Attached files
| file | filename |
|---|---|
| 8-K - ShengdaTech, Inc. | v205164_8k.htm |
| EX-99.1 - ShengdaTech, Inc. | v205164_ex99-1.htm |
Exhibit 10.1
ShengdaTech,
Inc.
$130,000,000
6.5%
Senior Convertible Notes due 2015
PURCHASE
AGREEMENT
December
9, 2010
Morgan
Stanley & Co. Incorporated
1585
Broadway
New York,
New York 10036
(as
Representative of the Initial Purchasers)
Ladies
& Gentlemen:
ShengdaTech,
Inc., a Nevada corporation (the “Company”),
proposes to issue and sell to Morgan Stanley & Co. Incorporated and the
other initial purchasers named on Schedule I to this Agreement (the “Initial
Purchasers”), for whom Morgan Stanley & Co. Incorporated is acting as
Representative (the “Representative”),
$130,000,000 in aggregate principal amount of 6.5% Senior Convertible Notes due
2015 (the “Notes”),
subject to the terms and conditions set forth herein.
1. The
Transaction. Subject to the terms and conditions herein
contained, the Company proposes to issue and sell to the Initial Purchasers,
severally and not jointly, the Notes which are convertible into the common
stock, $0.00001 par value per share, of the Company (the “Common
Stock”). The Notes are to be issued under an Indenture between
the Company and The Bank of New York Mellon, as trustee (the “Trustee”)
(the “Indenture”).
The
amount of the Notes to be purchased by each of the several Initial Purchasers
are set forth opposite their names on Schedule I hereto.
In
connection with the sale of the Notes, the Company has prepared a preliminary
offering memorandum, dated December 9, 2010 (the “Preliminary
Offering Memorandum”), and has prepared a final offering memorandum,
dated the date hereof (the “Offering
Memorandum”), each setting forth information regarding the Company, the
subsidiaries listed on Schedule II hereto (the “Subsidiaries”),
the Notes, the terms of the Offering and the transactions contemplated by the
Transaction Documents (as defined below). Any references herein to
the Preliminary Offering Memorandum or the Offering Memorandum shall be deemed
to include, in each case, all amendments and supplements thereto and any
information and/or documents incorporated by reference therein. The
Company hereby confirms that it has authorized the use of the Disclosure Package
(as defined below) and the Offering Memorandum in connection with the offering
and resale of the Notes by the Initial Purchasers.
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The
Company understands that the Initial Purchasers propose to make an offering of
the Notes (the “Exempt
Resales”) only on the terms and in the manner set forth in the Disclosure
Package and the Offering Memorandum, as amended or supplemented, and the terms
hereof as soon as the Initial Purchasers deem advisable after this Agreement has
been executed and delivered, solely to persons whom the Initial Purchasers
reasonably believe to be “qualified institutional buyers” (each, a “QIB”) as
defined in Rule 144A under the Securities Act of 1933, as amended (the “Securities
Act”), as such rule may be amended from time to time (“Rule
144A”) in transactions under Rule 144A. The Initial Purchasers
will offer the Notes to such QIBs initially at a price equal to 100% of the
principal amount thereof. Such price may be changed by the Initial
Purchasers at any time without notice.
The Notes
are convertible in accordance with their terms and the terms of the Indenture
into Common Stock (except for any cash in lieu of fractional shares) at an
initial conversion rate of 164.6904 shares of Common Stock per $1,000 principal
amount of Notes.
This
Agreement, the Notes and the Indenture are hereinafter referred to collectively
as the “Transaction
Documents.”
Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
such terms in the Disclosure Package, and if not defined therein, in the
Indenture.
2. Representations and
Warranties of the Company. The Company represents and warrants
to, and agree with, each of the Initial Purchasers that:
(a) (i)
The Preliminary Offering Memorandum as of its date did not, (ii) the Preliminary
Offering Memorandum, as supplemented by the information listed in Schedule III
hereto (the “Pricing
Supplement”) (the Preliminary Offering Memorandum and the Pricing
Supplement taken together, the “Disclosure
Package”), as of the Applicable Time (as defined below) does not, (iii)
the Offering Memorandum as of its date does not, and as of the Closing Date will
not, and (iv) any supplement or amendment to any of the documents referenced in
clauses (i) through (iii) above does not and will not, contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. Notwithstanding the foregoing,
the representations and warranties contained in this paragraph shall not apply
to statements in or omissions from the Preliminary Offering Memorandum or the
Offering Memorandum (or any supplement or amendment thereto, including the
Pricing Supplement) made in reliance upon and in conformity with Initial
Purchaser Information (as such term is defined in Section 11
hereof). For purposes of this Agreement, the “Applicable
Time” means time of first sale on the date of this
Agreement.
(b) The
Disclosure Package and the Offering Memorandum have been or will be prepared by
the Company for use by the Initial Purchasers in connection with the offering of
the Notes.
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(c) The
Company has been duly incorporated, is validly existing as a corporation 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 Disclosure Package and the Offering Memorandum 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
Company and its Subsidiaries, taken as a whole, (any such effect being a “Material Adverse
Effect”). All constitutive documents of the Company comply
with the requirements of applicable laws of the jurisdiction of its
incorporation and are in full force and effect.
(d) Each
of the Company’s Subsidiaries has been duly incorporated, is validly existing as
a corporation 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 Disclosure Package and the Offering
Memorandum 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. The Company has no subsidiaries or controlled
affiliates other than the Subsidiaries. All of the equity interests
in each Subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable and are owned directly or indirectly through
Subsidiaries by the Company, free and clear of all liens, encumbrances, equities
or claims.
(e) The
Notes have been duly and validly authorized by the Company for issuance and sale
to the Initial Purchasers pursuant to this Agreement and, when executed by the
Company and authenticated by the Trustee in accordance with the provisions of
the Indenture and when delivered to and paid for by the Initial Purchasers in
accordance with the terms hereof and thereof, will be duly and validly executed,
issued and delivered and will constitute valid and legally binding obligations
of the Company, enforceable against the Company in accordance with their terms,
except that the enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors’ rights
generally and (ii) general principles of equity. The Notes will
conform in all material respects to the descriptions thereof in the Disclosure
Package and the Offering Memorandum. On the Closing Date, the Notes
will be in the form contemplated by the Indenture.
(f) The
Indenture has been duly and validly authorized by the Company and, when duly
executed and delivered by the Company (assuming the due authorization, execution
and delivery by the Trustee), will constitute a valid and legally binding
agreement of the Company, enforceable against the Company in accordance with its
terms, except that the enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to or affecting creditors’ rights generally and (ii) general
principles of equity. The Indenture conforms in all material respects
to the description thereof in the Disclosure Package and the Offering
Memorandum. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939, as
amended (the “Trust Indenture
Act”), and the rules and regulations of the Commission applicable to an
indenture that is qualified thereunder.
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(g) This
Agreement has been duly and validly authorized, executed and delivered by the
Company.
(h) The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company or any of its
Subsidiaries that is material to the Company and its Subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any Subsidiary, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its obligations
under the Transaction Documents, the distribution of the Preliminary Offering
Memorandum and the Offering Memorandum or the consummation of the transactions
contemplated by the Transaction Documents, except such as may be required by the
securities or blue sky laws of the various states in connection with the offer
and sale of the Notes.
(i) None
of (i) the execution, delivery and performance by the Company of this Agreement
and consummation of the transactions contemplated by the Transaction Documents,
and (ii) the issuance and sale of the Notes will give rise to a right to
terminate or accelerate the due date of any payment due under, or conflict with
or result in the breach of any term or provision of, or constitute a default (or
an event which with notice or lapse of time or both would constitute a default)
under, or require any consent or waiver under, or result in the execution or
imposition of any lien, charge or encumbrance upon any properties or assets of
the Company or any Subsidiary pursuant to the terms of, any indenture, mortgage,
deed of trust or other agreement or instrument to which the Company or any
Subsidiary is a party or by which either the Company or any Subsidiary or any of
their properties or businesses is bound, or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation applicable to the Company
or any Subsidiary or violate any provision of the charter or by-laws of the
Company or any Subsidiary, except for such consents or waivers which
have already been obtained and are in full force and effect.
(j) The
Company has authorized and outstanding capital stock as set forth under the
caption “Capitalization” in the Disclosure Package and the Offering
Memorandum. All of the issued and outstanding shares of Common Stock
of the Company have been duly and validly issued and are fully paid and
nonassessable. There are no statutory preemptive or other similar
rights to subscribe for or to purchase or acquire any shares of Common Stock of
the Company or any of the Subsidiaries or any such rights pursuant to its
charter or by-laws or any agreement or instrument to or by which the Company or
any of the Subsidiaries is a party or bound. Except as disclosed in
the Disclosure Package and the Offering Memorandum, there is no outstanding
option, warrant or other right calling for the issuance of, and there is no
commitment, plan or arrangement to issue, any share of the Common Stock of the
Company or any of the Subsidiaries or any security convertible into, or
exercisable or exchangeable for, such stock.
(k) 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 Company and the Subsidiaries,
taken as a whole, from that set forth in the Disclosure Package and the Offering
Memorandum.
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(l) The
Company does not have any current plans to undertake any acquisition that would
require disclosure under Rule 3-05 of Regulation S-X or any other material
acquisition. The Company has not entered into any memorandum of
understanding, letter of intent, agreement or commitment relating to any
potential acquisition.
(m) There
are no legal or governmental proceedings pending or threatened to which the
Company or any of its Subsidiaries is a party or to which any of the properties
of the Company or any of its Subsidiaries is subject, which would have a
Material Adverse Effect, or would materially adversely affect the power or
ability of the Company to perform its obligations under this Agreement or to
consummate the transactions contemplated by the Disclosure Package and the
Offering Memorandum.
(n) The
Company is not, and, after giving effect to the offering and sale of the Notes
and the application of the proceeds thereof as described in the Disclosure
Package and the Offering Memorandum, will not be, required to register as an
“investment company” as such term is defined in the Investment Company Act of
1940, as amended.
(o) The
relevant subsidiaries of the Company which were incorporated outside the United
States, are not expected to be “passive foreign investment companies”
within the meaning of Section 1297 of the United States Internal Revenue Code of
1986 for the current taxable year and any foreseeable future taxable
years.
(p) Neither
the Company nor any of the Subsidiaries is in breach or violation of any
provision of applicable law or its respective constitutive documents, or in
default under, nor has any event occurred which, with notice, lapse of time or
both, would result in any breach or violation of, constitute a default under or
give the holder of any indebtedness (or a person acting on such holder’s behalf)
the right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under any agreement or other instrument binding upon the
Company or any of the Subsidiaries that is material to the Company and the
Subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
of the Subsidiaries.
(q) The
Company and its Subsidiaries (i) are in compliance with any and all applicable
foreign, United States federal, state and local laws and regulations relating to
the protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii)
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.
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(r) There
are no costs or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit,
license or approval, any related constraints on operating activities and any
potential liabilities to third parties) which would have a Material Adverse
Effect. The Company is not responsible for any costs or liabilities
(including, without limitation, any expenditures required for clean-up, land
reclamation or compliance with Environmental Laws) with respect to Shandong
Bangsheng Chemical Co., Ltd.
(s) 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 Securities Act with respect to any securities
of the Company.
(t) Neither
the Company nor any of its Subsidiaries or affiliates, nor any director, officer
or employee, nor, to the Company’s best knowledge, any agent or representative
of the Company or of any of its Subsidiaries or affiliates, has taken or will
take any action in furtherance of an offer, payment, promise to pay, or
authorization or approval of the payment or giving of money, property, gifts or
anything else of value, directly or indirectly, to any “government official”
(including any officer or employee of a government or government-owned or
controlled entity or of a public international organization, or any person
acting in an official capacity for or on behalf of any of the foregoing, or any
political party or party official or candidate for political office) to
influence official action or secure an improper advantage; and the Company and
its Subsidiaries and affiliates have conducted their businesses in compliance
with applicable anti-corruption laws and have instituted and maintained and will
continue to maintain policies and procedures designed to promote and achieve
compliance with such laws and with the representation and warranty contained
herein.
(u) The
operations of the Company and its Subsidiaries are and have been conducted at
all times in material compliance with all applicable financial recordkeeping and
reporting requirements, including those of the Bank Secrecy Act, as amended by
Title III of the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT
Act), and the applicable anti-money laundering statutes of jurisdictions where
the Company and its Subsidiaries conduct business, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Anti-Money
Laundering Laws”), and no action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator involving the
Company or any of its Subsidiaries with respect to the Anti-Money Laundering
Laws is pending or, to the best knowledge of the Company,
threatened.
(v) (i) The
Company represents that neither the Company nor any of its Subsidiaries
(collectively, the “Entity”), nor any director,
officer or employee, nor, to the Company’s best knowledge, any agent, affiliate
or representative of the Company or of any of its Subsidiaries, is an individual
or entity (“Person”)
that is, or is owned or controlled by a Person that is:
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(A) the
subject of any sanctions administered or enforced by the U.S. Department of
Treasury’s Office of Foreign Assets Control (“OFAC”),
the United Nations Security Council (“UNSC”),
the European Union (“EU”), Her
Majesty’s Treasury (“HMT”), or
other relevant sanctions authority (collectively, “Sanctions”),
nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions
(including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan
and Syria).
(ii) The
Entity represents and covenants that it will not, directly or indirectly, use
the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other
Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any
country or territory that, at the time of such funding or facilitation, is the
subject of Sanctions; or
(B) in
any other manner that will result in a violation of Sanctions by any Person
(including any Person participating in the offering, whether as underwriter,
advisor, investor or otherwise).
(iii) The
Entity represents and covenants that for the past five years, it has not
knowingly engaged in, is not now knowingly engaged in, and will not engage in,
any dealings or transactions with any Person, or in any country or territory,
that at the time of the dealing or transaction is or was the subject of
Sanctions.
(w) Subsequent
to the respective dates as of which information is given in each of the
Preliminary Offering Memorandum, the Disclosure Package and the Offering
Memorandum, (i) the Company and its Subsidiaries have not incurred any material
liability or obligation, direct or contingent, nor entered into any material
transaction; (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 the Company and its
Subsidiaries.
(x) The
Company and its Subsidiaries have good and valid title to all real property and
good and valid title to all personal property owned by them which is material to
the business of the Company and its Subsidiaries, taken as a whole, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Disclosure Package and the Offering Memorandum 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 Company and its
Subsidiaries; 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 are not material and do not interfere
with the use made and proposed to be made of such property and buildings by the
Company and its Subsidiaries, in each case except as described in the Disclosure
Package and the Offering Memorandum.
7
(y) The
Company and its Subsidiaries own or possess, 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
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 written 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) Each
of the Company and the Subsidiaries has full power, authority and legal right to
enter into, execute, assume, deliver and perform its obligations under each of
the contracts and agreements referred to or described in the Disclosure Package
and the Offering Memorandum to which it is a party (the “Disclosed
Contracts”), and has authorized, executed and delivered each of the
Disclosed Contracts, and, assuming due authorization, execution and delivery by
the other parties thereto, the Disclosed Contracts constitute valid, legal and
binding obligations of the Company or such Subsidiary, enforceable against it in
accordance with the terms thereof, subject, in each case as to enforceability,
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles. Neither the Company nor any of the
Subsidiaries has sent or received any communication regarding termination of, or
intent not to renew, any of the Disclosed Contracts, and no such termination or
non-renewal has been threatened by the Company or any of the Subsidiaries or, to
the best knowledge of the Company after due inquiry, any other party to any such
contract or agreement.
(aa) 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
that could have a Material Adverse Effect.
(bb) The
Company and each of its Subsidiaries are insured by insurers against such losses
and risks and in such amounts as are prudent and customary in the businesses in
which they are engaged; neither the Company nor any of its Subsidiaries has been
refused any insurance coverage sought or applied for; and neither the Company
nor any of its Subsidiaries 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.
(cc) The
Company and its Subsidiaries possess all certificates, authorizations and
permits issued by the appropriate regulatory authorities necessary to conduct
their respective businesses, and neither the Company nor any of its Subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a Material Adverse Effect.
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(dd) Each
of the Company and its Subsidiaries has filed all U.S. federal, state, local and
foreign tax returns required to be filed through the date of this Agreement or
have requested extensions thereof (except where the failure to file would not,
individually or in the aggregate, have a Material Adverse Effect) and have paid
all taxes required to be paid thereon (except for cases in which the failure to
file or pay would not have a Material Adverse Effect, or, except as currently
being contested in good faith and for which reserves required by U.S. GAAP have
been created in the financial statements of the Company), and no tax deficiency
has been determined adversely to the Company or any of its Subsidiaries which
has had (nor does the Company nor any of its Subsidiaries have any notice or
knowledge of any tax deficiency which could reasonably be expected to be
determined adversely to the Company or its Subsidiaries and which could
reasonably be expected to have) a Material Adverse Effect. All local and
national governmental tax holidays, exemptions, waivers, financial subsidies,
and other local and national tax relief, concessions and preferential treatment
enjoyed by the Company or any of the Subsidiaries in the People’s Republic of
China (the “PRC”) as
described in the Disclosure Package and the Offering Memorandum are valid,
binding and enforceable and do not violate any laws, regulations, rules, orders,
decrees, guidelines, judicial interpretations, notices or other legislation of
the PRC.
(ee) Except
as described in the Disclosure Package and the Offering Memorandum, no
Subsidiary is currently prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on such
Subsidiary’s capital stock, from repaying to the Company any loans or advances
to such Subsidiary from the Company or from transferring any of such
Subsidiary’s property or assets to the Company or any other Subsidiary of the
Company.
(ff) KPMG
and Hansen, Barnett & Maxwell, P.C., whose reports on the consolidated
financial statements of the Company and the Subsidiaries are included in the
Disclosure Package and the Offering Memorandum, are independent registered
public accountants as required by the Securities Act and by the rules of the
Public Company Accounting Oversight Board.
(gg) The
financial statements, together with the related notes and schedules thereto,
included in the Disclosure Package and the Offering Memorandum present fairly
the consolidated financial position of the Company and the Subsidiaries as of
the dates indicated and the consolidated results of operations, cash flows and
changes in shareholders’ equity of the Company for the periods specified and
have been prepared in compliance as to form in all material respects with the
applicable accounting requirements of the Securities Act and the related rules
and regulations adopted by the Commission and in conformity with United States
GAAP applied on a consistent basis during the periods involved; the other
financial and statistical data contained in the Disclosure Package and the
Offering Memorandum are accurately and fairly presented and prepared on a basis
consistent with the financial statements and books and records of the Company;
and the Company and the Subsidiaries do not have any material outstanding
guarantees, liabilities or obligations, direct or contingent (including any
off-balance sheet obligations) not described in the Disclosure Package and the
Offering Memorandum.
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(hh) The
section entitled “Management’s Discussion and Analysis of Financial Condition
and Results of Operations” in the Disclosure Package and the Offering Memorandum
accurately and fully describes (i) accounting policies that the Company
believes are the most important in the portrayal of the Company’s financial
condition and results of operations and that require management’s most
difficult, subjective or complex judgments, (ii) judgments and
uncertainties affecting the application of critical accounting policies and
(iii) the likelihood that materially different amounts would be reported
under different conditions or using different assumptions and an explanation
thereof. The Company’s directors and management have reviewed and agreed with
the selection, application and disclosure of the Company’s critical accounting
policies as described in the Disclosure Package and the Offering Memorandum and
have consulted with its independent accountants with regards to such
disclosure.
(ii) The
Company has established and maintains disclosure controls and procedures (as
such term is defined in Rule 13a-15 under the Securities Exchange Act of 1934,
as amended (together with the rules and regulations of the Securities &
Exchange Commission (the “Commission”)
promulgated thereunder, the “Exchange
Act”)), which: (i) are designed to ensure that material information
relating to the Company is made known to the Company’s principal executive
officer and its principal financial officer by others within the Company,
particularly during the periods in which the periodic reports required under the
Exchange Act are required to be prepared; (ii) provide for the periodic
evaluation of the effectiveness of such disclosure controls and procedures at
the end of the periods in which the periodic reports are required to be
prepared; and (iii) are effective in all material respects to perform the
functions for which they were established.
(jj) Except
as described in the Disclosure Package and the Offering Memorandum, based on the
evaluation of its disclosure controls and procedures, the Company is not aware
of (i) any material weakness or significant deficiency in the design or
operation of internal controls which could adversely affect the Company’s
ability to record, process, summarize and report financial data or any material
weaknesses in internal controls; (ii) any matter which could result in a
restatement of the Company’s financial statements for any annual or interim
period during the current fiscal year or prior fiscal years; or (iii) any fraud
that involves management or other employees of the Company who have a role in
the Company’s internal controls. Since the end of the Company’s most
recent audited fiscal year, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial
reporting.
(kk) There
is and has been no material failure on the part of the Company or, to the best
of its knowledge, any of the Company’s directors or officers, in their
capacities as such, to comply with any provisions of the Sarbanes-Oxley Act of
2002 and the rules and regulations in connection therewith (the “Sarbanes-Oxley Act”),
including Section 402 relating to loans and Sections 302 and 906 relating to
certifications, and with the corporate governance requirements under applicable
NASDAQ regulations. The Company has implemented internal audit
policies and procedures that are effective to ensure compliance with the
Sarbanes-Oxley Act or the corporate governance rules of NASDAQ in all material
respects.
(ll) None
of the Auditors has been engaged by the Company to perform any “prohibited
activities” (as defined in Section 10A of the Exchange Act).
10
(mm) Except
as described in the Disclosure Package and the Offering Memorandum, there are no
off-balance sheet arrangements (as defined in Item 303 of Regulation S-K) that
have or are reasonably likely to have a Material Adverse Effect.
(nn) The
Disclosure Package and the Offering Memorandum fairly and accurately describe
all material trends, demands, commitments and events known to the Company, and
uncertainties, and the potential effects thereof, that the Company believes
would be materially affect its liquidity and are reasonably likely to
occur.
(oo) Each
of the Company and its Subsidiaries 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 in conformity with U.S. GAAP 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.
(pp) There
are no material relationships or transactions between the Company or any of the
Subsidiaries and their respective 10% or greater shareholders, affiliates,
directors or officers or any affiliates or members of the immediate families of
such persons that are not disclosed in the Disclosure Package and the Offering
Memorandum.
(qq) The
Company has not sold, issued or distributed any shares of Common Stock during
the six-month period preceding the date hereof, including any sales pursuant to
Rule 144A under, or Regulation D or 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.
(rr) Any
third-party statistical and market-related data included the Disclosure Package
and the Offering Memorandum are based on or derived from sources that the
Company believes to be reliable and accurate.
(ss) Each
“forward-looking statement” (within the meaning of Section 27A of the Securities
Act or Section 21E of the Exchange Act) contained in the Disclosure Package and
the Offering Memorandum, has been made or reaffirmed with a reasonable basis and
in good faith.
(tt) The
statements in the Disclosure Package and the Offering Memorandum under the
headings “Risk Factors” and “Taxation” insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein, are
accurate, complete and fair summaries of such matters described therein in all
material respects.
(uu) The
shares of the Common Stock have been duly authorized for listing on the NASDAQ
Global Select Market.
11
(vv) The
Company has taken no action designed to, or likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act or the
listing of the Common Stock on the NASDAQ Global Select Market, nor has the
Company received any written notification that the Commission or the NASDAQ
Global Select Market is contemplating terminating such registration or
listing.
(ww) There
are no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any Initial
Purchaser for a brokerage commission, finder’s fee or other like payment in
connection with this offering.
(xx) Neither
the Company nor any of the Subsidiaries nor any of their respective directors,
officers, affiliates or controlling persons has taken, directly or indirectly,
any action designed, or which has constituted or would reasonably be expected to
cause or result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Notes or the
Common Stock issuable upon conversion thereof.
(yy)
No transaction, stamp, capital or other issuance, registration, transaction,
transfer or withholding taxes or duties are payable in the PRC, the British
Virgin Islands or the State of Nevada by or on behalf of the Initial Purchasers
to any PRC, British Virgin Islands or the State of Nevada taxing authority in
connection with (i) the issuance, sale and delivery of the Notes by the
Company, (ii) the purchase from the Company of the Notes by the Initial
Purchasers, (C) the execution and delivery of this Agreement.
(zz) Each
of the Company and its Subsidiaries has taken all necessary steps to comply
with, and to ensure compliance by all of the Company’s direct or indirect
shareholders and option holders who are PRC residents with any applicable rules
and regulations of the State Administration of Foreign Exchange of the PRC (the
“SAFE Rules
and Regulations”), including, without limitation, requiring each
shareholder and option holder that is, or is directly or indirectly owned or
controlled by, a PRC resident to complete any registration and other procedures
required under applicable SAFE Rules and Regulations.
(aaa)
The Company is aware of, and has been advised as to, the content of the Rules on
Mergers and Acquisitions of Domestic Enterprises by Foreign Investors jointly
promulgated on August 8, 2006 by the Ministry of Commerce, the State Assets
Supervision and Administration Commission, the State Administration of Taxation,
the State Administration of Industry and Commerce, the China Securities
Regulatory Commission (“CSRC”) and
the State Administration of Foreign Exchange of the PRC (the “M&A
Rules”), in particular the relevant provisions thereof that purport to
require offshore special purpose vehicles controlled directly or indirectly by
PRC-incorporated companies or PRC residents and established for the purpose of
obtaining a stock exchange listing outside of the PRC to obtain the approval of
the CSRC prior to the listing and trading of their securities on any stock
exchange located outside of the PRC. The Company has received legal advice
specifically with respect to the M&A Rules from its PRC counsel and the
Company understands such legal advice. In addition, the Company has communicated
such legal advice in full to each of its directors and each such director has
confirmed that he or she understands such legal advice.
12
(bbb) The
issuance and sale of the Notes and the consummation of the transactions
contemplated by this Agreement, the Disclosure Package and the Offering
Memorandum are not and will not be, as of the date hereof and on the Closing
Date, affected by the M&A Rules or any official clarifications, guidance,
interpretations or implementation rules in connection with or related to the
M&A Rules, including the guidance and notices issued by the CSRC on
September 8 and September 21, 2006 (together with the M&A Rules,
the “M&A Rules and
Related Clarifications”).
(ccc) The
M&A Rules and Related Clarifications do not require the Company to obtain
the approval of the CSRC prior to the issuance and sale of the Notes, or the
consummation of the transactions contemplated by this Agreement, the Disclosure
Package and the Offering Memorandum.
(ddd) The
statements set forth in the Disclosure Package and the Offering Memorandum under
the heading “Risk Factors—Risks Related to This Offering—If the China Securities
Regulatory Commission, or CSRC, or another PRC regulatory agency determines that
its approval was required in connection with this offering, we may become
subject to penalties.” are fair and accurate summaries of the matters described
therein, and nothing has been omitted from such summaries that would make them
misleading in any material respect.
(eee) The
Disclosure Package and the Offering Memorandum and any preliminary offering
memorandum comply, and any amendments or supplements thereto will comply, with
any applicable laws or regulations of foreign jurisdictions in which the
Disclosure Package, the Offering Memorandum or any preliminary offering
memorandum, as amended or supplemented, if applicable, are
distributed.
(fff) 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 State of Nevada, the
British Virgin Islands and the PRC and will be
honored by courts in the State of Nevada, the British Virgin Islands and the
PRC. The Company has the power to submit, and pursuant to Section 19 of
this Agreement, has legally, validly, effectively and irrevocably submitted, to
the personal jurisdiction of each New York Court (as defined in
Section 19), and the Company has the power to designate, appoint and
authorize, and pursuant to Section 19 of this Agreement, has legally,
validly, effectively and irrevocably designated, appointed and authorized, the
Authorized Agent (as defined in Section 19 hereof) for service of process,
in each case, in any action arising out of or relating to this Agreement or the
transactions contemplated hereby, and service of process effected on such
Authorized Agent will be effective to confer valid personal jurisdiction over
the Company as provided in Section 19 hereof.
(ggg) None
of the Company, any of the Subsidiaries or any of their respective properties,
assets or revenues has any right of immunity, under the laws of the State of
Nevada, the British Virgin Islands, the PRC or the State of New York, from any
legal action, suit or proceeding, the giving of any relief in any such legal
action, suit or proceeding, set-off or counterclaim, the jurisdiction of any the
State of Nevada, the British Virgin Islands, PRC, New York or United States
federal court, service of process, attachment upon or prior to judgment, or
attachment in aid of execution of judgment, or execution of a judgment, or other
legal process or proceeding for the giving of any relief or for the enforcement
of a judgment, in any such court, with respect to its obligations, liabilities
or any other matter under or arising out of or in connection with this
Agreement; and, to the extent that the Company, any of the Subsidiaries or any
of their respective properties, assets or revenues may have or may hereafter
become entitled to any such right of immunity in any such court in which
proceedings may at any time be commenced, each of the Company and the
Subsidiaries waives or will waive such right to the extent permitted by law and
has consented to such relief and enforcement as provided in Section 19 of
this Agreement.
13
(hhh) Except
as described in the Disclosure Package and the Offering Memorandum, any final
judgment for a fixed sum of money rendered by a New York Court having
jurisdiction under its own domestic laws in respect of any suit, action or
proceeding against the Company based upon this Agreement would be recognized and
enforced by (A) the State of Nevada courts without re-examining the merits
of the case under the common law doctrine of obligation; and (B) PRC
courts, subject to compliance with relevant civil procedural requirements under
the PRC Civil Procedures Law. It is not necessary that this Agreement, the
Disclosure Package, the Offering Memorandum or any other document be filed or
recorded with any court or other authority in the State of Nevada, the British
Virgin Islands or the PRC.
(iii) The
Notes are eligible for resale pursuant to Rule 144A and will not be, at
Closing Time, of the same class as securities listed on a national securities
exchange registered under Section 6 of the Exchange Act, or quoted in a
U.S. automated interdealer quotation system.
(jjj) None
of the Company or any Subsidiary or any of their respective affiliates (as
defined in Rule 501(b) of Regulation D under the Securities Act) or
representatives directly, or through any agent, (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of any “security” (as
defined in the Securities Act) which is or could be integrated with the sale of
the Notes in a manner that would require the registration under the Securities
Act of the Notes or (ii) engaged in any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
in connection with the offer and sale of the Notes or in connection with Exempt
Resales of the Notes, or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act. Assuming the accuracy
of the Initial Purchasers’ representations and warranties set forth in Section 3
hereof, neither (i) the offer and sale of the Notes to the Initial Purchasers in
the manner contemplated by this Agreement, the Disclosure Package and the
Offering Memorandum nor (ii) the Exempt Resales require registration under the
Securities Act. The Indenture does not require qualification under the Trust
Indenture Act. No securities of the same class as the Notes have been
issued and sold by the Company or any Subsidiary within the six-month period
immediately prior to the date hereof.
(kkk) Neither
of the Company nor any of its Subsidiaries has any material obligation to
provide union, medical, health, disability, housing, welfare, retirement, death
or other employee benefits to any of the present or past employees of the
Company or any of its Subsidiaries, or to any other person and each of the
Company and its Subsidiaries has complied in all material respects with all
employment, labor and similar laws applicable to it and has made all such union
and welfare contributions for its employees as required by law.
(lll) Each
director and executive officer of the Company and each stockholder of the
Company listed on Schedule IV hereto has delivered to the Initial Purchasers his
enforceable written lock-up agreement in the form attached to this Agreement as
Exhibit A hereto (“Lock-Up
Agreement”).
14
(mmm)
Upon the Issuance and delivery of the Notes in accordance with this Agreement
and the Indenture, the Notes will be convertible at the option of the holder
thereof into shares of the Common Stock in accordance with the terms of the
Notes and the Indenture; the Common Stock issuable upon conversion of the Notes
have been duly authorized and reserved and, when issued upon conversion of the
Notes, will be validly issued, fully paid and non-assessable; and the issuance
of the Common Stock will not be subject to any preemptive or similar
rights.
(nnn) Neither
the Company nor any of the Company’s Subsidiaries has distributed or, prior to
the later to occur of (i) the Closing Date and (ii) completion of the
distribution of the Notes, will distribute any material in connection with the
offering and sale of the Notes other than the Disclosure Package or the Offering
Memorandum.
Any
certificate signed by or on behalf of the Company and delivered to the Initial
Purchasers shall be deemed to be a representation and warranty by the Company to
the Initial Purchasers as to the matters covered thereby.
The
Company acknowledges that the Initial Purchasers and, for purposes of the
opinions to be delivered to the Initial Purchasers pursuant to Section 10
hereof, counsel for the Company and counsel for the Initial Purchasers, will
rely upon the accuracy and truth of the foregoing representations and hereby
consent to such reliance.
3. Representations and
Warranties of the Initial Purchasers. Each Initial Purchaser,
severally and not jointly, represents, warrants and covenants to the Company and
agrees that:
(a) Such
Initial Purchaser is a QIB and an accredited investor within the meanings of
Rule 501(a) of the Securities Act, with such knowledge and experience in
financial and business matters as are necessary in order to evaluate the merits
and risks of an investment in the Notes.
(b) (i)
It will not solicit offers for, or offer or sell, such Notes by any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act and (ii)
it will solicit offers for such Notes only from, and will offer such Notes only
to, persons that it reasonably believes to be QIBs. In purchasing
such Notes, the QIBs are deemed to have represented and agreed as provided in
the Offering Memorandum under the caption “Transfer Restrictions.”
4. Purchase, Sale and
Delivery. On the basis of the representations, warranties,
covenants and agreements contained in this Agreement, and subject to its terms
and conditions:
(a) The
Company agrees to issue and sell to the several Initial Purchasers, and each of
the Initial Purchasers agrees, severally and not jointly, to purchase from the
Company, at a purchase price of 95.0% of the principal amount thereof (the
“Initial
Price”), the aggregate amount of the Notes.
15
(b) Payment
of the purchase price for, and delivery of, the Notes shall be made to the
Company at 10:00 a.m., New York City time, on the third business day following
the date of this Agreement or at such time on such other date, not later than
ten (10) business days after the date of this Agreement, as shall be agreed upon
by the Company and the Representative (such time and date of delivery and
payment are called the "Closing
Date”).
(c) Payment
for the Notes shall be made to the Company in Federal or other funds immediately
available in New York City (same day), against delivery of the Notes to the
Representative for the respective accounts of the Initial
Purchasers.
(d) On
the Closing Date, the Company will deliver to the Initial Purchasers, in such
denomination or denominations and registered in such name or names as the
Representative requests upon notice to the Company at least 24 hours prior to
such Closing Date, one or more Notes in definitive form, registered in such
names and in such denominations as the Initial Purchasers shall request, having
an aggregate amount corresponding to the aggregate principal amount of the Notes
sold pursuant to Exempt Resales to QIBs (the “Definitive
Notes”) against payment of the purchase price therefor by wire transfer
of same-day funds to the account of the Company, previously designated by it in
writing. The Definitive Notes shall be made available to the Initial
Purchasers for inspection not later than 5:00 p.m., New York City time, on the
business day immediately preceding the Closing Date.
5. Offering by Initial
Purchasers. The Initial Purchasers propose to make an offering
of the Notes at the price and upon the terms set forth in the Offering
Memorandum as soon as practicable after this Agreement is entered into and as,
in the judgment of the Initial Purchasers, is advisable.
6. Agreements of the
Company. The Company covenants and agrees with the Initial
Purchasers that:
(a) The
Company shall advise the Initial Purchasers promptly and, if requested by the
Representative, confirm such advice in writing, (i) of the issuance by any state
securities commission or other regulatory authority of any stop order or order
suspending the qualification or exemption from qualification of any Notes for
offering or sale in any jurisdiction, or the initiation of any proceeding for
such purpose by any state securities commission or other regulatory authority
and (ii) of the happening of any event that makes any statement of a material
fact made in the Disclosure Package or the Offering Memorandum untrue or that
requires the making of any additions to or changes in the Disclosure Package or
the Offering Memorandum in order to make the Disclosure Package or the Offering
Memorandum not misleading in the light of the circumstances existing at the time
it is delivered to a QIB. The Company shall use its best efforts to
prevent the issuance of any stop order or order suspending the qualification or
exemption from qualification of any Notes under any state securities or blue sky
laws and, if at any time any state securities commission or other regulatory
authority issues an order suspending the qualification or exemption from
qualification of any Notes under any state securities or blue sky laws, the
Company shall use its best effort to obtain the withdrawal or lifting of such
order at the earliest possible time.
16
(b) If
the Disclosure Package is being used to solicit offers to buy the Notes at a
time when the Offering Memorandum is not yet available to prospective purchasers
and any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Disclosure Package in order to make the
statements therein, in the light of the circumstances at the time it is
delivered to a QIB, not misleading, or if, in the opinion of counsel for the
Initial Purchasers, it is necessary to amend or supplement the Disclosure
Package to comply with applicable law, the Company shall prepare and furnish, at
its own expense, to the Initial Purchasers and to any dealer upon request,
either amendments or supplements to the Disclosure Package so that the
statements in the Disclosure Package as so amended or supplemented will not, in
the light of the circumstances at the time it is delivered to a QIB, be
misleading or so that the Disclosure Package, as amended or supplemented, will
comply with applicable law.
(c) The
Company shall, without charge, provide to the Initial Purchasers and to counsel
for the Initial Purchasers, and to those persons identified by the Initial
Purchasers to the Company as many copies of the Preliminary Offering Memorandum,
the Disclosure Package and the Offering Memorandum, and any amendments or
supplements thereto, as the Initial Purchasers may reasonably
request. The Company consents to the use of the Preliminary Offering
Memorandum, the Disclosure Package and the Offering Memorandum, and any
amendments and supplements thereto required pursuant hereto, by the Initial
Purchasers in connection with Exempt Resales.
(d) The
Company will not amend or supplement the Preliminary Offering Memorandum or the
Offering Memorandum or any other document used in connection with the offer and
sale of the Notes or any amendment or supplement thereto during such period as,
in the opinion of counsel for the Initial Purchasers, the Preliminary Offering
Memorandum or the Offering Memorandum is required by law to be delivered in
connection with Exempt Resales and in connection with market-making activities
of the Initial Purchasers for so long as any Notes are outstanding unless the
Initial Purchasers shall previously have been advised thereof and furnished a
copy for a reasonable period of time prior to the proposed amendment or
supplement and as to which the Initial Purchasers shall have given their
consent, which consent shall not be unreasonably withheld. The
Company shall promptly, upon the request of the Initial Purchasers or counsel
for the Initial Purchasers, make any amendment or supplement to the Preliminary
Offering Memorandum or the Offering Memorandum or any other document used in
connection with the offer and sale of the Notes that may be necessary or
advisable in connection with such Exempt Resales or such market making
activities.
17
(e) If,
during such period after the date hereof and prior to the date on which all of
the Notes shall have been sold by the Initial Purchasers, any event shall occur
as a result of which, it is necessary or advisable, in the opinion of counsel
for the Initial Purchasers, to amend or supplement the Preliminary Offering
Memorandum or the Offering Memorandum or any other document used in connection
with the offer and sale of the Notes in order to make such Preliminary Offering
Memorandum or Offering Memorandum or such other document not misleading in the
light of the circumstances existing at the time it is delivered to a QIB, or if
for any other reason it shall be necessary or advisable to amend or supplement
the Preliminary Offering Memorandum or the Offering Memorandum or such other
document to comply with applicable laws, rules or regulations, the Company shall
(subject to Section 6(d) hereof) forthwith amend or supplement such Preliminary
Offering Memorandum or Offering Memorandum or such other document at its own
expense so that, as so amended or supplemented, such Preliminary Offering
Memorandum or Offering Memorandum or such other document will not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading or so that such
Preliminary Offering Memorandum or Offering Memorandum or such other document
will comply with all applicable laws, rules or regulations; if, during the
period referred to in 6(d) above, the Company proposes to file with the
Commission an Exchange Act report that is incorporated by reference into the
Offering Memorandum, a reasonable time prior to the proposed filing, the Company
shall furnishes a copy of such Exchange Act report to the Initial Purchasers for
review and comment, and shall not file such document with the Commission until
the Initial Purchasers have been afforded the opportunity to review and comment
and the Initial Purchasers have not reasonably objected to the filing of such
Exchange Act report.
(f) The
Company shall cooperate with the Initial Purchasers and counsel for the Initial
Purchasers in connection with the qualification or registration of the Notes for
offering and sale under the securities or blue sky laws of such jurisdictions as
the Representative may designate and shall continue such qualifications in
effect for as long as may be necessary to complete the Exempt Resales; provided,
however, that in connection therewith the Company shall not be required to
qualify as a foreign corporation where it is not now so qualified or to execute
a general consent to service of process in any jurisdiction or to take any other
action that would subject it to general service of process or to taxation in
respect of doing business in any jurisdiction in which it is not otherwise
subject, in each case, other than as to matters and transactions relating to the
Preliminary Offering Memorandum, the Offering Memorandum or Exempt
Resales.
(g) The
Company shall apply the net proceeds from the sale of the Notes in the manner
set forth under “Use of Proceeds” in the Disclosure Package and the Offering
Memorandum; and not to invest, or otherwise use the proceeds received by the
Company from its sale of the Notes in such a manner (i) as would require any of
the Company and its Subsidiaries to register as an investment company under the
1940 Act, or (ii) that would result in the Company being not in compliance with
any applicable laws, rules and regulations of the State Administration of
Foreign Exchange of the PRC.
(h) The
Company will indemnify and hold harmless the trustee and the Initial Purchasers
against any documentary, stamp or similar issue tax, including any interest and
penalties, on the creation, issue and sale of the Notes to the Initial
Purchasers and on the execution and delivery of this Agreement. All
payments to be made by the Company hereunder shall be made without withholding
or deduction for or on account of any present or future taxes, duties or
governmental charges whatsoever unless the Company is compelled by law to deduct
or withhold such taxes, duties or charges. In that event, the Company
shall pay such additional amounts as may be necessary in order that the net
amounts received after such withholding or deduction shall equal the amounts
that would have been received if no withholding or deduction had been
made.
(i) The
Company shall not voluntarily claim, and shall actively resist any attempts to
claim, the benefit of any usury laws against the holders of any
Notes.
18
(j) The
Company shall do and perform all things required or necessary to be done and
performed under this Agreement prior to or after the Closing Date and to satisfy
all conditions precedent to the delivery of the Notes.
(k) None
of the Company or any of its “affiliates” (as defined in Rule 144 under the
Securities Act) will sell, offer for sale, solicit offers to buy or otherwise
negotiate in respect of any “security” (as defined in the Securities Act) that
could be integrated with the sale of the Notes in a manner that would require
the registration under the Securities Act of the sale to the Initial Purchasers
or the QIBs of the Notes or to take any other action that would result in the
Exempt Resales not being exempt from registration under the Securities
Act.
(l)
For so long as any of the Notes remain outstanding and are “restricted
securities” within the meaning of Rule 144(a)(3) under the Securities Act, for
the benefit of holders from time to time of Notes, the Company will furnish at
its expense, upon request, to any holder or beneficial owner of Notes and
prospective purchasers of the Notes, information specified in Rule 144A(d)(4)
under the Securities Act, unless the Company is then subject to and in
compliance with Section 13 or 15(d) of the Exchange Act.
(m) The
Company shall comply with all of the agreements set forth in the representation
letters to DTC relating to the approval of the Notes by DTC for “book-entry”
transfer.
(n) The
Company shall (i) permit the Notes to be included for quotation on The PORTAL
Market and (ii) permit the Notes to be eligible for clearance and settlement
through DTC.
(o) During
the period of three years from the Closing Date, the Company shall deliver
without charge to the Initial Purchasers (i) as soon as available, copies of
each report and other communication (financial or otherwise) of the Company
mailed to the Trustee of the holders of the Notes, stockholders or any national
securities exchange on which any class of securities of the Company may be
listed (including without limitation, press releases) other than materials filed
with the Commission and (ii) from time to time such other information concerning
the Company and the Subsidiaries as the Initial Purchasers may reasonably
request.
(p) The
Company shall make generally available to the Company’s security holders and to
the Representative as soon as practicable an earnings statement covering a
period of at least twelve months beginning with the first fiscal quarter of the
Company occurring after the date of this Agreement which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(q) The
Company shall not take, directly or indirectly, any action which constitutes or
is designed to cause or result in, or which could reasonably be expected to
constitute, cause or result in, the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the Notes or
the Common Stock issuable upon conversion thereof, or take any action prohibited
by Regulation M under the Exchange Act, in connection with the distribution of
the Notes contemplated hereby. The Company will not distribute any
(i) preliminary offering memorandum, including, without limitation, the
Preliminary Offering Memorandum, (ii) offering memorandum, including, without
limitation, the Offering Memorandum or (iii) other offering material in
connection with the offering and sale of the Notes.
19
(r) For
so long as the Notes constitute “restricted” securities within the meaning of
Rule 144(a)(3) under the Securities Act, the Company shall not, and shall not
permit any Subsidiary to, solicit any offer to buy or offer to sell the Notes by
means of any form of general solicitation or general advertising (as those terms
are used in Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities
Act.
(s) During
the period of one year from the Closing Date, without the prior written consent
of the Initial Purchasers, the Company shall not, and shall not permit any of
its “affiliates” (as defined in Rule 144 under the Securities Act) to, resell
any of the Notes or Common Stock issuable upon conversion of the Notes that
constitute “restricted securities” under Rule 144 that have been reacquired by
any of them.
(t) Prior
to the Closing Date, the Company shall not issue any press release or other
communications, directly or indirectly, or hold any press conference with
respect to the issuance of the Notes, the Company or any of its Subsidiaries,
the properties, business, results of operations, condition (financial or
otherwise), affairs or prospects of the Company or any of its Subsidiaries,
without the prior consent of the Initial Purchasers. In such
instance, the Company shall furnish a copy of any such release or communication
to the Initial Purchasers for review and comment a reasonable time prior to its
contemplated release.
(u) None
of the Company, its affiliates or any person acting on its or their behalf
(other than the Initial Purchasers) will engage in any directed selling efforts
(as that term is defined in Regulation S) with respect to the Notes, and the
Company and its affiliates and each person acting on its or their behalf (other
than the Initial Purchasers) will comply with the offering restrictions
requirement of Regulation S.
(v) Without
the prior consent of the Initial Purchasers, the Company shall not make any
offer relating to the Notes using any written communication (as defined in Rule
405 under the Securities Act) that constitutes an offer to sell or a
solicitation of an offer to buy the Notes other than the Preliminary Offering
Memorandum or the Offering Memorandum (the “Additional
Written Offering Communication”); if at any time following issuance of a
Additional Written Offering Communication any event occurred or occurs as a
result of which such Additional Written Offering Communication would conflict
with the information in the Disclosure Package or the Offering Memorandum or
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 light of the
circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Initial Purchasers and, if requested by the Initial
Purchasers, will prepare and furnish without charge to the Initial Purchasers an
Additional Written Offering Communication or other document which will correct
such conflict, statement or omission.
(w) The
Company, during the time prior to completion of the distribution of Notes by the
Initial Purchasers, will file all reports and other documents required to be
filed with the Commission pursuant to Sections 13, 14 or 15 of the Exchange Act
within the time periods required by the Exchange Act and the regulations
promulgated thereunder.
20
(x) The
Company shall reserve and keep available at all times, free of preemptive
rights, shares of Common Stock for the purpose of enabling the Company to
satisfy any obligations to issue shares of its Common Stock upon conversion of
the Notes.
(y) The
Company shall comply with the SAFE Rules and Regulations, and shall use best
efforts to cause its directors, officers, option holders and shareholders that
are, or that are directly or indirectly owned or controlled by, PRC residents or
PRC citizens, to comply with the SAFE Rules and Regulations applicable to them
in connection with the Company, including without limitation, requiring each
shareholder, option holder, director and officer that is, or is directly or
indirectly owned or controlled by, a PRC resident or PRC citizen to complete any
registration and other procedures required under applicable SAFE Rules and
Regulations.
(z) The
Company also agrees that, without the prior written consent of the
Representative on behalf of the Initial Purchasers, it will not, during the
period ending 90 days after the date of the Final Memorandum, (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 shares of
the Common Stock or any securities convertible into or exercisable or
exchangeable for the Common Stock 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, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of the Common
Stock or such other securities, in cash or otherwise or (3) file any
registration statement with the Commission relating to the offering of any
shares of the Common Stock or any securities convertible into or exercisable or
exchangeable for the Common Stock. The foregoing sentence shall not
apply to (a) the sale of the Notes under this Agreement, or (b) the issuance by
the Company of any shares of the Common Stock upon the exercise of an option or
warrant or the conversion of the Notes or any other security outstanding on the
date hereof of which the Initial Purchasers have been advised in writing.
Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day
restricted period the Company issues an earnings release or material news or a
material event relating to the Company occurs; or (2) prior to the
expiration of the 90-day restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the 90-day period, the restrictions imposed 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. The Company shall promptly notify the Representative of
any earnings release, news or event that may give rise to an extension of the
initial 90-day restricted period. The Company also agrees that,
without the prior written consent of the Representative on behalf of the Initial
Purchasers, it will not, during the period beginning on the date hereof and
continuing to and including the Closing Date, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company or warrants to purchase
debt securities of the Company substantially similar to the Notes (other than
the sale of the Notes under this Agreement).
21
7. Expenses. Whether
or not the transactions contemplated in this Agreement are consummated or this
Agreement is terminated, to pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company’s counsel and the Auditors in
connection with the issuance and sale of the Notes and all other fees or
expenses in connection with the preparation of the Preliminary Offering
Memorandum, the Disclosure Package, the Offering Memorandum, any Additional
Written Offering Communications prepared by or on behalf of, used by, or
referred to by the Company and any amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the delivering
of copies thereof to the Initial Purchasers, (ii) all costs and expenses related
to the transfer and delivery of the Notes to the Initial Purchasers, and resale
of the Notes by the Initial Purchasers, 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 Notes under
state securities laws and all expenses in connection with the qualification of
the Notes for offer and sale under state securities laws as provided in
Section 6(f) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Initial Purchasers in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) any fees charged by rating agencies for the rating of the
Notes, (v) the fees and expenses, if any, incurred in connection with the
admission of the Notes for trading in PORTAL or any appropriate market system,
(vi) the costs and charges of the Trustee including the fees and expenses of its
counsel, the paying agent and any transfer agent, registrar or depositary, (vii)
the cost of the preparation, issuance and delivery of the Notes, (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
Notes, including, without limitation, expenses associated with the preparation
or dissemination of any electronic road show, expenses associated with
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 any such consultants, and the
cost of any aircraft chartered in connection with the road show, (ix) the
negotiation, preparation, printing, typing, filing, reproduction, execution and
delivery of this Agreement and of the other Transaction Documents, any amendment
or supplement to or modification of any of the foregoing and any and all other
documents furnished pursuant hereto or thereto or in connection herewith or
therewith and with the Exempt Resales; and (x) all other cost 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 9,
and Section 13(c), the Initial Purchasers will pay all of their costs and
expenses, including, without limitation, fees and disbursements of their
counsel, and any advertising expenses connected with any offers they may
make.
8. Indemnification.
(a) The
Company agrees to indemnify and hold harmless each Initial Purchaser, each
person, if any, who controls any Initial Purchaser within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each affiliate of any Initial Purchaser within the meaning of Rule 405
under the Securities 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 Preliminary Offering Memorandum, the Disclosure
Package, any Additional Written Offering Communication prepared by or on behalf
of, used by, or referred to by the Company, or the Offering Memorandum or any
amendment or supplement thereto, or caused by any omission or alleged omission
to state therein a material fact necessary to make the statements therein in the
light of the circumstances under which they were made 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 Initial Purchaser furnished to the Company in
writing by such Initial Purchaser through you expressly for use
therein.
22
(b) Each
Initial Purchaser agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, its officers 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 to the same extent as the
foregoing indemnity from the Company to such Initial Purchaser, but only with
reference to information relating to such Initial Purchaser furnished to the
Company in writing by such Initial Purchaser through you expressly for use in
the Preliminary Offering Memorandum, the Disclosure Package, any additional
written offering communication prepared by or on behalf of, used by or referred
to by the Company, or the Offering Memorandum or any amendment or supplement
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 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 the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representative, in the case of parties indemnified
pursuant to Section 8(a), and by the Company, in the case of parties
indemnified pursuant to Section 8(b). 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.
23
9. Contribution.
(a) 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 Initial Purchasers on the other hand from the offering of the
Notes or (ii) if the allocation provided by clause 9(a)(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 9(a)(i) above but also the
relative fault of the Company on the one hand and of the Initial Purchasers 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 Initial Purchasers on the other hand in connection with the
offering of the Notes shall be deemed to be in the same respective proportions
as the net proceeds from the offering of the Notes (before deducting expenses)
received by the Company and the total discounts and commissions received by the
Initial Purchasers bear to the aggregate offering price of the Notes. The
relative fault of the Company on the one hand and of the Initial Purchasers 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 Initial Purchasers and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Initial Purchasers’ respective obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective principal amount of Notes they have purchased hereunder, and not
joint.
(b) The
Company and the Initial Purchasers agree that it would not be just or equitable
if contribution pursuant to Section 9(a) were determined by pro rata allocation (even if
the Initial Purchasers 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 9(a). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages and liabilities
referred to in Section 9(a) 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
action or claim. Notwithstanding the provisions of this Section 9, no
Initial Purchaser shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes resold by it in the initial
placement of such Notes were offered to investors exceeds the amount of any
damages that such Initial Purchaser 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 Section 8 and this Section 9 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.
24
10. Conditions of Initial
Purchasers’ Obligations. The obligations of the Initial
Purchasers to purchase and pay for the Notes, as provided herein, are subject to
the following conditions:
(a) All
of the representations and warranties of the Company contained in this Agreement
and any certificates delivered pursuant to this Agreement shall be true and
correct on the date hereof and on the Closing Date with the same force and
effect as if made on and as of the date hereof and the Closing Date,
respectively. The Company shall have complied with all of the
agreements, or performed all of its obligations and satisfied all conditions to
be complied with, performed or satisfied hereunder at or prior to the Closing
Date.
(b) No
stop order suspending the qualification or exemption from qualification of the
Notes in any jurisdiction referred to in Section 6(f) hereof shall have been
issued and no proceeding for that purpose shall have been commenced or shall be
pending or threatened.
(c) None
of the issuance and sale of the Notes pursuant to this Agreement or any of the
transactions contemplated by any of the other Transaction Documents shall be
enjoined (temporarily or permanently) and no restraining order or other
injunctive order shall have been issued; and there shall not have been any legal
action, statute, order, rule, regulation, decree or other administrative
proceeding enacted, instituted, adopted, issued or threatened against the
Company or against any Initial Purchasers relating to the issuance of the Notes
or the Initial Purchasers’ activities in connection therewith or any other
transactions contemplated by this Agreement or the Offering Memorandum, or the
other Transaction Documents. No action, suit or proceeding shall have
been commenced and be pending against or affecting or, to the best of the
Company’s knowledge, threatened against, the Company or any Subsidiary before
any court or arbitrator or any governmental body, agency or official that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect; and no stop order shall have
been issued preventing the use of the Preliminary Offering Memorandum, any
Additional Written Offering Communication, the Offering Memorandum, or any
amendment or supplement thereto.
25
(d) Since
the respective dates as of which information is given in the Disclosure Package,
(i) there shall not have occurred any change, or any development involving a
prospective change, in or affecting the general affairs, management, business,
condition (financial or other), properties, prospects, results of operations,
capital stock, or long-term debt, or a material increase in the short-term debt,
of the Company or any of the Subsidiaries, not contemplated by the Disclosure
Package and the Offering Memorandum that is, in the sole judgment of the
Representative, so material and adverse as to make it impracticable or
inadvisable to proceed with the offering of the Notes on the terms and in the
manner contemplated by the Transaction Documents, (ii) no dividend or
distribution of any kind shall have been declared, paid or made by the Company
or any of the Subsidiaries on any class of its capital stock, other than as
disclosed in the Disclosure Package and the Offering Memorandum, (iii) none of
the Company or any of the Subsidiaries shall have incurred any liability or
obligation, direct or contingent, that is material, individually or in the
aggregate, to the Company and the Subsidiaries, taken as a whole, and that is
required to be disclosed on a balance sheet or notes thereto in accordance with
U.S. GAAP and is not disclosed on the latest balance sheet or notes thereto
included in the Disclosure Package and the Offering Memorandum and (iv) there
shall not have occurred any event or development relating to or involving the
Company or any of the Subsidiaries, or any of their respective officers or
directors that makes any statement made in the Disclosure Package or the
Offering Memorandum untrue or that, in the opinion of the Company and its
counsel or the Initial Purchasers and their counsel, require the making of any
addition to or change in the Disclosure Package or the Offering Memorandum in
order to state a material fact required by any applicable law, rule or
regulation to be stated therein or necessary in order to make the statements
made therein not misleading.
(e) On
or after the date hereof (i) there shall not have occurred any downgrading,
suspension or withdrawal of, nor shall there have been any announcement of any
potential or intended downgrading, suspension or withdrawal of, or of any review
(or of any potential or intended review) for a possible downgrading, or with
negative implications, or direction not determined of, any rating of the Company
or any securities of the Company (including, without limitation, the placing of
any of the foregoing ratings on credit watch with negative or developing
implications or under review with an uncertain direction) by any “nationally
recognized statistical rating organization” as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act, (ii) there shall not have occurred
any change, nor shall any notice have been given of any potential or intended
change, in the outlook for any rating of the Company or any securities of the
Company by any such rating organization and (iii) no such rating organization
shall have given notice that it has assigned (or is considering assigning) a
lower rating to the Notes than that on which the Notes were
marketed.
(f) At
the Closing Date and after giving effect to the consummation of the transactions
contemplated by the Transaction Documents, there exists no Default or Event of
Default (as defined in the Indenture).
(g) The
Initial Purchasers shall have received certificates, dated the Closing Date,
signed by the chief executive officer and the chief financial officer of the
Company, in form and substance satisfactory to the Representative, confirming,
as of the Closing Date, the matters set forth in paragraphs (a), (b), (c), (d)
and (e) of this Section 10 and that, as of such Closing Date, the Company has
complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder.
(h) The
Initial Purchasers shall have received a certificate, dated the date hereof and
the Closing Date, signed by the chief financial officer of the Company, to the
effect set forth in Exhibit B
hereto.
(i) The
Initial Purchasers shall have received on the Closing Date:
26
(i) an
opinion and letter, dated the Closing Date, in form and substance satisfactory
to the Initial Purchasers, of Cadwalader, Wickersham & Taft LLP, United
States counsel for the Company, to the effect set forth in Exhibit C-1
hereto.
(ii) an
opinion, dated the Closing Date, in form and substance satisfactory to the
Initial Purchasers, of Lionel Sawyer & Collins, the State of Nevada counsel
for the Company, to the effect set forth in Exhibit C-2
hereto.
(iii) an
opinion, dated the Closing Date, in form and substance satisfactory to the
Initial Purchasers, of Maples and Calder, British Virgin Islands counsel for the
Company, to the effect set forth in Exhibit C-3
hereto.
(iv) an
opinion, dated the Closing Date, in form and substance satisfactory to the
Initial Purchasers, of C&I Partners, PRC counsel for the Company, addressed
to the Company with express consent to the release to the Initial Purchasers, to
the effect set forth in Exhibit C-4
hereto.
(v) an
opinion, dated the Closing Date, in form and substance satisfactory to the
Initial Purchasers, of King & Wood, PRC counsel for the Initial
Purchasers.
(vi) an
opinion and letter, dated the Closing Date, in form and substance reasonably
satisfactory to the Initial Purchasers, of Shearman & Sterling LLP, counsel
for the Initial Purchasers.
(vii) an
opinion, dated the Closing Date, in form and substance satisfactory to the
Initial Purchasers, of Emmet, Marvin & Martin, LLP, counsel for the
Trustee.
The
opinions described in paragraphs (h)(i) through (h)(iv) above shall be rendered
to the Initial Purchasers at the request of the Company and shall so state
therein.
(j) KPMG
and Hansen, Barnett & Maxwell, P.C. (the “Auditors”),
the independent registered public accounting firms for the Company, shall
deliver to the Initial Purchasers: (i) simultaneously with the execution of this
Agreement a signed letter from the Auditors addressed to the Initial Purchasers
and dated the date of this Agreement, in form and substance reasonably
satisfactory to the Representative and counsel for the Initial Purchasers,
containing statements and information of the type ordinarily included in
accountants’ “comfort letters” to initial purchasers with respect to the
financial statements and certain financial information contained in the
Preliminary Offering Memorandum, and (ii) on the Closing Date, a signed letter
from the Auditors addressed to the Initial Purchasers and dated the date of such
Closing Date(s), in form and substance reasonably satisfactory to the
Representative and Shearman & Sterling LLP, counsel for the Initial
Purchasers, 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 Offering
Memorandum.
27
(k) The
Initial Purchasers shall have been furnished with such information, certificates
and documents, in addition to those set forth above, as they may reasonably
require for the purpose of enabling them to review or pass upon the matters
referred to in this Section 10 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(l) The
Company and the Trustee shall have entered into the Indenture and the Initial
Purchasers shall have received counterparts, conformed as executed, thereof and
the Notes shall have been duly executed and delivered by the Company, and the
Notes shall have been duly authenticated by the Trustee.
(m) The
Notes shall have been approved for trading on The PORTAL Market.
(n) Each
of the Transaction Documents and each other agreement or instrument executed in
connection with the transactions contemplated thereby shall be reasonably
satisfactory in form and substance to the Initial Purchasers and shall have been
executed and delivered by all the respective parties thereto and shall be in
full force and effect, and there shall have been no material amendments,
alterations, modifications or waivers of any provision thereof since the date of
this Agreement.
(o) All
proceedings taken in connection with the issuance of the Notes and the
transactions contemplated by this Agreement, the other Transaction Documents and
all documents and papers relating thereto shall be reasonably satisfactory to
the Initial Purchasers and counsel for the Initial Purchasers. The
Initial Purchasers and counsel for the Initial Purchasers shall have received
copies of such papers and documents as they may reasonably request in connection
therewith, all in form and substance reasonably satisfactory to
them.
(p) On
or prior to the Closing Date, the Initial Purchasers shall have received a lock
up agreement substantially in the form attached hereto as Exhibit A signed by
the Company’s Officers, Directors and those shareholders listed on Schedule IV
hereto.
11. Initial Purchaser
Information. The Company acknowledge that the names of the
Initial Purchasers set forth on the cover page and under the heading “Plan of
Distribution” in the Preliminary Offering Memorandum and the Offering Memorandum
constitute the only written information relating to the Initial Purchasers
furnished to the Company by or on behalf of the Initial Purchasers expressly for
use in the Preliminary Offering Memorandum, the Disclosure Package and the
Offering Memorandum, for purposes of Sections 2(a), 8(a) and 8(b) hereof (the
“Initial
Purchaser Information”).
12. Survival of Representations
and Agreements. The indemnity and contribution provisions
contained in Sections 8 and 9 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 Initial Purchaser, any person
controlling any Initial Purchaser or any affiliate of any Initial Purchaser or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Notes.
28
13. Effective Date of Agreement;
Termination.
(a) This
Agreement shall become effective upon execution and delivery of a counterpart
hereof by each of the parties hereto.
(b) This
Agreement may be terminated in the sole discretion of the Initial Purchasers by
notice to the Company from the Representative, without liability (other than
with respect to Sections 8 and 9 hereof) on the Initial Purchasers’ part to the
Company in the event that the Company has failed, refused or been unable to
perform or satisfy any condition on their respective parts to be performed or
satisfied hereunder on or prior to the Closing Date, or if:
(i) there
has occurred any material adverse change in the securities markets or any event,
act or occurrence that has materially disrupted, or in the opinion of the
Initial Purchasers, will in the future materially disrupt, the securities
markets or there shall be such a material adverse change in general financial,
political or economic conditions or the effect of international conditions on
the financial markets, in the judgment of the Initial Purchasers, inadvisable or
impracticable to market the Notes or enforce contracts for the sale of the
Notes;
(ii) there
has occurred any outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the financial markets, in the judgment
of the Initial Purchasers, inadvisable or impracticable to market the Notes or
enforce contracts for the sale of the Notes;
(iii) trading
in any securities of the Company has been suspended or materially limited on any
exchange or in any over-the-counter market;
(iv) a
banking moratorium has been declared by United States federal, New York State,
Hong Kong or the PRC authorities or government authorities of other relevant
foreign country;
(v) trading
generally has been suspended or materially limited on, or by, as the case may
be, any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ
Global Market, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, the Hong Kong Stock Exchange or other
relevant exchanges; or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required by
any of said exchanges or by order of the Commission, the Financial Industry
Regulatory Authority or other regulatory body or governmental authority having
jurisdiction;
(vi) there
has been a material disruption in securities settlement, payment or clearance
services in the United States or other relevant jurisdiction;
(vii) in
the judgment of the Initial Purchasers, there has been since the time of the
execution of the Purchase Agreement or since the respective dates as of which
information is given in the Disclosure Package, any material adverse change in
the assets, properties, condition (financial or otherwise), or in the results or
operations, business affairs or business prospects or cash flows of the Company
and its Subsidiaries, taken as a whole, whether or not arising in the ordinary
course of business; or
29
(viii) any
debt securities of the Company shall have been downgraded or placed on any
“watch list” for possible downgrading by any “nationally recognized statistical
rating organization” as defined for purposes of Rule 436(g) under the Securities
Act.
(c) If
this Agreement shall be terminated by the Initial Purchasers, 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 Initial Purchasers or such Initial
Purchasers 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) reasonably incurred by such Initial Purchasers in connection
with this Agreement or the offering contemplated hereunder.
14. Substitution of Initial
Purchasers. If, on the Closing Date, any one or more of
the Initial Purchasers shall fail or refuse to purchase Notes that it or they
have agreed to purchase hereunder on such date, and the principal amount of
Notes which such defaulting Initial Purchaser or Initial Purchasers agreed but
failed or refused to purchase is not more than one-tenth of the principal amount
of Notes to be purchased on such date, the other Initial Purchasers shall be
obligated severally in the proportions that the principal amount of Notes set
forth opposite their respective names in Schedule I bears to the principal
amount of Notes set forth opposite the names of all such non-defaulting Initial
Purchasers, or in such other proportions as the Representative may specify, to
purchase the Notes which such defaulting Initial Purchaser or Initial Purchasers
agreed but failed or refused to purchase on such date; provided that in no event
shall the principal amount of Notes that any Initial Purchaser has agreed to
purchase pursuant to this Agreement be increased pursuant to this
Section 14 by an amount in excess of one-ninth of such principal amount of
Notes without the written consent of such Initial Purchaser. If, on the Closing
Date, any Initial Purchaser or Initial Purchasers shall fail or refuse to
purchase Notes which it or they have agreed to purchase hereunder on such date
and the principal amount of Notes with respect to which such default occurs is
more than one-tenth of the principal amount of Notes to be purchased on such
date, and arrangements satisfactory to you and the Company for the purchase of
such Notes are not made within 36 hours after such default, this Agreement shall
terminate without liability on the part of any non-defaulting Initial Purchaser
or of the Company. In any such case either the Representative 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 Disclosure
Package, the Final Memorandum or in any other documents or arrangements may be
effected.
15. Notices. All
communications hereunder shall be in writing and, if sent to the Initial
Purchasers, shall be hand-delivered, mailed by first-class mail, couriered by
next-day air courier or faxed and confirmed in writing to Morgan Stanley &
Co. Incorporated at 1585 Broadway, New York, New York 10036 to the attention of
Head of Capital Markets, and with a copy to the Legal Department. If
sent to the Company, shall be mailed, delivered, couriered or faxed and
confirmed in writing to ShengdaTech, Inc., Youth Pioneer Park, Tai’an Economic
and Technological Development Zone, Tai’an City, Shangdong Province 271000, PRC,
Attention: Xiangzhi Chen, and with a copy to Cadwalader, Wickersham
& Taft LLP, 2301 China Central Place Tower 2, No. 79 Jianguo Road, Beijing
100025, PRC, Attention: Jiannan Zhang, Esq.
30
16. Successors. This
Agreement shall inure to the benefit of, and shall be binding upon, the Initial
Purchasers, the Company and their respective successors, legal representatives
and assigns, and nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any other person any legal or equitable right, remedy
or claim under or in respect of, or by virtue of, this Agreement or any
provision herein contained; this Agreement and all conditions and provisions
hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of the Company contained in Section 8 hereof shall also be for the benefit of
the controlling persons and agents referred to in Sections 8 and 9 hereof and
(ii) the indemnities of the Initial Purchasers contained in Section 8
hereof shall also be for the benefit of the directors of the Company, and its
officers, employees and agents and any controlling person or persons referred to
in Sections 8 and 9 hereof. No purchaser of Notes from the Initial
Purchasers will be deemed a successor, legal representative or assign because of
such purchase.
17. No Waiver; Modifications in
Writing. No failure or delay on the part of the Company or the
Initial Purchasers in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. The remedies
provided for herein are cumulative and are not exclusive of any remedies that
may be available to the Company or the Initial Purchasers at law or in equity or
otherwise. No waiver of or consent to any departure by the Company or
the Initial Purchasers from any provision of this Agreement shall be effective
unless signed in writing by the party entitled to the benefit thereof; provided that notice of any
such waiver shall be given to each party hereto as set forth
above. Except as otherwise provided herein, no amendment,
modification or termination of any provision of this Agreement shall be
effective unless signed in writing by or on behalf of the Company and the
Initial Purchasers. Any amendment, supplement or modification of or
to any provision of this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure by the Company or the Initial
Purchasers from the terms of any provision of this Agreement shall be effective
only in the specific instance and for the specific purpose for which made or
given. Except where notice is specifically required by this
Agreement, no notice to or demand on the Company in any case shall entitle the
Company to any other or further notice or demand in similar or other
circumstances.
18. Entire
Agreement. This Agreement constitutes the entire agreement
among the parties hereto and supersedes all prior agreements, understandings and
arrangements, oral or written, among the parties hereto with respect to the
subject matter hereof.
31
19. Applicable Law; Waiver of
Jury Trial. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT,
AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. TIME IS OF THE
ESSENCE IN THIS AGREEMENT. The Company irrevocably (a) submits to the
jurisdiction of any court of the State of New York or the United State District
Court for the Southern District of the State of New York (each a “New York
Court”) for the purpose of any suit, action, or other proceeding arising
out of this Agreement, or any of the Transaction Documents and the Offering
Memorandum (each, a “Proceeding”),
(b) agrees that all claims in respect of any Proceeding may be heard and
determined in any such court, (c) waives, to the fullest extent permitted by
law, any immunity from jurisdiction of any such court or from any legal process
therein, (d) agrees not to commence any Proceeding other than in such courts,
and (e) waives, to the fullest extent permitted by law, any claim that such
Proceeding is brought in an inconvenient forum. The Company hereby
irrevocably designates CT Corporation System Inc, 111 Eighth Avenue, New York,
NY 10011 (the “Authorized
Agent”) as agent upon whom process against the Company may be
served. THE COMPANY (ON BEHALF OF ITSELF AND, TO THE FULLEST EXTENT
PERMITTED BY LAW, ON BEHALF OF ITS RESPECTIVE EQUITY HOLDERS AND CREDITORS)
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM
BASED UPON, ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTION DOCUMENTS AND
THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS, THE DISCLOSURE
PACKAGE AND THE OFFERING MEMORANDUM.
20. 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 relevant party or parties 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 each party hereto with respect to any sum due from it to any other
party hereto or any person controlling any such other party shall,
notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day following receipt by such other party
or controlling person of any sum in such other currency, and only to the extent
that such other party or controlling person may in accordance with normal
banking procedures purchase United States dollars with such other currency. If
the United States dollars so purchased are less than the sum originally due to
such other party or controlling person hereunder, the first-mentioned party
agrees as a separate obligation and notwithstanding any such judgment, to
indemnify such other party or controlling person against such loss. If the
United States dollars so purchased are greater than the sum originally due to
such other party or controlling person hereunder, such other party or
controlling person agrees to pay to the first-mentioned party an amount equal to
the excess of the United States dollars so purchased over the sum originally due
to such other party or controlling person hereunder.
21. Foreign
Taxes. All payments made by the Company under this Agreement
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 or the British Virgin 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
shall pay such additional amounts as will result, after such withholding or
deduction, in the receipt by the Initial Purchasers and each person controlling
the Initial Purchasers, 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 Initial Purchasers’ or controlling person’s being connected with
the PRC or the British Virgin Islands other than by reason of its being an
Initial Purchasers or a person controlling an Initial Purchasers under this
Agreement.
32
22. Contractual
Relationship. The Company acknowledges and agrees that each of
the Initial Purchasers has acted and is acting solely in the capacity of a
principal in an arm’s length transaction between the Company, on the one hand,
and the Initial Purchasers, on the other hand, with respect to the offering of
Notes contemplated hereby (including in connection with determining the terms of
the offering) and not as a financial advisor, agent or fiduciary to the Company
or any other person. Additionally, the Company acknowledges and
agrees that the Initial Purchasers have not and will not advise the Company or
any other person as to any legal, tax, investment, accounting or regulatory
matters in any jurisdiction. The Company has consulted with its own
advisors concerning such matters and shall be responsible for making its own
independent investigation and appraisal of the transactions contemplated hereby,
and the Initial Purchasers shall have no responsibility or liability to the
Company or any other person with respect thereto, whether arising prior to or
after the date hereof. Any review by the Initial Purchasers of the
Company, the transactions contemplated hereby or other matters relating to such
transactions have been and will be performed solely for the benefit of the
Initial Purchasers and shall not be on behalf of the Company. The
Company agrees that it will not claim that the Initial Purchasers, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary duty to the Company or any other person in connection with any such
transaction or the process leading thereto.
23. Partial
Unenforceability. The invalidity or unenforceability of any
section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other section, paragraph or provision
hereof.
24. Headings. The
headings herein are inserted for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this
Agreement.
25. Counterparts. This
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument. Delivery of a signed counterpart of this
Agreement by facsimile transmission shall constitute valid and sufficient
delivery thereof.
[Signature
page follows]
33
|
Very
truly yours,
|
|
|
ShengdaTech,
Inc.
|
|
|
By:
|
Xiangzhi Chen
|
|
Name:
Xiangzhi Chen
|
|
|
Title:
Chairman &
CEO
|
|
34
Accepted
and agreed to as of
the date
first above written:
morgan
Stanley & Co. Incorporated
acting
on behalf of itself
and
as the representative of the several initial
purchasers
named in schedule I hereto.
|
By:
|
MORGAN
STANLEY & CO. INCORPORATED
|
|
/s/ John D.
Tyree
|
|
|
Name:
John D. Tyree
|
|
|
Title:
Managing Director
|
35
Schedule
I
Initial
Purchasers
|
Name
|
Aggregate
Amount
of the
Notes
to be
Purchased
|
|||
|
Morgan
Stanley & Co. Incorporated
|
$ | 109,200,000 | ||
|
Oppenheimer
& Co. Inc.
|
$ | 13,000,000 | ||
|
Brean
Murray, Carret & Co., LLC
|
$ | 4,550,000 | ||
|
Global
Hunter Securities, LLC
|
$ | 3,250,000 | ||
|
Total
|
$ | 130,000,000 | ||
36
Schedule
II
Subsidiaries
Faith
Boom Limited
Shandong
Haize Nanomaterials Co., Ltd.
Shaanxi
Haize Nanomaterials Co., Ltd.
Shandong
Bangsheng Chemical Co., Ltd.
Zibo
Jiaze Nanomaterials Co., Ltd.
Anhui
Yuanzhong Nanomaterials Co., Ltd.
37
Schedule
III
Pricing
term sheet dated December 9, 2010
to
Preliminary Offering Memorandum dated December 9, 2010
(the
“Preliminary Offering Memorandum”)
ShengdaTech,
Inc.
$130,000,000
6.50%
Senior Convertible Notes due 2015
The
information in this pricing term sheet relates only to the offering of
$130,000,000 aggregate principal amount of 6.50% Senior Convertible Notes due
2015 by ShengdaTech, Inc. and should be read together with the Preliminary
Offering Memorandum and supersedes the information in the Preliminary Offering
Memorandum to the extent inconsistent with the information in the Preliminary
Offering Memorandum. Terms used in this pricing term sheet but not
defined herein have the respective meanings given to them in the Preliminary
Offering Memorandum.
|
Issuer:
|
ShengdaTech,
Inc.
|
|
|
Ticker/Exchange
for Shares:
|
SDTH/NASDAQ
Global Select Market (“NASDAQ”).
|
|
|
Title
of Securities:
|
6.50%
Senior Convertible Notes due 2015.
|
|
|
Aggregate
Principal Amount Offered:
|
$130,000,000
aggregate principal amount of notes.
|
|
|
Net
Proceeds of the Offering:
|
Approximately
$123.5 million, after deducting the initial purchasers’ discounts and
commissions.
|
|
|
Use
of Proceeds:
|
The
Issuer intends to use the net proceeds from this offering for the
following purposes: (1) approximately $67 million for the repurchase of a
portion of the Notes due 2018; and (2) the remainder to finance its
NPCC production capacity expansion, research and development activities
and other working capital requirements.
|
|
|
Maturity:
|
The
notes will mature on December 15, 2015, unless earlier redeemed or
purchased by the Issuer or converted.
|
|
|
Annual
Interest Rate:
|
6.50%
per
annum.
|
38
|
Interest
Payment Dates:
|
Interest
will accrue from December 14, 2010, and will be payable semiannually in
arrears on June 15 and December 15 of each year, beginning on
June 15, 2011.
|
|
|
Issue
Price:
|
100%,
plus accrued interest, if any, from December 14, 2010.
|
|
|
Closing
Sale Price per Share:
|
$5.06
on NASDAQ as of December 9, 2010.
|
|
|
Conversion
Premium:
|
Approximately
20% above the Closing Sale Price.
|
|
|
Initial
Conversion Price:
|
Approximately
$6.07 per share.
|
|
|
Initial
Conversion Rate:
|
164.6904 shares
per $1,000 principal amount of notes.
|
|
|
Sole
Bookrunner:
|
Morgan
Stanley & Co. Incorporated.
|
|
|
Trade
Date:
|
December
10, 2010.
|
|
|
Expected
Settlement Date:
|
December
14, 2010.
|
|
|
CUSIP
Number:
|
823213
AD5.
|
|
|
Adjustment
to Conversion Rate Upon a Make-Whole Change of Control:
|
If
and only to the extent a holder elects to convert its notes in connection
with a make-whole change in control, the conversion rate will, under
certain circumstances, be increased by an additional number of shares that
will be determined by reference to the following
table:
|
|
Common
Stock Price ($)
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Effective
Date
|
5.06 | 5.50 | 6.00 | 6.50 | 7.00 | 7.50 | 8.00 | 8.50 | 9.00 | 9.50 | 10.00 | 12.50 | 15.00 | 20.00 | ||||||||||||||||||||||||||||||||||||||||||
|
12/14/2010
|
32.9381 | 31,1284 | 24.4983 | 19.4906 | 15.6349 | 12.6091 | 10.1962 | 8.2523 | 6.6644 | 5.3564 | 4.2787 | 1.1063 | 0.0739 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
|
12/15/2011
|
32.9381 | 29.7433 | 23.1875 | 18.2889 | 14.5558 | 11.6578 | 9.3746 | 7.5484 | 6.0686 | 4.8592 | 3.8628 | 0.9657 | 0.0512 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
|
12/15/2012
|
32.9381 | 27.1397 | 20.7863 | 16.1390 | 12.6767 | 10.0451 | 8.0094 | 6.4060 | 5.1204 | 4.0797 | 3.2285 | 0.7679 | 0.0252 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
|
12/15/2013
|
32.9381 | 25.2572 | 18.4103 | 13.6550 | 10.3131 | 7.9189 | 6.1661 | 4.8481 | 3.8280 | 3.0231 | 2.3748 | 0.5244 | 0.0049 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
|
12/15/2014
|
32.9381 | 21.9006 | 14.1810 | 9.3397 | 6.3646 | 4.5302 | 3.3696 | 2.5950 | 2.0395 | 1.6171 | 1.2781 | 0.2591 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
|
12/15/2015
|
32.9381 | 17.1278 | 1.9763 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | ||||||||||||||||||||||||||||||||||||||||||
The exact
common stock price and effective date may not be set forth in the table, in
which case, if the common stock price is between two price amounts in the table
or the effective date is between two effective dates in the table, the number of
additional shares will be determined by a straight-line interpolation between
the number of additional shares set forth for the higher and lower common stock
price amounts and the two effective dates, as applicable, based on a 365-day
year. If the common stock price:
39
|
|
·
|
is
greater than $20.00 per share, subject to adjustment, the conversion rate
will not be increased; and
|
|
|
·
|
is
less than $5.06 per share, subject to adjustment, the conversion rate will
not be increased.
|
Notwithstanding
the foregoing, in no event will the conversion rate exceed 197.6285 shares per
$1,000 principal amount of notes, subject to adjustments in the same manner as
the conversion rate.
This
communication is intended for the sole use of the person to whom it is provided
by the sender. This material is confidential and is for your
information only and is not intended to be used by anyone other than
you. This information does not purport to be a complete description
of the notes or the offering.
This
communication shall not constitute an offer to sell or the solicitation of an
offer to buy securities nor shall there be any sale of these securities in any
state in which such solicitation or sale would be unlawful prior to registration
or qualification of these securities under the laws of any such
state.
Neither
the notes nor any issuable upon conversion of the notes, have been registered
under the Securities Act of 1933, as amended (the “Securities Act”), or the
securities laws of any jurisdiction. Unless they are registered, the
notes and any shares issuable upon conversion of the notes may be offered only
in transactions that are exempt from registration under the Securities Act and
the securities laws of any other jurisdiction. Accordingly, the notes
are being offered and sold only to “qualified institutional buyers” (as defined
in Rule 144A under the Securities Act). For further details
about eligible offerees and resale restrictions, see the section of the
Preliminary Offering Memorandum captioned “Transfer Restrictions.”
A copy of
the final offering memorandum for the offering of the notes may be obtained by
contacting: Morgan Stanley & Co. Incorporated, 1585 Broadway, New
York, New York 10036, Attention: Syndicate Department.
ANY
DISCLAIMER OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER
NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING
SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
40
Schedule
IV
Persons Party to Lock Up
Agreement
Xiangzhi
Chen
Fanying
Kong
Anhui
Guo
Dongquan
Zhang
A. Carl
Mudd
Sheldon
B. Saidman
Lei
Du
Yong
Zhao
Gongbo
Wang
Zhen
Chen
41
Exhibit
A
Form
Lock Up Agreement
_____________,
2010
Morgan
Stanley & Co. Incorporated
1585
Broadway
New York,
New York 10036
As the
Representative of the several Initial Purchasers
named in
the Purchase Agreement
Ladies
and Gentlemen:
The
undersigned understands that Morgan Stanley & Co. Incorporated (“Morgan Stanley”) proposes to
enter into a Purchase Agreement (the “Purchase Agreement”) with
ShengdaTech, Inc., a Nevada corporation (the “Company”), providing for the
offering (the “Offering”) by the several
initial purchasers as set forth in Schedule I of the Purchase Agreement (the
“Initial Purchasers”),
of $130 million principal amount of 6.5% Senior Convertible Notes due 2015 of
the Company (the “Securities”). The
Securities will be convertible into shares of the common stock, $0.00001 par
value per share, of the Company (the “Common Stock”).
To induce
the Initial Purchasers that may participate in the Offering to continue their
efforts in connection with the Offering, the undersigned hereby agrees that,
without the prior written consent of Morgan Stanley on behalf of the Initial
Purchasers, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the final offering memorandum relating to the
Offering (the “Final
Memorandum”), (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 shares of Common Stock beneficially owned (as such
term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)),
by the undersigned or any other securities so owned convertible into or
exercisable or exchangeable for Common Stock 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, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery of Common
Stock or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (a) transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the
Offering, provided that
no filing under Section 16(a) of the Exchange Act shall be required or
shall be voluntarily made in connection with subsequent sales of Common Stock or
other securities acquired in such open market transactions, (b) transfers of
shares of Common Stock or any security convertible into Common Stock as a bona
fide gift, or (c) distributions of shares of Common Stock or any security
convertible into Common Stock to limited partners or stockholders of the
undersigned; provided
that in the case of any transfer or distribution pursuant to clause (b) or
(c), (i) each donee or distributee shall sign and deliver a lock-up letter
substantially in the form of this letter and (ii) no filing under
Section 16(a) of the Exchange Act, reporting a reduction in beneficial
ownership of shares of Common Stock, shall be required or shall be voluntarily
made during the restricted period referred to in the foregoing sentence. In
addition, the undersigned agrees that, without the prior written consent of
Morgan Stanley on behalf of the Initial Purchasers, it will not, during the
period commencing on the date hereof and ending 90 days after the date of the
Final Memorandum, make any demand for or exercise any right with respect to, the
registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Company’s transfer
agent and registrar against the transfer of the undersigned’s shares of Common
Stock except in compliance with the foregoing restrictions.
1
If:
(1) during
the last 17 days of the restricted period the Company issues an earnings release
or material news or a material event relating to the Company occurs;
or
(2) prior
to the expiration of the restricted period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the restricted 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.
The
undersigned shall not engage in any transaction that may be restricted by this
agreement during the 34-day period beginning on the last day of the initial
restricted period unless the undersigned requests and receives prior written
confirmation from the Company or you that the restrictions imposed by this
agreement have expired.
The
undersigned understands that the Company and the Initial Purchasers are relying
upon this agreement in proceeding toward consummation of the
Offering. The undersigned further understands that this agreement is
irrevocable and shall be binding upon the undersigned’s heirs, legal
representatives, successors and assigns.
Whether
or not the Offering actually occurs depends on a number of factors, including
market conditions. Any Offering will only be made pursuant to a
Purchase Agreement, the terms of which are subject to negotiation between the
Company and the Initial Purchasers.
|
Yours
very truly,
|
| Name: |
2
Exhibit
B
Shengdatech,
Inc.
Chief
Financial Officer’s Certificate
December
9, 2010
The undersigned, Anhui Guo, does hereby
certify that as Chief Financial Officer of ShengdaTech, Inc., a company
incorporated in the State of Nevada of the United States (the “Company”) and that in such
capacities is duly authorized to execute and deliver this Chief Financial
Officer’s Certificate AND HEREBY REPRESENTS AND CERTIFIES ON BEHALF OF THE
COMPANY THAT:
The items circled and identified in
Annex A to this certificate, which are included in the Preliminary Offering
Memorandum, have been derived from the Company's accounting and operating
records, and that I have no reason to believe that such data is not in agreement
with the data generated from the Company’s accounting and operating
records.
Capitalized terms used herein and not
otherwise defined have the respective meanings assigned to them in the Purchase
Agreement dated as of December 9, 2010 among the Company and the Initial
Purchasers.
[END OF
PAGE]
1
IN
WITNESS WHEREOF, I have signed this Chief Financial Officer’s Certificate as of
the date first written above.
|
SHENGDATECH,
INC.
|
|||
|
Name:
|
Anhui
Guo
|
||
|
Title:
|
Chief
Financial Officer
|
||
2
Exhibit
C-1
Form
of Opinion of Company United States Counsel
Terms not
otherwise defined shall have the respective meanings given thereto in the actual
opinion of such counsel.
(i) The
Indenture when duly authorized, executed and delivered by the Company, and
(assuming the due authorization, execution and delivery of the Indenture by the
Trustee) will constitute a legal, valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to or affecting creditors’
rights generally, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity), and except that the
enforcement of rights with respect to provisions purporting to waive or limit
rights to trial by jury, oral amendments to written agreements or rights of
set-off may be limited by applicable law or considerations of public
policy.
(ii) The
Indenture conforms in all
material respects with the requirements of the Trust Indenture Act of
1939, as amended and the rules and regulations of the Commission applicable to
an indenture that is qualified thereunder.
(iii) The
Notes when duly authorized and executed by the Company and when duly
authenticated and delivered by the Trustee in the manner contemplated in the
Indenture and paid for by, and sold to, the Initial Purchasers pursuant to the
Agreement, will be legal, valid and binding obligations of the Company entitled
to the benefits of the Indenture and the Registration Rights Agreement,
enforceable against the Company in accordance with their terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium, receivership or other laws relating to or affecting creditors’
rights generally, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity), and will be validly
issued and outstanding and entitled to the benefits provided by the
Indenture.
(iv) The
Registration Rights Agreement when duly authorized, executed and delivered by
the Company (assuming the due authorization, execution and delivery of
Registration Rights Agreement by the Initial Purchasers), constitutes a legal,
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium, receivership or other laws
relating to or affecting creditors’ rights generally, and to general principles
of equity (regardless of whether enforcement is sought in a proceeding at law or
in equity), and except that the enforcement of rights with respect to (a)
indemnification and contribution obligations and provisions, and (b) purporting
to waive or limit rights to trial by jury, oral amendments to written agreements
or rights of set-off may be limited by applicable law or considerations of
public policy.
1
(v) The
issuance of the notes to be issued by the Company pursuant to the terms of the
Registration Rights Agreement in exchange for the Notes (the “Exchange Notes”) when
duly authorized by the Company and, when duly executed, authenticated, issued
and delivered as contemplated by the Registration Rights Agreement, will be
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, receivership or
other laws relating to or affecting creditors’ rights generally, and to general
principles of equity (regardless of whether enforcement is sought in a proceeding at law or
in equity), and will be validly issued and outstanding and entitled to the
benefits provided by the Indenture.
(vi) The
Notes when duly issued and delivered in accordance with the Agreement and the
Indenture, the Notes will be convertible at the option of the holder thereof for
shares of Common Stock in accordance with the terms of the Notes and the
Indenture.
(vii) Each
of the Indenture, the Notes, the Registration Rights Agreement and the Common
Stock conform in all material respects to the descriptions thereof contained in
the Disclosure Package and the Offering Memorandum (as supplemented by the
Supplement dated May 28, 2008).
(viii) The
statements in the Offering Memorandum under the captions, “Benefit Plan Investor
Considerations”, “Description of Notes,” and “Plan of Distribution,” insofar as
such statements constitute summaries of documents referred to therein or matters
of law, are accurate in all material respects.
(ix) The
statements made in the Offering Memorandum under the heading “Taxation - Certain
U.S. Federal Income Tax Considerations” to the extent such statements summarize
material U.S. federal income tax consequences of the purchase, beneficial
ownership and disposition of the Notes and the beneficial ownership and
disposition of Common Stock received upon conversion of the Notes to the holders
thereof described therein, are correct in all material respects.
(x) To
our knowledge, the Company is not in default in the
performance of any bond, debenture, note, indenture, mortgage, deed of trust or
other agreement or instrument identified on Schedule A attached
hereto, which the Company has represented lists all material agreements and
instruments governed by the laws of the State of New York 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
its properties is
subject which default would, individually or in the aggregate, have a material
adverse effect on the business, properties, assets, results of operation or
condition (financial or otherwise) of the Company and its subsidiaries taken as
a whole (a “Material
Adverse Effect”).
(xi) The
execution, delivery and performance by the Company of each of the Transaction
Documents to which the Company is a party, and the compliance by the Company
with the provisions thereof (a) will not breach or result in a violation of, or
default under any indenture, mortgage, deed of trust, agreement or instrument
identified on Schedule
A attached hereto, and (b) will not violate any Applicable
Laws.
2
(xii) The
(a) execution, delivery and performance by
the Company of the Transaction Documents to which the Company is a party, and
the compliance by the Company with the provisions thereof and the (b) issuance
and sale of the Notes, the issuance and delivery of the Exchange Notes and the
issuance and delivery of the Common Stock upon conversion of the Notes do not
and will not give rise to a right to terminate or accelerate the due date of any
payment due under, or conflict with or result in the breach of any term or
provision of, or constitute a default (or any event which with notice or lapse
of time, or both, would constitute a default) under, or require consent or
waiver under, or result in the execution or imposition of any lien, charge,
claim, security interest or encumbrance upon any properties or assets of the
Company pursuant to the terms of, any indenture, mortgage, deed trust, note or
other agreement or instrument identified on Schedule A attached
hereto, or to our knowledge, any Applicable Law or order of any Governmental
Authorities applicable to the Company of which we
are aware.
(xiii) No
Governmental Approval is required for the issuance and sale of the Notes, the
execution and delivery by the Company of the Transaction Documents to which it
is a party, the consummation by the Company of the transactions contemplated
thereby or the performance by the Company of their obligations thereunder,
except for such as may be required under state securities or blue sky laws in
connection with the purchase and distribution of the Notes.
(xiv) Assuming
the accuracy of the representations and warranties in the Agreement and
compliance with the terms and provisions of the Indenture, the Registration
Rights Agreement and the Agreement, it is not necessary in connection with the
offer and sale of the Notes by the Company to the Initial Purchasers or by the
Initial Purchasers to the first purchasers of the Notes from the Initial
Purchasers under the circumstances contemplated by the Agreement, the Indenture
and the Transaction Documents, to register the Notes under the Securities Act of
1933, as amended, and no qualification of the Indenture under the Trust
Indenture Act, is required for the offer, sale and initial resale of the
Securities by the Initial Purchasers in the manner contemplated by the
Agreement.
(xv) The
Offering Memorandum, as of its date and (when read together with the 8-Ks) as of
the date hereof, each amendment or supplement thereto dated subsequent to the
date of the Offering Memorandum but prior to or as of the date hereof (except
for the financial statements and related notes, schedules and other financial
data included therein, as to which we express no opinion), as of the date
hereof, contains the information specified in, and meets the requirements of,
Rule 144A(d)(4) under the
Securities Act.
(xvi) When
the Notes are issued and delivered pursuant to the Agreement, no Notes will be
of the same class (within the meaning of Rule 144A) as securities of the Company
that are listed on a national securities exchange registered under Section 6 of
the Exchange Act or that are quoted in a United States automated interdealer
quotation system.
(xvii) The
Company is not, and after giving effect to the sale of the Notes and the
application of the net proceeds thereof as described in the Disclosure Package
and the Offering Memorandum will not be, required to register as an “investment
company” under the Investment Company Act and is not and will not be an entity
“controlled” by an “investment company” within the meaning of the Investment
Company Act.
3
(xviii) To
our knowledge, there are no holders of securities of the Company who, by reason
of the execution by the Company of the Agreement or any other Transaction
Document to which it is a party or the consummation by the Company of the
transactions contemplated thereby, have the right to request or demand that the
Company register under the Securities Act securities held by them.
(xix) Under
the laws of the State of New York relating to submission to personal
jurisdiction, the Company has, validly and irrevocably submitted to the personal
jurisdiction of any state or federal court located in the Borough of Manhattan,
The City of New York, New York (each a “New York Court”) in any action arising
out of or relating to the Agreement, the Indenture and the Registration Rights
Agreement, has, to the extent permitted by law, validly and irrevocably waived
objections to the laying of venue and any claim of inconvenient forum as set
forth in the Agreement, the Indenture and the Registration Rights Agreement, and
has validly and irrevocably appointed CT Corporation System as its authorized
agent for the purpose described in the Agreement, the Indenture and the
Registration Rights Agreement; and service of process effected on such agent in
the manner set forth in the Agreement, the Indenture and the Registration Rights
Agreement, will be effective under the laws of the State of New York to confer
valid personal jurisdiction over the Company in a New York Court.
4
Exhibit
C-2
Form
of Opinion of Company State of Nevada Counsel
Terms not
otherwise defined shall have the respective meanings given thereto in the actual
opinion of such counsel.
(i) The
Company has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the State of Nevada.
(ii) The
Company has all requisite corporate power and authority to own, lease and
operate its properties in Nevada and to conduct its business in Nevada as
described in the Disclosure Package and Offering Memorandum, to enter into and
perform its obligations under the Transaction Documents, and to issue and sell
the Notes in accordance with the terms of the Purchase Agreement.
(iii) The
authorized, issued and outstanding common stock of the Company is as set forth
in the Disclosure Package and Offering Memorandum under the caption
“Capitalization.” All of the outstanding shares of common stock of the Company
have been duly and validly authorized and issued and are fully paid and
nonassessable and, to the best of our knowledge, none of them was issued in
violation of any preemptive or other similar right. The Notes have
been duly authorized for issuance and sale in accordance with the Purchase
Agreement and, when issued and delivered by the Company pursuant thereto, and
upon conversion of the Notes in accordance with the terms of the Purchase
Agreement, the Shares will be validly issued, fully paid and nonassessable, and
no holder of the Notes or Shares is or will be subject to personal liability
solely by reason of being such a holder. Except as disclosed in the
Disclosure Package and Offering Memorandum, there are no preemptive or other
rights to subscribe for or to purchase or any restriction upon the voting or
transfer of any securities of the Company pursuant to Chapter 78 of the Nevada
Revised Statutes, the Company’s Articles of Incorporation or Bylaws or, to the
best of our knowledge, any agreements or other instruments to which the Company
is a party or by which it is bound. To the best of our knowledge, except as
disclosed in the Disclosure Package and Offering Memorandum, there is no
outstanding option, warrant or other right calling for the issuance of, and no
commitment, plan or arrangement to issue, any share of common stock of the
Company or any security convertible into, exercisable for, or exchangeable for
common stock of the Company. The form of certificate used to evidence the
Company's common stock complies in all material respects with all applicable
statutory requirements, and with any applicable requirements of the Articles of
Incorporation or Bylaws of the Company. To the best of our knowledge,
there are no persons with registration rights or other similar rights to have
any securities of the Company registered pursuant to the Offering Memorandum or
otherwise registered by the Company under the Securities Act.
(iv) All
necessary corporate action has been duly and validly taken by the Company to
authorize the execution, delivery and performance of the Transaction Documents
and the issuance and sale of the Notes. The Transaction Documents
have been duly and validly authorized, executed and delivered by the
Company.
1
(v) Neither
the execution, delivery and performance of the Transaction Documents by the
Company, nor the consummation of any of the transactions contemplated thereby
(including, without limitation, the issuance and sale by the Company of the
Notes and the issuance of the Shares upon conversion of the Notes) will (a)
result in a violation of the Company’s Articles of Incorporation or Bylaws, (b)
result in a violation of Nevada law or any rule or regulation that has been
issued pursuant to Nevada law by any Nevada governmental agency or body having
jurisdiction over the Company, or (c) to the best of our knowledge, give rise to
a right to terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of, or constitute
a breach of or default (or any event which with notice or lapse of time, or
both, would constitute a default) under, or require consent or waiver under, or
result in the execution or imposition of any lien, charge, claim, security
interest or encumbrance upon any properties or assets of the Company pursuant to
the terms of, any indenture, mortgage, deed of trust, note or other agreement or
instrument of which we are aware and to which the Company is a party or by which
it or any of its assets or properties or businesses is bound, or any franchise,
license, permit, judgment, decree, order, statute, rule or regulation, domestic
or foreign, of which we are aware.
(vi) No
consent, approval, authorization, license, registration, qualification or order
of any court, governmental agency or regulatory body of the State of Nevada is
required for the due authorization, execution, delivery or performance of the
Transaction Documents by the Company or the consummation of the transactions
contemplated thereby.
(vii) To
the best of our knowledge, there is no action, suit, proceeding or other
investigation, before any court or before or by any public body or board of the
State of Nevada pending or threatened against, or involving the assets,
properties or businesses of the Company.
(viii) The
statements in the Offering Memorandum under the captions “Description of Notes”
and “Description of Capital Stock” are accurate in all material respects and
accurately present the information contained therein with respect to the Notes
and the Company's capital stock.
2
Exhibit
C-3
Form
of Opinion of Company British Virgin Islands Counsel
Terms not
otherwise defined shall have the respective meanings given thereto in the actual
opinion of such counsel.
(i) The
Company is a company limited by shares registered under the BVI Business
Companies Act, 2004, as amended (the “Act”), in good standing at the
Registry of Corporate Affairs and validly existing under the laws of the British
Virgin Islands, with full corporate power and authority to carry on its business
in accordance with its memorandum and articles of association, and possesses the
capacity to sue and be sued in its own name.
(ii) Based
solely on our inspection of the High Court Registry from the date of
incorporation of the Company there were no actions or petitions pending against
the Company in the High Court of the British Virgin Islands as at the time of
our searches on ____________ 2010.
(iii) On
the basis of our searches conducted at the Registry of Corporate Affairs and at
the High Court Registry, no currently valid order or resolution for the
winding-up of the Company and no current notice of appointment of a receiver
over the Company, or any of its assets, appears on the records maintained in
respect of the Company. It is a requirement that notice of
appointment of a receiver made under section 118 of the Insolvency Act 2003 be
registered with the Registry of Corporate Affairs under section 118 of the
Insolvency Act 2003. However, it should be noted that there is no
mechanism to file with the Registry of Corporate Affairs notice of an
appointment of a receiver made under foreign legislation. In addition
we refer you to the Registered Agent's Certificate that states that the
registered agent is not aware that any liquidation, dissolution or insolvency
proceedings have been commenced against the Company or that a receiver has been
appointed over the Company or any of its assets.
(iv) On
the basis of our search conducted at the Registry of Corporate Affairs, no
register of mortgages, charges and other encumbrances was filed by the Company
pursuant to section 111A of the International Business Companies Act, 1984 (the
"IBC Act") prior to its re-registration under the Act. Furthermore,
no charge created by the Company has been registered pursuant to section 163 of
the Act. We also refer you to the Registered Agent's Certificate that
states that the Company did not and does not maintain a register of mortgages,
charges and other encumbrances pursuant to section 70A(2) of the IBC Act and
that no entries have been made on the Company's register of charges maintained
pursuant to section 162 of the Act.
(v) The
Company is authorised to issue a maximum of 20,000,000 shares with a par value
of US$0.01 each.
(vi) Based
solely on our review of the Register of Members and the Registered Agent's
Certificate, the Company has _______ shares in issue and the registered holder
of such shares is ShengdaTech, Inc.
1
(vii) Subject
to the Company’s memorandum and articles of association, all dividends and other
distributions in respect of the issued shares in the Company may under the
current laws and regulations of the British Virgin Islands be paid to its
registered member(s), and all such dividends and other distributions will not be
subject to withholding or other taxes under the laws and regulations of the
British Virgin Islands and are otherwise free and clear of any other tax,
withholding or deduction in the British Virgin Islands, and do not require any
authorisation from any governmental authorities or agencies or other official
bodies in the British Virgin Islands.
(viii) There
is no exchange control legislation under the laws of the British Virgin Islands
and accordingly there are no exchange control regulations imposed under the laws
of the British Virgin Islands. Dividends and distributions paid in
respect of the Company's shares are freely transferable out of the British
Virgin Islands.
2
Exhibit
C-4
Form
of Opinion of Company PRC Counsel
Terms not
otherwise defined shall have the respective meanings given thereto in the actual
opinion of such counsel.
(i) Each
of Shandong Haize Nanomaterials Co., Ltd., Shandong Bangsheng Chemical Co.,
Ltd., Shaanxi Haize Nanomaterials Co., Ltd., Zibo Jiaze Nanomaterials Co., Ltd.
and Anhui Yuanzhong Nanomaterials Co., Ltd. (each, a “PRC Subsidiary” and together,
the “PRC Subsidiaries”)
has been duly organized and is validly existing as a wholly foreign owned
limited liability enterprise with legal person status under PRC
laws.
(ii) Each
of the PRC Subsidiaries has the full power (corporate and other) and authority
to own, lease and operate its assets and to conduct its business in the manner
presently conducted as described in the Disclosure Package and the Offering
Memorandum.
(iii) All
of the registered capital of each PRC Subsidiary is fully paid and is owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities, mortgages, pledges, claims. The liability of
the Company in respect of equity interests in each PRC Subsidiary is limited to
its investments therein. None of the outstanding equity interest in
any PRC Subsidiary was issued in violation of any preemptive rights, resale
rights, rights of first refusal or similar rights of any of its security
holder. No options, warrants or other rights to purchase, agreements
or other obligations to issue or other rights to convert any obligation into
shares of capital stock or ownership interests in any of the PRC Subsidiaries
are outstanding. Each PRC Subsidiary has obtained all approvals,
authorizations, consents and orders, and has made all filings, which are
required under PRC law and regulations for the ownership of interest by the
Company of its equity interest in the PRC Subsidiaries.
(iv) The
articles of association, the business licenses and other constitutive documents
of the PRC Subsidiaries comply with the requirements of the PRC laws and
regulations and are in full force and effect.
(v) Each
PRC Subsidiary has all necessary licenses, consents, approvals, orders,
licenses, consents, authorizations, orders, certificates, authorizations or
permits (the “Approvals”) of and from, and has made all filings with, all
appropriate national, provincial, municipal local regulatory agencies or bodies
in the PRC (the “Governmental Authorities”) to (A) own, lease, license and use
its properties, assets and conduct its business in the manner described in the
Disclosure Package and the Offering Memorandum, (B) conduct its business as
presently conducted, and (C) use the proceeds to be received by the Company from
the Offering contemplated by the Disclosure Package and the Offering Memorandum
(including any transfer to and application of proceeds by an PRC Subsidiary),
without restriction. Such Approvals are in full force and effect and
contain no restrictions or conditions not described in the Disclosure Package
and the Offering Memorandum. No violation exists in respect of any
such Approvals and no such Approvals are subject to suspension, revocation or
withdrawal. Each PRC Subsidiary is in compliance with the provisions
of all such Approvals in all material respects and there are no circumstances
existing which might lead to modification, suspension or revocation of any such
Approvals.
1
(vi) The
ownership structure of the Company and the PRC Subsidiaries, individually or in
the aggregate, is in compliance with the PRC laws.
(vii) No
steps have been or are being taken and no order or resolution has been made or
passed to appoint a receiver, liquidator or similar officer of, or to wind up or
dissolve, any PRC Subsidiary. No meeting has been convened and no
order, petition or resolution has been passed for the winding-up, amalgamation,
reconstruction, reorganization, administration, dissolution, liquidation, merger
or consolidation or analogous procedure of any PRC Subsidiary, no notice of
appointment in respect of any PRC Subsidiary of a liquidator, receiver,
administrator, trustee, custodian or other similar officer has been served and
no such steps are intended and no steps have been or are going to be taken for
the suspension, revocation or cancellation of any of their respective business
licenses or articles of association, as applicable as of the date hereof in
respect of or by any PRC Subsidiary.
(viii) Each
PRC Subsidiary has taken all necessary steps to comply with, and to ensure
compliance by all of the Company’s direct or indirect shareholders and option
holders who are PRC residents with any applicable State Administration for
Foreign Exchange (the “SAFE”) Rules and Regulations, including without
limitation, requiring each shareholder and option holder that is, or is directly
or indirectly owned or controlled by, a PRC resident to complete any
registration and other procedures required under applicable SAFE Rules and
Regulations.
(ix) According
to “Provisions Regarding Mergers and Acquisitions of Domestic Enterprises by
Foreign Investors”(the “New M&A Rule”), issued by the Ministry of
Commerce, the State-owned Assets Supervision and Administration Commission, the
State Administration of Taxation, the State Administration for Industry and
Commerce, the China Securities Regulatory Commission (“CSRC”), and SAFE on
August 8, 2006, offshore special purpose vehicles, or SPVs, formed for listing
purposes through acquisitions of PRC domestic companies and controlled by PRC
individuals are required to obtain the approval of the CSRC prior to publicly
listing their securities on an overseas stock exchange. The CSRC
approval requirement applies to SPVs that acquired equity interests in PRC
companies through share swaps and using cash. On September 21, 2006,
pursuant to the New M&A Rule and other PRC laws and regulations, the CSRC,
in its official website, promulgated relevant guidance with respect to the
issues of listing and trading of domestic enterprises securities on overseas
stock exchanges, including a list of application materials with respect to the
listing on overseas stock exchanges by SPVs. Based on our
understanding of the current PRC laws, rules and regulations and the New M&A
Rule, the new regulation does not require that the Company obtain prior CSRC
approval for the listing and trading of its shares of common stock on the NASDAQ
Capital Select Market, because the Company had completed its reorganization
under which the equity interests in the PRC Subsidiaries were transferred to the
Company prior to September 8, 2006, and has received all necessary
approvals from PRC regulatory authorities for the acquisition prior to September
8, 2006, the effective date of the New M&A Rule.
2
(x) Subject
to the requirements that the Company’s shareholders or ultimate equity investors
of shareholders who are qualified PRC residents shall comply with foreign
investment registration requirements under the relevant PRC laws and
regulations, all dividends and other distributions declared and payable upon the
equity interests in the PRC Subsidiaries may under the current PRC laws and
regulations of the PRC be paid to the Company in Renminbi that may be converted
into U.S. dollars and freely transferred out of the PRC, and all such dividends
and other distributions are not and will not be subject to withholding or other
taxes under the laws and regulations of the PRC and are otherwise free and clear
of any other tax, withholding or deduction in the PRC, and may be so paid
without the necessity of obtaining any Approvals or registration, clearance or
qualification of or with any governmental authority, agency or body, any
self-regulatory organization or any court or other tribunal in the
PRC.
(xi) Each
PRC Subsidiary has full power, authority and legal right to enter into, execute,
assume, deliver and perform its obligations under each of the contracts
disclosed in the Disclosure Package and the Offering Memorandum, to which it is
a party (collectively, the “Disclosed Contracts”) and has duly authorized,
executed and delivered each of the Disclosed Contracts, and such obligations
constitute valid, legal and binding obligations enforceable against such PRC
Subsidiary in accordance with the terms of each of the Disclosed
Contracts. Each PRC Subsidiary has not sent or received any
communication regarding termination of, or intent not to renew, any of the
Disclosed Contracts, and no such termination or non-renewal has been threatened
by any PRC Subsidiary or any other party to any such contract or
agreement.
(xii) Each
of the Disclosed Contracts and the transactions contemplated thereby are legal,
valid, enforceable and admissible as evidence under the PRC laws and regulations
and is binding on the persons expressed to be parties thereto.
(xiii) None
of the Disclosed Contracts or the transactions contemplated thereby, taken both
individually and together as a whole, has resulted in or results in the creation
or imposition of any lien, charge, encumbrance or claim pursuant to any
instrument or agreement to which any of the relevant PRC Subsidiaries or any of
their respective properties or assets was or is bound.
(xiv) The
execution and delivery by each PRC Subsidiary of, and the performance by each
PRC Subsidiary of its obligations under, the Disclosed Contracts will not
contravene (A) any provision of the applicable PRC laws, regulations or rules,
or any decree, judgment or order of any court of the PRC; (B) the articles of
association of any PRC Subsidiary; or (C) any agreement or other
instrument binding upon any PRC Subsidiary, or any judgment, order or decree of
any governmental body, agency or court in the PRC having jurisdiction over any
PRC Subsidiary, and no consent, approval, authorization or order of, or
qualification with, any PRC governmental body or agency is required for the
performance by any PRC Subsidiary of its obligations and the transactions
contemplated under the Disclosed Contracts.
(xv) The
choice of PRC laws as the governing law in each Disclosed Contract is a valid
choice of governing law and will be binding on the parties to the relevant
Disclosed Contract. None of the PRC Subsidiaries is in breach or
default in the performance of any of the terms or provisions of such Disclosed
Contract, and none of the Disclosed Contract has been amended or revoked or is
liable to be set aside under any applicable PRC laws.
(xvi) The
indemnification and contribution provisions set forth in the Transaction
Documents do not contravene the public interest or laws of the PRC.
3
(xvii) The
irrevocable submission of the Company to the jurisdiction of any New York Court,
the waiver by the Company of any objection to the venue of a proceeding in a New
York Court, the waiver and agreement not to plead an inconvenient forum, the
waiver of sovereign immunity and the agreement of the Company that the
Transaction Documents shall be construed in accordance with and governed by the
laws of the State of New York are legal, valid and binding under the laws of the
PRC and will be respected by PRC courts; service of process effected in the
manner set forth in the Transaction Documents will be effective, insofar as PRC
law is concerned, to confer valid personal jurisdiction over the Company; and
any judgment obtained in a New York Court or arbitration award arising out of or
in relation to the obligations of the Company under the Transaction Documents
will be recognized and enforceable in PRC courts.
(xviii) Neither
the Company, nor any of the PRC Subsidiaries is in breach or violation of or in
default, as the case may be, (A) any provision of the applicable PRC laws,
regulations or rules, or any decree, judgment or order of any court of the PRC
applicable to the Company or any PRC Subsidiary, (B) any Approval granted by any
Governmental Authorities or (C) (in the case of the PRC Subsidiaries) its
respective articles of association, business license or any other constitutive
documents.
(xix) Neither
the Company nor any of the PRC Subsidiaries is in default, and no event has
occurred that, with notice or lapse of time or both, would constitute such a
default, in the due performance or observance of any term, covenant or condition
contained in (A) any indenture, mortgage, deed of trust, loan agreement or other
evidence of indebtedness governed by PRC laws or (B) any license, lease,
contract or other agreement or instrument governed by PRC laws to which the
Company or any PRC Subsidiary is a party or by which any of them is bound or to
which any of their respective properties or assets is subject.
(xx) There
are no legal, governmental, administrative or arbitrative proceedings before any
court of the PRC or before or by any Governmental Authority of the PRC pending
or threatened to which any of the Company or the PRC Subsidiaries is a party or
to which any of the properties of the Company or the PRC Subsidiaries is
subject.
(xxi) Each
of the PRC Subsidiaries owns or leases all such properties as are necessary to
conduct its business operations. Each of the PRC Subsidiaries has (A)
good and marketable title, in each case free and clear of all liens,
encumbrances and defects, and has obtained proper and valid land use rights
certificates, in respect of all the land held by such PRC Subsidiary, (B) good
and marketable title, in each case free and clear of all liens, encumbrances and
defects, and have obtained proper and valid title certificates, in respect of
all the buildings owned or held by such PRC Subsidiary, and (C) valid,
subsisting and enforceable leases, in each case free of all liens, encumbrances,
third parties rights or other defects, in respect of all land and buildings held
under lease by such PRC Subsidiary.
(xxii) The
mining rights of each mine operated by the PRC Subsidiaries are free from any
liens, encumbrances, third parties rights or other defects; there is no claim
against the PRC Subsidiaries in respect of the mining rights of each mine and,
there is no ground for the unilateral termination by the PRC government of the
mining rights of any of such mines prior to the expiry of the term of its mining
permit; and there would be no material legal impediment to renew the mining
rights of each of such mines upon the expiry of the term of such mining
permit.
4
(xxiii) The
PRC Subsidiaries own or have valid licenses in full force and effect or
otherwise have the legal right to use, or can acquire on reasonable terms, all
material copyrights, patents, patent rights, inventions, know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
domain names (the “Intellectual Property”) currently employed by them in
connection with the business currently operated by them as described in the
Disclosure Package and the Offering Memorandum, and none of the PRC Subsidiaries
has received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing.
(xxiv) (A)
There are no third parties who have or will be able to establish rights to any
Intellectual Property except for, and to the extent of, the ownership rights of
the owners of the Intellectual Property which the Disclosure Package and the
Offering Memorandum disclose as licensed to any PRC Subsidiary; (B) there is no
infringement by third parties of any Intellectual Property; (C) no Intellectual
Property of the PRC Subsidiaries is subject to any outstanding decree, order,
injunction, judgment or ruling restricting the use of such Intellectual
Property; (D) the PRC Subsidiaries have complied with the terms of each
agreement pursuant to which Intellectual Property has been licensed to any of
them and all such agreements are in full force and effect; and (E) no employee
of the PRC Subsidiaries is in violation of any term of any patent
disclosure agreement, invention assignment agreement, non-competition agreement,
non-solicitation agreement, non-disclosure agreement or any restrictive covenant
to or with a former employer where the basis of such violation relates to such
employee's employment with the PRC Subsidiaries or actions undertaken
by the employee while employed with the PRC
Subsidiaries.
(xxv) There
are no outstanding guarantees or contingent payment obligations of the PRC
Subsidiaries in respect of indebtedness of third parties.
(xxvi) (A)
Each of the PRC Subsidiaries is in compliance with and is not in breach of any
applicable rules, regulations, statutes and subordinate legislation and other
national, state and local laws, insofar as they relate to the protection of
human health and safety and the environment from hazardous or toxic substances,
wastes, pollutants or contaminants (“Environmental and Safety Laws”); (B) each
of the PRC Subsidiaries has received and is in compliance with all permits,
licenses or other approvals required of them under applicable Environmental and
Safety Laws to conduct their respective businesses; (C) each of the PRC
Subsidiaries has not received notice of any actual or potential liability
(including, without limitation, administrative regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of non-compliance or
violation, investigation or proceeding against any of the PRC Subsidiaries)
under any Environmental and Safety Law; and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an order
for clean-up or remedial measures, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting any of the
PRC Subsidiaries relating to hazardous material (including, without limitation,
any hazardous or toxic substances, chemicals, petroleum, petroleum products,
pollutants or contaminants).
(xxvii) There
is no pending or threatened PRC regulatory, administrative or other governmental
initiative that, if implemented or adopted in the manner proposed or
contemplated, would have a material adverse effect on the operations of any PRC
Subsidiary in the PRC in the manner presently conducted or as disclosed in the
Disclosure Package and the Offering Memorandum.
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(xxviii) No
labor dispute, work stoppage, slow down or other conflict with the employees of
any of the PRC Subsidiaries exists or is imminent or threatened.
(xxix) (A)
The PRC tax laws and regulations applicable to the activities of the PRC
Subsidiaries in the PRC are assessed or apply to the PRC Subsidiaries in
substantially the same manner as are currently applicable to any company
incorporated under the PRC Company Law engaged in the same business as the
Company in the PRC; (B) there are no material PRC fees or taxes that are or will
become applicable to any of the PRC Subsidiaries as a consequence of the
reorganization or the Offering that have not been disclosed in the Disclosure
Package and the Offering Memorandum; and (C) all returns, reports or filings
which ought to have been made by or in respect of the PRC Subsidiaries for
taxation purposes as required by the law of the PRC have been made and all such
returns are correct and on a proper basis in all material respects and are not
the subject of any dispute with the relevant tax, revenue or other appropriate
authorities. All taxes and other assessments of a similar nature
(whether imposed directly or through withholding) including any interest,
additions to tax or penalties applicable thereto due or claimed to be due from
such authorities have been paid in full; and the PRC Subsidiaries have not
committed any breach of the relevant PRC tax laws and
regulations. All national, provincial and local tax waivers, tax
relief, concession and preferential treatment are valid, binding and enforceable
and do not violate any provision of PRC laws.
(xxx) Each
PRC Subsidiary is not prohibited, directly or indirectly, from paying any
dividends to the Company, from making any other distribution on its capital
stock, from repaying to the Company any loans or advances to it from the Company
or from transferring any of its property or assets to the Company or any other
subsidiaries of the Company.
(xxxi) Neither
the Company nor any of the PRC Subsidiaries has any financial obligation to the
PRC government or National Council for Social Security Fund in connection with
the Offering as contemplated by the Disclosure Package and the Offering
Memorandum. Subject to applicable PRC statutory requirements, the PRC
Subsidiaries have no other material legal obligations to provide housing
benefits or retirement benefits, death or disability benefits (or other actual
or contingent employee benefits or perquisites) to any present or past employee,
whether permanent or temporary, of the PRC Subsidiaries.
(xxxii) The
application of the net proceeds to be received by the Company from the Offering
as contemplated by the Disclosure Package and the Offering Memorandum will not
contravene, breach or violate (A) any provision of applicable PRC laws, rules or
regulations, (B) any articles of association, other constitutive documents or
business licenses of any PRC Subsidiary, (C) any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which any of the PRC
Subsidiaries is a party or bound or to which their property is
subject, or (D) any judgment, order or decree of any governmental body, agency
or court in the PRC having jurisdiction over the Company or any PRC Subsidiary,
or (E) result in the imposition of any lien, charge or encumbrance upon any
property or assets of any of the PRC Subsidiaries.
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(xxxiii) The
issue and sale of the Notes by the Company, the execution and delivery by the
Company or the Trustee of, and the performance by the Company or the Trustee of
its obligations under, the Transaction Documents and the issuance of the shares
of the Common Stock upon conversion of the Notes as set forth in the Transaction
Documents will not contravene (A) any provision of applicable law, statute,
order, rule or regulation of the PRC, (B) any provision of the articles of
association, by-laws, business license or other constituent documents
of any PRC Subsidiary, (C) any judgment, order or decree of any governmental
body, agency or court of the PRC having jurisdiction over any PRC Subsidiary, or
(D) any agreement or other instrument binding upon any PRC
Subsidiary. No consent, approval, authorization or order of, or
qualification with, any PRC governmental body or agency is required for the
issue and sale of the Notes by the Company, the performance by the Company or
the Trustee of its obligations under the Transaction Documents and the issuance
of the shares of the Common Stock upon conversion of the Notes as set forth in
the Transaction Documents.
(xxxiv) The
entering into and performance or enforcement of the Transaction Documents in
accordance with their respective terms will not subject any of the Initial
Purchasers or the Trustee to any requirement to be licensed or otherwise
qualified to do business in the PRC, nor will any Initial Purchaser or the
Trustee be deemed to be resident, domiciled, carrying on business through an
establishment or place in the PRC or in breach of any laws or regulations in the
PRC by reason of the entering into, performance or enforcement of the
Transaction Documents.
(xxxv) It
is not necessary to ensure the legality, validity, enforceability or
admissibility in evidence of the Transaction Documents that any such document be
filed, recorded or enrolled with any governmental department, agency or other
authority in the PRC.
(xxxvi) There
are no reporting obligations under PRC law on non-PRC holders of the Notes of
the Company or the shares of the Common Stock upon conversion of the
Notes.
(xxxvii) As
a matter of PRC law, neither the Company, the Trustee nor any holder of the
Notes or the shares of the Common Stock upon conversion of the Notes will be
subject to any personal liability, or be subject to a requirement to be licensed
or otherwise qualified to do business or be deemed domiciled or resident in the
PRC, by virtue only of holding such Notes, the shares of the Common Stock upon
conversion or of the Company’s holding shares of capital stock of, or equity
interest in, the PRC Subsidiaries. There are no limitations under the
PRC law on the rights of the Company to hold, vote or transfer its shares of
capital stock of, or equity interest in, the PRC Subsidiaries held directly or
indirectly by the Company, or on the rights of the holders of the Notes or the
shares of the Common Stock upon conversion of the Notes to hold, vote or
transfer their securities nor any statutory pre-emptive rights or transfer
restrictions applicable to the shares of the Common Stock or the
Notes.
(xxxviii) No
stamp or other issuance or transfer taxes or duties and no capital gains,
income, withholding or other taxes are payable by or on behalf of the Initial
Purchasers to the government of the PRC or to any political subdivision or
taxing authority thereof in connection with (A) the execution or delivery of the
Transaction Documents or the performance by any of the parties of their
respective obligations thereof, or the enforcement or admissibility in evidence
of the Transaction Documents, (B) the issuance, sale or delivery of the Notes to
the Initial Purchasers, (C) the subsequent sale and delivery of the Notes
outside of the PRC by the Initial Purchasers thereof or (D) the issuance of the
shares of the Common Stock upon conversion of the Notes.
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(xxxix) The
choice of law provisions set forth in the Transaction Documents will be
recognized by PRC courts; each of the Company and the PRC Subsidiaries can sue
and be sued in its own name under the laws of the PRC.
(xl)
Service of process effected in the manner set forth in the Transaction Documents
will be effective to confer jurisdiction over the PRC Subsidiaries, assets and
property of the Company in the PRC, subject to compliance with relevant civil
procedural requirements in the PRC, and any judgment obtained in a New York
Court arising out of or in relation to the obligations of the PRC Subsidiaries
under the Transaction Documents will be recognized by PRC courts and enforceable
against the Company and the PRC Subsidiaries in PRC courts, subject to
compliance with relevant civil procedural requirements in the PRC.
(xli) Neither
the Company, or the PRC Subsidiaries nor any of their respective properties,
assets or revenues has any right of immunity under PRC laws, from any legal
action, suit or proceeding, from the giving of any relief in any such legal
action, suit or proceeding, from set-off or counterclaim, from the jurisdiction
of any PRC court, from service of process, attachment upon or prior to judgment,
or attachment in aid of execution of judgment, or from execution of a judgment,
or other legal process or proceeding for the giving of any relief or for the
enforcement of a judgment, in any such court, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
the Transaction Documents.
(xlii) The
Transaction Documents are in proper legal form under PRC law for the enforcement
thereof under PRC law against the Company, subject to compliance with relevant
civil procedural requirements; so far as matters of PRC law are concerned,
constitutes the legal, valid and binding obligations of the Company, enforceable
in accordance with the terms therein; and to ensure the legality, validity,
enforceability or admissibility in evidence of the Transaction Documents in the
PRC, it is not necessary that such document be filed or recorded with any court
or other authority in the PRC or that any stamp or similar tax be paid on or in
respect of such document.
(xliii) (A)
The Disclosure Package (except for the financial statements and financial
schedules and other financial data included therein, as to which we need not
express any belief) as of the Applicable Time or as of the date hereof did not
or does not contain any untrue statement of a material fact or did not or does
not omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; or (B) the Offering Memorandum (except for the financial statements
and financial schedules and other financial data included therein, as to which
we need not express any belief) as of its date or as amended or supplemented, if
applicable, as of its date or the date hereof did not or does not contain any
untrue statement of a material fact or did not or does not omit to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(xliv) The
Statements in the Disclosure Package and the Offering Memorandum under “Risk
Factors”, “Dividend Policy”, “Management’s Discussion and Analysis of Financial
Condition and Results of Operations”, “Business”, “Taxation” and “Management”
insofar as they purport to describe the provisions of PRC laws and documents
referred to therein, are accurate, complete and fair summaries
thereof. All matters of PRC law and practice relating to the Company
and the PRC Subsidiaries and their respective businesses and other statements
with respect to or involving PRC law set forth in the Disclosure Package and the
Offering Memorandum are correctly set forth therein, and nothing has been
omitted from such statements which would make the same misleading in any
material respect.
8