The Company hereby acknowledges that (a) the purchase and sale
of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the
Company, on the one hand, and the Underwriter and any affiliate through which it may be acting, on
the other, (b) the Underwriter is acting as principal and not as an agent or fiduciary of the
Company and (c) the Company’s engagement of the Underwriter in connection with the offering and the
process leading up to the offering is as independent contractor and not in any other capacity.
Furthermore, the Company agrees that it is solely responsible for making its own judgments in
connection with the offering (irrespective of whether the Underwriter has advised or is currently
advising the Company on related or other matters). The Company agrees that it will not claim that
the Underwriter has rendered advisory services of any nature or respect, or owe an agency,
fiduciary or similar duty to the Company in connection with such transaction or the process leading
thereto.
15. Integration. This Agreement supersedes all prior agreements and understandings
(whether written or oral) between the Company and the Underwriter with respect to the subject
matter hereof.
16. Applicable Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed within the
State of New York.
17. Jurisdiction. The Company agrees that any suit, action or proceeding against the
Company arising out of or based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York Court, and waives any objection which it may now or hereafter have to
the laying of venue of any such proceeding, and irrevocably submits to the non-exclusive
jurisdiction of such courts in any suit, action or proceeding. The Company has appointed CT
Corporation System, located at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent
(the “Authorized Agent”) upon whom process may be served in any suit, action or proceeding arising
out of or based upon this Agreement or the transactions contemplated herein which may be instituted
in any New York Court and expressly accepts the non-exclusive jurisdiction of any such court in
respect of any such suit, action or proceeding. The Company hereby represents and warrants that
the Authorized Agent has accepted such appointment and has agreed to act as said agent for service
of process, and the Company agrees to take any and all action, including the filing of any and all
documents that may be necessary to continue such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent shall be deemed, in every respect, effective service of process
upon the Company. Notwithstanding the foregoing, any action arising out of or based upon this
Agreement may be instituted in any court of competent jurisdiction in the Cayman Islands and PRC.
36
The provisions of this Section 17 shall survive any termination of this Agreement, in whole or
in part.
18. Currency. Each reference in this Agreement to U.S. Dollars (the “relevant
currency”) is of the essence. To the fullest extent permitted by law, the obligations of the
Company in respect of any amount due under this Agreement will, notwithstanding any payment in any
other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of
the amount in the relevant currency that the party entitled to receive such payment may, in
accordance with its normal procedures, purchase with the sum paid in such other currency (after any
premium and costs of exchange) on the Business Day immediately following the day on which such
party receives such payment. If the amount in the relevant currency that may be so purchased for
any reason falls short of the amount originally due, the Company will pay such additional amounts,
in the relevant currency, as may be necessary to compensate for the shortfall. If the amount in
the relevant currency that may be so purchased are greater than the amount originally due to such
Underwriter hereunder, such Underwriter agrees to pay to the Company an amount equal to the excess
of the amount in the relevant currency so purchased over the sum originally due to such Underwriter
hereunder. Any obligation of any of the Company not discharged by such payment will, to the
fullest extent permitted by applicable law, be due as a separate and independent obligation and,
until discharged as provided herein, will continue in full force and effect.
19. Waiver of Immunity. To the extent that the Company has or hereafter may acquire
any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction
of any court or from set-off or any legal process (whether service or notice, attachment in aid or
otherwise) with respect to itself or any of its property, the Company hereby irrevocably waives and
agrees not to plead or claim such immunity in respect of its obligations under this Agreement.
20. Waiver of Jury Trial. The Company hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby.
21. Counterparts. This Agreement may be signed in one or more counterparts, each of
which shall constitute an original and all of which together shall constitute one and the same
agreement.
22. Headings. The section headings used in this Agreement are for convenience only and
shall not affect the construction hereof.
37
23. Definitions. The terms that follow, when used in this Agreement, shall have the
meanings indicated.
“Act” shall mean the United States Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“ADR Registration Statement” shall mean the registration statement referred to in
paragraph 1(c) above, including all exhibits thereto, each as amended at the time such part of the
registration statement became effective.
“Base Prospectus” shall mean the base prospectus referred to in paragraph 1(a) above contained
in the Registration Statement at the Execution Time.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day
on which banking institutions or trust companies are authorized or obligated by law to close in New
York City or the PRC.
“Commission” shall mean the Securities and Exchange Commission.
“Disclosure Package” shall mean (i) the Base Prospectus, (ii) the Preliminary Prospectus used
most recently prior to the Execution Time, (iii) the Issuer Free Writing Prospectuses, if any,
identified in Schedule I hereto, (iv) any other Free Writing Prospectus that the parties hereto
shall hereafter expressly agree in writing to treat as part of the Disclosure Package, and (v) the
final offering terms included in Schedule I hereto.
“Effective Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto became or becomes effective.
“Exchange Act” shall mean the United States Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.
“Execution Time” shall mean the date and time that this Agreement is executed and delivered by
the parties hereto.
“Final Prospectus” shall mean the prospectus supplement relating to the Securities that is
first filed pursuant to Rule 424(b) under the Act after the Execution Time, together with the Base
Prospectus.
“Free Writing Prospectus” shall mean a free writing prospectus, as defined in Rule 405.
“Issuer Free Writing Prospectus” shall mean an issuer free writing prospectus, as defined in
Rule 433 under the Act.
38
“New York Courts” shall mean the Federal or the State of New York courts located in the City
of New York, New York, U.S.A.
“PRC” shall mean the People’s Republic of China, which, for purposes of this Agreement only,
shall exclude Hong Kong Special Administrative Region, Macau Special Administrative Region and
Taiwan.
“Preliminary Prospectus” shall mean any preliminary prospectus supplement to the Base
Prospectus referred to in paragraph 1(a) above which is used prior to the filing of the Final
Prospectus, together with the Base Prospectus.
“Registration Statement” shall mean the registration statement referred to in paragraph 1(a)
above, including exhibits and financial statements and any prospectus supplement relating to the
Securities that is filed with the Commission pursuant to Rule 424(b) under the Act and deemed part
of such registration statement pursuant to Rule 430B under the Act, as amended on each Effective
Date and, in the event any post-effective amendment thereto becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended.
“Road Show Script” shall mean any road show presentation slides or other written materials
used by the Company in connection with marketing the offering of the Securities contemplated by
this Agreement.
“Rule 158”, “Rule 163”, “Rule 164”, “Rule 172”, “Rule 405”, “Rule 415”, “Rule 424”, “Rule
430B” , “Rule 433”, “Rule 456” and “Rule 457” refer to such rules under the Act.
“Securities” shall mean the Underwritten Securities and the Option Securities.
“Underlying Shares” shall mean the Shares that will be represented by the ADSs.
39
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement between the Company and the Underwriter.
Very truly yours, VANCEINFO TECHNOLOGIES INC. |
||||
By: | ||||
Name: | ||||
Title: |
40
The foregoing Agreement is hereby confirmed and accepted as of the date first above written.
Citigroup Global Markets Inc. |
||||
By: | ||||
Name: | ||||
Title: |
41
SCHEDULE I
Schedule of Free Writing Prospectuses included in the Disclosure Package: none
Final offering terms included in the Disclosure Package: the prices paid for the Shares by the
public.
Schedule I
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
November [ • ], 2010
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement
(the “Underwriting Agreement”), between VanceInfo Technologies Inc., an exempted company with
limited liability organized under the laws of the Cayman Islands (the “Company”), and you, relating
to an underwritten public offering (the “Public Offering”) of ordinary shares, par value US$0.001
per share (the “Ordinary Shares”), of the Company, represented by American Depositary Shares
(“ADSs”). Capitalized terms used herein and not otherwise defined shall have the meanings assigned
to them in the Underwriting Agreement.
In order to induce you to enter into the Underwriting Agreement, the undersigned will not,
without the prior written consent of Citigroup Global Markets Inc., offer, sell, contract to sell,
pledge or otherwise dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual disposition or effective
economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of
the undersigned or any person in privity with the undersigned or any affiliate of the undersigned),
directly or indirectly, including the filing (or participation in the filing) of a registration
statement with the Securities and Exchange Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any Ordinary Shares or
ADSs or any securities convertible into, or exercisable or exchangeable for Ordinary Shares or
ADSs, or publicly announce an intention to effect any such transaction, for a period of 30 days
after the date of the Underwriting Agreement.
The above restrictions shall not apply to (i) transactions relating to any Ordinary Shares or
ADSs or any securities convertible into or exercisable or exchangeable for Ordinary Shares or ADSs
acquired in open market transactions after completion of the Public Offering, provided that
it shall be a precondition to any such transaction that no filing or other public announcement by
any party under the Exchange Act shall be required or shall be voluntarily made in connection with
the subsequent sales of such securities acquired in such open market transactions during the
restricted period, (ii) transfers of Ordinary Shares or ADSs or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or ADSs as bona fide gifts, provided that
the donee agrees to be bound in writing by the same restrictions set forth herein, (iii) transfers
by the undersigned to an affiliate or another entity whose owners, beneficiaries or limited
partners, as the case may be, are drawn solely from a group consisting of the undersigned,
beneficial owners of the undersigned and the immediate family members of the
undersigned or beneficial owners of the undersigned, provided that such transfers are
not dispositions for value and that each such transferee agrees to be bound in writing by the same
restrictions set forth herein, or (iv) transfers of any Ordinary Shares or ADSs or any securities
convertible into or exercisable or exchangeable for Ordinary Shares or ADSs by the undersigned to
the partners, limited partners, members, affiliates, related individuals or shareholders of, or
venture capital fund under common investment management with, the undersigned, provided
that such transfers are not dispositions for value and that each such transferee agrees to be bound
in writing by the same restrictions set forth herein.
A-1
If (i) the Company issues an earnings release or material news, or a material event relating
to the Company occurs, during the last 17 days of the lock-up period, or (ii) prior to the
expiration of the lock-up period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the lock-up period, the restrictions imposed
by this 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,
unless Citigroup Global Markets Inc. waives, in writing, such extension. The undersigned hereby
acknowledges that the Company has agreed in the Underwriting Agreement to provide written notice of
any event that would result in an extension of the lock-up period and agrees that any such notice
properly delivered will be deemed to have given to, and received by, the undersigned.
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date,
the agreement set forth above shall likewise be terminated.
Yours very truly, | ||
[Signature of officers and directors] | ||
[Name and address of officers and directors] |
A-2
EXHIBIT B
FORM OF OPINION OF U.S. COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 6(b)
TO BE DELIVERED PURSUANT TO SECTION 6(b)
X-0
XXXXXXX X
XXXX XX XXXXXXX XX XXXXXX XXXXXXX COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 6(c)
TO BE DELIVERED PURSUANT TO SECTION 6(c)
C-1
EXHIBIT D
FORM OF OPINION OF PRC COUNSEL FOR THE COMPANY
TO BE DELIVERED PURSUANT TO SECTION 6(d)
TO BE DELIVERED PURSUANT TO SECTION 6(d)
D-1
EXHIBIT E
FORM OF OPINION OF COUNSEL FOR THE DEPOSITARY
TO BE DELIVERED PURSUANT TO SECTION 6(e)
TO BE DELIVERED PURSUANT TO SECTION 6(e)
E-1
EXHIBIT F
FROM OF COMFORT LETTER
F-1