CHINA CORD BLOOD CORPORATION UNDERWRITING AGREEMENT
SRFF
Draft
CHINA
CORD BLOOD CORPORATION
October
__, 2009
Xxxxxx
& Xxxxxxx, LLC
As
representative of the Underwriters named in Schedule I hereto,
c/o
Rodman & Xxxxxxx, LLC
1251
Avenue of the Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
China
Cord Blood Corporation, a Cayman Islands corporation (“Company”), confirms
its agreement, subject to the terms and conditions stated herein, to
issue and sell to the Underwriters named in Schedule I hereto (the
“Underwriters”) an aggregate of [*] shares of the Company’s ordinary
shares, $0.001 par value per share (the “Common Stock”), and, at the
election of the Underwriters in the circumstances specified in Section 2 hereto,
up to _____ additional shares of Common Stock. The ____ shares to be
sold by the Company are herein called the “Firm Shares” and the _____
additional shares to be sold by the Company are herein called the “Optional
Shares.” The Firm Shares and the Optional Shares that the Underwriter
elects to purchase pursuant to Section 2 hereof are herein collectively referred
to as the “Securities.”
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1.
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The
Company represents and warrants to, and agrees with, each of the
Underwriters that:
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(i) A
registration statement on Form F-1 (File No. 333-161602) (as amended by
all pre-effective amendments thereto, the “Initial Registration Statement”) in
respect of the Securities has been filed with the Securities and Exchange
Commission (the “Commission”). The Initial Registration Statement and
any post-effective amendment thereto have been declared effective by the
Commission; other than a registration statement, if any, increasing the size of
the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other document with respect to the Initial Registration Statement has
heretofore been filed under the Act with the Commission; and no stop order
suspending the effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b) Registration Statement, if
any, has been issued and, to the best of the Company's knowledge, no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement or filed
with the Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary Prospectus"; the
various parts of the Initial Registration Statement and the Rule 462(b)
Registration Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 4(a) hereof and
deemed by virtue of Rule 430A under the Act to be part of the Initial
Registration Statement at the time it was declared effective, each as amended at
the time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the "Registration Statement"; the
Preliminary Prospectus relating to the Securities that was included in the
Registration Statement immediately prior to the Applicable Time (as defined in
Section 1(iii) hereof) is hereinafter called the "Pricing Prospectus"; such
final prospectus, in the form first filed pursuant to Rule 424(b) under the Act,
is hereinafter called the "Prospectus"; all references in
this Agreement to the Initial Registration Statement, the Rule 462(b)
Registration Statement, a Preliminary Prospectus, the Pricing Prospectus and the
Prospectus, or any amendments or supplements to any of the foregoing, shall be
deemed to refer to and include any copy thereof filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval System);
No
order preventing or suspending the use of any Preliminary Prospectus has been
issued by the Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter expressly for use therein. The parties
acknowledge and agree that such information provided by or on behalf of any
Underwriter consists solely of the names of the Underwriters
appearing in the “Underwriting” section of the Prospectus and the following
additional disclosure contained in the “Underwriting ” section of the Prospectus
: (i) the eighth and ninth paragraphs, (ii) the seventeenth through thirty-sixth
paragraphs and (iii) all paragraphs under the heading “Notice to
Canadian Investors” (the “Underwriters’ Information”).
(ii) For the
purposes of this Agreement, the "Applicable Time" is 5:30 p.m.
(Eastern time) on the date of this Agreement. The Pricing
Prospectus as of the Applicable Time, did not include any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions made in
reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter expressly for use therein
(iii) The
Registration Statement conforms, and the Prospectus and any further amendments
or supplements to the Registration Statement or the Prospectus will conform, in
all material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder, and do not and will not, as of
the applicable effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The
representations and warranties set forth in the immediately preceding
sentence shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the Company by
an Underwriter expressly for use therein;
(iv) Since the
respective dates as of which information is given in the Prospectus, except as
otherwise specifically stated therein: (i) there has been no
material adverse change in the condition, financial or otherwise, or business
prospects of the Company; (ii) there have been no material transactions
entered into by the Company, other than as contemplated pursuant to this
Agreement; and (iii) no officer or director of the Company has resigned
from any position with the Company.
(v) Except as
set forth in the Pricing Prospectus, the Company and its
subsidiaries do not own any real property. Except as set forth in the
Pricing Prospectus, the Company and its subsidiaries have good and
marketable title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects, except such as do not materially
affect the value of such property or
do not interfere with the use made and proposed to be made of such property by
the Company and its subsidiaries or would
not reasonably be expected to result in a Material Adverse Effect; and
any real property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases
with such exceptions as would not reasonably be expected to result in a Material
Adverse Effect;
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(vi) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the Cayman Islands, with corporate power and
authority to own its properties and conduct its business as described in the
Pricing Prospectus, and is duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification, except where the failure to be so qualified
and in good standing in any such jurisdiction would not reasonably be expected
to have, individually or in the aggregate, a Material Adverse Effect; and each
subsidiary of the Company has been duly formed, incorporated or organized and is
validly existing and in good standing under the laws of its jurisdiction of
formation, incorporation or organization and each subsidiary of the Company has
been duly qualified for the transaction of business and is in good standing
under the laws of each other jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification, except
where the failure to be so qualified and in good standing in any such
jurisdiction would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;
(vii) All
of the issued and outstanding shares of capital stock of the Company have been
duly authorized and are validly issued, fully paid and non-assessable, and have
been issued in compliance in
all material respects with all applicable federal and state securities
laws or an exemption thereto and conform in all material respects to the
description of the capital stock set forth in the Pricing Prospectus and the
Prospectus; all of the shares of capital stock of each subsidiary of the Company
have been duly authorized and are validly issued, fully paid and non-assessable,
have been issued in compliance with all applicable U.S. federal and
state securities laws or an exemption thereto and are owned directly by the
Company, free and clear of all liens, encumbrances, equities or claims, except
to such extent as would not, individually or in the aggregate, have a Material
Adverse Effect. None of the outstanding shares of capital
stock of the Company were issued in violation of any preemptive rights, rights
of first refusal or other similar rights to subscribe for or purchase securities
of the Company. There are no authorized or outstanding options,
warrants, preemptive rights, rights of first refusal or other rights to
purchase, or equity or debt securities convertible into or exchangeable or
exercisable for, any capital stock of the Company or any of its subsidiaries
other than as set forth in the Pricing Prospectus and the Prospectus;
(viii) This
Agreement has been duly authorized, executed and delivered by the Company, and
is a valid and binding agreement of the Company, enforceable in accordance with
its terms, except as rights to indemnification or contribution hereunder may be
limited by applicable law or the public policy underlying such law and except as
the enforcement hereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles;
(ix) There are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company or to
require the Company to include such securities with the Securities registered
pursuant to the Initial Registration Statement other than as described in the
Pricing Prospectus and the Prospectus,
or as have been satisfied, or waived in writing, in connection with the offering
contemplated hereby;
(x) The issue
and sale of the Securities and the compliance by the Company with all of its
obligations under this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or give rise to a
right of termination under, or result in the acceleration of any obligation
under any statute, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, except for such conflicts, breaches, defaults, violations or rights as
would not, individually or in the aggregate, have a Material Adverse Effect, nor
will such action result in any violation of (A) the provisions of the Memorandum
and Articles of Association of the Company or any of its subsidiaries or (B) any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their properties, except in the case of clause (B) for such violations as would
not reasonably be expected to have a Material Adverse Effect;
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(xi) No
consent, approval, authorization, order, registration, qualification, permit,
license, exemption, filing or notice (each an “Authorization”) of, from, with
or to any court, tribunal, government, governmental or regulatory authority,
self-regulatory organization or body (each, a “Regulatory Body ”) is required
for the issue and sale of the Securities by the Company or the consummation by
the Company of the transactions contemplated by this Agreement, except (A) the
registration of the Securities under the Act; (B) such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Securities by the Underwriter;
(C) such Authorizations as may be required under the rules and regulations of
the Financial Industry Regulation Authority, Inc. (“FINRA”); (D) such
Authorizations as may be required under the rules and regulations of The New
York Stock Exchange; and (E)such other Authorizations the absence of
which would not, individually or in the aggregate, have a Material Adverse
Effect; and no event has occurred that has resulted in, or after notice or lapse
of time or both would reasonably be expected to result in, or would otherwise
reasonably be expected to result in revocation, suspension, termination or
invalidation of any such Authorization or any other impairment of the rights of
the holder or maker of any such Authorization;
(xii) All
corporate actions (including those of stockholders) necessary for the Company to
consummate the transactions contemplated in this Agreement have been obtained
and are in effect;
(xiii) Neither
the Company nor any of its subsidiaries is (A) in violation of its Memorandum
and Articles of Incorporation or other organizational documents or (B) in
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound, except for such defaults
specified under subparagraph (B) herein that would not, individually or in the
aggregate, have a Material Adverse Effect;
(xiv) Other
than as set forth in the PricingProspectus,
there are no legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect; and, no such
proceedings are threatened or to the Company’s knowledge contemplated by
governmental authorities or threatened by others;
(xv) KPMG, who
have audited certain financial statements of the Company and its subsidiaries,
is an independent registered accounting firm as required by the Act and the
rules and regulations of the Commission thereunder;
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(xvi) The
consolidated financial statements of the Company and its subsidiaries, including
all notes and schedules thereto, included in or incorporated by reference into
the Initial Registration Statement, the Pricing Prospectus and the Prospectus
present fairly the consolidated financial position of the Company and its
consolidated subsidiaries at the dates indicated and the statement of income,
stockholders’ equity and cash flows of the Company and its subsidiaries for the
periods specified in conformity with generally accepted accounting principles,
consistently applied throughout the periods involved, other than as may be
expressly stated in the related notes thereto and, with respect to unaudited
periods other than routine year-end adjustments which are not
material individually or in the aggregate; no other financial statements or
supporting schedules are required to be included in the Initial Registration
Statement, the Pricing Prospectus and the Prospectus;
(xvii) The
Company maintains a system of internal control over financial reporting (as such
term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the Company’s
principal executive officer and principal financial officer, or under their
supervision, to provide reasonable assurance regarding the reliability of
financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting
principles. The Company’s internal control over financial reporting
is effective and the Company is not aware of any material weaknesses in its
internal control over financial reporting;
(xviii) Since the
date of the latest audited financial statements of the Company included in or
incorporated by reference into the Pricing Prospectus, there has been no change
in the Company’s internal control over financial reporting that has materially
adversely affected, or is reasonably likely to materially adversely affect, the
Company’s internal control over financial reporting;
(xix) Except as
disclosed in the Initial Registration Statement, the Pricing Prospectus and the
Prospectus, the Company maintains disclosure controls and procedures (as such
term is defined in Rule 13a-15(e) under the Exchange Act) that comply with the
requirements of the Exchange Act. Such disclosure controls and
procedures (A) are designed to ensure that material information relating to the
Company and its subsidiaries is made known to the Company’s principal executive
officer and principal financial officer by others within those entities; and (B)
to the knowledge of the Company are effective to perform the functions for which
they were established;
(xx) There are
no off-balance sheet arrangements, outstanding guarantees or other contingent
obligations of the Company that could reasonably be expected to have a Material
Adverse Effect;
(xxi) The
Company’s Chief Executive Officer and Chief Financial Officer have reviewed and
agreed with the selection, application and disclosure of critical accounting
policies and have consulted with the Company’s independent registered public
accounting firm with regard to such disclosure;
(xxii) No
relationship, direct or indirect, exists between or among the Company, on the
one hand, and any director, officer, stockholder, customer, licensor or supplier
of the Company, on the other hand, which is required to be described in the
Initial Registration Statement, the Pricing Prospectus or the Prospectus and
which is not so described. There are no outstanding loans, advances
or guarantees of indebtedness by the Company to or for the benefit of any of the
executive officers or directors of the Company, except as disclosed in the
Initial Registration Statement, the Pricing Prospectus and the
Prospectus;
(xxiii) To the
knowledge of the Company, no person associated with or acting on behalf of the
Company, including without limitation any director, officer, agent or employee
of the Company or its subsidiaries has, directly or indirectly, while acting on
behalf of the Company or its subsidiaries (A) used any corporate funds for
unlawful contributions, gifts, entertainment or other unlawful expenses relating
to political activity, (B) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns from corporate funds, (C) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended or (D) made any other unlawful
payment;
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(xxiv) Except as
contemplated by this Agreement and as set
forth in the Initial Registration Statement, the Pricing Prospectus and
the Prospectus, no person is entitled to receive from the Company a brokerage
commission, finder’s fee or other like payment in connection with the
transactions contemplated herein,;
(xxv) Neither
the Company nor any of its subsidiaries or controlled affiliates does business
with the government of, or with any person located in any country in a manner
that violates in any material respect any of the economic sanctions programs or
similar sanctions-related measures of the United States as administered by the
United States Treasury Department’s Office of Foreign Assets Control; and the
net proceeds from the offering contemplated by this Agreement will not be used
to fund any operations in, finance any investments in or make any payments to
any country, or to make any payments to any person, in a manner that violates
any of the economic sanctions of the United States administered by the United
States Treasury Department’s Office of Foreign Assets Control;
(xxvi) Statistical,
industry-related and market-related data included in the Initial Registration
Statement, the Pricing Prospectus and the Prospectus are based on or derived
from sources that the Company reasonably and in good faith believes are reliable
and accurate in all material respects;
(xxvii) The
Company has not distributed and will not distribute prior to the last Time of
Delivery (as defined in Section 4 hereof) and completion of the distribution of
the Securities, any offering material in connection with the offering and sale
of the Securities other than the Initial Registration Statement, the
Pricing Prospectus and the Prospectus or such other materials
reviewed by the Underwriter or otherwise required by applicable law;
(xxviii) Except
as set forth in the Initial Registration Statement, the Pricing
Prospectus and the Prospectus, no material labor dispute with the employees
of the Company or any of its subsidiaries exists, or, to the knowledge of the
Company, is imminent; and the Company is not aware of any existing, threatened
or imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors other than as would not reasonably
be expected to have a Material Adverse Effect;
(xxix) The
Company and its subsidiaries own or possess all material patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names currently employed by
them in connection with the business now operated by them, and neither the
Company nor any of its subsidiaries has received any notice of infringement of
or conflict with asserted rights of others with respect to any of the foregoing
which, individually or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would reasonably
be expected to have a Material Adverse Effect;
(xxx) None of
the Company and its subsidiaries, nor to the knowledge of the Company, any of
the Company’s or its subsidiaries’ directors, officers or controlling persons,
have taken or will take, directly or indirectly, any action designed to or that
might be reasonably expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of the
Securities which is otherwise prohibited by Regulation M under the
Act;
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(xxxi) There is
and has not been any failure on the part of the Company or any of the Company’s
directors or officers, in their capacities as such, to comply with any provision
of the Sarbanes Oxley Act of 2002 and the rules and regulations promulgated in
connection therewith (the “Xxxxxxxx-Xxxxx Act”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications;
(xxxii) None
of the net proceeds of the offering will be paid by the Company to any
participating FINRA member or its affiliates, except as specifically authorized
herein; and.
(xxxiii) No officer,
director or any beneficial owner of the Company’s unregistered securities has
any direct or indirect affiliation or association with any FINRA member (as
determined in accordance with the rules and regulations of FINRA) except as set
forth in the Initial Registration Statement, the Pricing Prospectus and the
Prospectus. The Company will advise Xxxxxx & Xxxxxxx, LLC and
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP if it learns that any officer, director or
owner of at least 5% of the Company’s outstanding Common Stock (or securities
convertible into Common Stock) is or becomes an affiliate or associated person
of a FINRA member participating in the offering.
2. Subject
to the terms and conditions herein set forth, (a) the Company agrees to sell to
each of the Underwriters, and each of the Underwriters agree,
severally and not jointly, to purchase from the Company, at a purchase price per
Firm Share of $[ ], the number of Firm Shares set
forth opposite its name in Schedule I hereto and (b) the Company, as and
to the extent indicated in Schedule I hereto, hereby grants to the Underwriters
the right to purchase at its election up to ________ shares of Common Stock or
fifteen percent (15%) of the Firm Shares sold in the offering from the Company
(the “Optional Shares”)
at the purchase price per Optional Share set forth in clause (a), for the sole
purpose of covering sales of shares in excess of the number of Firm
Shares. Any such election to purchase Optional Shares may be
exercised only by written notice from Xxxxxx & Xxxxxxx, LLC to the Company,
given within a period of 45 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the Time of Delivery or, unless you and the Company
otherwise agree in writing, earlier than two or later than ten business days
after the date of such notice.
3. Upon the
authorization by you of the release of the Firm Shares, the several Underwriters
propose to offer the Firm Shares for sale upon the terms and conditions set
forth in the Prospectus.
4. The
Company will deliver the Securities to the Underwriter against receipt of
payment of the purchase price therefore by wire transfer of Federal (same-day)
funds to the account specified by the Company pursuant to written instructions
of the Company. The time and date of such delivery and payment shall
be, with respect to the Securities, 9:30 a.m., New York time, on October __,
2009, or such other time and date as the Company and the Underwriter shall
agree, and upon satisfaction by the Company of all of the conditions to closing
set forth in this Agreement (the “Time of
Delivery”). If the Underwriter so requests, delivery of the
Firm Shares and Optional Shares, if any, shall be made by credit through full
fast transfer to the accounts at the Depositary Trust Company designated by the
Underwriter. The documents to be delivered at the Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, will be
delivered at the offices of Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP (the “Closing
Location”). A meeting will be held at the Closing Location at
3:00 p.m., New York City time, on the New York Business Day next preceding such
Time of Delivery, at which meeting the final drafts of the documents to be
delivered pursuant to the preceding sentence will be available for review by the
parties hereto. The Firm Shares shall be registered in such name or
names and in such authorized denominations as the Representative may request in
writing at least two (2) full Business Days prior to the Time of
Delivery. The Company shall not be obligated to sell or deliver the
Firm Shares except upon tender of payment by the Representative for all the Firm
Shares. The term “Business Day” means any day other than a
Saturday, a Sunday or a legal holiday or a day on which banking institutions are
authorized or obligated by law to close in New York City. For the purposes of
this Section 4, “New York Business Day” means any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions are authorized
or obligated by law to close in New York City.
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5. The
Company agrees with each of the Underwriters:
(a) To
prepare the Prospectus in a form reviewed
by you and to file such Prospectus pursuant to Rule 424(b) under the Act not
later than the Commission’s close of business on the second business day
following the execution and delivery of this Agreement; or, if applicable, such
earlier time as may be required by Rule 430(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or the
Prospectus prior to the Time of Delivery which shall notbe
reviewed
by you promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof; to file promptly all material required to be filed by the
Company with the Commission pursuant to Rule 433(d) under the Act; to advise
you, promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending the use of
any preliminary
prospectus or other prospectus in respect of the Securities, of the
suspension of the qualification of the Securities for offering or sale in any
jurisdiction, of the receipt of any notification with respect to the suspension
of the shares of Common Stock for quotation on The New York Stock Exchange, of
the initiation or threatening of any proceeding for any such purpose, or of any
request by the Commission for the amending or supplementing of the Registration
Statement or the Prospectus or for additional information; and, in the event of
the issuance of any stop order or of any order preventing or suspending the use
of any preliminary
prospectus or other prospectus or suspending any such qualification, to
promptly use its best efforts to obtain the withdrawal of such order; if
required by Rule 430B(h) under the Act, to prepare a form of prospectus in a
form approved by you and to file such form of prospectus pursuant to Rule 424(b)
under the Act not later than may be required by Rule 424(b) under the Act, and
to make no further amendment or supplement to such form of prospectus which
shall notbe
reviewed
by you promptly after reasonable notice thereof;
(b) Promptly
from time to time to take such action as you may reasonably request to qualify
the Securities for offering and sale under the securities laws of such
jurisdictions as you may request and to comply with such laws so as to permit
the continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of the Securities, provided
that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to
10:00 A.M., New York City time, on the New York Business Day next succeeding the
date of this Agreement and from time to time, to furnish the Underwriters
with written and electronic copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in connection with the offering or sale of the
Securities and if at such time any events shall have occurred as a result of
which, in the opinion of counsel for the Company, the Prospectus as then amended
or supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
(or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be necessary
during such same period to amend or supplement the Prospectus in order to comply
with the Act, to notify you and upon your request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such statement
or omission or effect such compliance (including copies of any Incorporated
Documents), and in case any Underwriter is required to deliver a prospectus (or
in lieu thereof, the notice referred to in Rule 173(a) under the Act) in
connection with sales of any of the Securities at any time nine months or more
after the time of issue of the Prospectus, upon your request but at the expense
of such Underwriter, to prepare and deliver to such Underwriter as many written
and electronic copies as you may request of an amended or supplemented
Prospectus complying with Section 10(a)(3) of the Act (including copies of any
Incorporated Documents);
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(d) To make
generally available to its securityholders as soon as practicable, but in any
event not later than eighteen months after the effective date of the
Registration Statement (as defined in Rule 158(c) under the Act), an earning
statement of the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(e) Unless
otherwise publicly available in electronic format on the website of the Company
or filed
with the Commission, to furnish to its shareholders
as soon as practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, stockholders’ equity and
cash flows of the Company and its consolidated subsidiaries certified by
independent public accountants) and, as soon as practicable after the end of
each of the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement), to make
available to its stockholders consolidated summary financial information of the
Company and its subsidiaries for such quarter in reasonable detail;
(f) During a
period of three years from the effective date of the Registration Statement,
unless otherwise publicly available in electronic format on the website of the
Company or filed
with the Commission, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders.
(g) To
maintain, at its expense, a registrar and transfer agent for the Common
Stock;
(h) To use
the net proceeds received by it from the sale of the Securities pursuant to this
Agreement in the manner specified in the Pricing Prospectus and the Prospectus
under the caption “Use of Proceeds”;
(i) If the
Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b)
Registration Statement with the Commission in compliance with Rule 462(b) by
10:00 p.m., Washington, D.C. time, on the date of this Agreement, and the
Company shall at the time of filing either pay to the Commission the filing fee
for the Rule 462(b) Registration Statement or give irrevocable instructions for
the payment of such fee pursuant to Rule 111(b) under the Act;
(j) To
refrain from taking at any time, directly or indirectly, any action designed or
that might reasonably be expected to cause or result in, or that will
constitute, stabilization of the price of the shares of any security of the
Company; and;
9
(k) The
Company and its subsidiaries will comply, in all material respects, with all
effective applicable provisions of the Xxxxxxxx-Xxxxx Act.
6. (a) The
Company represents and agrees that, without the prior consent of Xxxxxx &
Xxxxxxx, LLC, it has not made and will not make any offer relating to the
Securities that would constitute a “free writing prospectus” as defined in Rule
405 under the Act; each Underwriter
represents and agrees that, without the prior consent of the Company and Xxxxxx
& Xxxxxxx, LLC, it has not made and will not make any offer relating to the
Securities that would constitute a free writing prospectus;
(b) The
Company agrees that Xxxxxx & Xxxxxxx, LLC shall have an
irrevocable preferential right for a period of six (6) months from the
closing of this offering to act as the underwriter and/or joint bookrunner
and/or co-manager any offering of securities (whether public or private in the
case of equity or any public debt offering) of the Company or any such
subsidiary or successor. The Company and any such subsidiary or successor will
consult Xxxxxx & Xxxxxxx, LLC with regard to any such proposed
financing and will offer Xxxxxx & Xxxxxxx, LLC such opportunity on
terms not more favorable to the Company or any such subsidiary or successor, as
the case may be, than it or they can secure elsewhere. If Xxxxxx & Xxxxxxx,
LLC fails to accept such offer within 10 business days after the mailing of
a notice containing the material terms of the proposed financing proposal by
registered mail or overnight courier service addressed to Xxxxxx & Xxxxxxx,
LLC, then Xxxxxx & Xxxxxxx, LLC shall have no further claim or right
with respect to the financing proposal contained in such notice. The right of
first refusal, as described herein, will be terminated in the event the
Agreement is terminated pursuant to Section 11 below.
(c) Whether
or not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated, the Company covenants and agrees with the
Underwriters that the Company will pay or cause to be paid the following:
(i) all filing fees and communication expenses relating to the registration of
the Shares to be sold in the Offering (including the Over-allotment Shares) with
the Commission; (ii) all COBRADesk filing fees associated with the review of the
Offering by FINRA; all fees and expenses relating to the listing of such Shares
on the New York Stock Exchange and on such other stock exchanges as the Company
and Xxxxxx together determine; (iii) all fees, expenses and disbursements
relating to background checks of the Company’s officers and directors in an
amount not to exceed $5,000 per individual; (iv) all fees, expenses and
disbursements of Xxxxxx’x counsel relating to the registration or qualification
of such Shares under the “blue sky” securities laws of such states and other
jurisdictions as Xxxxxx may reasonably designate; (v) all fees, expenses and
disbursements relating to the registration, qualification or exemption of such
Shares under the securities laws of such foreign jurisdictions as Xxxxxx may
reasonably designate; (vi) the costs of all mailing and printing of the
underwriting documents (including, without limitation, the Underwriting
Agreement, any Blue Sky Surveys and, if appropriate, any Agreement Among
Underwriters, Selected Dealers’ Agreement, Underwriters’ Questionnaire and Power
of Attorney), Registration Statements, Prospectuses and all amendments,
supplements and exhibits thereto and as many preliminary and final Prospectuses
as Xxxxxx may reasonably deem necessary; (vii) [RESERVED]; (viii) the costs of
preparing, printing and delivering certificates representing the Shares; (ix)
fees and expenses of the transfer agent for the Common Stock; (x) stock transfer
and/or stamp taxes, if any, payable upon the transfer of securities from the
Company to Xxxxxx; (xi) the costs associated with bound volumes of the public
offering materials as well as commemorative mementos and lucite tombstones, each
of which the Company or its designee will provide within a reasonable time after
the Closing in such quantities as Xxxxxx may reasonably request; (xii) the fees
and expenses of the Company’s accountants; (xiii) the fees and expenses of the
Company’s legal counsel and other agents and representatives; (xiv) Xxxxxx’x use
of i-Deal’s book-building, prospectus tracking and compliance software for the
Offering; (xv) Xxxxxx’x actual “road show” expenses for the Offering; and (xvi)
Xxxxxx’x costs of mailing prospectuses to prospective investors. All relevant
expenses incurred by Xxxxxx in items (xi), (xiv) (xv) and (xvi) of this
Paragraph 8 will be borne by the Company, up to but no more than $130,000; the
remaining balance will be borne by Xxxxxx.
10
(d) The
obligations of the Underwriters hereunder, as to the Securities to be
delivered at the
Time of Delivery, shall be subject, in their discretion, to the condition that
all representations and warranties and other statements of the Company herein
are, at and as of the
Time of Delivery, true and correct (except for such representations and
warranties that are qualified by materiality, which shall be true and correct as
so qualified), the condition that the Company shall have performed all of its
obligations hereunder theretofore to be performed, and the following additional
conditions:
a. The
Prospectus shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 5(a)
hereof; all material required to be filed by the Company pursuant to Rule 433(d)
under the Act shall have been filed with the Commission within the applicable
time period prescribed for such filing by Rule 433; no stop order suspending the
effectiveness of the Initial Registration Statement or any part thereof shall
have been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; andno
stop order suspending or preventing the use of the Prospectus shall have been
initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
x. Xxxx
& Loeb LLP, counsel for the Company, shall have furnished to you their
written opinion, dated the
Time of Delivery, in the form attached as Annex I(a)
hereto;
c. The
Company shall have executed a Lock-up Agreement that provides that for a period
of 180 days from the Time of Delivery the Company shall not offer for sale,
sell, contract to sell, pledge, grant any option to purchase, make any short
sale or otherwise dispose of or any options or warrants to purchase the
Company’s Common Stock other than the Common Stock or options to acquire the
Company’s Common Stock issued under the Company’s share option plan any of the
Company’s Common Stock, without the prior written consent of the
Representative.
d. The
Company’s directors and executive officers shall have executed a Lock-up
Agreement that provides that for a period of 180 days from the Time of Delivery
such persons shall not sell, offer, contract or grant any option to sell,
pledge, transfer or otherwise dispose of the Company’s Common Stock without the
prior written consent of the Representative.
e. Comfort
Letter. On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30a.m., New York City time, and also at the
Time of Delivery, the Representative shall have received a letter, in form and
substance satisfactory in all respects (including the non-material nature of the
changes or decreases, if any, referred to in clause (iii) below), from KPMG
dated as of the Time of Delivery:
(a) Confirming
that they are independent public accountants with respect to the Company within
the meaning of the Securities Act and the applicable rules and regulations and
that they have not, during the periods covered by the financial statements
included in the Prospectus, provided to the Company any non-audit services, as
such term is used in Section 10A(g) of the Exchange Act;
(b) Stating
that in their opinion the financial statements of the Company included in the
Registration Statement and Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Securities Act and the
published rules and regulations thereunder;
11
(c) Stating
that, on the basis of a limited review which included a reading of the latest
available unaudited interim financial statements of the Company (with an
indication of the date of the latest available unaudited interim financial
statements), a reading of the latest available minutes of the shareholders and
board of directors and the various committees of the board of directors,
consultations with officers and other employees of the Company responsible for
financial and accounting matters and other specified procedures and inquiries,
nothing has come to their attention which would lead them to believe
that: (a) the unaudited financial statements of the Company
included in the Registration Statement and Prospectus do not comply as to form
in all material respects with the applicable accounting requirements of the
Securities Act and the rules and regulations or are not fairly presented in
conformity with GAAP applied on a basis substantially consistent with that of
the audited financial statements of the Company included in the Registration
Statement; (b) at a date not later than five days prior to the Time of
Delivery, there was any change in the capital stock or long-term debt of the
Company, or any decrease in the shareholders’ equity of the Company as compared
with amounts shown in the March 31, 2009 balance sheet included in the
Registration Statement, other than as set forth in or contemplated by the
Registration Statement, or, if there was any decrease, setting forth the amount
of such decrease, and (c) during the period from March 31, 2009 to a
specified date not later than five days prior to the Time of Delivery, as there
was any decrease in revenues, net earnings or net earnings per share,
in each case as compared with the corresponding period in the preceding year and
as compared with the corresponding period in the preceding quarter, other than
as set forth in or contemplated by the Registration Statement, or, if there was
any such decrease, setting forth the amount of such decrease;
(d) Setting
forth, at a date not later than five days prior to the Time of Delivery, the
amount of liabilities of the Company (including a breakdown of commercial paper
and notes payable to banks and related parties);
(e) Stating
that they have compared specific dollar amounts, numbers of shares, percentages
of revenues and earnings, statements and other financial information pertaining
to the Company set forth in the Prospectus in each case to the extent that such
amounts, numbers, percentages, statements and information may be derived from
the general accounting records, including work sheets, of the Company and
excluding any questions requiring an interpretation by legal counsel, with the
results obtained from the application of specified readings, inquiries and other
appropriate procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in the letter
and found them to be in agreement;
(f) Stating
that they have not since the Company’s formation brought to the attention of the
Company’s management any reportable condition related to internal structure,
design or operation as defined in the Statement on Auditing Standards No. 60
“Communication of Internal Control Structure Related Matters Noted in an Audit,”
in the Company’s internal controls; and
(g) Statements
as to such other matters incident to the transaction contemplated hereby as you
may reasonably request.
f. (i)
Neither the Company nor any of its subsidiaries shall have sustained since the
date of the latest audited financial statements filed with
the Commission as part of the Registration Statement and included
in the Pricing Prospectus and
the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus, and (ii) since the
respective dates as of which information is given in the Pricing Prospectus and
the Prospectus there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the business,
operations, assets, condition (financial or otherwise) or results of operations
of the Company and its consolidated subsidiaries, otherwise than as set forth or
contemplated in the Pricing Prospectus and
the Prospectus, the effect of which, in any such case described in clause
(i) or (ii), is in the judgment of Xxxxxx & Xxxxxxx, LLC so material and
adverse as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Securities being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Pricing Prospectus
and
the Prospectus;
12
g. On
or after the Applicable Time there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on
the New York Stock Exchange a general moratorium on commercial banking
activities declared by either Federal or New York or Cayman Island authorities
or a material disruption in commercial banking or securities settlement or
clearance services in the United States; (iii) the outbreak or escalation of
hostilities involving the United States or the declaration by the United States
of a national emergency or war or (iv) the occurrence of any other calamity or
crisis or any change in financial, political or economic conditions in the
United States or elsewhere, if the effect of any such event specified in clause
(iii) or (iv) in your judgment makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Securities being delivered at
such Time of Delivery on the terms and in the manner contemplated in the
Prospectus;
h. The
Firm Shares and Optional Shares, if any, to be sold at the
Time of Delivery shall have been duly listed for quotation on NYSE Amex LLC and
the Company shall have complied with all obligations of NYSE Amex LLC relating
to the sale of the Securities;
i. The
Company shall have complied with the provisions of Section 5(c) hereof with
respect to the furnishing of prospectuses on the New York Business Day next
succeeding the date of this Agreement;
j. The
Company shall have furnished or caused to be furnished to you at the
Time of Delivery certificates of officers of the Company satisfactory to you as
to the accuracy of the representations and warranties of the Company herein at
and as of such Time of Delivery, as to the performance by the Company
of all of its respective obligations hereunder to be performed at
or prior to the
Time of Delivery,
and as to such other matters as you may reasonably request, and the
Company shall have furnished or caused to be furnished certificates as to the
matters set forth in subsections (a) and (d) of this Section;
k. FINRA
shall have raised no objection to the fairness and reasonableness of the
underwriting terms and arrangements;
7. (a) The Company
will indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act from and against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or controlling person
may become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon: any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or Prospectus or
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arise out of an untrue statement or alleged untrue statement of a material fact
included in any Preliminary Prospectus, the Pricing Prospectus or the
Prospectus, or any amendment or supplement thereto, or any Incorporated
Documents or the omission or alleged omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein, in the
light of the circumstances under which they were made, not
misleading and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, or
any Preliminary
Prospectus, the
Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Incorporated Documents in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter expressly for use therein. With respect to any untrue statement or
omission or alleged untrue statement or omission made in the Preliminary
Prospectus, the indemnity agreement contained in this paragraph shall not inure
to the benefit of any Underwriter to the extent that any loss, liability, claim,
damage or expense of such Underwriter results from the fact that a copy of the
Prospectus was not given or sent to the person asserting any such loss,
liability, claim or damage at or prior to the written confirmation of sale of
the Public Securities to such person as required by the Securities Act and the
Rules and regulations, and if the untrue statement or omission has been
corrected in the Prospectus, unless such failure to deliver the Prospectus was a
result of non-compliance by the Company with its obligations
hereunder. The Company agrees promptly to notify the Representative
of the commencement of any litigation or proceedings against the Company or any
of its officers, directors or controlling persons in connection with the issue
and sale of the Public Securities or in connection with the Registration
Statement or Prospectus.
13
(b) Each
Underwriter will indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of either Section 15 of the Act
or Section 20 of the Exchange Act from and against any losses, claims, damages
or liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of an untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or Prospectus or
the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or
arise out of an untrue statement or alleged untrue statement of a material fact
included in any Preliminary Prospectus, the Pricing Prospectus, or the
Prospectus, or any amendment or supplement thereto, or the omission or alleged
omission therefrom
of a material fact required to be stated therein or necessary to make the
statements therein, in the
light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in the
Registration Statement, orany
Preliminary Prospectus, the Pricing Prospectus, or the Prospectus, or any
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through Xxxxxx &
Xxxxxxx, LLC expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly
after receipt by an indemnified party under subsection (a) or (b) above of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party shall not relieve
it from any liability which it may have to any indemnified party except
to the extent such indemnifying party has been materially prejudiced by such
failure. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and, after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
14
(d) If
the indemnification provided for in this Section 8 is unavailable to or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions in
respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities. If, however, the allocation provided by
the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by
such indemnified party in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand or the Underwriters on the
other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this subsection (d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this subsection
(d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (d), the
Underwriters shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) The
obligations of the Company under this Section 8 shall be in addition to any
liability which the Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters
under this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company within the meaning of the Act.
15
8. (a)
If any Underwriter shall default in its obligation to purchase the Securities
which it has agreed to purchase hereunder at a Time of Delivery, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such
Securities, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to you
to purchase such Securities on such terms. In the event that, within the
respective prescribed periods, you notify the Company that you have so arranged
for the purchase of such Securities, or the Company notifies you that it has so
arranged for the purchase of such Securities, you or the Company shall have the
right to postpone a Time of Delivery for a period of not more than seven days,
in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments or
supplements to the Registration Statement or the Prospectus which in your
opinion may thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such Securities.
(b)
If, after giving effect to any arrangements for the purchase of the Securities
of a defaulting Underwriter or Underwriters by you and the Company as provided
in subsection (a) above, the aggregate number of such Securities which remains
unpurchased does not exceed one-tenth of the aggregate number of all the
Securities to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Securities which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Securities which such
Underwriter agreed to purchase hereunder) of the Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c)
If, after giving effect to any arrangements for the purchase of the Securities
of a defaulting Underwriter or Underwriters by you and the Company as provided
in subsection (a) above, the aggregate number of such Securities which remains
unpurchased exceeds one-eleventh of the aggregate number of all of the
Securities to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting Underwriter or Underwriters,
then this Agreement shall thereupon terminate, without liability on the part of
any non-defaulting Underwriter or the Company, except for the expenses to be
borne by the Company and the Underwriters as provided in Section 7 hereof and
the indemnity and contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability for its
default.
9. The
respective indemnities, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter, or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the Company, and
shall survive delivery of and payment for the Securities..
10. If this
Agreement shall be terminated pursuant to Section 9 hereof, the
Company shall not then be under any liability to any Underwriter except as
provided in Sections 9 and 10 hereof; but, if for any other reason any
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel (in an amount not to exceed $130,000), reasonably
incurred by the Underwriters in making preparations for the purchase, sale
and delivery of the Securities not so delivered, but the Company shall then be
under no further liability to any Underwriter in respect of the Securities not
so delivered except as provided in Sections 9 and 10 hereof.
16
11. In all
dealings hereunder, you shall act on behalf of each of the Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by you jointly or
by Xxxxxx & Xxxxxxx, LLC on behalf of you as the
representatives. All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to you as the
representatives in care of:
Xxxxxx
and Xxxxxxx, LLC
0000
Xxxxxx xx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: General
Counsel
Fax No.:
000.000.0000
Copy
to:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx Xxxxxxxxx, Esq.
Fax:
000.000.0000
; and if
to the Company shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Financial Officer with a copy to
the counsel named therein. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
12. This
Agreement shall be binding upon, and inure solely to the benefit of, the
Underwriters and the Company and, to the extent provided in Sections 10
and 11 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter,
and their respective heirs, executors, administrators, successors and assigns,
and no other person shall acquire or have any right under or by virtue of this
Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.xx
13. Waiver,
etc. The failure of any of the parties hereto to at any time enforce
any of the provisions of this Agreement shall not be deemed or construed to be a
waiver of any such provision, nor to in any way effect the validity of this
Agreement or any provision hereof or the right of any of the parties hereto to
thereafter enforce each and every provision of this Agreement. No
waiver of any breach, non-compliance or non-fulfillment of any of the provisions
of this Agreement shall be effective unless set forth in a written instrument
executed by the party or parties against whom or which enforcement of such
waiver is sought; and no waiver of any such breach, non-compliance or
non-fulfillment shall be construed or deemed to be a waiver of any other or
subsequent breach, non-compliance or non-fulfillment.
17
14. Governing
Law. This Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York, without giving effect to
conflict of laws. The Company hereby agrees that any action,
proceeding or claim against it arising out of, or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York
of the United States of America for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be
exclusive. The Company hereby waives any objection to such exclusive
jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may
be served by transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address set forth in
Section 12 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the Company in any action, proceeding or
claim. The Company agrees that the prevailing party(ies) in any such
action shall be entitled to recover from the other party(ies) all of its
reasonable attorneys’ fees and expenses relating to such action or proceeding
and/or incurred in connection with the preparation therefore.
15. This
Agreement may be executed by any one or more of the parties hereto in any number
of counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
16. Notwithstanding
anything herein to the contrary, the Company is authorized to disclose to any
persons the U.S. federal and state income tax treatment and tax structure of the
potential transaction contemplated by this Agreement and all materials of any
kind (including tax opinions and other tax analyses) provided to the Company
relating to that treatment and structure, without any Underwriterimposing
any limitation of any kind. However, any information relating to the
tax treatment and tax structure shall remain confidential (and the foregoing
sentence shall not apply) to the extent necessary to enable any person to comply
with securities laws. For this purpose, “tax structure” is limited to
any facts that may be relevant to that treatment.
17. This
Agreement supersedes all prior agreements and understandings (whether written or
oral) between the Company, on the one hand, and the
Underwriters,
on the other, with respect only to the firm commitment registered offering of
the Securities referenced herein.
[Signature Page Follows]
18
If the
foregoing is in accordance with your understanding, please sign and return to us
one for the Company and each of the Representatives plus one for each counsel,
of any counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters and the
Company.
| Very truly yours, | |||
|
CHINA
CORD BLOOD CORPORATION
|
|||
|
By:
|
|||
| Name: | |||
| Title: | |||
Accepted
as of the date hereof at New York, New York
| Xxxxxx & Xxxxxxx, LLC, on behalf of each of the Underwriters | |||||
| By: | |||||
| Name: | |||||
| Title: | |||||
(Signature
Page to Underwriting Agreement)
SCHEDULE
I
|
Underwriters
|
Total
Number of
Firm
Shares
to
be Purchased
|
Total
Number of
Optional
Shares
to
be Purchased
|
|
Xxxxxx
& Xxxxxxx, LLC
|
