EXHIBIT 1.1
[-] AMERICAN DEPOSITARY SHARES
EACH REPRESENTING ONE ORDINARY SHARE, PAR VALUE US$0.001 PER ORDINARY SHARE
E-HOUSE (CHINA) HOLDINGS LIMITED
UNDERWRITING AGREEMENT
[-], 2008
CREDIT SUISSE SECURITIES (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Four World Financial Center
250 Vesey Street
New York, N.Y. 10080
As Representatives of the Several Underwriters
Dear Sirs:
1. Introductory. E-House (China) Holdings Limited, an exempted company
with limited liability incorporated under the laws of the Cayman Islands
("COMPANY"), agrees with the several Underwriters named in Schedule A hereto
("UNDERWRITERS") to issue and sell [-] American Depositary Shares ("ADSS"), each
ADS representing one ordinary share of the Company, par value US$0.001 per share
(collectively, "ORDINARY SHARES") and the shareholders listed in Schedule B
hereto ("SELLING SHAREHOLDERS") propose to sell severally an aggregate of [-]
ADSs (together with the ADSs being sold by the Company being hereinafter
referred to as the "FIRM SECURITIES"). Jun Heng Investment Limited, one of the
Selling Shareholders agrees to sell to the Underwriters, at the option of the
Representatives, an aggregate of not more than [-] additional ADSs (the
"OPTIONAL SECURITIES"). The Firm Securities and the Optional Securities are
herein collectively called the "OFFERED SECURITIES". Unless the context
otherwise requires, each reference to the Firm Securities, the Optional
Securities or the Offered Securities herein also includes the Ordinary Shares
underlying such Securities.
The ADSs purchased by the Underwriters will be evidenced by American
Depositary Receipts ("ADRS") to be issued pursuant to a Deposit Agreement dated
as of August 7, 2007 (the "DEPOSIT AGREEMENT"), entered into among the Company,
JPMorgan Chase Bank, N.A., as depositary (the "DEPOSITARY"), and all owners and
beneficial owners from time to time of the ADSs.
2. Representations and Warranties of the Company and Selling Shareholders.
(a) The Company represents and warrants to, and agrees with, the several
Underwriters that:
(i) Filing and Effectiveness of Registration Statement; Certain
Defined Terms. The Company has filed with the Commission a registration
statement on Form F-1 (No. 333-148729) covering the registration of
the Offered Securities under the Act, including a related preliminary
prospectus or prospectuses. At any particular time, this initial
registration statement, in the form then on file with the Commission,
including all information contained in the registration statement (if any)
pursuant to Rule 462(b) and then deemed to be a part of the initial
registration statement, and all 430A Information and all 430C Information,
that in any case has not then been superseded or modified, shall be
referred to as the "INITIAL REGISTRATION STATEMENT". The Company may also
have filed, or may file with the Commission, a Rule 462(b) registration
statement covering the registration of Offered Securities. At any
particular time, this Rule 462(b) registration statement, in the form then
on file with the Commission, including the contents of the Initial
Registration Statement incorporated by reference therein and including all
430A Information and all 430C Information, that in any case has not then
been superseded or modified, shall be referred to as the "ADDITIONAL
REGISTRATION STATEMENT". A registration statement on Form F-6
(No.333-144450) relating to the ADSs has been filed with the Commission
and has become effective; no stop order suspending the effectiveness of
the ADS Registration Statement (as defined below) is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of
the Company, threatened by the Commission (such registration statement on
Form F-6, including all exhibits thereto, as amended at the time such
registration statement becomes effective, being hereinafter called the
"ADS REGISTRATION STATEMENT"). Since the filing of the Registration
Statement until the date hereof, other than the the General Disclosure
Package (as defined below), the Company has not approved the distribution
of or provided any written materials to prospective investors of the
Offered Securities.
As of the time of execution and delivery of this Agreement, the
Initial Registration Statement has been declared effective under the Act
and is not proposed to be amended. Any Additional Registration Statement
has or will become effective upon filing with the Commission pursuant to
Rule 462(b) and is not proposed to be amended. The Offered Securities all
have been or will be duly registered under the Act pursuant to the Initial
Registration Statement and, if applicable, the Additional Registration
Statement.
For purposes of this Agreement:
"430A INFORMATION", with respect to any registration statement,
means information included in a prospectus and retroactively deemed to be
a part of such registration statement pursuant to Rule 430A(b).
"430C INFORMATION", with respect to any registration statement,
means information included in a prospectus then deemed to be a part of
such registration statement pursuant to Rule 430C.
"ACT" means the Securities Act of 1933, as amended.
"APPLICABLE TIME" means [-] (Eastern time) on [-], 2008.
"CLOSING DATE" has the meaning defined in Section 3 hereof.
"COMMISSION" means the Securities and Exchange Commission.
"EFFECTIVE DATE" with respect to the Initial Registration Statement
or the Additional Registration Statement (if any) means the date of the
Effective Time thereof.
"EFFECTIVE TIME" with respect to the Initial Registration Statement
or, if filed prior to the execution and delivery of this Agreement, the
Additional Registration Statement means the date and time as of which such
Registration Statement was declared effective by the Commission or has
become effective upon filing pursuant to Rule 462(c). If an Additional
Registration Statement has not been filed prior to the execution and
delivery of this Agreement but the Company has advised the Representatives
that it proposes to file one, "EFFECTIVE TIME" with respect to such
Additional Registration Statement means the date and time as of which such
Registration Statement is filed and becomes effective pursuant to Rule
462(b).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"FINAL PROSPECTUS" means the Statutory Prospectus that discloses the
public offering price, other 430A Information and other final terms of the
Offered Securities and otherwise satisfies Section 10(a) of the Act.
"GENERAL USE ISSUER FREE WRITING PROSPECTUS" means any Issuer Free
Writing Prospectus that is intended for general distribution to
prospective investors, as evidenced by its being so specified in Schedule
C to this Agreement.
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"ISSUER FREE WRITING PROSPECTUS" means any "issuer free writing
prospectus," as defined in Rule 433, relating to the Offered Securities in
the form filed or required to be filed with the Commission or, if not
required to be filed, in the form retained in the Company's records
pursuant to Rule 433(g).
"LIMITED USE ISSUER FREE WRITING PROSPECTUS" means any Issuer Free
Writing Prospectus that is not a General Use Issuer Free Writing
Prospectus.
The Initial Registration Statement and the Additional Registration
Statement are referred to collectively as the "REGISTRATION STATEMENTS"
and individually as a "REGISTRATION STATEMENT". A "REGISTRATION STATEMENT"
with reference to a particular time means the Initial Registration
Statement and any Additional Registration Statement as of such time. A
"REGISTRATION STATEMENT" without reference to a time means such
Registration Statement as of its Effective Time. For purposes of the
foregoing definitions, 430A Information with respect to a Registration
Statement shall be considered to be included in such Registration
Statement as of the time specified in Rule 430A.
"RULES AND REGULATIONS" means the rules and regulations of the
Commission.
"SECURITIES LAWS" means, collectively, the Sarbanes-Oxley Act of
2002 ("SARBANES-OXLEY"), the Act, the Exchange Act, the Rules and
Regulations, the auditing principles, rules, standards and practices
applicable to auditors of "issuers" (as defined in Sarbanes-Oxley)
promulgated or approved by the Public Company Accounting Oversight Board
and, as applicable, the rules of the New York Stock Exchange ("EXCHANGE
RULES").
"STATUTORY PROSPECTUS" with reference to a particular time means the
prospectus included in a Registration Statement immediately prior to that
time, including any 430A Information or 430C Information with respect to
such Registration Statement. For purposes of the foregoing definition,
430A Information shall be considered to be included in the Statutory
Prospectus as of the actual time that form of prospectus is filed with the
Commission pursuant to Rule 424(b) or Rule 462(c) and not retroactively.
Unless otherwise specified, a reference to a "rule" is to the
indicated rule under the Act.
(ii) Compliance with Securities Act Requirements. (i) (A) On their
respective Effective Dates, (B) on the date of this Agreement and (C) on
each Closing Date, each of the Initial Registration Statement, the ADS
Registration Statement and the Additional Registration Statement (if any)
conformed and will conform in all material respects to the requirements of
the Act and the Rules and Regulations and did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading and (ii) on its date, at the time of filing of the Final
Prospectus pursuant to Rule 424(b) or (if no such filing is required) at
the Effective Date of the Additional Registration Statement in which the
Final Prospectus is included, and on each Closing Date, the Final
Prospectus will conform in all respects material to the requirements of
the Act and the Rules and Regulations and will not include any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. The preceding sentence does not apply to statements in or
omissions from any such document based upon written information furnished
to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 8(b) hereof.
(iii) Ineligible Issuer Status. (i) At the time of initial filing of
the Initial Registration Statement and (ii) at the date of this Agreement,
the Company was not and is not an "ineligible issuer," as defined in Rule
405, including (x) the Company or any other subsidiary in the preceding
three years not having been convicted of a felony or misdemeanor or having
been made the subject of a judicial or administrative decree or order as
described in Rule 405 and (y) the Company in the preceding three years not
having been the subject of a bankruptcy petition or insolvency or similar
proceeding, not having had a registration statement be the subject of a
proceeding under Section 8 of the Act and not being the subject of a
proceeding under Section 8A of the Act in connection with the offering of
the Offered Securities, all as described in Rule 405.
(iv) General Disclosure Package. As of the Applicable Time, neither
(i) the General Use Issuer Free Writing Prospectus(es) issued at or prior
to the Applicable Time, the preliminary prospectus, dated [-],
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2008 (which is the most recent Statutory Prospectus distributed to
investors generally) and the other information, if any, stated in Schedule
C to this Agreement to be included in the General Disclosure Package, all
considered together (collectively, the "GENERAL DISCLOSURE PACKAGE"), nor
(ii) any individual Limited Use Issuer Free Writing Prospectus, when
considered together with the General Disclosure Package, included any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding
sentence does not apply to statements in or omissions from any Statutory
Prospectus or any Issuer Free Writing Prospectus in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by
any Underwriter consists of the information described as such in Section
8(b) hereof.
(v) Issuer Free Writing Prospectuses. Each Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Offered Securities or until
any earlier date that the Company notified or notifies the Representatives
as described in the next sentence, did not, does not and will not include
any information that conflicted, conflicts or will conflict with the
information then contained in the Registration Statement. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or
occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information then
contained in the Registration Statement or as a result of which such
Issuer Free Writing Prospectus, if republished immediately following such
event or development, would include an untrue statement of a material fact
or omitted or would omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, (i) the Company has promptly notified or
will promptly notify the Representatives and (ii) the Company has promptly
amended or will promptly amend or supplement such Issuer Free Writing
Prospectus to eliminate or correct such conflict, untrue statement or
omission.
(vi) Good standing of the Company. The Company has been duly
incorporated and is existing and in good standing under the laws of the
Cayman Islands, with power and authority (corporate and other) to own its
properties and conduct its business as described in the General Disclosure
Package; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such qualification, except where the failure to so qualify would not
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries taken as a whole ("MATERIAL
ADVERSE EFFECT").
(vii) Subsidiaries. The Company does not own or control, directly or
indirectly, any corporation, association or entity other than E-House &
Cityrehouse Real Estate Consultancy Ltd. ("CITYREHOUSE CONSULTANCY");
E-House Real Estate Ltd. ("E-HOUSE REAL ESTATE"); CRIC (China) Information
Technology Co., Ltd. ("CRIC BVI"); E-House Real Estate Asset Management
Limited ("E-HOUSE ASSET MANAGEMENT"), 51% of which is owned by the Company
and 30% of which is owned by certain directors of the Company, 8% of which
is owned by certain employees of the company and 11% of which is owned by
unrelated third parties; E-House (China) Capital Investment Management
Ltd. ("E-HOUSE CAPITAL"); E-House & Cityrehouse Real Estate Development
Limited ("CITYREHOUSE DEVELOPMENT"), 85% of which is owned by Cityrehouse
Consultancy and the 15% of which is owned by Home Advisor Properties
Limited, which is wholly-owned by Ber Jen Ko, one of our executive
officers; E-House International Estate Agency Limited ("E-HOUSE HONG
KONG"), which is wholly owned by Cityrehouse Consultancy; E-House China
Inc. ("E-HOUSE USA"), which is wholly owned by E-House Hong Kong; E-House
(Macau) International Property Limited ("E-HOUSE MACAU"), 90% of which is
owned by E-House Hong Kong and 10% of which is owned by Cityrehouse
Consultancy; E-House Property Investment Management (China) Limited
("E-HOUSE PROPERTY"), 55% of which is owned by E-House Capital and 45% of
which is owned by unrelated third parties; E-House (China) International
Property Development Ltd. ("E-HOUSE PROPERTY BVI"), which is wholly owned
by the Company; Kornwell Investments Limited ("KORNWELL"), which is wholly
owned by the Company; Shanghai Cityrehouse Real Estate Agency Co., Ltd.
("CITYREHOUSE CHINA"), which is wholly-owned by Cityrehouse Development;
Shanghai Real Estate Consultant and Sales (Group) Co., Ltd. ("E-HOUSE
SHANGHAI"), which is wholly-owned by E-House Real Estate; Shanghai CRIC
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Information Technology Co., Ltd. ("CRIC CHINA"), which is wholly owned by
CRIC BVI; and the real estate agency subsidiaries owned by E-House
Shanghai in the proportions set forth on Schedule G hereto (the "OPERATING
SUBSIDIARIES"). Each of Cityrehouse Consultancy, E-House Real Estate, CRIC
BVI, E-House Asset Management; E-House Capital, Cityrehouse Development,
E-House Hong Kong, Citryrehouse China, E-House Shanghai, CRIC China and
the Operating Subsidiaries is referred to as a "SUBSIDIARY" and
collectively as the "SUBSIDIARIES", and each of Cityrehouse China, E-House
Shanghai, CRIC China and each of the Operating Subsidiaries is referred to
as a "PRC SUBSIDIARY" and collectively as the "PRC SUBSIDIARIES". Each of
Cityrehouse Consultancy, E-House Real Estate, CRIC BVI, E-House Asset
Management, E-House Capital, Cityrehouse Development, E-House Property BVI
and Kornwell is referred to as a "OFFSHORE SUBSIDIARY" and collectively as
the "OFFSHORE SUBSIDIARIES". E-House Asset Management is the general
partner of E-House Real Estate investment Fund I, L.P. (the "FUND"). Each
subsidiary of the Company and the Fund has been duly incorporated and is
existing and in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the General Disclosure
Package; and each subsidiary of the Company and the Fund is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification, except where the failure to
so qualify would not reasonably be expected to have a Material Adverse
Effect; all of the issued and outstanding capital stock of each subsidiary
of the Company has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each subsidiary owned by
the Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(viii) Offered Securities. The Offered Securities and all other
outstanding shares of capital stock of the Company have been duly
authorized; the authorized equity capitalization of the Company is as set
forth in the General Disclosure Package and, upon the issuance and sale of
the Firm Securities, the Company shall have an authorized and outstanding
capital as set forth under the column of the Capitalization table labeled
"As Adjusted"; all outstanding shares of capital stock of the Company are,
and, when the Offered Securities and the underlying Ordinary Shares have
been issued, delivered and paid for in accordance with this Agreement and
the Deposit Agreement, as the case may be, on each Closing Date, such
Offered Securities will have been, validly issued, fully paid and
nonassessable, will conform to the information in the General Disclosure
Package and to the description of such Offered Securities contained in the
Final Prospectus; the shareholders of the Company have no preemptive
rights with respect to the Securities, and none of the outstanding shares
of capital stock of the Company have been issued in violation of any
preemptive or similar rights of any security holder, the Offered
Securities and the underlying Ordinary Shares to be sold by the Company,
when issued and delivered against payment heretofore pursuant to this
Agreement, will not be subject to any security interest, other encumbrance
or adverse claims, and have been issued in compliance with all federal and
state securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar right; upon payment
of the purchase price in accordance with this Agreement at each Closing
Date, the Depositary or its nominee, as the registered holder of the
Ordinary Shares represented by the Offered Securities, will be, subject to
the terms of the Deposit Agreement, entitled to all the rights of a
shareholder conferred by the Memorandum and Articles of Association of the
Company; except as disclosed in the General Disclosure Package as of the
Applicable Time and subject to the terms and provisions of the Deposit
Agreement, there are no restrictions on transfers of Ordinary Shares
represented by the Offered Securities or the Offered Securities under the
laws of the Cayman Islands or the United States, as the case may be; the
Ordinary Shares represented by the Offered Securities may be freely
deposited by the Company with the Depositary or its nominee against
issuance of ADRs evidencing the Offered Securities as contemplated by the
Deposit Agreement.
(ix) No Finder's Fee. Except as disclosed in the General Disclosure
Package, 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 Underwriter for a brokerage commission, finder's fee or
other like payment in connection with this offering.
(x) Registration Rights. Except as disclosed in the General
Disclosure Package, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the
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Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to a
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Act
(collectively, "REGISTRATION RIGHTS"), and any person to whom the Company
has granted registration rights has agreed not to exercise such rights
until after the expiration of the Lock-Up Period referred to in Section 5
hereof.
(xi) Listing. The Offered Securities have been approved for listing
on the New York Stock Exchange, subject only to notice of issuance, and
apart from the Offered Securities, the other ADSs representing Ordinary
Shares of the Company that were issued in connection with the Company's
initial public offering are validly listed on the New York Stock Exchange.
(xii) Absence of Further Requirements. No consent, approval,
authorization, or order of, or filing or registration ("GOVERNMENT
AUTHORIZATION") with, any person (including any governmental agency or
body or any court) (a "GOVERNMENT AGENCY") is required for the
consummation of the transactions contemplated by this Agreement in
connection with the offering, issuance and sale of the Offered Securities
by the Company, except such as have been obtained, or made and such as may
be required under state securities laws.
(xiii) Title to Property. Except as disclosed in the General
Disclosure Package, the Company and its subsidiaries have good and
marketable title to all real properties and all other properties and
assets owned by them, in each case free from liens, charges, encumbrances
and defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them and, except as
disclosed in the General Disclosure Package, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases (the "COMPANY LEASES") with no terms or provisions that
would materially interfere with the use made or to be made thereof by
them. Neither the Company nor any of its subsidiaries is in default under
any of the Company Leases that would, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, and neither the
Company nor any of the subsidiaries knows of any event, which but for the
passage of time or the giving of notice, or both, would constitute a
default under any of such documents or agreements that would reasonably be
expected to have Material Adverse Effect.
(xiv) Validity of Leases. Except as disclosed in the General
Disclosure Package, no consent, approval, authorization, or order of, or
filing or registration with, any person (including any governmental agency
or body or any court) is required for the validity, enforceability or
effectiveness of the Company Leases and to the best of the Company's
knowledge, no party to any Company Lease is in violation or breach of any
PRC national, provincial, municipal or other local law, regulation
statute, rule or order, which violation or breach could invalidate, impair
or result in any fine, penalty or government sanction with regard to any
Company Lease, except as disclosed in the General Disclosure Package or as
would not reasonably be expected to result in a Material Adverse Effect.
(xiv) Absence of Defaults and Conflicts Resulting from Transaction.
The execution, delivery and performance of this Agreement and the Deposit
Agreement, and the issuance and sale of the Offered Securities and
Ordinary Shares represented by the Offered Securities will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default or a Debt Repayment Triggering Event (as defined below) under, or
result in the imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
the charter or by-laws of the Company or any of its subsidiaries, any
statute, rule, regulation or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the Company or
any of its subsidiaries or any of their properties, or any agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the properties of the Company or any of its subsidiaries is subject; a
"DEBT REPAYMENT TRIGGERING EVENT" means any event or condition that gives,
or with the giving of notice or lapse of time would give, the holder of
any note, debenture, or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or any of its subsidiaries.
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(xv) Absence of Existing Defaults and Conflicts. Neither the Company
nor any of its subsidiaries is in violation of its respective charter or
by-laws or in default (or with the giving of notice or lapse of time would
be in default) under any existing obligation, agreement, covenant or
condition contained in any indenture, loan agreement, mortgage, lease or
other agreement or instrument to which any of them is a party or by which
any of them is bound or to which any of the properties of any of them is
subject, except such defaults that would not, individually or in the
aggregate, result in a Material Adverse Effect.
(xvi) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company.
(xvii) Authorization of Deposit Agreement. The Deposit Agreement has
been duly authorized, executed and delivered by the Company and, assuming
due authorization, execution and delivery by the Depositary, constitutes a
valid and legally binding obligation of the Company, enforceable in
accordance with its terms, subject, as to enforceability, to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; upon due issuance by the Depositary of the ADRs
evidencing the Offered Securities against the deposit of the underlying
Ordinary Shares in respect thereof in accordance with the provisions of
the Deposit Agreement, such ADRs will be duly and validly issued and the
persons in whose names the ADRs are registered will be entitled to the
rights specified therein and in the Deposit Agreement; the Deposit
Agreement and the ADRs conform in all material respects to the
descriptions thereof contained in the General Disclosure Package as of the
Applicable Time.
(xviii) Possession of Licenses and Permits. The Company, its
subsidiaries and the Fund possess, and are in compliance with the terms
of, all adequate certificates, authorizations, franchises, licenses and
permits ("LICENSES") necessary or material to the conduct of the business
now conducted or proposed in the General Disclosure Package to be
conducted by them and have not received any notice of proceedings relating
to the revocation or modification of any Licenses that, if determined
adversely to the Company, any of its subsidiaries or the Fund, would
individually or in the aggregate have a Material Adverse Effect.
(xix) Absence of Labor Dispute. No 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 or
imminent labor disturbance by the employees of any of its or its
subsidiaries' principal suppliers, contractors or customers, that, in any
such case, could have a Material Adverse Effect.
(xx) Possession of Intellectual Property. Except as otherwise
disclosed in the General Disclosure Package and the Final Prospectus, the
Company and its subsidiaries own, possess or can acquire on reasonable
terms, adequate trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xxi) Environmental Laws. Except as disclosed in the General
Disclosure Package, neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating
to the protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "ENVIRONMENTAL LAWS"), owns
or operates any real property contaminated with any substance that is
subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have a Material
Adverse Effect; and the Company is not aware of any pending investigation
which might lead to such a claim.
(xxii) Accurate Disclosure. The statements in the General Disclosure
Package and the Final Prospectus under the headings "Prospectus Summary",
"Risk Factors", "Use of Proceeds", "Dividend
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Policy", "Enforceability of Civil Liabilities", "Management's Discussion
and Analysis of Financial Condition and Results of Operations",
"Regulation", "Management", "Related Party Transactions", "Description of
Share Capital", "Description of American Depositary Shares", "Shares
Eligible for Future Sale", "Taxation" and "Underwriting", insofar as such
statements summarize legal matters, agreements, documents or proceedings
discussed therein, are accurate and fair summaries of such legal matters,
agreements, documents or proceedings and present the material information
required to be shown.
(xxiii) Statistical and Market-Related Data. Any third-party
statistical and market-related data included in a Registration Statement,
a Statutory Prospectus or the General Disclosure Package are based on or
derived from sources that the Company believes to be reliable and
accurate, and relevant third-party consents for such data to be included
therein have been duly obtained and have not been revoked.
(xxiv) Internal Controls and Compliance with the Sarbanes-Oxley Act.
Except as set forth in the General Disclosure Package, the Company, its
subsidiaries and the Company's Board of Directors (the "BOARD"), Audit
Committee ("AUDIT COMMITTEE"), Compensation Committee and Corporate
Governance and Nominating Committee are in compliance with Sarbanes-Oxley
and all applicable Exchange Rules. The Company maintains a system of
internal controls, including, but not limited to, disclosure controls and
procedures, internal controls over accounting matters and financial
reporting, an internal audit function and legal and regulatory compliance
controls (collectively, "INTERNAL CONTROLS") that comply with the
Securities Laws and are sufficient to provide reasonable assurances 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. General
Accepted Accounting Principles and to maintain accountability for assets,
(iii) access to assets is permitted only in accordance with management's
general or specific authorization, (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 and (v) the
Company has adopted and applies corporate governance guidelines. The
Internal Controls are, or upon consummation of the offering of the Offered
Securities will be, overseen by the Audit Committee of the Board in
accordance with Exchange Rules. The Company has not publicly disclosed or
reported to the Audit Committee or the Board, and within the next 135 days
the Company does not reasonably expect to publicly disclose or report to
the Audit Committee or the Board, a significant deficiency, material
weakness, change in Internal Controls or fraud involving management or
other employees who have a significant role in Internal Controls (each, an
"INTERNAL CONTROL EVENT"), any violation of, or failure to comply with,
the Securities Laws, or any matter which, if determined adversely, would
have a Material Adverse Effect. Each of the Company's independent
directors meets the criteria for "independence" under Sarbanes-Oxley and
the Exchange Rules.
(xxv) Absence of Accounting Issues. The Board has confirmed to the
Chief Executive Officer, Chief Financial Officer or General Counsel that,
except as set forth in the General Disclosure Package, the Board is not
reviewing or investigating, and neither the Company's independent auditors
nor its internal auditors have recommended that the Board review or
investigate, (i) adding to, deleting, changing the application of, or
changing the Company's disclosure with respect to, any of the Company's
material accounting policies; (ii) any matter which could result in a
restatement of the Company's financial statements for any annual or
interim period during the current or prior three fiscal years; or (iii)
any Internal Control Event; Under FIN46(R), the Company need not
consolidate the financial statements of the developer client described in
its press releases furnished on Form 6-K dated November 16, 2007 and
December 6, 2007; any potential consolidation of the financial statements
of E-House Property Investment 1 (China) Limited will not have a material
impact on the Company's consolidated financial statements.
(xxvi) Litigation. Except as disclosed in the General Disclosure
Package, there are no pending actions, suits or proceedings (including any
inquiries or investigations by any court or governmental agency or body,
domestic or foreign) against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a Material Adverse Effect, or would materially and
adversely affect the ability of the Company to perform its obligations
under this Agreement or the Deposit Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and, to the
Company's
8
knowledge, no such actions, suits or proceedings (including any inquiries
or investigations by any court or governmental agency or body, domestic or
foreign) are threatened or contemplated.
(xxvii) Financial Statements. The financial statements included in
each Registration Statement and the General Disclosure Package comply as
to form in all material respects with the requirements of Regulation S-X
under the Act and present fairly the financial position of the Company and
the Company's consolidated subsidiaries and affiliates as of the dates
shown and their results of operations and cash flows for the periods
shown, and, except as otherwise disclosed in the General Disclosure
Package, such financial statements have been prepared in conformity with
the generally accepted accounting principles in the United States applied
on a consistent basis; and the schedules included in each Registration
Statement present fairly the information required to be stated therein.
(xxviii) Independent Auditors. Deloitte Touche Tohmatsu CPA Limited,
who have issued audited report with respect to the financial statements
for the year ended December 31, 2004, 2005 and 2006 and filed with the
Commission as part of the General Disclosure Package as of the Applicable
Time and the Registration Statement, are independent public accountants as
required by the Act and are registered with the Public Company Accounting
Oversight Board.
(xxix) No Material Adverse Change in Business. Except as disclosed
in the General Disclosure Package, since the end of the period covered by
the latest audited financial statements included in the General Disclosure
Package (i) there has been no change, nor any development or event
involving a prospective change, in the condition (financial or otherwise),
results of operations, business, properties or prospects of the Company
and its subsidiaries, taken as a whole which would have a Material Adverse
Effect, (ii) except as disclosed in or contemplated by the General
Disclosure Package, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock,
(iii) except as disclosed in or contemplated by the General Disclosure
Package, there has been no material adverse change in the capital stock,
short-term indebtedness, long-term indebtedness, net current assets or net
assets of the Company and its subsidiaries, (iv) except as disclosed in or
contemplated by the General Disclosure Package, there has been no
transaction by the Company and its subsidiaries which would have a
Material Adverse Effect, and (v) except as disclosed in or contemplated by
the General Disclosure Package, there has been no obligation, direct or
contingent (including any off-balance sheet obligations), incurred by the
Company or any subsidiary which would have a Material Adverse Effect.
(xxx) Investment Company Act. The Company is not and, after giving
effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the General Disclosure
Package, will not be an "investment company" as defined in the Investment
Company Act of 1940 (the "INVESTMENT COMPANY ACT").
(xxxi) Payments in Foreign Currency. Except as disclosed in the
General Disclosure Package, under current laws and regulations of the
Cayman Islands, Hong Kong, the PRC and any political subdivision thereof,
all dividends and other distributions declared and payable on the Offered
Securities and the underlying Ordinary Shares may be paid by the Company
to the holder thereof in United States dollars that may be converted into
foreign currency and freely transferred out of the Cayman Islands, the
British Virgin Islands, Hong Kong, Macau and the PRC and all such payments
made to holders thereof or therein who are non-residents of the Cayman
Islands, the British Virgin Islands, Hong Kong, Macau or the PRC will not
be subject to income, withholding or other taxes under laws and
regulations of the Cayman Islands, the British Virgin Islands, Hong Kong,
Macau, the PRC or any political subdivision or taxing authority thereof or
therein and will otherwise be free and clear of any other tax, duty,
withholding or deduction in the Cayman Islands, the British Virgin
Islands, Hong Kong, Macau and the PRC or any political subdivision or
taxing authority thereof or therein and without the necessity of obtaining
any governmental authorization in the Cayman Islands, the British Virgin
Islands, Hong Kong, Macau, the PRC or any political subdivision or taxing
authority thereof or therein.
(xxxii) Compliance with Anti-Bribery, Anti-Money and Related Laws.
Each of the Company, its subsidiaries, its affiliates and any of their
respective officers and executive directors and each of its supervisors,
managers, agents, or employees, has not violated, its participation in the
offering will not
9
violate, and it has instituted and maintains policies and procedures
designed to ensure continued compliance with each of the following laws:
(a) anti-bribery laws, including but not limited to, any applicable law,
rule, or regulation of any locality, including but not limited to any law,
rule, or regulation promulgated to implement the OECD Convention on
Combating Bribery of Foreign Public Officials in International Business
Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt
Practices Act of 1977 or any other law, rule or regulation of similar
purpose and scope under U.S federal, Cayman Islands, the British Virgin
Islands, Hong Kong, Macau or PRC law, (b) anti-money laundering laws,
including but not limited to, applicable federal, state, international,
foreign or other laws, regulations or government guidance regarding
anti-money laundering, including, without limitation, Title 18 U.S. Code
section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and
international anti-money laundering principals or procedures by an
intergovernmental group or organization, such as the Financial Action Task
Force on Money Laundering, of which the United States is a member and with
which designation the United States representative to the group or
organization continues to concur, all as amended, and any Executive order,
directive, or regulation pursuant to the authority of any of the
foregoing, or any orders or licenses issued thereunder or (c) laws and
regulations imposing U.S. economic sanctions measures, including, but not
limited to, the International Emergency Economic Powers Act, the Trading
with the Enemy Act, the United Nations Participation Act, and the Syria
Accountability and Lebanese Sovereignty Act, all as amended, and any
Executive Order, directive, or regulation pursuant to the authority of any
of the foregoing, including the regulations of the United States Treasury
Department set forth under 31 CFR, Subtitle B, Chapter V, as amended, or
any orders or licenses issued thereunder. Neither the Company nor any of
its subsidiaries does business with the government of Cuba or with any
person or affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes and the Company agrees to comply with such Section if
prior to the completion of the distribution of the Offered Securities it
commences doing such business. None of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director, officer,
agent, employee or affiliate of the Company or any of its subsidiaries, is
currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury ("OFAC").
(xxxiii) Tax Filings. The Company and its subsidiaries have filed
all federal, state, local and non-U.S. tax returns that are required to be
filed or have requested extensions thereof (except in any case in which
the failure so to file would not have a Material Adverse Effect); and,
except as set forth in the General Disclosure Package, the Company and its
subsidiaries have paid all taxes (including any assessments, fines or
penalties) required to be paid by them, except for any such taxes,
assessments, fines or penalties currently being contested in good faith or
as would not, individually or in the aggregate, have a Material Adverse
Effect.
(xxxiv) Insurance. The Company and its subsidiaries are insured by
insurers with appropriately rated claims paying abilities against such
losses and risks and in such amounts as are prudent and customary for the
businesses in which they are engaged; all policies of insurance insuring
the Company or any of its subsidiaries, or their respective businesses,
assets, employees, officers and directors are in full force and effect;
the Company and its subsidiaries, are in compliance with the terms of such
policies and instruments in all material respects; and there are no claims
by the Company or any of its subsidiaries, under any such policy or
instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause; neither the Company nor
any such subsidiary has been refused any insurance coverage sought or
applied for; neither the Company nor any such subsidiary has any reason to
believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its business at a cost
that would not have a Material Adverse Effect, except as set forth in or
contemplated in the General Disclosure Package; and the Company will
obtain directors' and officer's insurance in such amounts as is customary
for an initial public offering.
(xxxv) Related Party Transactions. There are no material
relationships or transactions between the Company or any of its
subsidiaries on one hand and their respective 10% or greater shareholders,
affiliates, directors or officers, or any affiliates or members of the
immediate families of such persons, on the other hand that are not
disclosed in the General Disclosure Package as of the Applicable Time
within the past three years.
10
(xxxvi) Passive Foreign Investment Company. The Company does not
expect to be a Passive Foreign Investment Company ("PFIC") within the
meaning of Section 1297(a) of the United States Internal Revenue Code of
1986, as amended, and the regulations and published interpretations
thereunder for the taxable year ending December 31, 2008, and has no plan
or intention to conduct its business in a manner that would be reasonably
expected to result in the Company becoming a PFIC in the future under
current laws and regulations.
(xxxvii) Stabilization. Neither the Company nor any subsidiary nor
any of their respective directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or which
has constituted or might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of Ordinary Shares or the Offered Securities.
(xxxviii) Foreign Private Issuer. The Company is a "foreign private
issuer" within the meaning of Rule 405 under the Act.
(xxxix) No Transaction or Other Taxes. Except as disclosed in the
General Disclosure Package as of the Applicable Time and the Registration
of the PRC and the Cayman Islands, no transaction, stamp, capital or other
issuance, registration, transaction, transfer or withholding taxes or
duties are payable in the PRC and the Cayman Islands by or on behalf of
the Underwriters to any PRC or Cayman Islands taxing authority in
connection with (A) the issuance, sale and delivery of the Ordinary Shares
represented by the Offered Securities by the Company, the issuance of the
Offered Securities by the Depositary, and the delivery of the Offered
Securities to or for the account of the Underwriters, (B) the purchase
from the Company and the initial sale and delivery by the Underwriters of
the Offered Securities to purchasers thereof, (C) the deposit of the
Ordinary Shares with the Depositary and the Custodian (as defined in the
Deposit Agreement) and the issuance and delivery of the ADRs evidencing
the Offered Securities, or (D) the execution and delivery of this
Agreement or the Deposit Agreement.
(xl) Proper Form of Agreements. This Agreement and the Deposit
Agreement are in proper form under the laws of the Cayman Islands for the
enforcement thereof against the Company in accordance with the laws of the
Cayman Islands and to ensure the legality, validity, enforceability or
admissibility into evidence in the Cayman of this Agreement and the
Deposit Agreement; it is not necessary that this Agreement, the Deposit
Agreement, the Prospectus or any other document be filed or recorded with
any court or other authority in the Cayman Islands or that any Cayman
Islands stamp duty or similar tax be paid on or in respect of this
Agreement, the Deposit Agreement or any other document to be furnished
hereunder or thereunder.
(xli) Validity of Choice of Law. The choice of laws of the State of
New York as the governing law of this Agreement and the Deposit Agreement
is a valid choice of law under the laws of the Cayman Islands and the PRC
and will be honored by courts in the Cayman Islands and, to the extent
permitted under the PRC civil law and rules of civil procedures, will be
honored by the courts in the PRC. The Company has the power to submit, and
pursuant to Section 16 of this Agreement and Section 7.8 of the Deposit
Agreement, has legally, validly, effectively and irrevocably submitted, to
the personal jurisdiction of each United States federal court and New York
state court located in the Borough of Manhattan, in The City of New York,
New York, U.S.A. (each, a "NEW YORK COURT"), and the Company has the power
to designate, appoint and authorize, and pursuant to Section 16 of this
Agreement and Section 19 of the Deposit Agreement, has legally, validly,
effectively and irrevocably designated, appointed an authorized agent for
service of process in any action arising out of or relating to this
Agreement, the Deposit Agreement or the Offered Securities in any New York
Court, and service of process effected on such authorized agent will be
effective to confer valid personal jurisdiction over the Company as
provided in Section 20 hereof.
(xlii) No Immunity. Neither the Company, or any subsidiary nor any
of their respective properties, assets or revenues has any right of
immunity under Cayman Islands, PRC or New York law, 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 Cayman Islands, PRC, New York or U.S. federal court,
from service of process, attachment upon or prior to judgment, or
attachment in aid of execution of
11
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 this
Agreement or the Deposit Agreement; and, to the extent that the Company,
or any subsidiary 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 20 of this Agreement.
(xliii) Judgment Currency. Any final judgment for a fixed sum of
money rendered by a New York Court having jurisdiction under its own
domestic laws in respect of any suit, action or proceeding against the
Company based upon this Agreement and the Deposit Agreement would be
recognized and enforced against the Company by Cayman Islands courts
without re-examining the merits of the case under the common law doctrine
of obligation; provided that (A) adequate service of process has been
effected and the defendant has had a reasonable opportunity to be heard,
(B) such judgments or the enforcement thereof are not contrary to the law,
public policy, security or sovereignty of the Cayman Islands, (C) such
judgments were not obtained by fraudulent means and do not conflict with
any other valid judgment in the same matter between the same parties, and
(D) an action between the same parties in the same matter is not pending
in any Cayman Islands court at the time the lawsuit is instituted in the
foreign court; it is not necessary that this Agreement, the Deposit
Agreement, the Prospectus or any other document be filed or recorded with
any court or other authority in the Cayman Islands or the PRC.
(xliv) Registration Statement Exhibits. There are no legal or
governmental proceedings or contracts or other documents of a character
required to be described in the Registration Statement, the ADS
Registration Statement, any Additional Registration Statement or the most
recent Preliminary Prospectus or, in the case of documents, to be filed as
exhibits to the Registration Statement, that are not described and filed
as required. Neither the Company nor any of its subsidiaries has knowledge
that any other party to any such contract, agreement or arrangement has
any intention not to render full performance as contemplated by the terms
thereof.
(xlv) Critical Accounting Policies. The section entitled
"Management's Discussion and Analysis of Financial Condition and Results
of Operations" in the General Disclosure Package as of the Applicable Time
accurately and fully describes (A) 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 ("CRITICAL
ACCOUNTING POLICIES"); (B) judgments and uncertainties affecting the
application of Critical Accounting Policies; and (C) the likelihood that
materially different amounts would be reported under different conditions
or using different assumptions and an explanation thereof; and the
Company's management have reviewed and agreed with the selection,
application and disclosure of the Critical Accounting Policies as
described in the General Disclosure Package as of the Applicable Time, and
have consulted with its legal advisers and independent accountants with
regards to such disclosure.
(xlvi) No Unapproved Marketing Documents. The Company has not
distributed and, prior to the later to occur of any Delivery Date and
completion of the distribution of the Offered Securities, will not
distribute any offering material in connection with the offering and sale
of the Offering Securities other than any Preliminary Prospectus, the
Prospectus, any Issuer Free Writing Prospectus to which the
Representatives have consented in accordance with this Agreement and any
Issuer Free Writing Prospectus set forth on Schedule C hereto.
(xlvii) Employee Benefits. Except as set forth in the most recent
Preliminary Prospectus, the Company has no obligation to provide
retirement, death or disability benefits to any of the present or past
employees of the Company or any subsidiary, or to any other person; the
Company and its subsidiaries are in compliance with all applicable laws
relating to employee benefits.
(xlviii) No Broker-Dealer Affiliation. Except as set forth in the
General Disclosure Package, there are no affiliations or associations
between any member of the Financial Institution Regulatory Authority
12
("FINRA") and any of the officers or directors of the Company or the
subsidiaries, or holders of 5% or greater of the securities of the
Company.
(xlix) SAFE Compliance. The Company has taken all reasonable steps
to comply with, and to ensure compliance by all of the Company's
shareholders and option holders who are PRC residents or PRC citizens with
any applicable rules and regulations of the State Administration of
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 or PRC
citizen to complete any registration and other procedures required under
applicable SAFE Rules and Regulations.
(l) No Trading. None of the Company or any of the subsidiaries is
engaged in any trading activities involving commodity contracts or other
trading contracts which are not currently traded on a securities or
commodities exchange and for which the market value cannot be determined.
(li) Compliance with Internal Policies. The sale of the Ordinary
Shares by the Selling Shareholders does not violate any of the Company's
internal policies regarding the sale of shares by its affiliates.
(lii) Representation of Officers. Any certificate signed by any
officer of the Company and delivered to the Representative or counsel for
the Underwriters as required or contemplated by this Agreement shall
constitute a representation and warranty hereunder by the Company, as to
matters covered thereby, to each Underwriter.
(b) Each Selling Shareholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(i) Offered Securities. Such Selling Shareholder has and at each
Closing Date (as hereinafter defined), will have (A) good and marketable
title to the Ordinary Shares underlying the Firm Securities and the
Optional Securities to be delivered by such Selling Shareholders, free and
clear of any liens, encumbrances, equities and claims and (B) full right,
power and authority to effect the sale and delivery of such Firm
Securities and Optional Securities.
(ii) Security Interests. Upon payment for the Offered Securities
sold by such Selling Shareholder under this Agreement and the delivery by
such Selling Shareholder to DTC or its agent of the Securities in book
entry form to a securities account maintained by the Representatives at
the DTC or its nominee, and payment therefor in accordance with this
Agreement, the Underwriters' will acquire a securities entitlement (within
the meaning of Section 8-501 of the UCC) with respect to such Offered
Securities, and no action based on an "adverse claim" (as defined in UCC
Section 8-102) may be asserted against the Underwriters with respect to
such security entitlement if, at such time, the Underwriters do not have
notice of any adverse claim within the meaning of UCC Section 8-105.
(iii) General Disclosure Package. If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of
this Agreement: (A) on the Effective Date of the Initial Registration
Statement, the statements in the Initial Registration Statement under
"Principal and Selling Shareholders" relating to such Selling Shareholder
did not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make such
statements therein not misleading, (B) on the Effective Date of the
Additional Registration Statement (if any), the statements in the
Registration Statement under "Principal and Selling Shareholders" relating
to such Selling Shareholder did not include, or will not include, any
untrue statement of a material fact and did not omit, or will not omit, to
state any material fact required to be stated therein or necessary to make
such statements therein not misleading, (C) on the date of this Agreement,
the statements in the Initial Registration Statement and, if the Effective
Time of the Additional Registration Statement is prior to the execution
and delivery of this Agreement, the Additional Registration Statement
under "Principal and Selling Shareholders" applicable to such Selling
Shareholder, and at the time of filing of the Prospectus pursuant to Rule
424(b) or (if no such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is included and
on the Closing Date, the statements in each of the Registration Statement
and the Prospectus under "Principal and Selling Shareholders" applicable
to such Selling Shareholder, do not include, or will
13
not include, any untrue statement of a material fact or omits, or will
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (D) the
statements in any individual Limited Use Issuer Free Writing Prospectus
under "Principal and Selling Shareholders" relating to such Selling
Shareholder, when considered together with the General Disclosure Package,
do not include, or will not include, any untrue statement of a material
fact or omits, or will omit, to state any material fact required to be
stated therein or necessary to make the statements therein not misleading.
If the Effective Time of the Initial Registration Statement is subsequent
to the execution and delivery of this Agreement, on the Effective Date of
the Initial Registration Statement, the statements in each of the Initial
Registration Statement and the Prospectus under "Principal and Selling
Shareholders" relating to such Selling Shareholder do not include any
untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading.
(iv) Non-public Information. Such Selling Shareholder has reviewed
the Registration Statement and the sale of the Offered Securities by such
Selling Shareholder pursuant hereto is not prompted by any information
concerning the Company or any of its subsidiaries which is not set forth
in the Prospectus or any supplement thereto.
(v) Selling Shareholder Questionnaire. The director and officer
questionnaire or selling shareholder questionnaire, as applicable,
containing certain information regarding such Selling Shareholder and the
election form which sets forth the amount of Ordinary Shares such Selling
Shareholder has elected to sell in the Offering (the "QUESTIONNAIRE AND
ELECTION FORM"), completed by such Selling Shareholder and submitted to
the Company by facsimile on or before January 22, 2008 and by mail on or
before January 16, 2008, does not and as of each applicable Closing Date
will not contain any untrue statement of material fact nor does it omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading and such Selling Shareholder's
election to sell the number of Ordinary Shares indicated in the Election
Form is valid and binding on such Selling Shareholder.
(vi) Custody Agreement. Such Selling Shareholder has full right,
power and authority to execute and deliver this Agreement and Custody
Agreement (the "CUSTODY AGREEMENT") in connection with the offer and sale
of the Offered Securities contemplated herein and to perform its
obligations under such agreements.
(vii) Power-of-Attorney. The power of attorney ("POWER OF
ATTORNEY"), appointing certain individuals named therein as such Selling
Shareholder's attorneys-in-fact (each, an "ATTORNEY-IN-FACT") relating to
the transactions contemplated hereby and by the Prospectus, constitutes a
valid instrument granting the Attorneys-in-Fact named in such Power of
Attorney, the power and authority stated therein, and permits the
Attorneys-in-Fact, singly or collectively, to bind such Selling
Shareholder with respect to all matters granted, conferred and
contemplated in such Power of Attorney and such Power of Attorney has not
been revoked, cancelled or terminated at any time.
(viii) Authorization of Agreements. Each of this Agreement, a
Lock-up Agreement, a power of attorney and a Custody Agreement in
connection with the offer and sale of the Offered Securities contemplated
herein has been duly authorized, executed and delivered by such Selling
Shareholder.
(ix) Absence of Further Requirements. The execution and delivery of
this Agreement, the Power-of-Attorney and the Custody Agreement, and the
consummation by such Selling Shareholder of the transactions herein
contemplated and the fulfillment by such Selling Shareholder of the terms
hereof will not require any consent, approval, authorization, or other
order of any court, regulatory body, administrative agency or other
governmental body (except as may be required under the Act or by the
securities or Blue Sky laws of the various states of the United States)
and will not result in a breach of any of the terms and provisions of, or
constitute a default under, organizational documents of such Selling
Shareholder, if not an individual, or any indenture, mortgage, deed of
trust or other agreement or instrument to which such Selling Shareholder
is a party, or of any order, rule or regulation applicable to such Selling
Shareholder of any court or of any regulatory body or administrative
agency or other governmental body having jurisdiction.
14
(x) Ordinary Shares Freely Depositable. The Ordinary Shares
represented by the Offered Securities to be sold by such Selling
Shareholder may be freely deposited by such Selling Shareholder with the
Depositary or with the Custodian as agent for the Depositary in accordance
with the Deposit Agreement against the issuance of ADRs evidencing
Securities representing such Ordinary Shares so deposited by such Selling
Shareholder.
(xi) No Conflicting Obligations. The Shares to be sold by the
Selling Shareholder hereunder is subject to the interest of the
Underwriters, and the obligations of the Selling Shareholder hereunder
shall not be terminated by any act of the Selling Shareholder, by
operation of law or the occurrence of any other event.
(xii) Ordinary Shares Freely Transferable. The Firms Securities and
the Optional Securities, as well as the Ordinary Shares underlying such
Securities, delivered at each Closing Date by such Selling Shareholder
will be freely transferable by such Selling Shareholder.
(xiii) Absence of Defaults and Conflicts Resulting from Transaction.
The execution, delivery and performance of this Agreement, the
Power-of-Attorney and the Custody Agreement, the deposit of Ordinary
Shares with the Depositary and the consummation of the transactions herein
contemplated by such Selling Shareholder will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
such Selling Shareholder or any of its properties, or any agreement or
instrument to which such Selling Shareholder is a party or by which the
such Selling Shareholder is bound or to which any of the properties of
such Selling Shareholder is subject, or if the Selling Shareholder is a
corporate entity, the charter or by-laws of such Selling Shareholder.
(xiv) No Stabilization. Such Selling Shareholder has not taken,
directly or indirectly, any action designed, or which has constituted or
might reasonably be expected to cause or result in, under the Exchange Act
or otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of Ordinary
Shares or the Offered Securities.
(xv) No FINRA Affiliations. Such Selling Shareholder has no
affiliations or associations with any member of FINRA.
(xvi) No Finder's Fee. There are no contracts, agreements or
understandings between such Selling Shareholder and any person that would
give rise to a valid claim against such Selling Shareholder or any
Underwriter for a brokerage commission, finder's fee or other like payment
in connection with this offering.
(xvii) No Stamp or Transaction Taxes. No transaction, stamp, capital
or other issuance, registration, transaction, transfer or withholding
taxes or duties are payable by or on behalf of the Underwriters in
connection with (A) the sale and delivery of the Ordinary Shares
represented by the Offered Securities by such Selling Shareholder, the
issuance of such Offered Securities by the Depositary, and the delivery of
such Offered Securities to or for the account of the Underwriters, (B) the
purchase from such Selling Shareholder and the initial sale and delivery
by the Underwriters of the Offered Securities to purchasers thereof, (C)
the deposit by such Selling Shareholder of the Ordinary Shares with the
Depositary and the Custodian and the issuance and delivery of the ADRs
evidencing the Offered Securities, or (D) the execution and delivery of
this Agreement.
(xviii) No Other Marketing Documents. Such Selling Shareholder has
not distributed and will not distribute, prior to the later of the latest
Closing Date and the completion of the Underwriters' distribution of the
Shares, any offering material in connection with the offering and sale of
the Shares by the Selling Shareholders, including any free writing
prospectus.
(xix) No Registration Rights. Other than as disclosed in the most
recent Preliminary Prospectus, such Selling Shareholder does not have any
registration or other similar rights to have any equity or debt securities
registered for sale by the Company under the Registration Statement or
included in this offering.
15
(xx) No Pre-emptive Rights. Such Selling Shareholder does not have,
or has waived prior to the date hereof, any preemptive right, co-sale
right or right of first refusal or other similar right to purchase any of
the Shares that are to be sold by the Company or any other Selling
Shareholder to the Underwriters pursuant to this Agreement; and such
Selling Shareholder does not own any warrants, options or similar rights
to acquire, and does not have any right or arrangement to acquire, any
capital shares, right, warrants, options or other securities from the
Company, other than those described in the most recent Preliminary
Prospectus.
(xxi) Compliance with Internal Policies. The sale of the Ordinary
Shares by the Selling Shareholder does not violate any of such Selling
Shareholders internal policies regarding the sale of shares by its
affiliates.
(xxii) Compliance with Anti-Bribery, Anti-Money and Related Laws.
Each of such Selling Shareholder, its subsidiaries, its affiliates and, to
such Selling Shareholder's knowledge, any of their respective officers,
executive directors or employees, has not violated, its participation in
the offering will not violate, and it has instituted and maintains
policies and procedures designed to ensure continued compliance with each
of the following laws: (a) anti-bribery laws, including but not limited
to, any applicable law, rule, or regulation of any locality, including but
not limited to any law, rule, or regulation promulgated to implement the
OECD Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions, signed December 17, 1997, including
the U.S. Foreign Corrupt Practices Act of 1977 or any other law, rule or
regulation of similar purpose and scope under U.S federal, Cayman Islands,
Hong Kong or PRC law, (b) anti-money laundering laws, including but not
limited to, applicable federal, state, international, foreign or other
laws, regulations or government guidance regarding anti-money laundering,
including, without limitation, Title 18 U.S. Code section 1956 and 1957,
the Patriot Act, the Bank Secrecy Act, and international anti-money
laundering principals or procedures by an intergovernmental group or
organization, such as the Financial Action Task Force on Money Laundering,
of which the United States is a member and with which designation the
United States representative to the group or organization continues to
concur, all as amended, and any Executive order, directive, or regulation
pursuant to the authority of any of the foregoing, or any orders or
licenses issued thereunder or (c) laws and regulations imposing U.S.
economic sanctions measures, including, but not limited to, the
International Emergency Economic Powers Act, the Trading with the Enemy
Act, the United Nations Participation Act, and the Syria Accountability
and Lebanese Sovereignty Act, all as amended, and any Executive Order,
directive, or regulation pursuant to the authority of any of the
foregoing, including the regulations of the United States Treasury
Department set forth under 31 CFR, Subtitle B, Chapter V, as amended, or
any orders or licenses issued thereunder. Neither such Selling Shareholder
nor any of its subsidiaries does business with the government of Cuba or
with any person or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes and such Selling Shareholder agrees to comply
with such Section if prior to the completion of the distribution of the
Offered Securities it commences doing such business. None of such Selling
Shareholder, any of its subsidiaries or, to the knowledge of such Selling
Shareholder, any director, officer or employee of such Selling Shareholder
or any of its subsidiaries, is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Department of the Treasury ("OFAC").
(xxii) Representation of Officers. Any certificate signed by any
officer of such Selling Shareholder and delivered to the Representative or
counsel for the Underwriters as required or contemplated by this Agreement
shall constitute a representation and warranty hereunder by such Selling
Shareholder, as to matters covered thereby, to each Underwriter.
(c) Xin Zhou (the "CONTROLLING PERSON"), the chairman, chief executive
officer and a beneficial owner of the Company, in his capacity as an individual,
represents and warrants to, and agrees with, the several Underwriters that:
(i) General Disclosure Package. As of the Applicable Time, neither
(i) General Disclosure Package, nor (ii) any individual Limited Use Issuer
Free Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
16
which they were made, not misleading. The preceding sentence does not
apply to statements in or omissions from any Statutory Prospectus or any
Issuer Free Writing Prospectus in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through
the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 8(b) hereof.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements and subject to the terms and
conditions set forth herein, the Company and each Selling Shareholder, severally
and not jointly, agree to sell to the several Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company and
the Selling Shareholders, at a purchase price of US$[-] per ADS, the respective
number of Firm Securities set forth opposite the names of the Underwriters in
Schedule A hereto (rounded up or down, as determined by the Representatives in
the discretion, in order to avoid fractions).
Executed transfer forms for the Ordinary Shares represented by the Offered
Securities to be sold by the Selling Shareholders hereunder have been placed in
custody, for delivery under this Agreement, under Custody Agreements made with
the Company, as custodian (in such capacity, the "CUSTODIAN"). Each Selling
Shareholder agrees that the Ordinary Shares represented by the transfer forms
held in custody for the Selling Shareholders under such Custody Agreements are
subject to the interests of the Underwriters hereunder, that the arrangements
made by the Selling Shareholders for such custody are to that extent
irrevocable, and that the obligations of the Selling Shareholders hereunder
shall not be terminated by operation of law, whether by the death of any
individual Selling Shareholder or the occurrence of any other event, or in the
case of a trust, by the death of any trustee or trustees or the termination of
such trust. If any individual Selling Shareholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, such Offered Securities shall be delivered by the Custodian in
accordance with the terms and conditions of this Agreement as if such death or
other event or termination had not occurred, regardless of whether or not the
Custodian shall have received notice of such death or other event or
termination.
The Company and the Custodian will deliver the Firm Securities to or as
instructed by the Representatives for the accounts of the several Underwriters
through the facilities of The Depository Trust Company ("DTC") in a form
reasonably acceptable to the Representatives against payment of the purchase
price by the Underwriters in Federal (same day) funds by official bank check or
checks or wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of the Company for itself and as Custodian on
behalf of the Selling Shareholders, as the case may be, at the Hong Kong office
of Simpson Thacher & Bartlett LLP, at [-], New York time, on [-], 2008, or at
such other time not later than seven full business days thereafter as the
Representatives and the Company determine, such time being herein referred to as
the "FIRST CLOSING DATE". For purposes of Rule 15c6-1 under the Securities
Exchange Act of 1934, the First Closing Date (if later than the otherwise
applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Offered Securities sold pursuant to the
offering. The ADRs evidencing the Firm Securities will be in definitive form, in
such denominations and registered in such names as the Representatives request.
The ADRs will be made available for checking and packaging at the above office
or such other place designated by the Representatives at least 24 hours prior to
the First Closing Date.
In addition, upon written notice from the Representatives given to the
Company and the Selling Shareholders from time to time not more than 30 days
subsequent to the date of the Final Prospectus, the Underwriters may purchase
all or less than all of the Optional Securities at the purchase price per
Security to be paid for the Firm Securities. Jun Heng Investment Limited agrees
to sell to the Underwriters the number of Optional Securities specified in such
notice and the Underwriters agree, severally and not jointly, to purchase such
Optional Securities. Such Optional Securities shall be purchased for the account
of each Underwriter in the same proportion as the Firm Securities set forth
opposite such Underwriter's name bears to the total number of Firm Securities
(subject to adjustment by the Representatives to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by the Representatives to the Company and the Selling Shareholders.
17
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representatives but shall be not later than five full business days after
written notice of election to purchase Optional Securities is given. The Company
will deliver the Optional Securities being purchased on each Optional Closing
Date to or as instructed by the Representatives for the accounts of the several
Underwriters in a form reasonably acceptable to the Representatives against
payment of the purchase price therefor in Federal (same day) funds by official
bank check or checks or wire transfer to an account at a bank acceptable to the
Representatives drawn to the order of the Company as Custodian on behalf of Jun
Heng Investment Limited at the above office. The ADRs evidencing the Optional
Securities will be in definitive form, in such denominations and registered in
such names as the Representatives request. The ADRs will be made available for
checking and packaging at the above office or such other place designated by the
Representatives at least 24 hours prior to the Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Final Prospectus.
5. Certain Agreements of the Company and the Selling Shareholders. (a)
The Company agrees with the several Underwriters that:
(i) Additional Filings. Unless filed pursuant to Rule 462(c) as
part of the Additional Registration Statement in accordance with the
next sentence, the Company will file the Final Prospectus, in a form
approved by the Representatives, with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, subparagraph (4)) of Rule 424(b) not later than
the earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement. The Company will
advise the Representatives promptly of any such filing pursuant to Rule
424(b) and provide satisfactory evidence to the Representatives of such
timely filing. If an Additional Registration Statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of the execution and
delivery of this Agreement, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the Final
Prospectus is finalized and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
the Representatives.
(ii) Filing of Amendments; Response to Commission Requests. The
Company will promptly advise the Representatives of any proposal to
amend or supplement at any time the Initial Registration Statement, any
Additional Registration Statement or any Statutory Prospectus and will
not effect such amendment or supplementation without the
Representatives' consent (which consent shall not be unreasonably
withheld); and the Company will also advise the Representatives
promptly of (i) the effectiveness of any Additional Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement), (ii) any amendment or supplementation of a
Registration Statement or any Statutory Prospectus, (iii) any request
by the Commission or its staff for any amendment to any Registration
Statement, for any supplement to any Statutory Prospectus or for any
additional information, (iv) the institution by the Commission of any
stop order proceedings in respect of a Registration Statement or the
threatening of any proceeding for that purpose, and (v) the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Offered Securities in any jurisdiction or the
institution or threatening of any proceedings for such purpose. The
Company will use its best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued,
to obtain as soon as possible the withdrawal thereof.
(iii) Continued Compliance with Securities Laws. If, at any time
when a prospectus relating to the Offered Securities is (or but for the
exemption in Rule 172 would be) required to be delivered under the Act
by any Underwriter or dealer, any event occurs as a result of which the
Final Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not
18
misleading, or if it is necessary at any time to amend the Registration
Statement or supplement the Final Prospectus to comply with the Act,
the Company will promptly notify the Representatives of such event and
will promptly prepare and file with the Commission and furnish, at its
own expense, to the Underwriters and the dealers and any other dealers
upon request of the Representatives, an amendment or supplement which
will correct such statement or omission or an amendment which will
effect such compliance. Neither the Representatives' consent to, nor
the Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 7
hereof.
(iv) Rule 158. As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its securityholders an earnings statement covering a
period of at least 12 months beginning after the Effective Date of the
Initial Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act. For the purpose of
the preceding sentence, "AVAILABILITY DATE" means the 45th day after
the end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year, "AVAILABILITY
DATE" means the 90th day after the end of such fourth fiscal quarter.
(v) Furnishing of Prospectuses. The Company will furnish to the
Representatives copies of each Registration Statement (three of which
will be signed and will include all exhibits and the remainder of which
may be provided without exhibits), each related Statutory Prospectus,
and, so long as a prospectus relating to the Offered Securities is (or
but for the exemption in Rule 172 would be) required to be delivered
under the Act and in no event exceeding nine months, the Final
Prospectus and all amendments and supplements to such documents, in
each case in such quantities as the Representatives may reasonably
request. The Final Prospectus shall be so furnished on or prior to 3:00
P.M., New York time, on the business day following the execution and
delivery of this Agreement. All other documents shall be so furnished
as soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(vi) Blue Sky Qualifications. The Company will arrange for the
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Representatives designate and will continue such
qualifications in effect so long as required for the distribution.
(vii) Reporting Requirements. During the period of five years
hereafter, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission
under the Exchange Act or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as the
Representatives may reasonably request. However, so long as the Company
is subject to the reporting requirements of either Section 13 or
Section 15(d) of the Exchange Act and is timely filing reports with the
Commission on its Electronic Data Gathering, Analysis and Retrieval
system ("EDGAR"), it is not required to furnish such reports or
statements to the Underwriters.
(viii) Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement,
including but not limited to any filing fees and other expenses
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as the Representatives
designate and the preparation and printing of memoranda relating
thereto, costs and expenses related to the review by the National
Association of Securities Dealers, Inc. of the Offered Securities,
costs and expenses relating to investor presentations or any "road
show" in connection with the offering and sale of the Offered
Securities including, without limitation, any travel expenses of the
Company's officers and employees and any other expenses of the Company
including the chartering of airplanes, fees and expenses incident to
listing the Offered Securities on the New York Stock Exchange and other
national and foreign exchanges, fees and expenses in connection with
the registration of the Offered Securities under the Exchange Act, and
expenses incurred in distributing preliminary prospectuses and the
Final Prospectus (including any
19
amendments and supplements thereto) to the Underwriters and for
expenses incurred for preparing, printing and distributing any Issuer
Free Writing Prospectuses to investors or prospective investors.
(ix) Use of Proceeds. The Company will use the net proceeds
received in connection with this offering in the manner described in
the "Use of Proceeds" section of the General Disclosure Package and the
Company does not intend to use any of the proceeds from the sale of the
Offered Securities hereunder to repay any outstanding debt owed to any
affiliate of any Underwriter.
(x) Absence of Manipulation. The Company will not take, directly
or indirectly, any action designed to or that would constitute or that
might reasonably be expected to cause or result in, stabilization or
manipulation of the price of any securities of the Company to
facilitate the sale or resale of the Offered Securities.
(xi) Taxes. The Company will indemnify and hold harmless the
Underwriters against any documentary, stamp or similar issue tax,
including any interest and penalties, on the creation, issue and sale
of the Offered Securities 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.
(xii) Restriction on Sale of Securities. For the period specified
below (the "LOCK-UP PERIOD"), the Company will not, directly or
indirectly, take any of the following actions with respect to its
Securities, the Ordinary Shares underlying the Securities, or any
securities convertible into or exchangeable or exercisable for any of
its Securities or Ordinary Shares ("LOCK-UP SECURITIES"): (i) offer,
sell, issue, contract to sell, pledge or otherwise dispose of Lock-Up
Securities, (ii) offer, sell, issue, contract to sell, contract to
purchase or grant any option, right or warrant to purchase Lock-Up
Securities, (iii) enter into any swap, hedge or any other agreement
that transfers, in whole or in part, the economic consequences of
ownership of Lock-Up Securities, (iv) establish or increase a put
equivalent position or liquidate or decrease a call equivalent position
in Lock-Up Securities within the meaning of Section 16 of the Exchange
Act or (v) file with the Commission a registration statement under the
Act relating to Lock-Up Securities, or publicly disclose the intention
to take any such action, without the prior written consent of the
Representatives, and to cause each officer, director and shareholder of
the Company set forth on Schedule A hereto to furnish to the
Representatives, prior to the First Closing Date, a letter or letters,
substantially in the form of Exhibit E hereto (the "LOCK-UP
AGREEMENTS"). The initial Lock-Up Period will commence on the date
hereof and continue for 90 days after the date of the commencement of
the public offering of the Offered Securities or such earlier date that
the Representatives consent to in writing; provided, however, that if
(1) during the last 17 days of the initial Lock-Up Period, the Company
releases earnings results or material news or a material event relating
to the Company occurs or (2) prior to the expiration of the initial
Lock-Up Period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the
initial Lock-Up Period, then in each case the Lock-Up Period will be
extended until the expiration of the 18-day period beginning on the
date of release of the earnings results or the occurrence of the
materials news or material event, as applicable, unless the
Representatives waive, in writing, such extension. The Company will
provide the Representatives with notice of any announcement described
in clause (2) of the preceding sentence that gives rise to an extension
of the Lock-Up Period.
(xiii) Listing of Securities. The Company will use its best
efforts to have the Offered Securities accepted for listing on the New
York Stock Exchange and maintain the listing of the Offered Securities
and the Company's existing ADSs on the New York Stock Exchange.
(xiv) Filing of Reports. The Company, during the period when a
prospectus (or, in lieu thereof, the notice referred to in Rule 173(a)
under the Securities Act) is required to be delivered under the
Securities Act in connection with the offer or sale of the Offered
Securities, will file all reports and other documents required to be
filed by the Company with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and the Rules and Regulations
within the time periods required thereby.
20
(xvii) Performance of Obligations. The Company will use its best
efforts to do and perform all things required to be done or performed
under this Agreement by the Company prior to each Closing Date and to
satisfy all conditions precedent to the delivery of the Firm Securities
and the Optional Securities.
(xviii) No Stabilization. The Company will not take, and will
cause its affiliates (within the meaning of Rule 144 under the
Securities Act) not to 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 to
facilitate the sale or resale of the Shares.
(xix) SAFE Compliance. The Company shall comply with the SAFE
Rules and Regulations, and shall use best efforts to cause its 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, requesting each shareholder
and option holder, 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.
(xx) D&O Insurance. The Company maintains or, prior to the First
Closing Date, the Company will purchase insurance covering its
directors, officers for liabilities or losses arising in connection
with this offering, including, without limitation, liabilities or
losses arising under the Securities Act, the Exchange Act and the Rules
and Regulations.
(xxi) Local Security Laws. The Company shall arrange for the
qualification of the Offered Securities for sale under the foreign or
state securities or Blue Sky laws of such jurisdictions as the
Representatives designate and will continue such qualifications in
effect so long as required for the distribution.
(xxii) Transfer Restrictions. The Company shall at all times
maintain transfer restrictions (including the inclusion of legends in
share certificates, as may be required) with respect to the Company's
Ordinary Shares which are subject to transfer restrictions pursuant to
this Agreement and the Lock-Up Agreements and shall ensure compliance
with such restrictions on transfer of restricted Ordinary Shares. The
Company shall retain all share certificates which are by their terms
subject to transfer restrictions until such time as such transfer
restrictions are no longer applicable to such securities.
(xxiii) Deposit Agreement. The Company will comply with the terms
of the Deposit Agreement so that ADSs will be delivered by the
Depositary to the Underwriters, pursuant to this Agreement at the
applicable Closing Date.
(xxiv) Cayman Islands Approvals. The Company agrees (i) not to
attempt to avoid any judgment obtained by it or denied to it in a court
of competent jurisdiction outside the Cayman Islands; (ii) following
the consummation of the offering of the Offered Securities, it will use
its best efforts to obtain and maintain all approvals required in the
Cayman Islands to pay and remit outside the Cayman Islands all
dividends declared by the Company and payable on the Ordinary Shares;
and (iii) it will use its best efforts to obtain and maintain all
approvals required in the Cayman Islands for the Company to acquire
sufficient foreign exchange for the payment of dividends and all other
relevant purposes.
(xxv) The Company will use its best efforts to comply with
Sarbanes-Oxley, and to use its best efforts to cause the Company's
directors and officers, in their capacities as such, to comply in with
Sarbanes-Oxley.
(xxvi) OFAC. The Company will not directly or indirectly use the
proceeds of the Offered Securities hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
(b) Each of the Selling Shareholders agrees with the several
Underwriters that:
21
(i) Such Selling Shareholder, severally and not jointly, will pay
all expenses incident to the performance of their respective
obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i) any stamp duties, capital
duties and stock transfer taxes, if any, payable upon the sale of the
Offered Securities by such Selling Shareholder to the Underwriters,
(ii) the fees and disbursements of their respective local counsel and
accountants, except for the fees and expenses, if any, incurred by the
Company's counsel on behalf of the Selling Shareholders which will be
borne by the Company and (iii) to the extent applicable, any fees and
expenses of the authorized agent for service of process in the State of
New York, County of New York in any action arising out of or relating
to this Agreement.
(ii) Such Selling Shareholder, severally and not jointly, will
indemnify and hold harmless the Underwriters against any documentary,
stamp or similar issue tax, including any interest and penalties, on
the creation, issue and sale of the Offered Securities by such Selling
Shareholder and on the execution and delivery of this Agreement. All
payments to be made by each Selling Shareholder hereunder shall be made
without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless such
Selling Shareholder or the Company is compelled by law to deduct or
withhold such taxes, duties or charges. In that event, a Selling
Shareholder 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.
(iii) Such Selling Shareholder agrees during the relevant Lock-Up
Period not to (i) offer, sell, issue, contract to sell, pledge or
otherwise dispose of Lock-Up Securities, (ii) offer, sell, issue,
contract to sell, contract to purchase or grant any option, right or
warrant to purchase Lock-Up Securities, (iii) enter into any swap,
hedge or any other agreement that transfers, in whole or in part, the
economic consequences of ownership of Lock-Up Securities, (iv)
establish or increase a put equivalent position or liquidate or
decrease a call equivalent position in Lock-Up Securities within the
meaning of Section 16 of the Exchange Act or (v) demand the filing with
the Commission of a registration statement under the Act relating to
Lock-Up Securities, or publicly disclose the intention to take any such
action, without the prior written consent of the Representatives.
The initial Lock-Up Period for each Selling Shareholder will
commence on the date hereof and will continue and include the date 90
days after the date hereof or such earlier date that the
Representatives consent to in writing; provided, however, that if (1)
during the last 17 days of the initial Lock-Up Period, the Company
releases earnings results or material news or a material event relating
to the Company occurs or (2) prior to the expiration of the initial
Lock-up Period, the Company announces that it will release earnings
results during the 16-day period beginning on the last day of the
initial Lock-Up Period, then in each case the Lock-Up Period will be
extended until the expiration of the 18 day period beginning on the
date of release of the earnings results or the occurrence of the
material news or material event, as applicable, unless the
Representatives waive, in writing, such extension.
(iv) Sales of Company Securities. Prior to engaging in any
transaction or taking any other action that is subject to the terms of
Section 6(b)(iii) during the period from the date of this Agreement to
and including the 34th day following the expiration of the relevant
Lock-Up Period, it will give notice thereof to the Company and will not
consummate such transaction or take any such action unless it has
received written confirmation from the Company that the relevant
Lock-Up Period (as such may have been extended pursuant to Section
7(a)) has expired.
(v) W-9 / W-8 Form. Each Selling Shareholder agrees to procure
delivery to the Representatives on or prior to the First Closing Date a
properly completed and executed United States Treasury Department Form
W-9 or applicable Form W-8 (or other applicable form or statement
specified by Treasury Department regulations in lieu thereof).
(vi)Interest of Underwriters. That the Shares to be sold by the
Selling Shareholder hereunder is subject to the interest of the
Underwriters and that the obligations of the Selling Shareholder
hereunder shall not be terminated by any act of the Selling
Shareholder, by operation of law, by the death or
22
incapacity of any individual Selling Shareholder or, in the case of a
trust, by the death or incapacity of any executor or trustee or the
termination of such trust, or the occurrence of any other event.
(vii) Material Event. To notify promptly the Company and the
Representatives if, at any time prior to the date on which the
distribution of the Offered Securities as contemplated herein and in
the Prospectus has been completed, as determined by the
Representatives, such Selling Shareholder has knowledge of the
occurrence of any event relating to such Selling Shareholder as a
result of which the Prospectus or the Registration Statement, in each
case as then amended or supplemented, would include an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein (except in the case of the Registration
Statement), in the light of the circumstances under which they were
made not misleading.
(viii) Further Agreement. To cooperate to the extent necessary to
cause the Registration Statement or any post-effective amendment
thereto to become effective at the earliest practical time and to do
and perform all things to be done and performed under this Agreement
prior to any Closing Date and to satisfy all conditions precedent of
such Selling Shareholder to the delivery of the Offered Securities and
underlying Ordinary Shares to be sold by such Selling Shareholder
pursuant to this Agreement.
(c) The Controlling Person agrees with the several Underwriters:
(i) Material Event. To notify promptly the Company and the
Representatives if, at any time prior to the date on which the
distribution of the Offered Securities as contemplated herein and in
the Prospectus has been completed, as determined by the
Representatives, the Controlling Person has knowledge of the occurrence
of any event as a result of which the Prospectus or the Registration
Statement, in each case as then amended or supplemented, would include
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein (, in the light of the
circumstances under which they were made not misleading.
6. Free Writing Prospectuses. The Company, the Controlling Person and
each Selling Shareholder represents and agrees that, unless it obtains the prior
consent of the Representatives, and each Underwriter represents and agrees that,
unless it obtains the prior consent of the Company and the Representatives, it
has not made and will not make any offer relating to the Offered Securities that
would constitute an Issuer Free Writing Prospectus, or that would otherwise
constitute a "free writing prospectus," as defined in Rule 405, required to be
filed with the Commission. Any such free writing prospectus consented to by the
Company and the Representatives is hereinafter referred to as a "PERMITTED FREE
WRITING PROSPECTUS." Each of the Company and each Selling Shareholder represent
that it has treated and agrees that it will treat each Permitted Free Writing
Prospectus as an "issuer free writing prospectus," as defined in Rule 433, and
has complied and will comply with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including timely Commission
filing where required, legending and record keeping. The Company represents that
is has satisfied and agrees that it will satisfy the conditions in Rule 433 to
avoid a requirement to file with the Commission any electronic road show.
7. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties of the Company and each Selling Shareholder herein (as though made on
such Closing Date), to the accuracy of the statements of officers of the Company
and each Selling Shareholder, as the case may be, made pursuant to the
provisions hereof, to the performance by the Company and each Selling
Shareholder of its respective obligations hereunder and to the following
additional conditions precedent:
(a) Accountants' Comfort Letter and Reports. The Representatives
shall have received letters, dated, respectively, the date hereof and
each Closing Date, of Deloitte Touche Tohmatsu CPA Limited confirming
that they are an independent registered public accounting firm within
the meaning of the Securities Laws and substantially in the form of
Schedule D hereto (except that, in any letter dated a Closing Date, the
specified date referred to in Schedule D) hereto shall be a date no
more than three days prior to such Closing Date).
23
The Company shall have received a management letter of Deloitte
Touche Tohmatsu CPA Limited with respect to certain observation made in
connection with its audit as to the Company's financial statements,
including observations as to the Company's internal control practices.
(b) Effectiveness of Registration Statement. If the Effective Time
of the Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Final Prospectus is
finalized and distributed to any Underwriter, or shall have occurred at
such later time as shall have been consented to by the Representatives.
The Final Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) hereof.
Prior to such Closing Date, no stop order suspending the effectiveness
of a Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or the Representatives, shall be contemplated by the
Commission.
(c) No Material Adverse Change. Subsequent to the execution and
delivery of this Agreement, there shall not have occurred (i) any
change, or any development or event involving a prospective change, in
the condition (financial or otherwise), results of operations,
business, properties or prospects of the Company and its subsidiaries
taken as a whole which, in the judgment of the Representatives, is
material and adverse and makes it impractical or inadvisable to market
the Offered Securities; (ii) if applicable, any downgrading in the
rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g)), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of
such rating); (iii) any change in either U.S., Cayman Islands, PRC,
Hong Kong or international financial, political or economic conditions
or currency exchange rates or exchange controls the effect of which is
such as to make it, in the judgment of the Representatives, impractical
to market or to enforce contracts for the sale of the Offered
Securities, whether in the primary market or in respect of dealings in
the secondary market; (iv) any suspension or material limitation of
trading in securities generally on the New York Stock Exchange, the
Nasdaq Global Market, or any setting of minimum or maximum prices for
trading on such exchanges; (v) or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter
market; (vi) any banking moratorium declared by any U.S. federal, New
York, Cayman Islands, PRC or Hong Kong authorities; (vii) any major
disruption of settlements of securities, payment, or clearance services
in the United States, the Cayman Islands, the PRC, Hong Kong or any
other country where such securities are listed or (viii) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the
United States, the Cayman Islands, the PRC or Hong Kong, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of the Representatives, the
effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency is such as to make it impractical or inadvisable
to market the Offered Securities or to enforce contracts for the sale
of the Offered Securities.
(d) Opinion of U.S. Counsel for Company. The Representatives shall
have received an opinion, dated such Closing Date, of Latham & Watkins
LLP, counsel for the Company, addressed to the Underwriters in
substantially the form set forth in Annex 1 hereto.
(e) Opinion of Selling Shareholders U.S. Counsel. The
Representatives shall have received an opinion, dated such Closing
Date, of Latham & Watkins LLP, U.S. counsel for the Selling
Shareholders, addressed to the Underwriters in substantially the form
set forth in Annex 2 hereto.
(f) Opinion of Cayman Islands and British Virgin Islands Counsel
for Company. The Representatives shall have received an opinion, dated
such Closing Date, of Maples and Calder, Cayman Islands and British
Virgin Islands counsel for the Company, addressed to the Underwriters
in substantially the form set forth in Annex 3 and Annex 4 hereto.
(g) Opinion of PRC Counsel for Company. The Representatives shall
have received an opinion, dated such Closing Date, of Jin Mao Law Firm,
PRC counsel for the Company, addressed to the Underwriters in
substantially the form set forth in Annex 5 hereto.
24
(h) Opinion of Hong Kong Counsel for Company. The Representatives
shall have received an opinion, dated such Closing Date, of Arculli
Fong & Ng, Hong Kong counsel for the Company, addressed to the
Underwriters in substantially the form set forth in Annex 6 hereto.
(i) Opinion of Local Counsel for each Selling Shareholder. The
Representatives shall have received an opinion, dated such Closing
Date, of the counsel for each Selling Shareholder for its jurisdiction
of incorporation or organization, addressed to the Underwriters in
substantially the form set forth in Annex 7 hereto.
(j) Opinion of Depositary's Counsel. The Representatives shall
have received an opinion, dated such Closing Date, of Ziegler, Ziegler
& Associates LLP, counsel for the Depositary, addressed to the
Underwriters in substantially the form set forth in Annex 8 hereto.
(k) Opinion of U.S. Counsel for Underwriters. The Representatives
shall have received from Simpson Thacher & Bartlett LLP, U.S. counsel
for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to such matters as the Representatives may require,
and the Company and the Selling Shareholders shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass upon such matters. In rendering such opinion, Simpson
Thacher & Bartlett LLP may rely as to all matters governed by Cayman
Islands law upon the opinion of Maples and Calder referred to above,
all matters governed by British Virgin Islands law upon the opinion of
Maples and Calder referred to above, and all matters governed by PRC
law upon the opinions of Jin Mao Law Firm and Commerce & Finance Law
Offices, each as referred to above.
(l) Opinion of PRC Counsel for Underwriters. The Representatives
shall have received from Commerce & Finance Law Offices, PRC counsel
for the Underwriters, such opinion or opinions, dated such Closing
Date, with respect to such matters as the Representatives may require,
and the Company and the Selling Shareholders shall have furnished to
such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(m) Officer's Certificate. The Representatives shall have received
a certificate, dated such Closing Date, of an executive officer of the
Company and a principal financial or accounting officer of the Company
in which such officers shall state that: the representations and
warranties of the Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied hereunder at or prior to such
Closing Date; no stop order suspending the effectiveness of any
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the best of their knowledge and
after reasonable investigation, are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements
of subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant
to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) of Regulation S-T of the Commission;
and, subsequent to the date of the most recent financial statements in
the General Disclosure Package, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and its
subsidiaries taken as a whole except as set forth in the General
Disclosure Package or as described in such certificate.
(n) Controlling Person's Certificate. The Representative shall
have received a certificate, dated such Closing Date, of the
Controlling Shareholder in which the Controlling Person shall state
that: the representations and warranties of the Controlling Person in
this Agreement are true and correct; and the Controlling Person has
complied with all agreements and satisfied all conditions on their part
to be performed or satisfied hereunder at or prior to such Closing
Date.
(o) Selling Shareholders' Certificates. The Representative shall
have received a certificate, dated such Closing Date, of an authorized
representative of each Selling Shareholder in which such authorized
representative, to the best of its knowledge after reasonable
investigation, shall state that: the representations and warranties of
such Selling Shareholder in this Agreement are true and correct; and
the
25
Selling Shareholders have complied with all agreements and satisfied
all conditions on their part to be performed or satisfied hereunder at
or prior to such Closing Date.
(p) Lock-up Agreements. On or prior to the date hereof, the
Representatives shall have received the Lock-up Agreements.
(q) Depositary's Certificate. The Depositary shall have furnished
or caused to be furnished to the Underwriters a certificate
satisfactory to the Representative of one of its authorized officers
with respect to the deposit with it of the Ordinary Shares represented
by the Offered Securities against issuance of the ADRs evidencing the
Offered Securities, the execution, issuance, countersignature and
delivery of the ADRs evidencing the Offered Securities pursuant to the
Deposit Agreement and such other matters related thereto as the
Representative may reasonably request.
(r) Execution of Deposit Agreement. The Company and the Depositary
shall have executed and delivered the Deposit Agreement and the Deposit
Agreement shall be in full force and effect and the Company and the
Depositary shall have taken all action necessary to permit the deposit
of the Ordinary Shares and the issuance of the Offered Securities in
accordance with the Deposit Agreement.
(s) Form 1099. The Custodian shall have delivered to the
Representative a letter stating that it will deliver to each Selling
Shareholder a United States Treasury Department Form 1099 (or other
applicable form or statement specified by the United States Treasury
Department regulations in lieu thereof) on or before January 31 of the
year following the date of this Agreement.
(t) Form W-9 / W-8. On or prior to the First Closing Date, the
Representative shall have received from the Custodian United States
Treasury Department Form W-9 or the applicable Form W-8 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof) properly completed and executed by each
Selling Shareholder.
(u) New York Stock Exchange Approval. The Offered Securities shall
have been approved to be listed on the New York Stock Exchange.
(v) DTC Eligibility. On or prior to the First Closing Date, the
Offered Securities shall be eligible for clearance and settlement
through the facilities of DTC.
(w) No Unapproved Supplemental Disclosure. No Issuer Free Writing
Prospectus, Prospectus or amendment or supplement to the Registration
Statement, the ADS Registration Statement or the Prospectus shall have
been filed to which the Representatives object in writing.
(x) No Material Adverse Change. Between the time of execution of
this Agreement and such Closing Date, no material adverse change or any
development involving a prospective material adverse change in the
earnings, business, properties, management, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole, shall occur or become known.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
requests. The Representatives may in their sole discretion waive on behalf of
the Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
8. Indemnification and Contribution. (a) Indemnification of
Underwriters by Company and Controlling Person. Each of the Company and the
Controlling Person, jointly and severally, will indemnify and hold harmless each
Underwriter, its partners, members, directors, officers, employees, agents,
affiliates and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an
"INDEMNIFIED PARTY"), against any and all losses, claims, damages or
liabilities, joint or several, to which such Indemnified Party may become
subject, under the Act, the Exchange Act, other Federal or state statutory law
or regulation or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out
26
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any part of any Registration Statement at any time,
any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free
Writing Prospectus, or arise out of or are based upon the omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse each Indemnified Party
for any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending against any loss, claim, damage,
liability, action, litigation, investigation or proceeding whatsoever (whether
or not such Indemnified Party is a party thereto), whether threatened or
commenced, and in connection with the enforcement of this provision with respect
to any of the above as such expenses are incurred; provided, however, that
neither the Company nor the Controlling Person will be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in or omission or
alleged omission from any of such documents in reliance upon and in conformity
with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below, and provided further that
the aggregate liability of the Controlling Person pursuant to this subsection
(a) shall not exceed the product of (i) 48.96%, multiplied by (ii) the number of
Offered Securities sold by Jun Heng Investment Limited as set forth on
Schedule B hereto and (iii) the public offering price per Offered Security as
set forth in Section 3 hereof.
(b) Indemnification of Underwriters by the Selling Shareholders. The
Selling Shareholder, severally and not jointly, will indemnify and hold harmless
each Indemnified Party against any and all losses, claims, damages or
liabilities, joint or several, to which such Indemnified Party may become
subject, under the Act, the Exchange Act, other Federal or state statutory law
or regulation or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any part of any Registration Statement at any time, any Statutory Prospectus as
of any time, the Final Prospectus or any Issuer Free Writing Prospectus, or
arise out of or are based upon the omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and will reimburse each Indemnified Party for any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending against any loss, claim, damage, liability, action,
litigation, investigation or proceeding whatsoever (whether or not such
Indemnified Party is a party thereto), whether threatened or commenced, and in
connection with the enforcement of this provision with respect to any of the
above as such expenses are incurred; provided, however, that the Selling
Shareholder will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; provided, further, that a
Selling Shareholder will only be liable to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents based upon written information furnished to the Company by such
Selling Shareholder; and provided further that the liability of each
indemnifying Selling Shareholder pursuant to this subsection shall not exceed
the product of the number of shares of Offered Securities sold by such
indemnifying Selling Shareholder multiplied by the price per share of Offered
Securities set forth in Section 3 hereof.
(c) Indemnification of the Company, the Controlling Person and the
Selling Shareholders. Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, each of its directors and each of its officers
who signs a Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, the Controlling Person and each Selling Shareholder (each, an
"UNDERWRITER INDEMNIFIED PARTY"), against any losses, claims, damages or
liabilities to which such Underwriter Indemnified Party may become subject,
under the Act, the Exchange Act, other Federal or state statutory law or
regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any part
of any Registration Statement at any time, any Statutory Prospectus as of any
time, the Final Prospectus, or any Issuer Free Writing Prospectus, or arise out
of or are based upon the omission or the alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading,
27
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by such Underwriter
Indemnified Party in connection with investigating or defending against any such
loss, claim, damage, liability, action, litigation, investigation or proceeding
whatsoever (whether or not such Underwriter Indemnified Party is a party
thereto), whether threatened or commenced, based upon any such untrue statement
or omission, or any such alleged untrue statement or omission as such expenses
are incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of (i) the following information in the
Final Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fourth paragraph under the caption
"Underwriting" and the information contained in the fourteenth, fifteenth and
sixteenth paragraphs under the caption "Underwriting".
(d) Actions against Parties; Notification. Promptly after receipt by an
indemnified party under this Section of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under subsection (a), (b) or (c) above, notify
the indemnifying party of the commencement thereof; but the failure to notify
the indemnifying party shall not relieve it from any liability that it may have
under subsection (a), (b) or (c) above except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a), (b) or (c) above. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section, as the case may be,
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened action
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 (i) includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to, or an admission of, fault, culpability or a
failure to act by or on behalf of an indemnified party.
(e) Contribution. If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or (c)
above (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, the Controlling Person and the Selling Shareholders on
the one hand and the Underwriters on the other from the offering of the
Securities or (ii) if the allocation provided by clause (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 (i) above but also the relative
fault of the Company, the Controlling Person and the Selling Shareholders on the
one hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities as well
as any other relevant equitable considerations. The relative benefits received
by the Company, the Controlling Person and the Selling Shareholders on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company, the Controlling Person and the Selling
Shareholders bear to the total underwriting discounts and commissions received
by the Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Controlling Person and the Selling
Shareholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the first sentence of
this subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), no Underwriter shall be
required to contribute any amount in excess of the amount
28
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint. The Company, the Controlling Person the
Selling Shareholders and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(e) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in this Section 8(e).
(f) Control Persons. The obligations of the Company, the Controlling
Person and the Selling Shareholders under this Section shall be in addition to
any liability which the Company, the Controlling Person and the Selling
Shareholders may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
9. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date, Credit Suisse may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of Offered Securities with
respect to which such default or defaults occur exceeds 10% of the total number
of Offered Securities that the Underwriters are obligated to purchase on such
Closing Date and arrangements satisfactory to the Representatives and the
Company and the Selling Shareholders for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Company or the Selling Shareholders, except as provided in Section 10
(provided that if such default occurs with respect to Optional Securities after
the First Closing Date, this Agreement will not terminate as to the Firm
Securities or any Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers on behalf of the Company, of the Selling Shareholders
and of the several Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
any Selling Shareholder or the Company or, in each case, any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If the purchase of
the Offered Securities by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 9 hereof, the Company and the Selling Shareholders will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities, and the respective obligations of the Company, the Selling
Shareholders and the Underwriters pursuant to Section 8 hereof shall remain in
effect. In addition, if any Offered Securities have been purchased hereunder,
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect.
12. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, Credit Suisse Securities (USA) LLC, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: LCD-IBD, and Merrill Lynch,
Pierce, Fenner & Smith Incorporated, Four World Financial Center, 250 Vesey
Street, New York, N.Y. 10080, Attention: Equity Capital
29
Markets, if sent to the Company, the Controlling Person, or any Selling
Shareholder, will be mailed, delivered or telegraphed and confirmed to it at
E-House (China) Holdings Limited, 17/F, Merchandise Harvest Building (East), No.
333 North Chengdu Road, Shanghai, 200041, People's Republic of China, Attention:
Chief Financial Officer; provided, however, that any notice to an Underwriter
pursuant to Section 8 will be mailed, delivered by hand or sent via facsimile
and confirmed to such Underwriter.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8, and no other
person will have any right or obligation hereunder.
14. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by either Representative
individually will be binding upon all the Underwriters.
15. 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 Agreement.
16. Absence of Fiduciary Relationship. The Company, the Controlling
Person and each Selling Shareholder acknowledge and agree that:
(a) No Other Relationship. The Representatives have been retained
solely to act as underwriters in connection with the sale of Offered
Securities and that no fiduciary, advisory or agency relationship
between the Company or the Selling Shareholders on the one hand and the
Representatives on the other has been created in respect of any of the
transactions contemplated by this Agreement or the Final Prospectus,
irrespective of whether the Representatives have advised or is advising
the Company, the Controlling Person or the Selling Shareholders on
other matters;
(b) Arms' Length Negotiations. The price of the Offered Securities
set forth in this Agreement was established by the Company and the
Selling Shareholders following discussions and arms-length negotiations
with the Representatives, and the Company and the Selling Shareholders
are capable of evaluating and understanding and understands and accept
the terms, risks and conditions of the transactions contemplated by
this Agreement;
(c) Absence of Obligation to Disclose. The Company, the
Controlling Person and the Selling Shareholders have been advised that
the Representatives and their affiliates are engaged in a broad range
of transactions which may involve interests that differ from those of
the Company, the Controlling Person and the Selling Shareholders, and
that the Representatives have no obligation to disclose such interests
and transactions to the Company, the Controlling Person or the Selling
Shareholders by virtue of any fiduciary, advisory or agency
relationship; and
(d) Waiver. The Company, the Controlling Person and each Selling
Shareholder waive, to the fullest extent permitted by law, any claims
any of them may have against the Representatives for breach of
fiduciary duty or alleged breach of fiduciary duty and agree that the
Representatives shall have no liability (whether direct or indirect) to
the Company, the Controlling Person or the Selling Shareholders in
respect of such a fiduciary duty claim or to any person asserting a
fiduciary duty claim on behalf of or in right of the Company, the
Controlling Person, or any Selling Shareholder, including their
respective stockholders, employees or creditors.
17. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company, the Controlling Person and each Selling Shareholder hereby
submit to the non-exclusive jurisdiction of the Federal and state courts in the
Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby.
The Company, the
30
Controlling Person and each Selling Shareholder irrevocably and unconditionally
waive any objection to the laying of venue of any suit or proceeding arising out
of or relating to this Agreement or the transactions contemplated hereby in
Federal and state courts in the Borough of Manhattan in The City of New York and
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit or proceeding in any such court has been brought
in an inconvenient forum. The Company, the Controlling Person and each Selling
Shareholder irrevocably appoint CT Corporation System, currently of 111 Eighth
Avenue, New York, NY, 10011, as each of their authorized agent in the Borough of
Manhattan in The City of New York upon which process may be served in any such
suit or proceeding, and agree that service of process upon such agent, and
written notice of said service to the Company, the Controlling Person or any
Selling Shareholder by the person serving the same to the address provided in
Section 12 hereof, shall be deemed in every respect effective service of process
upon the Company, the Controlling Person or such Selling Shareholder in any such
suit or proceeding. The Company, the Controlling Person and each Selling
Shareholder further agree to take any and all action as may be necessary to
maintain such designation and appointment of such agent in full force and effect
for a period of seven years from the date of this Agreement.
The obligation of the Company, the Controlling Person and the Selling
Shareholders pursuant to this Agreement in respect of any sum due to any
Underwriter shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first business day, following
receipt by such Underwriter of any sum adjudged to be so due in such other
currency, on which (and only to the extent that) such Underwriter 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 Underwriter hereunder, the Company, the Controlling
Person and the Selling Shareholders agree, as a separate obligation and
notwithstanding any such judgment, to indemnify such Underwriter against such
loss. If the United States dollars so purchased are greater than the sum
originally due to such Underwriter hereunder, such Underwriter agrees to pay to
the Company, the Controlling Person and the Selling Shareholders an amount equal
to the excess of the dollars so purchased over the sum originally due to such
Underwriter hereunder.
31
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Controlling Person, the Selling Shareholders and the several
Underwriters in accordance with its terms.
Very truly yours,
E-HOUSE (CHINA) HOLDINGS LIMITED
By
-------------------------------------------
Name:
Title:
CONTROLLING PERSON
By
-------------------------------------------
Xin Zhou
SELLING SHAREHOLDERS
By
-------------------------------------------
Name:
Attorney-in-fact for and on behalf of the
Selling Shareholders
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Acting on behalf of themselves and as the
Representatives of the several Underwriters
By CREDIT SUISSE SECURITIES (USA) LLC
By:
-------------------------------------------
Name:
Title:
By MERRILL LYNCH, PIERCE FENNER & SMITH
INCORPORATED
By:
-------------------------------------------
Name:
Title:
SCHEDULE A
UNDERWRITERS
<Table>
<Caption>
UNDERWRITER NUMBER OF NUMBER OF
----------- FIRM SECURITIES OPTIONAL SECURITIES*
--------------- --------------------
Credit Suisse Securities (USA) LLC ................... [-] [-]
Merrill Lynch, Pierce, Fenner & Smith
Incorporated ............................. [-] [-]
Lazard Capital Markets LLC ...........................
Susquehanna Financial Group, LLLP ....................
--------------- -------------------
Total ..................... [-] [-]
=============== ===================
</Table>
*Assumes option is exercised in full.
SCHEDULE B
SELLING SHAREHOLDERS
NUMBER OF NUMBER OF OPTIONAL
FIRM SECURITIES NET PROCEEDS -- SECURITIES NET PROCEEDS --
SELLING SHAREHOLDER TO BE SOLD FIRM SECURITIES TO BE SOLD* OPTIONAL SECURITIES*
- ------------------- ---------- --------------- ----------- --------------------
Smart Create Group Limited ...... [-] US$[-] [-] US$[-]
Jun Heng Investment Limited** ... [-] US$[-] [-] US$[-]
--------------- --------------- --------------- ---------------
Total ......... [-] US$[-] [-] US$[-]
=============== =============== =============== ===============
</Table>
*Assumes option is exercised in full.
** Selling only if the underwriters exercise the over-allotment option
SCHEDULE C
1. GENERAL USE FREE WRITING PROSPECTUSES (INCLUDED IN THE GENERAL DISCLOSURE
PACKAGE)
"General Use Issuer Free Writing Prospectus" includes each of the
following documents:
[1. -.]
2. OTHER INFORMATION INCLUDED IN THE GENERAL DISCLOSURE PACKAGE
The following information is also included in the General Disclosure
Package:
1. [-].
SCHEDULE D
[Form of Comfort Letter]
SCHEDULE E
FORM OF SELLING SHAREHOLDER LOCK-UP AGREEMENT
CREDIT SUISSE SECURITIES (USA) LLC,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
Two World Financial Center
250 Vesey Street
New York, N.Y. 10281
As Representatives of the several Underwriters named in
Schedule A attached to the Underwriting Agreement
[DATE], 2008
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the
proposed Underwriting Agreement (the "UNDERWRITING AGREEMENT") to be entered
into by E-House (China) Holdings Limited (the "COMPANY") and you, as
Representatives of the several Underwriters named therein, with respect to the
public offering (the "OFFERING") of American depositary shares (the "ADSS"),
each representing one ordinary share, par value US$0.001 per share, of the
Company (the "ORDINARY SHARES").
In order to induce you to enter into the Underwriting Agreement, the
undersigned agrees that during the Lock-Up Period (as described below) not to
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend or otherwise transfer or dispose of, directly or
indirectly, any Ordinary Shares or ADSs or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or ADSs or enter into a
transaction which would have the same effect or (ii) enter into any swap, hedge,
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Ordinary Shares or ADSs, whether any
such aforementioned transaction is to be settled by delivery of Ordinary Shares,
ADSs or such other securities, in cash or otherwise, (iii) demand the filing of
a registration statement pursuant to a shareholder's agreement or otherwise, or
(iv) publicly disclose the intention to make any such offer, sale, pledge, or
disposition, or enter into any such transaction, swap, hedge, or other
arrangement, without, in each case as mentioned in (i), (ii), (iii) or (iv)
above, the prior written consent of the Representatives, except the Ordinary
Shares in the form of ADSs to be sold by the Selling Shareholder hereunder. The
initial Lock-Up Period will commence on the date of the final Prospectus
covering the Offering (the "PROSPECTUS") and will continue and include the date
90 days after the date of the Prospectus or such earlier date that the
Representatives consent to in writing; provided, however, that if (1) during the
last 17 days of the initial Lock-Up Period, the Company releases earnings
results or material news or a material event relating to the Company occurs or
(2) prior to the expiration of the initial Lock-up Period, the Company announces
that it will release earnings results during the 16-day period beginning on the
last day of the initial Lock-Up Period, then in each case the Lock-Up Period
will be extended until the expiration of the 18 day period beginning on the date
of release of the earnings results or the occurrence of the material news or
material event, as applicable, unless the Representatives waive, in writing,
such extension.
Very truly yours,
------------------------
(Name)
-------------------------
(Address)
SCHEDULE F
LIST OF MATERIAL CONTRACTS
ANNEX 1
FORM OF OPINION OF LATHAM & WATKINS LLP, U.S. COUNSEL TO THE COMPANY
ANNEX 2
FORM OF OPINION OF LATHAM & WATKINS LLP, U.S. COUNSEL TO THE SELLING SHAREHOLDER
ANNEX 3
FORM OF OPINION OF MAPLES & CALDER, CAYMAN ISLANDS COUNSEL TO THE COMPANY
ANNEX 4
FORM OF OPINION OF MAPLES AND CALDER, CAYMAN ISLANDS
AND BVI COUNSEL TO THE COMPANY
ANNEX 5
FORM OF OPINION OF JIN MAO LAW FIRM, PRC COUNSEL TO THE COMPANY
ANNEX 6
FORM OF OPINION OF ARCULLI FONG & NG, HONG KONG COUNSEL TO THE COMPANY
ANNEX 7
FORM OF OPINION OF SELLING SHAREHOLDER'S COUNSEL
ANNEX 8
FORM OF OPINION OF ZIEGLER, ZIEGLER & ASSOCIATES LLP, DEPOSITARY'S U.S. COUNSEL