EXHIBIT 1.1
[ o ] SHARES
51JOB, INC.
COMMON SHARES, PAR VALUE US$0.0001 PER SHARE
IN THE FORM OF AMERICAN DEPOSITARY SHARES
UNDERWRITING AGREEMENT
[ o ], 2004
[ o ], 2004
Xxxxxx Xxxxxxx Xxxx Xxxxxx (Asia) Limited
Xxxxxx Xxxxxxx & Co. International Limited
UBS Securities LLC
Xxxxx Xxxxxxx & Co.
CLSA Limited
c/o Morgan Xxxxxxx Xxxx Xxxxxx (Asia) Limited
00xx Xxxxx
Xxxxx Xxxxxxxx Xxxxxx
Xxxx Xxxx
Dear Sirs and Mesdames:
51job, Inc., an exempted company incorporated with limited liability
under the laws of the Cayman Islands (the "COMPANY"), proposes to issue and sell
to the several Underwriters named in Schedule I hereto (the "UNDERWRITERS") an
aggregate of [ o ] common shares, par value US$0.0001 per share, of the Company
(the "FIRM SHARES").
The Company also proposes to issue and sell to the several Underwriters
not more than an additional [ o ] Common Shares (the "ADDITIONAL SHARES"), if
and to the extent that Xxxxxx Xxxxxxx Xxxx Xxxxxx (Asia) Limited, as
representative of the Underwriters (the "GLOBAL COORDINATOR"), shall have
determined to exercise, on behalf of the Underwriters, the right to purchase
such Common Shares granted to the Underwriters in Section 2 hereof. The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"SHARES". The Common Shares of the Company to be outstanding after giving effect
to the sales contemplated hereby are hereinafter referred to as the "COMMON
SHARES".
The Underwriters will take delivery of the Shares in the form of
American Depositary Shares. The American Depositary Shares are to be issued
pursuant to a Deposit Agreement dated as of [ o ], 2004 (the "DEPOSIT
AGREEMENT") among the Company, XX Xxxxxx Chase Bank, as Depositary (the
"DEPOSITARY"), and the holders from time to time of the American Depositary
Receipts (the "ADRS") issued by the Depositary and evidencing the American
Depositary Shares. Each American Depositary Share will initially represent the
right to receive two Common Shares deposited pursuant to the Deposit Agreement.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to
the Shares and a registration statement relating to the American Depositary
Shares corresponding to the Shares. The registration statement relating to the
Shares as amended at the time it becomes effective, including the information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION
STATEMENT"; the prospectus in the form first used to confirm sales of Shares is
hereinafter referred to as the "PROSPECTUS." The registration statement relating
to the American Depositary Shares, as amended at the time it becomes effective,
is hereinafter referred to as the "ADR REGISTRATION STATEMENT." If the Company
has filed abbreviated registration statements to register additional Common
Shares and additional American Depositary Shares pursuant to Rule 462(b) under
the Securities Act (the "RULE 462 REGISTRATION STATEMENTS"), then any reference
herein to the term "Registration Statement" and the "ADR Registration Statement"
shall be deemed to include the corresponding Rule 462 Registration Statement.
The Company conducts substantially all of its operations and generates
substantially all of its revenue through (i) the subsidiaries incorporated
outside the PRC in Schedule IV (each an "OVERSEAS SUBSIDIARY"), (ii) the
subsidiaries incorporated in the PRC, as identified in Schedule V (each a "PRC
SUBSIDIARY"), and (iii) Beijing Xxxx Xxxxx Si Jin Advertising Co., Ltd. ("XXXX
XXXXX"), Beijing Run An Information Consultancy Co., Ltd. ("RUN AN") and
Shanghai Run An Lian Information Consultancy Co., Ltd. ("RAL") (each a "PRC
AFFILIATED COMPANY" and collectively the "PRC AFFILIATED COMPANIES"), each of
which is directly or indirectly owned by citizens of the People's Republic of
China (the "PRC") and established in the PRC, all as described in the
Prospectus. In addition, the Company has completed a series of transactions (the
"REORGANIZATION") as described in the Prospectus and in connection therewith the
Company and/or its subsidiaries have entered into a series of contractual
arrangements and agreements with these PRC Affiliated Companies and/or certain
respective shareholders of these PRC Affiliated Companies, as set out in
Schedule III (each a "REORGANIZATION AGREEMENT" and collectively the
"REORGANIZATION AGREEMENTS").
1. Representations and Warranties. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) The Registration Statement and the ADR Registration
Statement have each become effective; no stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement is in effect, and no proceedings for such purpose are pending
before or threatened by the Commission.
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(b) (i) Each of the Registration Statement and the ADR
Registration Statement, when it became effective, did not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (ii) the Registration Statement, the ADR Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Securities
Act and the applicable rules and regulations of the Commission
thereunder and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in
writing by such Underwriter through the Global Coordinator expressly
for use therein.
(c) The Company has been duly incorporated, is validly
existing as an exempted limited liability company in good standing
under the laws of the Cayman Islands, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the condition
(financial or other), business, properties or results of operations of
the Group Companies (as defined below), taken as a whole ("MATERIAL
ADVERSE EFFECT"). The Memorandum and Articles of Association of the
Company comply with the requirements of applicable Cayman Islands law
and are in full force and effect.
(d) Each Overseas Subsidiary has been duly incorporated, is
validly existing as an exempted company limited by shares (in the case
of 51net Beijing and 51net HR) or an international business company (in
the case of 00xxx.xxx Inc.) and in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a Material Adverse Effect; all of the issued
shares of capital stock of each Overseas
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Subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims; and none of the
outstanding shares of capital stock or equity interest in any Overseas
Subsidiary was issued in violation of preemptive or similar rights of
any securityholder of such Overseas Subsidiary. The Memorandum and
Articles of Association or other constitutive or organizational
documents of each of the Overseas Subsidiaries comply with the
requirements of applicable law in their respective jurisdictions of
incorporation and are in full force and effect.
(e) The Company's PRC Subsidiaries are identified in Schedule
V, and the Company has no other direct or indirect subsidiaries or any
other company (other than the PRC Affiliated Companies) over which it
has direct or indirect effective control incorporated or operating in
the PRC. Except as disclosed in the Prospectus with respect to the
subsidiaries of AdCo, each PRC Subsidiary has been duly established and
is validly existing under the laws of the PRC, and, except as disclosed
in the Prospectus with respect to Tech JV, its business license is in
full force and effect. The Articles of Association of each PRC
Subsidiary comply with the requirements of applicable PRC law,
including the PRC Company Law, and are in full force and effect.
(f) Each PRC Affiliated Company has been duly established and
is validly existing under the laws of the PRC, and its business license
is in full force and effect. The Articles of Association of each PRC
Affiliated Company comply with the requirements of applicable PRC law,
including the PRC Company Law, and are in full force and effect.
(g) Neither the Company nor any of the Overseas Subsidiaries,
the PRC Subsidiaries or the PRC Affiliated Companies (each a "GROUP
COMPANY" and collectively the "GROUP COMPANIES") is (i) in violation of
its respective Memorandum and Articles of Association or its other
constitutive documents or, except as disclosed in the Prospectus with
respect to Tech JV, business licenses or (ii) in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which any of the Group Companies is a party or by which
any of them may be bound, or to which any of the properties or assets
of any Group Company is subject except in the case of this clause (ii)
for such defaults that would not individually or in the aggregate have
a Material Adverse Effect; and (iii) none of the (A) current
businesses, activities, agreements or commitments of any Group Company
is unauthorized or exceeds the business scope of
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its respective business licenses, except to the extent that the failure
to be so authorized or to operate within the business scope of its
respective business license would not have a Material Adverse Effect or
(B) past businesses, activities, agreements or commitments of any Group
Company has been unauthorized or has exceeded the business scope of its
respective business licenses, except to the extent that the failure to
have been so authorized or to have operated within the business scope
of its respective business licenses has been corrected, remedied,
rectified or waived and where such failure would not be reasonably
expected to have a Material Adverse Effect.
(h) Each PRC Subsidiary and PRC Affiliated Company is a legal
person with limited liability, and the liability of the Company or any
other equity investor in respect of equity interests held in each PRC
Subsidiary and PRC Affiliated Company is limited to its investment
therein. All of the registered share capital of, or equity interest in,
each PRC Subsidiary and PRC Affiliated Company have been fully
authorized and are validly issued, fully paid and non-assessable and
are owned directly or indirectly as described in the Prospectus, free
and clear of all liens, charges, restrictions upon voting or transfer
or any other encumbrances, equities or claims (each a "LIEN"), except
as described in the Prospectus. The Company's wholly-owned Overseas
Subsidiary, 51net Beijing, a company incorporated in the Cayman
Islands, directly owns 100% of the interest of Xxxx Xxxxx Wu You
Network Information Technology (Beijing) Co., Ltd. (the "WFOE"), free
and clear of all Liens. The Company's wholly-owned Overseas Subsidiary,
00xxx.xxx Inc., directly owns a 51% capital interest in Qianjin Network
Information Technology (Shanghai) Co., Ltd. (the "TECH JV"), free and
clear of all Liens. The Tech JV directly owns an 80% capital interest
in Shanghai Qianjin Culture Communication Co., Ltd. ("ADCO"), free and
clear of all Liens. AdCo directly owns a 70% capital interest in Wuhan
Xxx Xxx Xxxx Xxxxx Advertising Co., Ltd. ("WUHAN ADCO SUB") and a 90%
capital interest in each of Hangzhou Meijin Advertising Co., Ltd.,
Kunming Xxx Xxx Xxxx Xxxxx Advertising Co., Ltd., Dalian Xxx Xxx Xxxx
Xxxxx Advertising Co., Ltd., Chongqing Xxxx Xxxxx Wu You Advertising
Co., Ltd., Hefei Wu You Culture Communication Co., Ltd., Ningbo Qianjin
Culture Communication Co., Ltd., Shanghai Cheng An Human Resources Co.,
Ltd., Shanghai Wang Cai Trading Co., Ltd. (together with Wuhan AdCo
Sub, each an "ADCO SUB" and collectively the "ADCO SUBS"), free and
clear of all Liens. Xxxx Xxxxx directly owns a 1% capital interest in
the Tech JV, a 20% capital interest in ADCO, a 30% capital interest in
Wuhan AdCo Sub and a 10% capital interest in each of the other AdCo
Subs, in each case, except as disclosed in the Prospectus, free and
clear of all Liens. Wuhan AdCo Sub directly owns a
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48% capital interest in Tech JV, free and clear, except as disclosed in
the Prospectus, of all Liens. Xxx Xxxx, a PRC citizen, is the record
and sole beneficial owner of a 20% capital interest in each of Run An
and RAL, in each case, except as disclosed in the Prospectus, free and
clear of all Liens. Xxxxxxx Xxx Xxxx, a PRC citizen, is the record and
sole beneficial owner of an 80% capital interest in each of Run An, RAL
and Xxxx Xxxxx, in each case, except as disclosed in the Prospectus,
free and clear of all Liens. Run An directly owns a 20% capital
interest in Xxxx Xxxxx, free and clear of all Liens other than as
disclosed in the Prospectus.
(i) None of the Group Companies have any subsidiaries that
have not been disclosed in the Prospectus.
(j) This Agreement has been duly authorized, executed and
delivered by the Company.
(k) The authorized capital stock of the Company conforms in
all material respects as to legal matters to the description thereof
contained in the Prospectus.
(l) The common shares, par value US$0.0001 of the Company
outstanding prior to the issuance of the Shares have been duly
authorized and are validly issued, fully paid and non-assessable.
(m) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of the
Shares will not be subject to any preemptive or similar rights.
(n) There are no outstanding securities issued by the Company
convertible into or exchangeable for, rights, warrants or options to
acquire from the Company, or obligations of the Company to issue,
Common Shares or any of the capital stock of the Company, except as
described in the Prospectus. There are no outstanding rights, warrants
or options to acquire, or instruments convertible into or exchangeable
for, any shares of capital stock or direct interests in any other Group
Company, other than as set forth in the Prospectus.
(o) The Deposit Agreement has been duly authorized, executed
and delivered by the Company, and, assuming due authorization,
execution and delivery of the Deposit Agreement by the Depositary, is a
valid and binding agreement of the Company, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or affecting creditors' rights generally and by general
principles of equity.
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(p) ADRs, when issued by the Depositary against the deposit of
Shares in respect thereof in accordance with the provisions of the
Deposit Agreement, will be duly authorized and validly issued and the
persons in whose names such ADRs are registered will be entitled to the
rights of registered holders of ADRs specified therein and in the
Deposit Agreement.
(q) The Deposit Agreement, the American Depositary Shares and
the ADRs conform in all material respects as to legal matters to the
description thereof contained in the Prospectus.
(r) Except as described in the Prospectus, the Shares and the
American Depositary Shares are freely transferable by the Company to or
for the account of the several Underwriters and (to the extent
described in the Prospectus) the initial holders thereof; and, except
as disclosed in the Prospectus, there are no restrictions on subsequent
transfers of the Shares or the American Depositary Shares under the
laws of the Cayman Islands, the PRC or the United States.
(s) The American Depositary Shares have been approved for
listing on the Nasdaq National Market ("NASDAQ"), subject to official
notice of issuance.
(t) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement and
the Deposit Agreement will not contravene any provision of applicable
law or the Memorandum and Articles of Association of the Company or the
Memorandum and Articles of Association or business licenses or other
constitutive documents of any of the Group Companies or conflict with,
or result in a breach or violation of, any of the terms, or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument to
which any of the Group Companies is a party or by which it is bound or
to which any of its property or assets is subject, that is material to
the Group Companies, taken as a whole, except for such conflict, breach
or violation that would not result in a Material Adverse Effect, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over any Group Company, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or agency ("GOVERNMENTAL AUTHORIZATION") is required for the
performance by the Company of its obligations under this Agreement or
the Deposit Agreement, except such as may be required by the securities
or Blue Sky laws of the various states of the United States in
connection with the offer and sale of the Shares and the rules and
regulations of the National Association of Securities Dealers, Inc.
("NASD").
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(u) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Group Companies, taken as a whole, from that set
forth in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement).
(v) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened to which any of the Group
Companies is a party or to which any of the properties of any of the
Group Companies is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(w) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) none of
the Group Companies have incurred any material liability or obligation,
direct or contingent, nor entered into any material transaction not in
the ordinary course of business; (ii) the Company has not purchased any
of its outstanding capital stock, nor declared, paid or otherwise made
any dividend or distribution of any kind on its capital stock; and
(iii) there has not been any material change in the capital stock,
short-term debt or long-term debt of any of the Group Companies, except
in each case as described in the Prospectus.
(x) None of the Group Companies owns any real property that is
material to the business of the Group Companies, taken as a whole; each
of the Group Companies has good and marketable title to all personal
property owned by it which is material to the business of the Group
Companies, taken as a whole, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus
or such as do not 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 Group Companies; and any real property and buildings
held under lease by any of the Group Companies are held by it under
valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Group Companies.
(y) The Group Companies own or possess, or otherwise have the
right to use, or can acquire on reasonable terms, all material patents,
patent rights, licenses, inventions, copyrights, know how (including
trade secrets and other unpatented and/or unpatentable proprietary or
8
confidential information, systems or procedures), trademarks, service
marks and trade names currently employed by them in connection with the
business now operated by them, and none of the Group Companies has
received any notice of infringement of or conflict with asserted rights
of others with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect.
(z) No material labor dispute with the employees of any of the
Group Companies exists, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or
imminent labor disturbance by the employees of any of the Group
Companies' principal suppliers, manufacturers or contractors that could
have a Material Adverse Effect.
(aa) None of the Group Companies has been refused any
insurance coverage sought or applied for; and none of the Group
Companies 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 on the Group Companies, taken as a whole, except as described in
the Prospectus.
(bb) The Group Companies possess all licenses, consents,
certificates, authorizations, approvals, orders and permits issued by
the appropriate domestic or foreign regulatory authorities necessary to
conduct their respective businesses, other than as described in the
Prospectus with respect to the conduct by RAL of its human resource
services business outside of Shanghai; the Group Companies are in
compliance in all material respects with the terms and conditions of
all such licenses, consents, certificates, authorizations, approvals,
orders and permits; all of such licenses, consents, certificates,
authorizations, approvals, orders and permits, other than as described
in the Prospectus with respect to the dormant human resources services
license held by Tech JV, are valid and in full force and effect; none
of such licenses, consents, certificates, authorizations, approvals,
orders and permits contains any materially burdensome restrictions or
conditions not described in the Prospectus; and none of the Group
Companies has received any notice of proceedings relating to the
revocation or modification of any such license, consent, certificate,
authorization, approval, order or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a Material Adverse Effect. The Company does not
have any reasonable basis to believe that the PRC Ministry of
Information
9
Industry, the PRC Ministry of Personnel or any other regulatory body is
proposing to modify, suspend or revoke any such license, consent,
certificate, authorization, approval, order or permit, and each of the
Group Companies is in compliance with the provisions of all such
licenses, consents, certificates, authorizations, approvals, orders and
permits in all material respects.
(cc) Each of the Group Companies maintains 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 of the Group
Companies 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.
(dd) Each preliminary prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(ee) The Company is not, and after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus will not be, required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(ff) The Group Companies (i) are in compliance with any and
all applicable domestic and foreign 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) have received all permits, licenses or
other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval,
except where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a Material
Adverse Effect.
(gg) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
10
person granting such person the right to require the Company to file a
registration statement under the Securities 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.
(hh) Except as disclosed in the Prospectus, no material
relationships, direct or indirect, or material transactions exist
between any of the Group Companies on the one hand and their respective
affiliates, officers and directors or their shareholders, customers or
suppliers on the other hand; and the statements in the Prospectus in
this regard are true and correct in all material respects and do not
omit anything necessary to make such statements, in the light of the
circumstances under which they are made, not misleading.
(ii) None of the Overseas Subsidiaries, PRC Subsidiaries or
PRC Affiliated Companies is currently prohibited, directly or
indirectly, from paying any dividends or other distributions, or from
making any other distribution on such Group Company's equity interest,
except as provided for in the Reorganization Agreements or as described
in or contemplated by the Prospectus; except as set forth in the
Prospectus, all dividends and other distributions declared and payable
upon the equity interests in the Overseas Subsidiaries, PRC
Subsidiaries or PRC Affiliated Companies may be converted into foreign
currency that may be freely transferred out of the PRC (after complying
with applicable procedural requirements described in the Prospectus),
Hong Kong, the British Virgin Islands or the Cayman Islands, as the
case may be, and all such dividends and other distributions are not
and, except as disclosed in the Registration Statements and the
Prospectus, will not be subject to withholding or other taxes under the
laws and regulations of the PRC, Hong Kong, the British Virgin Islands
or the Cayman Islands and, except as disclosed in the Registration
Statements and the Prospectus, are otherwise free and clear of any
other tax, withholding or deduction in the PRC, Hong Kong, the British
Virgin Islands or the Cayman Islands, in each case without the
necessity of obtaining any Governmental Authorization in the PRC, Hong
Kong, the British Virgin Islands or the Cayman Islands, except such as
have been obtained.
(jj) The consolidated financial statements (and the notes
thereto) of the Company included in the Prospectus present fairly, in
all material respects, the financial position of the Company on a
consolidated basis as of the dates indicated, and the results of
operations and the cash flows for the periods specified; and (i) such
financial statements have been prepared in conformity with U.S.
generally accepted accounting principles
11
on a consistent basis throughout the period involved and (ii)
PricewaterhouseCoopers, who have expressed an opinion on the financial
statements of the Company based on their audits, are independent
auditors with respect to the Company within the meaning of the
Securities Act, the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT") and the applicable rules and regulations of the
Commission thereunder.
(kk) Each of the Group Companies has filed with all
appropriate taxing authorities all income, franchise or other tax
returns required to be filed through the date hereof except for those
income, franchise or other tax returns the failure of which to file
will not have a Material Adverse Effect, and no tax deficiency has been
determined adversely to any of the Group Companies which has had (nor
does any of the Group Companies have any knowledge of any tax
deficiency which, if determined adversely to any of the Group
Companies, might individually or in the aggregate have) a Material
Adverse Effect.
(ll) The description of the Reorganization and each of the
Reorganization Agreements as set forth in the Prospectus is true and
correct in all material respects. The Reorganization has been completed
and effected prior to the date hereof and constitutes a binding
transaction completed by the parties to the Reorganization Agreements.
None of the Reorganization Agreements and none of the transactions
comprising the Reorganization has been revoked and to the Company's
knowledge no such revocation is pending or threatened. Each of the
Reorganization Agreements have been entered into prior to the date
hereof in compliance with all applicable national, provincial,
municipal and local laws, except for such non-compliance that would
not, individually or in the aggregate, affect the valid and binding
nature of the Reorganization, any Reorganization Agreement or have a
Material Adverse Effect, and constitutes a binding transaction
completed by the parties to the Reorganization Agreements. Each of the
Reorganization Agreements has been duly authorized, executed and
delivered by each Group Company and, to the best of the Company's
knowledge, each other person that is a party to such agreement prior to
the date hereof and each Reorganization Agreement constitutes a valid
and legally binding agreement of each Group Company and, to the best of
the Company's knowledge, each other person that is a party to such
agreement and such agreement is enforceable in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting
creditors' rights generally and by general principles of equity.
(mm) The Reorganization and the execution and the delivery by
each Group Company and any other person of each Reorganization
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Agreement to which it is a party and the performance of its obligations
thereunder did not, does not and will not conflict with, or result in a
breach or violation of, any of the terms, or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement, note, lease or other agreement or instrument to which
any of the Group Companies or, to the best of the Company's knowledge,
any such other person is a party, or by which any of the Group
Companies or, to the best of the Company's knowledge, any such other
person is bound or to which any of the property or assets of any of the
Group Companies or, to the best of the Company's knowledge, of any such
other person is subject, that singly or in the aggregate, is material
to any of the Group Companies and such actions did not, and will not,
result in any violation of the provisions of (x) the Memorandum and
Articles of Association or business licenses or other constitutive
documents of any of the Group Companies or (y) any existing law or
statute or any existing order, rule, regulation, judgment, order or
decree of any governmental body or agency having jurisdiction over any
of the Group Companies or, to the best of the Company's knowledge, any
such other person, or any of their properties, except, in the case of
clause (y) above, for such violations which would not, individually or
in the aggregate (i) have a Material Adverse Effect or (ii) affect the
valid and binding nature of the Reorganization or any Reorganization
Agreement. Except as disclosed in the Prospectus, all consents,
approvals, authorizations, orders, registrations and qualifications
required in all relevant jurisdictions in connection with the
Reorganization, the Reorganization Agreements and the execution,
delivery and performance of the Reorganization Agreements have been
made or obtained (including, without limitation all actions necessary
for the approval of the Reorganization and the Reorganization
Agreements by (i) any governmental body or agency and (ii) third
parties under joint venture agreements, bank loans, guarantees and
other contracts material to the Group Companies, taken as a whole, if
the consent of such third party is necessary to be obtained), and no
such consent, approval, authorization, order, registration or
qualification has been withdrawn or is subject to any condition
precedent which has not been fulfilled or performed, except for such
consents, approvals, authorizations, orders, registrations and
qualifications the failure of which to make or obtain would not have a
Material Adverse Effect.
(nn) Other than the Reorganization Agreements, there are no
other material documents or agreements, written or oral, that have been
entered into by any of the Group Companies or any other person in
connection with the Reorganization which have not been previously
provided or made available to the Underwriters and, to the extent
material to the Company, disclosed in the Prospectus.
13
(oo) None of the Group Companies nor any of their properties,
assets or revenues are entitled to any right of immunity on the grounds
of sovereignty from any legal action, suit or proceeding, from set-off
or counterclaim, from the jurisdiction of any court, from services of
process, from attachment prior to or in aid of execution of judgment,
or from other legal process or proceeding for the giving of any relief
or for the enforcement of any judgment. The irrevocable and
unconditional waiver and agreement of the Company in this Agreement and
the Deposit Agreement not to plead or claim any such immunity in any
legal action, suit or proceeding based on this Agreement and the
Deposit Agreement is valid and binding under the laws of the PRC and
the Cayman Islands.
(pp) The section captioned "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Critical
Accounting Policies" accurately and fairly describes in all material
respects (i) the accounting policies which the Company believes are the
most important in the portrayal of the Company's financial condition
and results of operations and which require management's most
difficult, subjective or complex judgments; (ii) the 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.
(qq) The description set forth in the Prospectus in the
section captioned "Management's Discussion and Analysis of Financial
Condition and Results of Operations -- Liquidity and Capital Resources"
of (i) all material trends, demands, commitments, events, uncertainties
and risks, and the potential effects thereof, that the Company believes
would materially affect liquidity and are reasonably likely to occur
and (ii) all off-balance sheet transactions, arrangements, and
obligations, including, without limitation, relationships with
unconsolidated entities that are contractually limited to narrow
activities that facilitate the transfer of or access to assets by any
of the Group Companies such as structured finance entities and special
purpose entities (collectively, "OFF-BALANCE ARRANGEMENTS") that are
reasonably likely to have a material effect on the liquidity of the
Group Companies, taken as a whole, or the availability thereof or the
requirements of the Group Companies for capital resources, is true and
correct in all material respects. As used herein in this subsection,
the phrase "reasonably likely" refers to a disclosure threshold lower
than "more likely than not".
(rr) To the best of the Company's knowledge, none of the Group
Companies, or any of their respective officers, directors, managers,
14
agents or employees have, directly or indirectly made or authorized any
contribution, payment or gift of funds, or property to any official,
employee or agent of any governmental agency, authority or
instrumentality in the PRC, Hong Kong, the Cayman Islands or the
British Virgin Islands or any other jurisdiction where either the
payment or gift or the purpose of such contribution, payment or gift
was, is, or would, after the registration of the Shares and American
Depositary Shares under the Exchange Act be prohibited under applicable
law, rule or regulation of any relevant locality, including but not
limited to, the U.S. Foreign Corrupt Practices Act of 1977, as amended,
or the rules and regulations promulgated thereunder.
(ss) Under the current laws and regulations of the Cayman
Islands, all dividends and other distributions declared and payable on
Common Shares in cash may be freely transferred out of the Cayman
Islands 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 except as
disclosed in the Prospectus, 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.
(tt) No stamp or other issuance or transfer taxes or duties
are payable by or on behalf of the Underwriters to the PRC, the Cayman
Islands or any political subdivision or taxing authority thereof in
connection with (i) the issuance, sale or delivery of the Shares to the
Underwriters, including in the form of American Depositary Shares or
(ii) the deposit with the Depositary of any Shares against the issuance
of the corresponding American Depositary Shares and related ADRs.
(uu) Based on the projected composition of the Company's
income and valuation of its assets, the Company does not expect to be a
passive foreign investment company ("PFIC") within the meaning of
Section 1296 of the Internal Revenue Code of 1986, as amended, for the
year ended December 31, 2004 and does not expect to become one in the
future.
(vv) Except as described in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement), the Company has not sold, issued or distributed any Common
Shares during the six-month period preceding the date hereof, including
any sales pursuant to Rule 144A under, or Regulation D or Regulation S
of, the Securities Act, other than shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee
compensation plans or pursuant to outstanding options, rights or
warrants.
15
(ww) The choice of the laws of the State of New York as the
governing law of this Agreement is a valid choice of law under the laws
of the Cayman Islands and 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 11 of this Agreement, has legally, validly,
effectively and irrevocably submitted, to the personal jurisdiction of
each New York State and United States Federal court sitting in the The
City of New York (each, a "NEW YORK COURT") and has validly and
irrevocably waived any objection to the laying of venue of any suit,
action or proceeding brought in any such court; and the Company has the
power to designate, appoint and empower, and pursuant to Section 11 of
this Agreement, has legally, validly, effectively and irrevocably
designated, appointed and empowered, an authorized agent for service of
process in any action arising out of or relating to this Agreement, the
Prospectus, the Registration Statement, the ADR Registration Statement
or the offering of the Shares or the American Depositary Shares 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 11 hereof.
(xx) Any final judgment for a fixed or readily calculable sum
of money rendered by a New York Court having jurisdiction under its own
domestic laws in respect of any suit, action or proceeding against the
Company based upon this Agreement or the Deposit Agreement and any
instruments or agreements entered into for the consummation of the
transactions contemplated herein and therein would be declared
enforceable against the Company without re-examination or review of the
merits of the cause of action in respect of which the original judgment
was given or re-litigation of the matters adjudicated upon or payment
of any stamp, registration or similar tax or duty (i) by the courts of
the Cayman Islands, provided that (A) adequate service of process has
been effected and the defendant has had a reasonable opportunity to be
heard, (B) such judgments or the enforcement thereof are not contrary
to the law, public policy, security or sovereignty of the Cayman
Islands, (C) 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 (D) 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 (ii) by the courts
of the PRC, provided that (A) the judgment was not contrary to the
public policy, state sovereignty or security of the PRC, (B) the
judgment was not given or obtained by fraud, (C) the judgment was not
based on clear mistake of law or fact, (D) the judgment was not
directly or indirectly for the payment of taxes or other charges of a
like nature or of a fine or other penalty, (E) the judgment was for a
definite sum of money, (F) the judgment was final and conclusive, (G)
adequate
16
service of process has been effected and the defendant has had a
reasonable opportunity to be heard, (H) such judgments do not conflict
with any other valid judgment in the same matter between the same
parties, (I) an action between the same parties in the same matter is
not pending in any PRC court at the time the lawsuit is instituted in
the New York Court, and (J) the requirements of the PRC Civil
Procedures Law based either on treaties between the PRC and the United
States or on reciprocity between such jurisdictions were met. The
Company is not aware of any reason why the enforcement in the Cayman
Islands or the PRC of such a New York Court judgment would be, as of
the date hereof, contrary to public policy of the Cayman Islands or
contrary to the public policy, state sovereignty or security of the
PRC.
2. Agreements to Sell and Purchase. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its name at US$[ o ] an American Depositary Share (the "PURCHASE
PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have the
right to purchase, severally and not jointly, up to [ o ] Additional Shares at
the Purchase Price. The Global Coordinator may exercise this right on behalf of
the Underwriters in whole or from time to time in part by giving written notice
not later than 30 days after the date of this Agreement. Any exercise notice
shall specify the number of Additional Shares to be purchased by the
Underwriters and the date on which such shares are to be purchased. Each
purchase date must be at least one business day after the written notice is
given and may not be earlier than the closing date for the Firm Shares nor later
than ten business days after the date of such notice. Additional Shares may be
purchased as provided in Section 4 hereof solely for the purpose of covering
over allotments made in connection with the offering of the Firm Shares. On each
day, if any, that Additional Shares are to be purchased (an "OPTION CLOSING
DATE"), each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as the Global Coordinator may determine) that bears the same proportion
to the total number of Additional Shares to be purchased on such Option Closing
Date as the number of Firm Shares set forth in Schedule I hereto opposite the
name of such Underwriter bears to the total number of Firm Shares.
17
The Company hereby agrees that, without the prior written consent of
the Global Coordinator on behalf of the Underwriters, it will not, during the
period ending 180 days after the date of the Prospectus, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase,
lend, or otherwise transfer or dispose of, directly or indirectly, any Common
Shares or any securities convertible into or exercisable or exchangeable for
Common Shares; (ii) file any registration statement with the Commission relating
to the offering of any Common Shares or any securities convertible into or
exercisable or exchangeable for Common Shares; or (iii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Common Shares, whether any such
transaction described in clause (i), (ii) or (iii) above is to be settled by
delivery of Common Shares or such other securities, in cash or otherwise.
The restrictions contained in the preceding paragraph shall not apply
to (A) the Shares or American Depositary Shares to be sold hereunder or (B) the
issuance by the Company of Common Shares upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof which
have been disclosed in the Prospectus. Notwithstanding the foregoing, if (i)
during the last 17 days of the 180-day restricted period the Company issues an
earnings release or material news or a material event relating to the Company
occurs; or (ii) prior to the expiration of the 180-day restricted period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day 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; provided that in the case of clause (ii) above,
if no earnings results are released during such 16-day period, the restrictions
imposed hereunder shall terminate on the last day of such 16-day period.
3. Terms of Public Offering. The Company is advised by the Global
Coordinator that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in the judgment of the Global
Coordinator is advisable. The Company is further advised by the Global
Coordinator that the Shares are to be offered to the public initially at US$[ o
] an American Depositary Share (the "PUBLIC OFFERING PRICE") and to certain
dealers selected by the Global Coordinator at a price that represents a
concession not in excess of US$[ o ] an American Depositary Share under the
Public Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of US$[ o ] an American Depositary Share,
to any Underwriter or to certain other dealers.
18
4. Payment and Delivery. Payment for the Firm Shares shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on [ o ], 2004, or at such other
time on the same or such other date, not later than [ o ], 2004, as shall be
designated in writing by the Global Coordinator. The time and date of such
payment are hereinafter referred to as the "CLOSING DATE".
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 2 or at such other time on the same or
on such other date, in any event not later than [ o ], 2004, as shall be
designated in writing by the Global Coordinator.
ADRs evidencing the American Depositary Shares representing the Firm
Shares and Additional Shares shall be registered in such names and in such
denominations as the Global Coordinator shall request in writing not later than
one full business day prior to the Closing Date or the applicable Option Closing
Date, as the case may be. ADRs evidencing the American Depositary Shares
representing the Firm Shares and Additional Shares shall be delivered to the
Global Coordinator on the Closing Date or an Option Closing Date, as the case
may be, for the respective accounts of the several Underwriters, with any
transfer taxes payable in connection with the transfer of the American
Depositary Shares evidenced by such ADRs to the Underwriters duly paid, against
payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the Company
to sell the Shares to the Underwriters and the several obligations of the
Underwriters to purchase and pay for the Shares on the Closing Date are subject
to the condition that the Registration Statement and the ADR Registration
Statement each shall have become effective not later than [ o ] (New York City
time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating
19
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities
Act (if any of the Company's securities are so rated); and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Group Companies, taken as a whole, from that
set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement)
that, in the judgment of the Global Coordinator, is material
and adverse and that makes it, in the judgment of the Global
Coordinator, impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxx and Xxxxxx Asia, outside Cayman Islands counsel
for the Company, dated the Closing Date, in the form and substance
satisfactory to the Global Coordinator.
(d) The Underwriters shall have received on the Closing Date
an opinion of Walkers, outside British Virgin Islands counsel for the
Company, dated the Closing Date, in the form and substance satisfactory
to the Global Coordinator.
(e) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxxx & Sterling LLP, outside U.S. counsel for the
Company, dated the Closing Date, in the form and substance satisfactory
to the Global Coordinator.
(f) The Underwriters shall have received on the Closing Date,
an opinion of Xxx Xx Law Office, outside PRC counsel for the Company,
dated the Closing Date, in the form and substance satisfactory to the
Global Coordinator.
20
(g) The Underwriters shall have received on the Closing Date
an opinion of Commerce & Finance Law Offices, PRC counsel for the
Underwriters, dated the Closing Date, in the form and substance
satisfactory to the Global Coordinator.
(h) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx Xxxx & Xxxxxxxx, United States counsel for the
Underwriters, dated the Closing Date, in the form and substance
satisfactory to the Global Coordinator.
(i) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxxx, Xxxxxxx & Associates LLP, counsel for the
Depositary, dated the Closing Date, in the form and substance
satisfactory to the Global Coordinator.
The opinions of Xxxxxx and Calder Asia, Walkers, Shearman &
Sterling LLP, Xxx Xx Law Offices, and Xxxxxxx, Xxxxxxx & Associates LLP
described in Section 5(c), 5(d), 5(e), 5(f) and 5(i) above shall be
rendered to the Underwriters at the request of the Company and shall so
state therein.
(j) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from PricewaterhouseCoopers, independent registered
public accounting firm, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus; provided that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(k) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between the Global Coordinator and certain
shareholders, officers and directors of the Company (as set forth on
Schedule II hereto) relating to sales and certain other dispositions of
Common Shares or certain other securities, delivered to the Global
Coordinator on or before the date hereof, shall be in full force and
effect on the Closing Date.
(l) The American Depositary Shares shall have been approved
for listing on Nasdaq, subject only to official notice of issuance.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to the Global Coordinator on the
applicable Option Closing Date of such documents as the Global Coordinator may
reasonably request with respect to the good standing of the Company, the due
21
authorization and issuance of the Additional Shares to be sold on such Option
Closing Date and other matters related to the issuance of such Additional
Shares.
6. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to the Global Coordinator, without charge, six
(6) signed copies of each of the Registration Statement and the ADR
Registration Statement (including in each case exhibits thereto) and
for delivery to each other Underwriter a conformed copy of each of the
Registration Statement and the ADR Registration Statement (in each case
without exhibits thereto) and to furnish to the Global Coordinator in
New York City, without charge, prior to 10:00 a.m. New York City time
on the business day next succeeding the date of this Agreement and
during the period mentioned in Section 6(c) below, as many copies of
the Prospectus and any supplements and amendments thereto or to the
Registration Statement as the Global Coordinator may reasonably
request.
(b) Before amending or supplementing the Registration
Statement, the ADR Registration Statement or the Prospectus, to furnish
to the Global Coordinator a copy of each such proposed amendment or
supplement and not to file any such proposed amendment or supplement to
which the Global Coordinator reasonably objects, and to file with the
Commission within the applicable period specified in Rule 424(b) under
the Securities Act any prospectus required to be filed pursuant to such
Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Global Coordinator will
furnish to the Company) to which Shares may have been sold by the
Global Coordinator on behalf of the Underwriters and to any other
dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances when the
22
Prospectus is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares and the corresponding
American Depositary Shares for offer and sale under the securities or
Blue Sky laws of such jurisdictions as the Global Coordinator shall
reasonably request.
(e) To make generally available to the Company's security
holders and to the Global Coordinator as soon as practicable an earning
statement covering the twelve-month period ending [ o ], 2005 that
satisfies the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
7. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of the
obligations of the Company under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the Shares under
the Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, the ADR Registration
Statement, any preliminary prospectus, the Prospectus and amendments and
supplements to any of the foregoing, including all printing costs associated
therewith, and the mailing and delivering of copies thereof to the Underwriters
and dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Shares, in the form of
Common Shares or American Depositary Shares, to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the cost of printing or producing
any Blue Sky or Legal Investment memorandum in connection with the offer and
sale of the Shares or the related American Depositary Shares under state
securities laws and all expenses in connection with the qualification of the
Shares and the related American Depositary Shares for offer and sale under state
securities laws as provided in Section 6(d) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky or Legal
Investment memorandum, (iv) all filing fees and the reasonable fees and
disbursements of counsel to the Underwriters incurred in connection with the
review and qualification of the offering of the Shares and any related American
Depositary Shares by the NASD, (v) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A relating to the
American Depositary Shares and all costs and expenses incident to listing the
American Depositary Shares on Nasdaq, (vi) the cost of printing certificates
representing the Shares or ADRs, (vii) the costs and charges of any transfer
agent, registrar or
23
depositary, (viii) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, 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 with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and such consultants, and the cost
of any aircraft chartered with the Company's prior approval in connection with
the road show, (ix) the document production charges and expenses associated with
printing this Agreement and (x) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which provision is
not otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 8 entitled "Indemnity and Contribution", and
the last paragraph of Section 10 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares or American Depositary
Shares by them and any advertising expenses connected with any offers they may
make.
8. Indemnity and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, each person, if any, who controls any Underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each affiliate of any Underwriter within the
meaning of Rule 405 under the Securities Act selling underwritten
Shares on behalf of an Underwriter from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter, any
such controlling person or any such Affiliate in connection with
defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the ADR Registration Statement
or any amendment thereof, any preliminary prospectus or the Prospectus
(as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Global Coordinator expressly for use therein, provided,
however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or
24
liabilities purchased Shares, or any person controlling such
Underwriter, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the directors of the Company,
the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
any amendment thereof, any preliminary prospectus or the Prospectus (as
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Underwriter
furnished to the Company in writing by such Underwriter through the
Global Coordinator expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 8(a), or 8(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any
25
such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act or who are affiliates of any
Underwriter within the meaning of Rule 405 under the Securities Act,
and (ii) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Company, its directors, its
officers who sign the Registration Statement and each person, if any,
who controls the Company within the meaning of either such Section, and
that all such fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for the Underwriters
and such control persons and affiliates of any Underwriters, such firm
shall be designated in writing by Xxxxxx Xxxxxxx Xxxx Xxxxxx (Asia)
Limited. In the case of any such separate firm for the Company, and
such directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. The indemnifying party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
26
(d) To the extent the indemnification provided for in Section
8(a), or 8(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause 8(d)(i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 8(d)(i) above but also the relative fault of the Company on the
one hand and of the Underwriters on the other hand in connection with
the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Company, on the one hand, and the
total underwriting discounts and commissions received by the
Underwriters, on the other hand, in each case as set forth in the table
on the cover of the Prospectus, bear to the aggregate Public Offering
Price of the Shares. The relative fault of the Company on the one hand
and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Underwriters' respective obligations to contribute
pursuant to this Section 8 are several in proportion to the respective
number of Shares they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such
27
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the
amount of any damages that such Underwriter has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
8 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(f) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter, any person controlling any Underwriter or any affiliate of
any Underwriter, or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for
any of the Shares.
9. Termination. The Underwriters may terminate this Agreement by notice
given by the Global Coordinator to the Company, if after the execution and
delivery of this Agreement and prior to the Closing Date (i) trading generally
shall have been suspended or materially limited on, or by, as the case may be,
any of the New York Stock Exchange, the American Stock Exchange or Nasdaq, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a material disruption in
securities settlement, payment or clearance services in the United States, the
PRC, Hong Kong or the Cayman Islands shall have occurred, (iv) any moratorium on
commercial banking activities shall have been declared by Federal or New York
State, PRC, Hong Kong or Cayman Islands authorities or (v) there shall have
occurred any outbreak or escalation of hostilities, or any change in financial
markets, currency exchange rates or controls or any calamity or crisis that, in
the judgment of the Global Coordinator, is material and adverse and which,
singly or together with any other event specified in this clause (v), makes it,
in the judgment of the Global Coordinator, impracticable or inadvisable to
proceed with the offer, sale or delivery of the Shares on the terms and in the
manner contemplated in the Prospectus.
10. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
28
If, on the Closing Date or an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Global Coordinator may
specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Shares that any Underwriter has agreed to
purchase pursuant to this Agreement be increased pursuant to this Section 10 by
an amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased, and
arrangements satisfactory to the Global Coordinator and the Company for the
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the Global
Coordinator or the Company shall have the right to postpone the Closing Date,
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, on an Option Closing Date, any
Underwriter or Underwriters shall fail or refuse to purchase Additional Shares
and the aggregate number of Additional Shares with respect to which such default
occurs is more than one-tenth of the aggregate number of Additional Shares to be
purchased on such Option Closing Date, the non-defaulting Underwriters shall
have the option to (i) terminate their obligation hereunder to purchase the
Additional Shares to be sold on such Option Closing Date or (ii) purchase not
less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such default. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
29
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
11. Submission to Jurisdiction; Appointment of Agent for Service. (i) The
Company irrevocably submits to the non-exclusive jurisdiction of any New York
State or United States Federal court sitting in The City of New York over any
suit, action or proceeding arising out of or relating to this Agreement, the
Prospectus, the Registration Statement, the ADR Registration Statement or the
offering of the Shares or the American Depositary Shares. The Company
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum. To
the extent that the Company has or hereafter may acquire any immunity (on the
grounds of sovereignty or otherwise) from the jurisdiction of any court or from
any legal process with respect to itself or its property, the Company
irrevocably waives, to the fullest extent permitted by law, such immunity in
respect of any such suit, action or proceeding.
(a) The Company hereby irrevocably appoints National Registered Agents,
Inc., with offices at 000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 as
its agent for service of process in any suit, action or proceeding described in
the preceding paragraph and agrees that service of process in any such suit,
action or proceeding may be made upon it at the office of such agent. The
Company waives, to the fullest extent permitted by law, any other requirements
of or objections to personal jurisdiction with respect thereto. The Company
represents and warrants that such agent has agreed to act as its agent for
service of process, and the Company agrees to take any and all action, including
the filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect.
12. Judgment Currency. If for the purposes of obtaining judgment in any
court it is necessary to convert a sum due hereunder into any currency other
than United States dollars, the parties hereto agree, to the fullest extent
permitted by law, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Underwriters could purchase United
States dollars with such other currency in The City of New York on the business
day preceding that on which final judgment is given. The obligation of the
Company with respect to any sum due from it to any Underwriter or any person
controlling any Underwriter shall, notwithstanding any judgment in a currency
other than United States dollars, not be discharged until the first business day
following receipt by such Underwriter or controlling person of any sum in such
other currency, and only to the extent that such Underwriter or controlling
person may in accordance with normal banking procedures purchase United States
dollars
30
with such other currency. If the United States dollars so purchased are less
than the sum originally due to such Underwriter or controlling person hereunder,
the Company agrees as a separate obligation and notwithstanding any such
judgment, to indemnify such Underwriter or controlling person against such loss.
If the United States dollars so purchased are greater than the sum originally
due to such Underwriter or controlling person hereunder, such Underwriter or
controlling person agrees to pay to the Company an amount equal to the excess of
the dollars so purchased over the sum originally due to such Underwriter or
controlling person hereunder.
13. Foreign Taxes. All payments made by the Company under this
Agreement, if any, will be made without withholding or deduction for or on
account of any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of the PRC, the
Cayman Islands or any political subdivision or any taxing authority thereof or
therein unless the Company is or becomes required by law to withhold or deduct
such taxes, duties, assessments or other governmental charges. In such event,
the Company will pay such additional amounts as will result, after such
withholding or deduction, in the receipt by each Underwriter and each person
controlling any Underwriter, as the case may be, of the amounts that would
otherwise have been receivable in respect thereof, except to the extent such
taxes, duties, assessments or other governmental charges are imposed or levied
by reason of such Underwriter's or controlling person's being connected with the
Cayman Islands other than by reason of its being an Underwriter or a person
controlling any Underwriter under this Agreement.
14. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
15. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
16. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
31
Very truly yours
51JOB, INC.
By:
-------------------------------------
Name:
Title:
32
Accepted as of the date hereof
Xxxxxx Xxxxxxx Dear Xxxxxx (Asia) Limited
Xxxxxx Xxxxxxx & Co. International Limited
UBS Securities LLC
Xxxxx Xxxxxxx & Co.
CLSA Limited
Acting severally
By: Xxxxxx Xxxxxxx Dear Xxxxxx (Asia) Limited
By:
-----------------------------------
Name:
Title:
33
SCHEDULE I
NUMBER OF FIRM SHARES
UNDERWRITER TO BE PURCHASED
------------------------------------------------------- ---------------------
Xxxxxx Xxxxxxx & Co. International Limited.............
UBS Securities LLC.....................................
Xxxxx Xxxxxxx & Co.....................................
CLSA Limited...........................................
---------------------
Total:............................................
=====================
I-1
SCHEDULE II
OFFICERS, DIRECTORS AND SHAREHOLDERS OF 51JOB, INC. -
PARTIES TO LOCK-UP AGREEMENTS
------------------------------------------------------------------------------
II-1
SCHEDULE III
REORGANIZATION AGREEMENTS
1. Call Option Agreement between 00xxx.xxx Inc. ("51net") and Xxxx Xxxxx
dated August 1, 2002, as amended and supplemented on May 3, 2004;
2. Cooperation Agreement between Tech JV and RAL dated May 3, 2004;
3. Domain Name License Agreement between 51net and RAL dated May 3, 2004;
4. Equity Transfer Agreement among 51net, Wuhan AdCo Sub and Xxxx Xxxxx
dated April 5, 2004;
5. Xxxx Xxxxx Equity Pledge Agreement among WFOE, Xxxxxxx Xxx Xxxx and Run
An dated May 3, 2004;
6. RAL Equity Pledge Agreement among WFOE, Xxxxxxx Xxx Xxxx and Xxx Xxxx
dated May 3, 2004;
7. Technical and Consulting Service Agreement between WFOE and Xxxx Xxxxx
dated May 3, 2004, as amended as of July 2, 2004; and
8. Technical and Consulting Service Agreement between WFOE and RAL dated
May 3, 2004, as amended as of July 2, 2004.
III-1
SCHEDULE IV
OVERSEAS SUBSIDIARIES
51net Xxxxxxx (Xxxxxx Xxxxxxx)
00xxx XX (Xxxxxx Xxxxxxx)
00xxx.xxx Inc. (BVI)
IV-1
SCHEDULE V
PRC SUBSIDIARIES
Xxxx Xxxxx Wu You Network Information Technology (Beijing) Co., Ltd.
Qianjin Network Information Technology (Shanghai) Co., Ltd.
Shanghai Qianjin Culture Communication Co., Ltd.
Wuhan Xxx Xxx Xxxx Xxxxx Advertising Co., Ltd.
Hangzhou Meijin Advertising Co., Ltd.
Kunming Xxx Xxx Xxxx Xxxxx Advertising Co., Ltd.
Dalian Xxx Xxx Xxxx Xxxxx Advertising Co., Ltd.
Chongqing Xxxx Xxxxx Wu You Advertising Co., Ltd.
Hefei Wu You Culture Communication Co., Ltd.
Ningbo Qianjin Culture Communication Co., Ltd.
Shanghai Cheng An Human Resources Co., Ltd.
Shanghai Wang Cai Trading Co. Ltd.
Xxxx Xxx Information Technology (Shanghai) Co., Ltd.
V-1
EXHIBIT A
[FORM OF LOCK-UP LETTER]
____________, 2004
Xxxxxx Xxxxxxx Dear Xxxxxx (Asia) Limited
00xx Xxxxx
Xxxxx Xxxxxxxx Xxxxxx
Xxxx Xxxx
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx Dear Xxxxxx (Asia) Limited
("XXXXXX XXXXXXX") proposes to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with 51job, Inc., a Cayman Islands corporation (the
"COMPANY"), providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters named therein (the "UNDERWRITERS"), of ___ shares (the
"SHARES") of the Common Shares, par value US$0.0001 per share of the Company
(the "COMMON STOCK") represented by American depositary shares ("ADSs").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of Xxxxxx Xxxxxxx on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the final prospectus relating
to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any Common Shares or ADSs or any
securities convertible into or exercisable or exchangeable for Common Stock or
ADSs, or (2) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of the Common
Stock or ADSs, whether any such transaction described in clause (1) or (2) above
is to be settled by delivery of Common Stock or ADSs or such other securities,
in cash or otherwise. The foregoing sentence shall not apply to (a) the sale of
any Shares in the form of ADSs to the Underwriters pursuant to the Underwriting
Agreement, (b) transactions relating to Common Shares, ADSs or other securities
acquired in open market transactions after the completion of the Public
Offering, (c) transfers
A-1
of Common Shares or any securities convertible into or exercisable or
exchangeable for Common Stock to a member of the undersigned's immediate family
or to a trust of which the undersigned or such a family member is the
beneficiary, (d) the issuance by the Company, to a holder of an option to
purchase the Company's Common Shares pursuant to the 2000 stock option plan
described in the Prospectus, of Common Shares issuable upon the exercise of such
option, (e) the issuance by the Company, to holders of Series A preference
shares of the Company, of Common Shares issuable upon the conversion of such
Series A preference shares, (f) other distributions or transfers of Common
Shares or any securities convertible into or exercisable or exchangeable for
Common Stock to partners, members or controlled affiliates of the undersigned,
(g) transfers as a bona fide gift or gifts, or (h) transfers effected by the
undersigned or the undersigned's personal representatives in the event the
undersigned dies or becomes permanently disabled; provided, however, that in the
case of any transfer or distribution pursuant to clause (c), (d), (e), (f) or
(g), prior to any such sale, transfer, distribution or donation, each purchaser,
transferee, distributee or donee shall execute and deliver to Xxxxxx Xxxxxxx a
duplicate form of this Lock-Up Agreement. For purposes of this Lock-Up
Agreement, "immediate family" shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin. In addition, the undersigned agrees
that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 180 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any Common Shares or
ADSs or any security convertible into or exercisable or exchangeable for Common
Stock or ADSs. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company's or the ADS depositary's transfer agent
and registrar against the transfer of the undersigned's Common Shares or ADSs,
as the case may be, except in compliance with the foregoing restrictions (and
subject to the exceptions set forth in clauses (a) through (h) of this
paragraph).
If:
(1) during the last 17 days of the 180-day restricted period the
Company issues a earnings release or material news or a material event relating
to the Company occurs; or
(2) prior to the expiration of the 180-day restricted period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day period;
the restrictions imposed by this Lock-Up Agreement shall continue to apply until
the expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event; provided that
in the case of clause (2) above, if no earnings results are released during such
16-day
A-2
period, the restrictions imposed by this Lock-Up Agreement shall terminate on
the last day of such 16-day period.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of the
Public Offering. The undersigned further understands that this Lock-Up Agreement
is irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
----------------------------
(Name)
----------------------------
(Address)
X-0
X-0
