UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest event Reported):
June 10, 2015
CHINA BIOLOGIC PRODUCTS, INC.
(Exact name of registrant as specified
in its charter)
Delaware |
001-34566 |
75-2308816 |
(State or other jurisdiction of |
(Commission File No.) |
(IRS Employer ID No.) |
incorporation or organization) |
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18th Floor, Jialong International Building |
19 Chaoyang Park Road |
Chaoyang District, Beijing 100125 |
People’s Republic of China |
(Address of Principal Executive Offices)
86-10-6598-3166
Registrant's telephone number, including
area code
____________________________________________________________
(Former name or former address, if changed
since last report)
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions
(see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a -12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d -2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e -4(c)) |
Item 1.01. Entry
into a Material Definitive Agreement.
On June 10, 2015, China Biologic
Products, Inc. (the “Company”), Warburg Pincus Private Equity X, L.P. (“WP X”), and Warburg Pincus X
Partners, L.P. (together with WP X, the “Selling Stockholders”) entered into an underwriting agreement (the
“Underwriting Agreement”) with Morgan Stanley & Co. International plc, Credit Suisse Securities (USA) LLC,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Jefferies LLC as representatives to the underwriters named in the
Underwriting Agreement (collectively, the “Underwriters”), relating to the public offering (the
“Offering”) of 3,000,000 shares of the Company’s common stock (“Common Stock”), $0.0001 par
value per share (the “Firm Shares”), at a price to the public of $105 per share (the
“Offering Price”), less underwriting discounts. Of the 3,000,000 shares, 700,000 are being sold by the Company
and 2,300,000 are being sold by the Selling Stockholders. Under the terms of the Underwriting Agreement, the Underwriters
have been granted a 30-day option to purchase up to an additional 105,000 shares of Common Stock from the Company and up to
an additional 345,000 shares of Common Stock from the Selling Stockholders (the 450,000 shares together, the
“Additional Shares” and, together with the Firm Shares, the “Shares”) at the Offering Price. The net
proceeds to the Company from the sale of the Shares, after deducting the underwriting discounts and other estimated offering
expenses payable by the Company, are expected to be approximately $70.0 million assuming no exercise by the Underwriters of
their option for the Additional Shares, or $80.5 million if the Underwriters exercise their option for the Additional Shares
in full. The Company will not receive any proceeds from the sale of shares of Common Stock by the Selling Stockholders. The
Offering is expected to close on June 15, 2015, subject to the satisfaction of customary closing conditions.
The Underwriting Agreement contains customary
representations, warranties, and covenants of the Company and also provides for customary indemnification by each of the Company,
the Selling Stockholders and the Underwriters against certain liabilities and customary contribution provisions in respect of those
liabilities. The Offering is being made pursuant to an automatically effective registration statement on Form S-3ASR (Registration
No. 333-204761) previously filed with the Securities and Exchange Commission and a prospectus supplement thereunder. A copy of
the Underwriting Agreement is filed as Exhibit 1.1 to this report and incorporated by reference herein, and the foregoing description
of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to such exhibit.
In connection with the Offering, a copy
of the opinion of counsel with respect to the validity of the Shares being sold in the Offering is filed as Exhibit 5.1 to this
report and incorporated by reference herein.
Item 8.01. Other
Events.
On June 10, 2015, the Company issued a press
release announcing the pricing of the Offering. A copy of the press release is attached as Exhibit 99.1 to this report and is incorporated
by reference herein.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
Exhibit Number |
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Description |
1.1 |
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Underwriting Agreement, dated as of June 10, 2015, by and between the Company, the Selling Stockholders and the representatives to the Underwriters |
5.1 |
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation |
23.1 |
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1) |
99.1 |
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Press Release issued by the Company dated June 10, 2015 |
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: June 10, 2015 |
CHINA BIOLOGIC PRODUCTS, INC. |
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By: |
/s/ David (Xiaoying) Gao |
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David (Xiaoying) Gao
Chief Executive Officer |
Exhibit 1.1
EXECUTION VERSION
CHINA BIOLOGIC PRODUCTS, INC.
3,000,000 SHARES OF COMMON STOCK (PAR VALUE $0.0001 PER SHARE)
UNDERWRITING AGREEMENT
June 10, 2015
June 10, 2015
Morgan Stanley & Co. International plc
25 Cabot Square, Canary Wharf
London, E14 4QA
United Kingdom
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, N.Y. 10010
United States
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
One Bryant Park
New York, New York 10036
Jefferies LLC
520 Madison Avenue
New York, NY 10022
As Representatives of the several Underwriters
named in Schedule I hereto
Ladies and Gentlemen:
China Biologic Products, Inc., a Delaware
corporation (the “Company”), proposes to issue and sell to the several underwriters named in Schedule I
hereto (the “Underwriters”), for whom you are acting as representatives (collectively, the “Representatives”),
and certain stockholders of the Company (the “Selling Stockholders”) named in Schedule II hereto
severally and not jointly propose to sell to the several Underwriters, an aggregate of 3,000,000 shares of common stock of the
Company, par value $0.0001 per share (the “Firm Shares”), of which 700,000 shares are to be issued and
sold by the Company and 2,300,000 shares are to be sold by the Selling Stockholders. The Company proposes to issue and sell
an aggregate of up to 105,000 additional shares of its common stock, par value $0.0001 per share (the “Company Additional
Shares”), and the Selling Stockholders, severally and not jointly propose to sell an aggregate of up to 345,000 additional
shares of common stock of the Company, par value $0.0001 per share (the “Selling Stockholder Additional Shares,”
together with the Company Additional Shares, the “Additional Shares”), if and to the extent that you, as
Representatives of the several Underwriters, shall have determined to exercise, on behalf of the Underwriters, the right to purchase
such Additional Shares granted to the Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the “Shares.” The shares of common stock of the Company, par value $0.0001
per share, to be outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the “Common
Stock.” The Company and the Selling Stockholder are hereinafter sometimes collectively referred to as the “Sellers.”
The Company has filed with the Securities
and Exchange Commission (the “Commission”) a registration statement, including a prospectus, on Form S-3
(File No. 333-204761), relating to the securities (the “Shelf Securities”), including the Shares, to be
offered and sold from time to time by the Company and the Selling Stockholders. The registration statement as amended to the date
of this Agreement, including the information (if any) deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A or Rule 430B under the Securities Act of 1933, as amended (the “Securities Act”),
is hereinafter referred to as the “Registration Statement,” and the related prospectus covering the Shelf
Securities dated June 5, 2015 in the form first used to confirm sales of the Shares (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred
to as the “Basic Prospectus.” The Basic Prospectus, as supplemented by the prospectus supplement specifically
relating to the Shares in the form first used to confirm sales of the Shares (or in the form first made available to the Underwriters
by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as
the “Prospectus,” and the term “preliminary prospectus” means any preliminary form of the
Prospectus. For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405
under the Securities Act, “Time of Sale Prospectus” means the documents and pricing information set forth opposite
the caption “Time of Sale Prospectus” in Schedule III hereto, and “broadly available road
show” means a “bona fide electronic road show” as defined in Rule 433(h)(5) under the Securities
Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,”
“Basic Prospectus,” “preliminary prospectus,” “Time of Sale Prospectus”
and “Prospectus” shall include the documents incorporated by reference therein as of the date hereof. The terms
“supplement,” “amendment,” and “amend” as used herein with respect to
the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, any preliminary prospectus or the Prospectus shall
include all documents subsequently filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), that are deemed to be incorporated by reference therein.
1. Representations
and Warranties of the Company. The Company represents and warrants to and agrees with each of the Underwriters that:
(a) The
Registration Statements has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the Commission. The Company has complied with each request
(if any) from the Commission for additional information.
(b) (i)
Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Time of Sale Prospectus
or the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules
and regulations of the Commission thereunder, (ii) each part of the Registration Statement, when such part became effective,
at the Closing Date (as defined in Section 5 hereof) and at the Option Closing Date (as defined in Section 3 hereof)
did not contain, and each such part, as amended or supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the statements therein not misleading, (iv) the Registration
Statement and the Prospectus comply, and as amended or supplemented, if applicable, will comply in all material respects with the Securities
Act and the applicable rules and regulations of the Commission thereunder, (v) the Time of Sale Prospectus does
not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available
to prospective purchasers and at the Closing Date (as defined in Section 5 hereof) and at the Option Closing Date (as
defined in Section 3 hereof), as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement
of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, (vi) each broadly available road show, if any, when considered together with the Time
of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were made, not misleading and (vii) the Prospectus
does not contain as of its date, at the Closing Date (as defined in Section 5 hereof) and at the Option Closing Date
(as defined in Section 3 hereof), as amended or supplemented, if applicable, will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements
or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein,
it being understood that the only such information so furnished is described in Section 11 hereof.
(c) The
financial statements included or incorporated by reference in the Registration Statement, the Prospectus and the Time
of Sale Prospectus, together with the related schedules and notes, have been prepared in compliance with the requirements of the Securities
Act and the Exchange Act in all material respects, and present fairly the consolidated financial position of the Company
and its subsidiaries at the dates indicated and the consolidated statements of comprehensive income, changes in equity and cash
flows of the Company and its subsidiaries for the periods specified; and said financial statements have been prepared in conformity
with accounting principles generally accepted in the United States of America (“U.S. GAAP”) applied on a consistent
basis throughout the periods involved. The selected financial data and the summary financial information included in the Registration
Statement, the Prospectus and the Time of Sale Prospectus present fairly the information shown therein and have been compiled on
a basis consistent with that of the audited financial statements included in the Registration Statement. The interactive data
in eXtensible Business Reporting Language incorporated by reference in the Registration Statement and Time of Sale Prospectus fairly
presents the information called for in all material respects and has been prepared in accordance with the Commission’s rules
and guidelines applicable thereto. For the purpose of this Agreement, “subsidiary” means, any person of which
at least a majority of the securities (or other interests having by their terms ordinary voting power to elect a majority of the
board of directors or other performing similar functions with respect to such corporation or other organization) is, directly or
indirectly, owned or controlled by the Company.
(d) The
Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433
under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d)
under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities
Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company
has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or behalf
of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities
Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule III hereto forming part of the Time of Sale Prospectus, and electronic road shows, if any,
each furnished to you before first use, the Company has not prepared, used or referred to, and will not, without your prior
consent, prepare, use or refer to, any free writing prospectus. No free writing prospectus conflicts or will conflict with the
information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein,
and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified.
(e) The Company
has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own, lease and operate its property, to conduct its business as described in the Time
of Sale Prospectus, and to enter into and perform its obligations under this Agreement, and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires
such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse
effect in the business, properties, condition, financial or otherwise, or on the earnings or prospects of the Company and
its subsidiaries, taken as a whole (“Material Adverse Effect”).
(f) Except
as otherwise disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, each subsidiary of the Company
has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own, lease and operate its property and to conduct its business as described in the Time
of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct
of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a Material Adverse Effect. Except as otherwise disclosed in the Time of
Sale Prospectus, all of the issued and outstanding capital stock of each subsidiary has been duly authorized and validly issued,
is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear of any securities
interest, mortgage, pledge, lien, encumbrance, claim or equity. None of the outstanding shares of capital stock of any subsidiary
of the Company were issued in violation of the preemptive or similar rights of any security holder of such subsidiary.
(g) This
Agreement has been duly authorized, executed and delivered by the Company.
(h) The
authorized capital stock of the Company conforms as to legal matters to the description thereof contained in each of the Time
of Sale Prospectus and the Prospectus.
(i) All
of the outstanding shares of the Common Stock of the Company (including the Shares to be sold by the Selling Stockholders)
have been duly authorized and are validly issued, fully paid and non-assessable. None of the outstanding shares of capital stock
of the Company, including the Shares to be purchased by the Underwriters from the Selling Shareholders, were issued in violation
of the preemptive or other similar rights of any security holder of the Company.
(j) The
Shares to be sold by the Company have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive
or similar rights. The outstanding share capital of each of the companies set forth in the Company’s annual report on Form
10-K for the fiscal year ended December 31, 2014 filed with the Commission on March 4, 2015 (the “Annual Report”)
under the heading “Item 1. Business—Corporate History and Structure” is owned by the Company either
directly or indirectly as to such percentage as set forth therein and unless otherwise disclosed in the Registration Statement,
the Time of Sale Prospectus and the Prospectus, such share capital so owned by the Company (either directly or indirectly) is free
and clear of any perfected security interest or any other security interests, claims, liens or encumbrances.
(k) Except
as otherwise described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, neither the Company nor any
of its subsidiaries is (i) in violation of its Organizational Documents (as defined below), (ii) in default (or
with the giving of notice or lapse of time would be in default) in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them is bound, or to
which any of the property or assets of the Company or any of its subsidiaries is subject (collectively, “Agreements and
Instruments”), (iii) in violation of any applicable law, statute, regulation, rule, judgment, order, writ or decree
of any government, government instrumentality or court having jurisdiction over the Company or any of its subsidiaries or
any of their assets, properties or operations, or (iv) in breach or in default of any of the Governmental Licenses (as
defined below), with respect to each of the clauses (ii), (iii) and (iv), except for any such default, violation or breach as would
not, individually or in the aggregate, have a Material Adverse Effect. “Organizational Documents” means, with
respect to any person, the memorandum of association, articles of association, articles of incorporation, certificate of incorporation,
bylaws and any charter, partnership agreements, joint venture agreements or other organizational documents of such entity and any
amendments thereto.
(l) The
execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, and the
consummation of the transactions contemplated herein or therein and in the Registration Statement, the Time of Sale Prospectus
and the Prospectus (including the issuance and sale of the Shares and the use of the proceeds from the sale of the Shares as described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus under the heading “Use of Proceeds”)
and compliance by the Company with its obligations hereunder have been duly authorized by all necessary corporate action and do
not and will not, whether with or without the giving of notice or passage of time or both, conflict with or constitute a breach
of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any of its subsidiaries, or contravene any provision of applicable law or the certificate
of incorporation or bylaws of the Company or any agreement or other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary, nor will such action constitute any breach or default of
the Governmental Licenses, and no filing with, consent, approval, license, registration, authorization, decree or order of, or
qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this
Agreement, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer
and sale of the Shares. A “Repayment Event” means any event or condition that gives 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.
(m) Since
the respective dates as of which information is given in the Registration Statement, the Time of Sale Prospectus and
the Prospectus, (i) there has been no change, nor any development or event involving a prospective change, that would,
individually or in the aggregate, result in a Material Adverse Effect, (ii) there have been no transactions entered into
by the Company or any of its subsidiaries that would, singly or in the aggregate, result in a Material Adverse Effect, (iii) there
has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its share capital, (iv) there
has been no material adverse change in the share capital, non-current indebtedness, combined net current assets or stockholders’
equity, combined operating profit or the total or per-share amounts of (loss) profit for the period of the Company and its
subsidiaries, and (v) there has been no obligation, direct or contingent (including any off-balance sheet obligations), incurred
by the Company or any of its subsidiaries that would, singly or in the aggregate, result in a Material Adverse Effect.
(n) There
are no legal or governmental proceedings pending or threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject (i) other than proceedings accurately described
in all material respects in the Time of Sale Prospectus and proceedings that would not have a Material Adverse Effect
and would not have a material adverse effect on the power or ability of the Company to perform its obligations under this
Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required to be described
in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts
or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits
to the Registration Statement that are not described or filed as required.
(o) Each
preliminary prospectus filed as part of the Registration Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
(p) The
Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof
as described in the Prospectus will not be, required to register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended.
(q) The
Company and its subsidiaries (i) are in compliance with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“Environmental Laws”), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval, except with respect to clauses (i), (ii) and (iii) where
such noncompliance with Environmental Laws, failure to receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals would not, singly or in the aggregate, have a Material Adverse
Effect.
(r) There
are no costs or liabilities associated with Environmental Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third parties) which would, singly or in the aggregate, have
a Material Adverse Effect.
(s) Neither
the Company nor any of its subsidiaries, nor any director, officer, or employee, nor, to the Company’s knowledge, any other
affiliate, or agent or representative of the Company or of any of its subsidiaries or affiliates, has taken or will take any action
in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property,
gifts or anything else of value, directly or indirectly, to any “government official” (including any officer
or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting
in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political
office) to influence official action or secure an improper advantage, including any action that would result in a violation by
such persons of the Foreign Corruption Practice Act of 1977, as amended (the “FCPA”), and the rules and regulations
thereunder; and the Company and its subsidiaries and affiliates have conducted their businesses in compliance with applicable
anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote
and achieve compliance with such laws and with the representation and warranty contained herein.
(t) The
operations of the Company and its subsidiaries are and have been conducted at all times in material compliance with all applicable
financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III
of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct
business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered
or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action,
suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(u) (i) Neither
the Company nor any of its subsidiaries, nor any director, officer, or employee thereof, nor, to the Company’s knowledge,
any agent, affiliate or representative of the Company or any of its subsidiaries, is an individual or entity (“Person”)
that is, or is owned or controlled by a Person that is:
(A) the
subject or target of any sanctions administered or enforced by the United States Government (including, without limitation, U.S.
Department of Treasury’s Office of Foreign Assets Control (“OFAC”)), the United Nations Security Council
(“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”),
or other relevant sanctions authority (collectively, “Sanctions”), nor
(B) located,
organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, Libya,
North Korea, Sudan and Syria).
(ii) The
Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such
proceeds to any subsidiary, joint venture partner or other Person:
(A) to
fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding
or facilitation, is the subject of Sanctions; or
(B) in
any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering,
whether as underwriter, advisor, investor or otherwise).
(iii) the
Company and its subsidiaries have not knowingly engaged in, are not now knowingly engaged in, and will not engage in, any dealings
or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject
of Sanctions.
(v) The
Company and each of its subsidiaries have filed all federal, state, local and foreign tax returns required to be filed through
the date of this Agreement or have requested extensions thereof (except where the failure to file would not, individually or in
the aggregate, have a Material Adverse Effect) and have paid all taxes required to be paid thereon (except for cases in which the
failure to file or pay would not have a Material Adverse Effect, or, except as currently being contested in good faith and for
which reserves required by U.S. GAAP have been created in the financial statements of the Company), and no tax deficiency has been
determined adversely to the Company or any of its subsidiaries which has had (nor does the Company nor any of its subsidiaries
have any notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely to the Company
or its subsidiaries and which could reasonably be expected to have) a Material Adverse Effect.
(w) The
Company and each of its subsidiaries maintain effective internal control over financial reporting (as defined under Rule 13a-15
and 15d-15 under the Securities Act) and a system of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions
are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles
and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general
or specific authorization; (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 interactive data in eXtensible Business
Reporting Language included or incorporated by reference in the Registration Statement fairly presents the information called for
in all material respects and has been prepared in accordance with the Commission’s rule and guidelines applicable thereto.
Since the end of the Company’s most recent audited fiscal year, there has been (i) no
material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no
change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting. The Company and each of its subsidiaries maintain
an effective system of disclosure controls and procedures (as defined in Rule 13a-15 and Rule 15d-15 under the Securities Act)
that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under
the Securities Act is recorded, processed, summarized and reported, within the time periods specified in the Commission’s
rules and forms, and is accumulated and communicated to the Company’s management, including its principal executive officer
or officers and principal financial officer or officers, as appropriate, to allow timely decision regarding disclosure.
(x) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company and its subsidiaries possess
such necessary permits, licenses, approvals, consents and other authorizations (collectively, “Governmental Licenses”)
issued by the appropriate national, provincial, local or foreign regulatory agencies or bodies and have made all necessary filings
required under any applicable law, regulation or rule necessary to conduct the business currently operated by them; the Company
and its subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses and all of the Governmental
Licenses are valid and in full force and effect; and neither the Company nor any of its subsidiaries is in violation of, or in
default under, or has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses;
except such non-compliance as in each case which, singly or in the aggregate, would not result in a Material Adverse Effect.
(y) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company has taken all reasonable
steps to comply, and to ensure compliance by each of the Company’s stockholders who became a stockholder of the Company prior
to the Company’s initial public offering and is a PRC resident or PRC citizen, with any applicable rules and regulations
of the State Administration of Foreign Exchange (the “SAFE Rules and Regulations”), including, without
limitation, taking reasonable steps to require each of such stockholders to complete any registration and other procedures required
under applicable SAFE Rules and Regulations.
(z) KPMG,
who has certified the financial statements filed with the Commission as part of the Annual Report incorporated by reference in
the Registration Statement, are independent public accountants as required by the Securities Act and the applicable rules and regulations
of the Commission thereunder.
(aa) The
Shares are listed on the Nasdaq Global Select Market.
(bb) 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 or the principal suppliers or contractors
of any of its subsidiaries, which, in each case, would, individually or in the aggregate, result in a Material Adverse Effect.
(cc) The
statements in the Registration Statement, the Time of Sale Prospectus and the Prospectus under the headings “Risk Factors,”
“Use of Proceeds,” “Dividend Policy,” “Management’s Discussion and Analysis
of Financial Condition and Results of Operations,” “Business,” “Prospectus Summary,”
“Description of Share Capital,” “Description of Capital Stock,” “Description of
the Warrants,” “Description of the Units,” “Shares Eligible for Future Sale,” and
“Taxation,” as applicable, and the statements in the Annual Report 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 in all material respects and present the material information required to be shown.
(dd) Except
as otherwise described in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company and its subsidiaries
own, or have obtained valid and enforceable licenses for, or other rights to use, the inventions, patent applications, patents,
trademarks (both registered and unregistered), trade names, service names, domain names, copyrights (including rights relating
to software), know how (including trade secrets and other unpatented and unpatentable proprietary or confidential information,
systems or procedures) and other intellectual property rights (collectively, “Intellectual Property”) described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus, if any, as being owned or licensed by them or which
are necessary for the conduct of their respective businesses as currently conducted, except where the failure to own, license or
have such rights would not, individually or in the aggregate, have a Material Adverse Effect.
(ee) In
relation to the Intellectual Property: (i) there are no third parties (other than a person who has a registered or contractual
right to such Intellectual Property) who have established or, to the Company’s best knowledge, will be able to establish
rights to any Intellectual Property owned by or licensed to the Company or any of the its subsidiaries; (ii) to the Company’s
best knowledge, there is no infringement by third parties of any Intellectual Property owned by or licensed to the Company or any
of its subsidiaries; (iii) there is no pending or, to the Company’s best knowledge, threatened action, suit, proceeding or
claim by others challenging the Company’s rights in or to any Intellectual Property or the validity, enforceability or scope
of any Intellectual Property, and the Company is unaware of any facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (iv) there is no pending or, to the Company’s best knowledge, threatened action, suit, proceeding
or claim by others alleging that the Company or any of its subsidiaries infringes or otherwise violates any Intellectual Property
of any other person or entity, and the Company is unaware of any facts which could form a reasonable basis for any such action,
suit, proceeding or claim; (v) the Company and its subsidiaries have complied with the terms of each agreement pursuant to which
Intellectual Property has been licensed to the Company or any of its subsidiaries, and all such agreements are in full force and
effect; and (vi) none of the technology employed by the Company or any of its subsidiaries has been obtained or is being used by
the Company or any of its subsidiaries in violation of any contractual obligation binding on the Company and its subsidiaries to
the Company’s best knowledge, or otherwise in violation of the rights of any persons; except as with respect to each of the
foregoing that would not have a Material Adverse Effect.
(ff) Neither
the Company nor any of its subsidiaries nor, to the Company’s best knowledge, any of the Company’s and its subsidiaries’
respective directors, officers, employees, representatives, agents, affiliates or controlling persons has taken, nor will take,
directly or indirectly, any action which is designed to or which has constituted or which would be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares
or to result in a violation of Regulation M under the Securities Act.
(gg) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company and each of its subsidiaries
have good and marketable title to all real property owned by them and good title to all other properties owned by them, in each
case, free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except
as would not, singly or in the aggregate, result in a Material Adverse Effect.
(hh) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, all of the leases and subleases held
by the Company and its subsidiaries are valid, subsisting, enforceable and in full force and effect, except as would not, singly
or in the aggregate, result in a Material Adverse Effect, and neither the Company nor any of its subsidiaries has received any
written notice of any claim that has been asserted by anyone adverse to the rights of the Company or any of its subsidiaries under
any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or any of its subsidiaries
to the continued possession of the leased or subleased premises under any such lease or sublease, except as would not result in
a Material Adverse Effect.
(ii) The
Company is not reviewing or investigating, and neither the Company’s independent auditors nor its internal auditors have
recommended that the Company review or investigate, adding to, deleting, changing the application of, or changing the Company’s
disclosure with respect to, any of the Company’s material accounting policies, any matter that could result in a restatement
of the Company’s financial statements for any annual or interim period during the current or prior three fiscal years, or
any significant deficiency, material weakness, change in internal controls or fraud involving management or other employees who
have a significant role in internal controls.
(jj) The
sections entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations”
included or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus accurately
and fairly describe in all material respects (i) the 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”), (ii) judgments and uncertainties
affecting the application of the Critical Accounting Policies, and (iii) the likelihood that materially different amounts would
be reported under different conditions or using different assumptions and an explanation thereof; and the Company’s management
have reviewed and agreed with the selection, application and disclosure of the Critical Accounting Policies as described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus, and have consulted with its independent accountants with
regards to such disclosure.
(kk) The
Company has taken all necessary actions to ensure that the Company and its subsidiaries and their respective officers and directors,
in their capacities as such, are in compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley
Act”) and the rules and regulations promulgated thereunder. There is and has been no failure on the part of the Company
or, to the Company’s knowledge, any of the Company’s directors or officers, in their capacities as such, to comply
in all material respects with any provision of the Sarbanes-Oxley Act and the rules and regulations promulgated thereunder.
(ll) The
Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) eligible to use the Registration
Statement as an automatic shelf registration statement and the Company has not received notice that the Commission objects to the
use of the Registration Statement as an automatic shelf registration statement.
(mm) The
Company and its subsidiaries carry or are entitled to the benefits of insurance, with financially sound and reputable insurers,
in such amounts and covering such risks as it generally believes to be maintained by companies of established repute engaged in
the same or similar business in the PRC, and all such insurance is in full force and effect. The Company has no reason to believe
that it or any of its subsidiaries will not be able to renew its existing insurance coverage as and when such policies expire,
or to obtain comparable coverage from similar institutions as may be necessary or appropriate to conduct its business as now conducted
and at a cost that would not result in a Material Adverse Effect.
(nn) Except
as disclosed in the Registration Statement and Time of Sale Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of any Underwriter and (ii) does not intend to use any of the proceeds from the
sale of the Shares to repay any outstanding debt owed to any affiliate of any Underwriter.
(oo) Any
statistical and market-related data included in the Registration Statement, the Time of Sale Prospectus and the Prospectus are
based on or derived from sources that the Company believes to be reliable and accurate, and, except to the extent that a written
consent for the use of data released by the relevant PRC government authority or other source of data is not required under PRC
or other applicable law, the Company has obtained the required written consent to the use of such data from such sources and such
consent has not been revoked.
(pp) Each
“forward-looking statement” (within the meaning of Section 27A of the Securities Act or Section 21E of the Exchange
Act) contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus has been made or reaffirmed with
a reasonable basis and in good faith.
(qq) Except
as disclosed in the Time of Sale Prospectus, no subsidiary of the Company is currently prohibited, directly or indirectly, from
paying any dividends to the Company, from making any other distribution on such subsidiary’s share capital or equity interest,
or from repaying to the Company any loans or advances to such subsidiary from the Company.
(rr) Except
pursuant to this Agreement, neither the Company nor any of its subsidiaries has incurred any liability for any brokerage commission,
finder’s fee or other like payment in connection with the execution and delivery of this Agreement or the consummation of
the transaction contemplated hereby or by the Registration Statement.
(ss) During
the past three years, there have been no material relationships or transactions between the Company or any of its subsidiaries
on one hand and their respective 10% or greater stockholders, affiliates, directors or officers, or any affiliates or members of
the immediate families of such persons, on the other hand, required to be described in the Time of Sale Prospectus that are not
so disclosed.
(tt) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, no transaction, stamp, capital or other
issuance, registration, transaction, transfer or withholding taxes or duties are payable in PRC, Hong Kong and the British Virgin
Islands by or on behalf of the Underwriters to any PRC, Hong Kong or British Virgin Islands taxing authority in connection with
the issuance, sale and delivery of the Shares by the Company, the sale and delivery of the Shares by the Selling Stockholders and
the delivery of the Shares to or for the account of the Underwriters, the purchase from the Company and the Selling Stockholders
and the initial sale and delivery by the Underwriters of the Shares to purchasers thereof or the execution and delivery of this
Agreement.
(uu) The
choices of the law of the State of New York as the governing law of this Agreement are valid choices of law under the laws of the
British Virgin Islands, Hong Kong and PRC and will be honored by courts in the British Virgin Islands, Hong Kong and PRC, subject
to compliance with relevant civil procedural requirements. The Company has the power to submit, and pursuant to Section 17 of this
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, United States (each, a “New
York Court”), and the Company has the power to designate, appoint and authorize, and pursuant to Section 17 of this Agreement,
has legally, validly, effectively and irrevocably designated, appointed an authorized agent for service of process in any action
arising out of or relating to this Agreement or the Shares in any New York Court, and service of process effected on such authorized
agent will be effective to confer valid personal jurisdiction over the Company as provided in Section 17 of this Agreement.
(vv) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such person the right to require the Company to file a registration
statement under the Act with respect to any securities of the Company owned or to be owned by such person or to require the Company
to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered
pursuant to any other registration statement filed by the Company under the Act (collectively, “registration rights”).
Except as disclosed in the Time of Sale Prospectus, any person to whom the Company has granted registration rights has either
exercised or waived such registration rights in this Offering; and all such persons have agreed not to exercise their registration
rights until after the expiration of the lock-up period referred to in Section 3 hereof.
(ww) Neither
the Company nor any of its subsidiaries nor any of their respective properties, assets or revenues has any right of immunity under
British Virgin Islands, Hong Kong, PRC, New York or United States federal 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
British Virgin Islands, Hong Kong, PRC, New York or United States federal court, from service of process, attachment upon or prior
to judgment, or attachment in aid of execution of judgment, or from execution of a judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of a judgment, in any such court, with respect to its obligations, liabilities
or any other matter under or arising out of or in connection with this Agreement or the Shares; and, to the extent that the Company,
or any of its subsidiaries or any of their respective properties, assets or revenues may have or may hereafter become entitled
to any such right of immunity in any such court in which proceedings may at any time be commenced, each of the Company and its
subsidiaries waives or will waive such right to the extent permitted by law and has consented to such relief and enforcement as
provided in Section 17 of this Agreement.
(xx) The
Company has not distributed and, prior to any Closing Date or Option Closing Date (each as defined in Section 3 hereof) and the
completion of the distribution of the Shares, will not distribute any offering material in connection with the offering and sale
of the Shares other than any preliminary prospectus, the Prospectus and any Issuer Free Writing Prospectus to which the Representatives
have consented in accordance with this Agreement.
(yy) Except
as disclosed in the Time of Sale Prospectus, the Company and its subsidiaries have no obligation to provide retirement, death or
disability benefits to any of the present or past employees of the Company or any of its subsidiaries, or to any other person;
and the Company and its subsidiaries are in compliance with all applicable laws relating to employee benefits, except non-compliance
that would not have a Material Adverse Effect.
(zz) There
are no affiliations or associations between any member of the Financial Industry Regulatory Authority, Inc. (the “FINRA”)
and the Company or any of the officers or directors of the Company or its subsidiaries, or holders of 5% or greater of the securities
of the Company.
(aaa) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the granting of share option or restricted
stock under the Company’s 2008 Equity Incentive Plan or the issuance of Common Stock pursuant to the exercise of such share
option or the lapse of restrictions of such restricted stock, the Company has not sold, issued or distributed any shares during
the six-month period preceding the date hereof, including any sales pursuant to Rule 144A, Regulation D or Regulation S
promulgated under the Securities Act.
(bbb) Each
entity or person whose name is set forth on Schedule IV hereto has furnished to you, prior to the date of this Agreement,
a lock-up letter or letters, substantially in the form of Exhibit A hereto.
2. Representations
and Warranties of the Selling Stockholders. Each Selling Stockholder, severally
and not jointly, represents and warrants as to and in respect of itself to, and agrees as to and in respect of itself with, the
several Underwriters that:
(a) Such
Selling Stockholder has been duly organized and is validly existing as a limited partnership in its jurisdiction of formation.
(b) The
execution and delivery by such Selling Stockholder of, and the performance by such Selling Stockholder of its obligations under
this Agreement will not result in any violation of (i) applicable law, (ii) the provisions of any of the Organizational Documents
of such Selling Stockholder, (iii) any agreement or other instrument binding upon such Selling Stockholder, or (iv) any
judgment, order or decree of any governmental body, agency or court having jurisdiction over such Selling Stockholder, except that
in the case of clauses (i) and (iii) as would not, individually or in the aggregate, have a material adverse effect on the
ability of such Selling Stockholder to consummate the transactions contemplated by this Agreement;
(c) No
consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance
by such Selling Stockholder of its obligations under this Agreement, except such as may be required by the securities laws of the
various states in connection with the offer and sale of the Shares.
(d) This
Agreement has been duly authorized, executed and delivered by such Selling Stockholder.
(e) Such
Selling Stockholder has, and on the Closing Date will have, valid title to, or a valid “security entitlement”
within the meaning of Section 8-501 of the New York Uniform Commercial Code (the “UCC”) in respect of,
the Shares to be sold by such Selling Stockholder free and clear of all security interests, claims, liens, equities or other encumbrances
and the legal right and power, and all authorization and approval required by law, to enter into this Agreement and to sell, transfer
and deliver the Shares to be sold by such Selling Stockholder or a security entitlement in respect of such Shares.
(f) Upon
payment for the Shares to be sold by such Selling Stockholder pursuant to this Agreement, delivery of such Shares, as directed
by the Underwriters, to Cede & Co. (“Cede”) or such other nominee as may be designated by the Depository
Trust Company (“DTC”), registration of such Shares in the name of Cede or such other nominee and the crediting
of such Shares on the books of DTC to securities accounts of the Underwriters (assuming that neither DTC nor any such Underwriter
has notice of any adverse claim (within the meaning of Section 8-105 of the UCC) to such Securities, (A) DTC shall be a “protected
purchaser” of such Shares within the meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the
Underwriters will acquire a valid security entitlement in respect of such Shares and (C) no action based on any “adverse
claim,” within the meaning of Section 8-102 of the UCC, to such Shares may be asserted against the Underwriters with respect
to such security entitlement; for purposes of this representation, the Selling Stockholder may assume that when such payment, delivery
and crediting occur, (x) such Shares will have been registered in the name of Cede or another nominee designated by DTC, in each
case on the Company’s share registry in accordance with its certificate of incorporation, bylaws and applicable law, (y)
DTC will be registered as a “clearing corporation” within the meaning of Section 8-102 of the UCC and (z)
appropriate entries to the accounts of the several Underwriters on the records of DTC will have been made pursuant to the UCC.
(g) Such
Selling Stockholder is not prompted by any material information concerning the Company or its subsidiaries which is not set forth
in the Time of Sale Prospectus to sell its Shares pursuant to this Agreement.
(h) (i)
the Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not
contain, as of the date of such amendment or supplement, any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading, (ii) the Time of Sale Prospectus does
not, and at the time of each sale of the Shares in connection with the offering when the Prospectus is not yet available to prospective
purchasers and at the Closing Date (as defined in Section 5 of this Agreement), the Time of Sale Prospectus, as then amended
or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and
(iii) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain, as of its date and as of
the Closing Date, any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties
set forth in this subsection are limited in all respects to statements or omissions of material facts made in reliance upon and
in conformity with information relating to such Selling Stockholder furnished to the Company by or on behalf of such Selling Stockholder
expressly for use in the Time of Sale Prospectus, the Prospectus or the Registration Statement; it being understood and agreed
that such information furnished by such Selling Stockholder consists only of (A) the legal name, address and the number of shares
of common stock of the Company owned by such Selling Stockholder and (B) the other information (excluding percentages) with respect
to such Selling Stockholder which appear in the table (and corresponding footnotes) under the captions “Principal and
Selling Stockholders” in the Registration Statement, the Prospectus and the Time of Sale Prospectus.
(i) Such
Selling Stockholder has not taken, and will not take, directly or indirectly, any action which is designed to or which constituted
or would be expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares.
(j) Such
Selling Stockholder has not prepared or had prepared on its behalf or used or referred to, any “free writing prospectus”
(as defined in Rule 405), and has not distributed any written materials in connection with the offer or sale of the Shares.
(k) The
operations of such Selling Stockholder are and have been conducted in compliance with all applicable Anti-Money Laundering Laws
in all material respects, and no action, suit or proceeding by or before any court or governmental agency, authority or body or
any arbitrator involving such Selling Stockholder with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge
of such Selling Stockholder, threatened.
(l) (i) Neither such Selling Stockholder, nor, to the knowledge of such Selling Stockholder, any director, officer, employee of such
Selling Stockholder, is a Person that is, or is owned or controlled by a Person that is:
(A) the subject or target of any
Sanctions, or
(B) located, organized or resident
in a country or territory that is the subject of Sanctions (including, without limitation, Cuba, Iran, Libya, North Korea, Sudan
and Syria);
(ii) Such Selling Stockholder
has not knowingly engaged in, is not now knowingly engaged in, and will not engage in, any dealings or transactions with any Person,
or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.
3. Agreements
to Sell and Purchase. The Company and each Selling Stockholder, severally
but not jointly, solely on behalf of itself hereby agrees to sell to each Underwriter, and each Underwriter, upon the basis of
the representations and warranties herein contained but subject to the conditions hereinafter stated, agrees, severally and not
jointly, to purchase from the Company and each Selling Stockholder, at $100.275 per Share (the “Purchase Price”),
the number of Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter.
On the basis of the representations and
warranties contained in this Agreement, and subject to its terms and conditions, (i) the Company agrees to sell to the Underwriters,
and the Underwriters shall have the right to purchase, severally and not jointly, up to 105,000 Company Additional Shares at the
Purchase Price, and (ii) each Selling Stockholder agrees, severally and not jointly, to sell to the Underwriters, and the
Underwriters shall have the right to purchase, severally and not jointly, up to the respective maximum number of Selling Stockholder
Additional Shares set forth in Schedule II hereto at the Purchase Price; provided, however, that the amount
paid by the Underwriters for any Additional Shares shall be reduced by an amount per share equal to any dividends declared by the
Company and payable on the Firm Shares but not payable on such Additional Shares. You may exercise this right on behalf of the
Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of the Prospectus.
Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date on which such
Shares are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not
be earlier than the closing date for the Firm Shares nor later than ten business days after the date of such notice. Additional
Shares may be purchased as provided in Section 5 hereof solely for the purpose of covering sales of shares in excess of the number
of the Firm Shares. In the event that the number of Additional Shares specified in any exercise notice is lower than the sum of
the maximum number of Company Additional Shares and the total number of Selling Stockholder Additional Shares set forth in Schedule
II hereto, the number of Additional Shares to be sold by the Company and each Selling Stockholder hereunder shall be reduced
proportionately based on the respective maximum number of Additional Shares the Company has agreed to sell and each such Selling
Stockholder has agreed to sell as set forth in Schedule II hereto. On each day, if any, that Additional Shares are to be
purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the number
of Additional Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion
to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm Shares.
Each Seller hereby agrees that, without
the prior written consent of Morgan Stanley & Co. International plc, on behalf of the Underwriters, it will not, during the
period ending 90 days after the date of the Prospectus (the “Restricted Period”), (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially
owned (as such term is used in Rule 13d-3 under the Exchange Act) or any other securities so owned convertible into or exercisable
or exchangeable for Common Stock; or (2) enter into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; or (3) file any
registration statement with the Commission relating to the offering of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock.
The restrictions contained in the preceding
paragraph shall not apply to (a) the Shares to be sold hereunder, (b) the issuance by the Company of shares of Common
Stock upon the exercise of an option or warrant or the conversion of a security outstanding on the date hereof of which the Underwriters
have been advised in writing, (c) the grant by the Company of share options and restricted shares under its existing employee
stock option plans which are described in the Registration Statements, or (d) the establishment of a trading plan pursuant
to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (i) such plan does
not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement or
filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of any Selling Stockholder or the Company
regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer
of Common Stock may be made under such plan during the Restricted Period. In addition, each Selling Stockholder agrees that, without
the prior written consent of Morgan Stanley & Co. International plc on behalf of the Underwriters, it will not, during the
Restricted Period, make any demand for, or exercise any right with respect to, the registration of any shares of Common Stock or
any security convertible into or exercisable or exchangeable for Common Stock. Each Selling Stockholder consents to the entry of
stop transfer instructions with the Company’s transfer agent and registrar against the transfer of any Shares held by such
Selling Stockholder except in compliance with the foregoing restrictions.
4. Public
Offering. Each Seller is advised by you that the Underwriters propose
to make a public offering of their respective portions of the Shares as soon after the execution of this Agreement as in your judgment
is advisable. The Sellers are further advised by you that the Shares are to be offered to the public initially at $105 per Share
(the “Public Offering Price”).
5. Payment
and Delivery. Payment for the Firm Shares to be sold by each Seller
shall be made to such Seller in Federal or other funds immediately available in New York City against delivery of such Firm Shares
for the respective accounts of the several Underwriters at 10:00 am New York City time on June 15, 2015, or at such other
time on the same or such other date, not later than the fifth business day thereafter, as may be designated in writing by you.
The time and date of such payment are hereinafter referred to as the “Closing Date.”
Payment for any Additional Shares shall
be made to the Company in Federal or other funds immediately available in New York City against delivery of such Additional Shares
for the respective accounts of the several Underwriters on the date specified in the corresponding notice described in Section 3
or at such other time on the same or on such other date, in any event not later than the tenth business day thereafter, as may
be designated in writing by you.
The Firm Shares and the Additional Shares
shall be registered in such names and in such denominations as you shall request in writing not later than one full business day
prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Shares and the Additional Shares
shall be delivered to you on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the
several Underwriters. The Purchase Price payable by the Underwriters shall be reduced by (i) any transfer taxes payable, or paid
by or on behalf of the Underwriters, in connection with the transfer of the Shares to the Underwriters duly paid and (ii) any withholding
taxes required by law.
6. Conditions
to the Underwriters’ Obligations. The several obligations of the
Underwriters are subject to the following further conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there
shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the securities
of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as
such term is defined in Section 3(a)(62) of the Exchange Act; and
(ii) there
shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Time
of Sale Prospectus that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market
the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The
Representatives shall have received on the Closing Date:
(i) a
certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in Section 6(a)(i)
above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct
as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing Date. The officer signing and delivering such certificate
may rely upon the best of his or her knowledge as to proceedings threatened; and
(ii) a
certificate, dated the Closing Date and signed by the chief financial officer of the Company, stating, among other things, that
certain operating and financial data disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus have
been derived from and verified against the Company’s accounting and business records, and he has no reason to believe that
such data is not true and accurate.
(c) The
Representatives shall have received a certificate of each Selling Stockholder, dated the Closing Date and signed by an executive
officer of such Selling Stockholder, to the effect that the representations and warranties of such Selling Stockholder contained
in this Agreement are true and correct as of the Closing Date and that such Selling Stockholder has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date.
(d) The
Representatives shall have received on the Closing Date an opinion of Wilson Sonsini Goodrich & Rosati Professional Corporation,
outside counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B-1.
(e) The
Representatives shall have received on the Closing Date an opinion of Grandall Law Firm, PRC counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit B-2.
(f) The
Representatives shall have received on the Closing Date an opinion of Wilson Sonsini Goodrich & Rosati Professional Corporation,
Hong Kong counsel for the Company, dated the Closing Date, to the effect set forth in Exhibit B-3.
(g) The
Representatives shall have received on the Closing Date an opinion of Conyers Dill & Pearman, British Virgin Islands counsel
for the Company, dated the Closing Date, to the effect set forth in Exhibit B-4.
(h) The
Representatives shall have received on the Closing Date an opinion of Wilson Sonsini Goodrich & Rosati Professional Corporation,
U.S. counsel for the Selling Stockholders, dated the Closing Date, to the effect set forth in Exhibit C.
(i) The
Representatives shall have received on the Closing Date an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for
the Underwriters, dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(j) The
Representatives shall have received on the Closing Date an opinion of Jingtian & Gongcheng, PRC counsel for the Underwriters,
dated the Closing Date, in form and substance reasonably satisfactory to the Representatives.
(k) The
Representatives shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the Underwriters, from KPMG, independent public accountants, containing
statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of
Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off
date” not earlier than two days prior to Closing Date.
(l) On
the Closing Date, the Shares shall have been approved for listing on the Nasdaq Global Select Market subject any to official notice
of issuance.
(m) The
“lock-up” agreements, each substantially in the form of Exhibit A hereto, between you and certain shareholders,
officers and directors of the Company relating to sales and certain other dispositions of shares of Common Stock or certain other
securities, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date.
(n) The
several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to you on the applicable
Option Closing Date of the following:
(i) The
Representatives shall have received on the Option Closing Date a certificate, dated the Option Closing Date and signed by an executive
officer of the Company, confirming that the certificate delivered on the Closing Date pursuant to Section 6(b) hereof remains true
and correct as of such Option Closing Date;
(ii) The
Representatives shall have received on the Option Closing Date an opinion of Wilson Sonsini Goodrich Rosati Professional Corporation,
outside counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option
Closing Date and otherwise to the same effect as the opinion required by Section 6(d) hereof;
(iii) The
Representatives shall have received on the Option Closing Date an opinion of Grandall Law Firm, PRC counsel for the Company, dated
the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the effect
as the opinion required by Section 6(e) hereof;
(iv) The
Representatives shall have received on the Option Closing Date an opinion of Chen and Associates (in association with Wilson Sonsini
Goodrich & Rosati Professional Corporation), Hong Kong counsel for the Company, dated the Option Closing Date, relating to
the Additional Shares to be purchased on such Option Closing Date and otherwise to the effect as the opinion required by Section
6(f) hereof;
(v) The
Representatives shall have received on the Option Closing Date an opinion of Conyers Dill & Pearman, British Virgin Islands
counsel for the Company, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing
Date and otherwise to the effect as the opinion required by Section 6(g) hereof;
(vi) The
Representatives shall have received on the Option Closing Date an opinion of Wilson Sonsini Goodrich Rosati Professional Corporation,
U.S. counsel for the Selling Stockholders, dated the Option Closing Date, relating to the Additional Shares to be purchased on
such Option Closing Date and otherwise to the effect as the opinion required by Section 6(h) hereof;
(vii) The
Representatives shall have received on the Option Closing Date an opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel
for the Underwriters, dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date
and otherwise to the same effect as the opinion required by Section 6(i) hereof;
(viii) The
Representatives shall have received on the Option Closing Date an opinion of Jingtian & Gongcheng, counsel for the Underwriters,
dated the Option Closing Date, relating to the Additional Shares to be purchased on such Option Closing Date and otherwise to the
same effect as the opinion required by Section 6(j) hereof;
(ix) The
Representatives shall have received on the Option Closing Date a letter dated the Option Closing Date, in form and substance satisfactory
to the Underwriters, from KPMG independent public accountants, substantially in the same form and substance as the letter furnished
to the Representatives pursuant to Section 6(k) hereof; provided that the letter delivered on the Option Closing Date shall use
a “cut-off date” not earlier than three business days prior to such Option Closing Date; and
(x) The
Representatives shall have received on the Option Closing Date such other documents as you may reasonably request with respect
to the good standing of the Company, the due authorization and issuance of the Additional Shares to be sold on such Option Closing
Date and other matters related to the issuance of such Additional Shares.
If any condition specified in this Section
6 shall not have been fulfilled when and as required to be fulfilled, this Agreement, or in the case of any condition to the purchase
of Additional Shares on an Option Closing Date, the obligations of the several Underwriters to purchase the relevant Shares or
Additional Shares, as the case may be, may be terminated by the Representatives by notice to the Company and the Selling Shareholders
at any time at or prior to the Closing Date or Option Closing Date, as the case may be, and such termination shall be without liability
of any party to any other party except as provided in Sections 1, 11, 13, 17, 18 and 20.
7. Covenants
of the Company. The Company covenants with each Underwriter as follows:
(a) To
furnish to you, without charge, an electronic copy of the signed copy of the Registration Statement (including exhibits thereto)
and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and to furnish
to you in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date
of this Agreement and during the period mentioned in Section 7(e) or 7(f) below, as many copies of the Time of Sale Prospectus,
the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration
Statements as you may reasonably request.
(b) Before
amending or supplementing the Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to you a copy of
each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which you reasonably object,
and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required
to be filed pursuant to such Rule.
(c) To
furnish to you a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the
Company and not to use or refer to any proposed free writing prospectus to which you reasonably object.
(d) Without
the prior written consent of the Representatives, not to take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or
on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.
(e) The
Company will comply with the Securities Act, the Exchange Act and rules and regulations of the Commissions thereunder so as to
permit the completion of the distribution of the Shares as contemplated in this Agreement and in the Registration Statement, the
Prospectus and Time of Sale Prospectus. If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time
when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of
which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light
of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus
conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with
the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements
to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that
the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the
Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.
(f) If,
during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters
the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered
in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary
to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or
if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable
law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Shares may have been sold by you on behalf of the Underwriters and
to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred
to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with applicable law.
(g) To
endeavor to qualify the Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as you shall reasonably
request.
(h) To
make generally available to the Company’s security holders and to you as soon as practicable an earnings statement covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement
which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission
thereunder.
(i) The
Company is a U.S. person for U.S. federal income tax purposes. If any Selling Stockholder is not a U.S. person for U.S. federal
income tax purposes, the Company will deliver to each Underwriter (or its agent), (i) on or before the Closing Date, a certificate
with respect to the Company’s status as a “United States real property holding corporation,” dated not more than
thirty (30) days prior to the Closing Date, as described in Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), and (ii) within
ten (10) days after the Closing Date, proof of delivery to the IRS of the required notice, as described in Treasury Regulations
1.897-2(h)(2).
(j) If
requested by the Representatives, to prepare a final term sheet relating to the offering of the Shares, containing only information
that describes the final terms of the offering in a form consented to by the Representatives, and to file such final term sheet
within the period required by Rule 433(d)(5)(ii) under the Securities Act following the date the final terms have been established
for the offering of the Shares.
(k) The
Company will use the net proceeds received by it from the sale of the Shares in the manner specified in the Registration Statement,
the Time of Sale Prospectus and the Prospectus under “Use of Proceeds.”
8. Covenants
of the Selling Stockholders. Each Selling Stockholder covenants with each Underwriter that such Selling Stockholder will deliver
to each Underwriter (or its agent), prior to or at the Closing Date, a properly completed and executed Internal Revenue Service
(“IRS”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such form.
9. Expenses.
Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company
and the Selling Stockholders agree to pay or cause to be paid all expenses incident to the performance of their obligations under
this Agreement (the “Fees and Expenses”), including: (i) the fees, disbursements and expenses of the
Company’s counsel, the Company’s accountants and counsel for the Selling Stockholders in connection with the registration
and delivery of the Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing
of the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, and any free writing prospectus
prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including
the filing fees payable to the Commission relating to the Shares (within the time required by Rule 456 (b)(1), if applicable),
all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the
quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares to the Underwriters,
including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment
memorandum in connection with the offer and sale of the Shares under state securities laws and all expenses in connection with
the qualification of the Shares for offer and sale under state securities laws as provided in Section 7(g) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection
with the Blue Sky or Legal Investment memorandum, (iv) all costs and expenses incident to listing the Shares on the NASDAQ
Global Select Market, (v) the cost of printing certificates representing the Shares, (vi) the costs and charges of any
transfer agent, registrar or depositary, (vii) the costs and expenses of the Company relating to investor presentations on
any “road show” undertaken in connection with the marketing of the offering of the Shares, including, without
limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the
production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations
with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any
such consultants, (viii) the document production charges and expenses associated with printing this Agreement and (ix) all
other costs and expenses incident to the performance of the obligations of the Company and the Selling Stockholders hereunder for
which provision is not otherwise made in this Section. In addition, the Underwriters have agreed to reimburse the Company and the
Selling Stockholders for certain expenses in connection with the Offering in an aggregate amount of US$500,000. It is understood,
however, that except as provided in this Section, Section 11 entitled “Indemnity and Contribution” and
the last paragraph of Section 14 below, the Underwriters will pay all of their costs and expenses, including fees and disbursements
of their counsel, stock transfer taxes payable on resale of any of the Shares by them, any advertising expenses connected with
any offers they may make and costs and expenses in connection with any “road show” incurred by the Underwriters
including travel and lodging expenses of the representatives of the Underwriters. Each Seller further agrees to share and to pay,
and cause to be paid, the Fees and Expenses on a pro rata basis in proportion to the aggregate number of Shares sold by such Seller.
10. Covenants
of the Underwriters
. Each Underwriter severally covenants with the Company not
to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing
prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder,
but for the action of the Underwriter.
11. Indemnity
and Contribution.
(a) The
Company agrees to indemnify and hold harmless each Underwriter, each person, if any, who controls any Underwriter within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of any Underwriter within
the meaning of Rule 405 under the Securities Act from and against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action
or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement
or any amendment thereto, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer
free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed,
or is required to file, pursuant to Rule 433(d) under the Securities Act, any “road show” as defined in Rule
433(h) under the Securities Act (a “road show”), or the Prospectus or any amendment or supplement thereto, or
caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use therein.
(b) Each
Selling Stockholder, severally and not jointly, agrees to indemnify and hold harmless each Underwriter, each person, if any, who
controls the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each
affiliate of each Underwriter within the meaning of Rule 405 under the Securities Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending
or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or any amendment thereto, any preliminary prospectus, the Time of Sale Prospectus or any amendment
or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company
information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road
show or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements therein not misleading, but only with reference
to information relating to such Selling Stockholder furnished in writing by or on behalf of such Selling Stockholder to the Company
for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing prospectus,
road show or the Prospectus or any amendment or supplement thereto. The liability of each Selling Stockholder under the indemnity
agreement contained in this paragraph, the contribution provisions of this Section 11, and in respect of any claim in respect of
a breach of the representations and warranties of such Selling Stockholder contained in Sections 2(f) and 2(g) and hereof, shall
be limited to an amount equal to the aggregate Public Offering Price (less underwriting discounts and commissions) of the Shares
sold by such Selling Stockholder under this Agreement.
(c) Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the Selling Stockholders, the directors
of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company
or any Selling Stockholder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any amendment thereto, any preliminary prospectus, the
Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under
the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act, any road show, or the Prospectus or any amendment or supplement thereto, or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but
only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through
you expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, any issuer free writing
prospectus, road show or the Prospectus or any amendment or supplement thereto. The parties hereto understand and agree that the
only such information concerning such Underwriter furnished by any Underwriter consists of the following information in the Time
of Sale Prospectus and the Prospectus furnished on behalf of each Underwriter: the names set forth in the table of the Underwriters
under the heading “Underwriting,” the information contained in the first sentence of the third paragraph under
the heading “Underwriting” discussing dealers’ concession, the last sentence in the third paragraph under
the heading “Underwriting” (only in respect of the Representatives named therein), the information contained
in the thirteenth paragraph under the heading “Underwriting” discussing possible stabilization measures and
the addresses of the Representatives appearing in the fifteenth paragraph under the heading “Underwriting.”
In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 11(a),
11(b) or 11(c), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity
may be sought (the “indemnifying party”) in writing. The indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others
the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel, or (ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall
not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for (i) the fees and expenses of more than one separate firm (in addition to any local counsel) for
all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities
Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either
such Section and (iii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Selling
Stockholders and all persons, if any, who control the Selling Stockholders within the meaning of either such Section, and that
all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters
and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In
the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm
shall be designated in writing by the Company. In the case of any such separate firm for the Selling Stockholders and such control
persons of the Selling Stockholders, such firm shall be designated in writing by an executive officer of any Selling Stockholder.
The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent (which consent
shall not be unreasonably withheld), but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if
(i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding.
(d) To
the extent the indemnification provided for in Section 11(a), 11(b) or 11(c) is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from
the offering of the Shares or (ii) if the allocation provided by clause 11(d)(i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 11(d)(i) above but also
the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand
in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Sellers on the one hand and the Underwriters on the other
hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds
from the offering of the Shares (before deducting expenses) received by each Seller and the total underwriting discounts and commissions
received by the Underwriters bear to the aggregate Public Offering Price of the Shares set forth in the Prospectus. The relative
fault of the Sellers on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Sellers or by the Underwriters and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations
to contribute pursuant to this Section 11 are several in proportion to the respective number of Shares they have purchased hereunder,
and not joint. The liability of each Selling Stockholder under the contribution agreement contained in this paragraph and the indemnity
contained in Section 11(b), and in respect of any claim in respect of a breach of the representations and warranties of such Selling
Stockholder contained in Sections 2(f) and 2(g) hereof, shall be limited to an amount equal to the aggregate Public Offering
Price (less underwriting discounts and commissions) of the Securities sold by such Selling Stockholder under this Agreement.
(e) The
Sellers and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 11 were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations referred to in Section 11(d). The amount paid
or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 11(d)
shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this
Section 11, (i) no Underwriter shall be required to contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages
that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission and (ii) no Selling Stockholder shall be required to contribute an amount in excess of the amounts by which the proceeds
of this offering (before payment of expenses but after deducting underwriting discounts and commissions) received by such Selling
Stockholder exceeds the amount of any damages that such Selling Stockholder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 11 are not exclusive and shall not limit any rights
or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 11 and the representations, warranties and other statements of
the Company and the Selling Stockholders contained in this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter, any person controlling
any Underwriter or any affiliate of any Underwriter or, any Selling Stockholder or any person controlling any Selling Stockholder,
the officers or directors of the Company or any person controlling the Company and (iii) acceptance of and payment for any
of the Shares.
12. Termination.
The Underwriters may terminate this Agreement by notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the
case may be, any of the New York Stock Exchange, the NYSE MKT, the NASDAQ Global Market, or any other relevant exchanges, (ii) trading
of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material
disruption in securities settlement, payment or clearance services in the United States, PRC or Hong Kong shall have occurred,
(iv) any moratorium on commercial banking activities shall have been declared by Federal or New York State, PRC or Hong Kong authorities,
or (v) there shall have occurred any material adverse change in the financial markets in the United States, PRC, Hong Kong
or the international financial markets, any outbreak or escalation of hostilities, or any change in financial markets, currency
exchange rates or controls or any calamity or crisis that, in your judgment, is material and adverse and which, singly or together
with any other event specified in this clause (v), makes it, in your judgment, impracticable or inadvisable to proceed with the
offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
13. Survival
of Certain Representations and Warranties. The respective indemnities, agreements, representations, warranties and other statements
of the Company or its officers, of the Selling Stockholders, 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, the Company, any Selling Stockholder, or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment for the Shares.
14. Effectiveness;
Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing
Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have
agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters
agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such
date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite
their respective names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to purchase the Shares which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares
that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 14 by an amount in
excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory
to you, the Company and the Selling Stockholders for the purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or the Company. In any such case
either you or the relevant Sellers shall have the right to postpone the Closing Date, but in no event for longer than seven days,
in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or
in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option Closing Date, the non-defaulting
Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold
on such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters
would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by
the Underwriters, or any of them, because of any failure or refusal on the part of any Seller to comply with the terms or to fulfill
any of the conditions of this Agreement, or if for any reason any Seller shall be unable to perform its obligations under this
Agreement, such defaulting Seller will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably
incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.
15. Entire
Agreement. (a) This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement) that relate to the offering of the Shares, represents the entire agreement between the
Company and the Selling Stockholders, on the one hand, and the Underwriters on the other hand, with respect to the preparation
of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and
sale of the Shares.
(b) The
Company acknowledges that in connection with the offering of the Shares: (i) the Underwriters have acted at arm’s length,
are not agents of, and owe no fiduciary duties to, the Company or any other person, (ii) the Underwriters owe the Company only
those duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement),
if any, and (iii) the Underwriters may have interests that differ from those of the Company. The Company waives to the
full extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of fiduciary
duty in connection with the offering of the Shares.
16. Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
17. Submission
to Jurisdiction. Each Seller hereby submits 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. Each Seller irrevocably and unconditionally waives 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 waives and agrees 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. Each Selling Stockholder irrevocably
appoints Law Debenture Corporate Services, Inc., as its 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 agrees that service of process upon such agent, and written notice
of said service to such Selling Stockholder by the person serving the same to the address provided in Section 22 hereof, shall
be deemed in every respect effective service of process upon such Selling Stockholder in any such suit or proceeding. Each Selling
Stockholder further agrees 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.
18. Judgment
Currency. The obligations of the Company and the Selling Stockholders 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 and the Selling Stockholders agree, as a separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter against such loss.
19. Time.
Time shall be of the essence of this Agreement. Except as otherwise set forth herein, specified times of day refer to New York
City Time.
20. Applicable
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.
21. Headings.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
22. Notices.
All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered,
mailed or sent to the Representatives at: Morgan Stanley & Co. International plc, 46/F, International Commerce Center, 1 Austin
Road West, Kowloon, Hong Kong, Attention: Head of Global Capital Markets, Asia, Fax: +(852) 2848 5653, with a copy to the Legal
Department; Credit Suisse Securities (USA) LLC, at 11 Madison Avenue, New York, New York 10010, Attention: LCD-IBD; Merrill Lynch,
Pierce, Fenner & Smith Incorporated, One Bryant Park, New York, NY 10036, Facsimile: (646) 855 3073, Attention: Syndicate
Department, with a copy to: Facsimile: (212) 230-8730, Attention: ECM Legal; and Jefferies LLC, 520 Madison Avenue, New York,
New York 10022, Facsimile: (646) 619-4437, Attention: General Counsel; if to the Company, shall be delivered, mailed or sent to
18th Floor, Jialong International Building, 19 Chaoyang Park Road , Chaoyang District, Beijing 100125, People’s Republic
of China; and if to the Selling Stockholders, shall be delivered, mailed or sent to c/o Warburg Pincus LLC, 450 Lexington Avenue,
New York, NY, USA.
|
Very truly yours, |
|
|
|
China Biologic Products, Inc. |
|
|
|
|
By: |
/s/ David (Xiaoying) Gao |
|
|
Name: |
David (Xiaoying) Gao |
|
|
Title: |
Chief Executive Officer |
[Signature Page to Underwriting Agreement]
|
WARBURG PINCUS PRIVATE EQUITY X, L.P. |
|
By: |
Warburg Pincus X, L.P., its general partner |
|
By: |
Warburg Pincus X GP L.P., its general partner |
|
By: |
WPP GP LLC, its general partner |
|
By: |
Warburg Pincus Partners, L.P., its managing member |
|
By: |
Warburg Pincus Partners GP LLC, its general partner |
|
By: |
Warburg Pincus & Co., its managing member |
|
By: |
/s/ Timothy J. Curt |
|
Name: Timothy J. Curt |
|
Title: Partner |
|
WARBURG PINCUS X PARTNERS, L.P. |
|
By: |
Warburg Pincus X, L.P., its general partner |
|
By: |
Warburg Pincus X GP L.P., its general partner |
|
By: |
WPP GP LLC, its general partner |
|
By: |
Warburg Pincus Partners, L.P., its managing member |
|
By: |
Warburg Pincus Partners GP LLC, its general partner |
|
By: |
Warburg Pincus & Co., its managing member |
|
By: |
/s/ Timothy J. Curt |
|
Name: Timothy J. Curt |
|
Title: Partner |
[Signature Page to Underwriting Agreement]
Accepted as of the date hereof
Acting severally on behalf of themselves and the several Underwriters
named in Schedule I hereto
MORGAN STANLEY & CO. INTERNATIONAL PLC |
|
By: |
/s/ Alex Abagian |
|
|
Name: Alex Abagian |
|
Title: Executive Director |
CREDIT SUISSE SECURITIES (USA) LLC |
|
By: |
/s/ Anthony Kontoleon |
|
|
Name: Anthony Kontoleon |
|
Title: Managing Director |
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED |
|
By: |
/s/ Sumit Mukherjee |
|
|
Name: Sumit Mukherjee |
|
Title: Managing Director |
JEFFERIES LLC |
|
By: |
/s/ Ashley Delp Walker |
|
|
Name: Ashley Delp Walker |
|
Title: Managing Director |
[Signature Page to Underwriting Agreement]
SCHEDULE I
Underwriter | |
Number of Firm Shares To Be Purchased | |
Morgan Stanley & Co. International plc | |
| 1,133,486 | |
Credit Suisse Securities (USA) LLC | |
| 850,171 | |
Merrill Lynch, Pierce, Fenner & Smith Incorporated | |
| 850,171 | |
Jefferies LLC | |
| 119,086 | |
Lazard Frères & Co. LLC | |
| 47,086 | |
| |
| | |
Total: | |
| 3,000,000 | |
SCHEDULE II
Selling Stockholders | |
Number of Firm Shares To Be Sold | | |
Maximum Number of Selling Stockholder Additional Shares To Be Sold | |
Warburg Pincus Private Equity X, L.P. | |
| 2,228,700 | | |
| 334,305 | |
Warburg Pincus X Partners, L.P. | |
| 71,300 | | |
| 10,695 | |
| |
| | | |
| | |
Total: | |
| 2,300,000 | | |
| 345,000 | |
SCHEDULE III
Time of Sale Prospectus
| 1. | Basic Prospectus dated June 5, 2015 relating to Shelf
Securities and other securities. |
| 2. | Preliminary Prospectus Supplement dated June 5, 2015
relating to the Shares. |
| 3. | The public offering price per Share shall be US $105. |
| 4. | The purchase price per Share to be paid by the several
Underwriters shall be US$100.275 per Share, being an amount equal to the public offering price set forth above less US$4.725 per
Share. |
SCHEDULE IV
List of Lock-up Parties
| 7. | Albert (Wai Keung) Yeung |
| 14. | Warburg Pincus Private Equity X, L.P. |
| 15. | Warburg Pincus X Partners, L.P. |
EXHIBIT A
FORM OF LOCK-UP LETTER
LOCK-UP LETTER
June 10, 2015
Morgan Stanley & Co. International plc
25 Cabot Squire, Canary Wharf
London, E14 4QA
United Kingdom
Credit Suisse Securities (USA) LLC
Eleven Madison Avenue
New York, N.Y. 10010
United States
Merrill Lynch, Pierce, Fenner & Smith Incorporated
One Bryant Park
New York, New York 10036
Jefferies LLC
520 Madison Avenue
New York, NY 10022
As representatives of the several underwriters named
in the Underwriting Agreement (as defined below)
Ladies and Gentlemen:
The undersigned understands that you propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with China Biologic Products, Inc., a
Delaware corporation (the “Company”), and certain selling stockholders to be named therein (the “Selling
Stockholders”, providing for the public offering (the “Public Offering”) by the several underwriters
to be named therein (the “Underwriters”), for whom you will act as representatives (collectively, the “Representatives”),
of an aggregate of 3,000,000 shares (the “Shares”) of the common stock of the Company, par value of $0.0001
each (the “Common Stock”), plus an aggregate of up to an aggregate of 450,000 additional shares, at the option
of the Underwriters.
To induce the Underwriters that may participate
in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without
the prior written consent of Morgan Stanley & Co. International plc on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 90 days after the date of the final prospectus (the “Restricted Period”)
relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend,
or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock beneficially owned (as such term is used
in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned
or any other securities so owned convertible into or exercisable or exchangeable for Common Stock (collectively, “Covered
Securities”) or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any
of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise. The foregoing sentence shall
not apply to (a) the exercise of options (“Options”) to purchase Common Stock, including options issued
pursuant to the Company’s equity compensation plans described in its Annual Report on Form 10-K for the year ended December 31,
2014, provided that such Common Stock shall remain subject to the terms of this letter; (b) the receipt from the Company of
Common Stock in connection with the vesting of restricted stock units or the disposition of Common Stock to the Company or in open
market transactions in connection with the payment of taxes due in connection with any such vesting; (c) the disposition
of Common Stock to the Company or in open market transactions upon the exercise of Options to cover tax withholding obligations
in connection with such exercise; (d) transactions relating to shares of Common Stock or other securities acquired in open
market transactions after the completion of the Public Offering, provided that no filing under Section 16(a) of the
Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of Common Stock or other securities
acquired in such open market transactions, (e) transfers of Covered Securities as a bona fide gift, (f) transfers of
Covered Securities to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned,
(g) transfers of Covered Securities upon death by will or by intestacy to the undersigned’s immediate family, or (h) distributions
of Covered Securities into Common Stock to limited partners or stockholders of the undersigned and if the undersigned is an investment
fund or a wholly-owned subsidiary of an investment fund, transfers of the Covered Shares to any other investment funds managed
by the same investment advisor or general partner of the undersigned or to any wholly-owned subsidiaries of any such fund;
provided that in the case of any transfer or distribution pursuant to clause (e) through (h), (i) each
donee, transferee or distributee shall sign and deliver a lock-up letter substantially in the form of this letter and (ii) no
filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of Common Stock, shall
be required or shall be voluntarily made during the Restricted Period, or (i) the establishment of a trading plan pursuant
to Rule 10b5-1 under the Exchange Act for the transfer of shares of Common Stock, provided that (i) such plan
does not provide for the transfer of Common Stock during the Restricted Period and (ii) to the extent a public announcement
or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company
regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer
of Common Stock may be made under such plan during the Restricted Period. In addition, the undersigned agrees that, without the
prior written consent of Morgan Stanley & Co. International plc on behalf of the Underwriters, it will not, during the Restricted
Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security
convertible into or exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s shares
of Common Stock except in compliance with the foregoing restrictions. For purposes of this letter, the term “immediate
family” shall mean any child, stepchild, grandchild, parent, stepparent, grandparent, spouse, sibling, mother-in-law,
father-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and shall include adoptive relationships.
The undersigned understands that the Company
and the Underwriters are relying upon this agreement in proceeding toward consummation of the Public Offering. The undersigned
further understands that this agreement is binding upon the undersigned’s heirs, successors and assigns.
Whether or not the Public Offering actually
occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting
Agreement, the terms of which are subject to negotiation among the Company, the Selling Stockholders and the Underwriters. This
Agreement shall become null and void if the Underwriting Agreement (other than the provisions thereof which survive termination)
is terminated in accordance with its terms prior to payment for and delivery of the Shares to be sold thereunder, in which case,
the undersigned shall be released from any and all obligations under this Agreement.
This agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
|
Very truly yours, |
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|
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(Name) |
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|
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|
(Address) |
EXHIBIT B-1
FORM OF OPINION OF U.S. COUNSEL TO
THE COMPANY
[Intentionally omitted]
EXHIBIT B-2
FORM OF OPINION OF PRC COUNSEL TO THE
COMPANY
[Intentionally omitted]
EXHIBIT B-3
FORM OF OPINION OF HONG KONG COUNSEL
TO THE COMPANY
[Intentionally omitted]
EXHIBIT B-4
FORM OF OPINION OF BVI COUNSEL TO THE
COMPANY
[Intentionally omitted]
EXHIBIT C
FORM OF OPINION OF U.S. COUNSEL TO
THE SELLING STOCKHOLDERS
[Intentionally omitted]
Exhibit 5.1
June 10, 2015
China Biologic Products, Inc.
18th Floor, Jialong International Building
19 Chaoyang Park Road
Chaoyang District, Beijing 100125
People’s Republic of China
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have examined the
registration statement on Form S-3ASR (No. 333-204761) (“the Registration Statement”), filed on June
5, 2015 by China Biologic Products, Inc., a Delaware corporation (the “Company”), with the Securities
and Exchange Commission (the “Commission”) in connection with the registration pursuant to the Securities
Act of 1933, as amended (the “Act”), of the Securities (as defined below).
The Registration Statement
relates to the proposed issuance and sale by the Company, from time to time, pursuant to Rule 415 under the Act, of shares of the
Company’s common stock, $0.0001 par value per share (the “Common Stock”), shares of the Company’s
preferred stock, $0.0001 par value per share (the “Preferred Stock”), warrants to purchase any of the
securities described above (the “Warrants”), and units consisting of Common Stock, Preferred Stock, and/or
Warrants in any combination (the “Units”). The Registration Statement also relates to the proposed sale
by certain selling stockholders to be identified in a Prospectus Supplement (as defined below) (the “Selling Stockholders”),
from time to time, pursuant to Rule 415 under the Act, of shares of Common Stock (the “Selling Stockholder Securities,”
and together with the Company Securities referred to herein as the “Securities”). The Securities are
to be sold from time to time as set forth in the Registration Statement, the prospectus contained therein (the “Prospectus”)
and the supplements to the prospectus referred to therein (each a “Prospectus Supplement”).
We understand that
3,000,000 shares of Common Stock of which 700,000 shares are to be sold by the Company and 2,300,000 shares are to be sold by the
Selling Stockholders, plus an option to purchase up to an additional 450,000 shares of Common Stock granted to the underwriters
of which 105,000 shares are to be sold by the Company and 345,000 shares are to be sold by the Selling Stockholders (collectively,
the “Shares”), to the underwriters for resale to the public as described in the Registration Statement
as well as the Prospectus Supplement, dated as of June 5, 2015, relating to the offering of the Shares thereto, and pursuant to
an underwriting agreement (the “Underwriting Agreement”), dated as of June 10, 2015, by and among the
Company, the Selling Stockholders and the representatives on behalf of the several underwriters named therein, which is to be filed
as an exhibit to the Company’s Current Report on Form 8-K.
As legal counsel to
the Company and the Selling Stockholders with respect to matters in connection with the public offering, we have examined copies
of the Underwriting Agreement, the Registration Statement, the Prospectus that forms a part thereof and the Prospectus Supplement
thereto related to the offering of the Shares, which was dated as of June 5, 2015 and was filed by the Company in accordance with
Rule 424(b) promulgated under the Securities Act of 1933. We have also examined instruments, documents and records which we deemed
relevant and necessary for the basis of our opinion hereinafter expressed.
China Biologic Products, Inc.
June 10, 2015
Page 2
In such examination,
we have assumed (i) the authenticity of original documents and the genuineness of all signatures, (ii) the conformity to the originals
of all documents submitted to us as copies, and (iii) the truth, accuracy, and completeness of the information, representations
and warranties contained in the records, documents, instruments and certificates we have reviewed. Based upon the foregoing, we
are of the opinion that the Shares, when issued and sold by the Company and when sold by the Selling Stockholders, each in the
manner described in the Registration Statement and the Underwriting Agreement, will be duly authorized, validly issued, fully paid
and non-assessable. We express no opinion as to the laws of any other jurisdiction other than the federal laws of the United States
of America and the General Corporation Law of the State of Delaware.
We hereby consent to
the use of this opinion as an exhibit to the Company’s Current Report on Form 8-K, filed on or about June 10, 2015, for incorporation
by reference into the Registration Statement.
|
Very truly yours, |
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|
WILSON SONSINI GOODRICH & ROSATI |
|
Professional Corporation |
|
|
|
/s/ Wilson Sonsini Goodrich & Rosati |
Exhibit 99.1
China Biologic Announces
Pricing of Public Offering of Common Stock
BEIJING, China – June 10, 2015 –
China Biologic Products, Inc. (NASDAQ: CBPO, “China Biologic” or the “Company”), a leading plasma-based
biopharmaceutical company in China, today announced the pricing of a follow-on offering of 3,000,000 shares of common stock at
a public offering price of $105 per share. The Company will be offering 700,000 shares and certain selling stockholders will be
offering 2,300,000 shares of common stock. In addition, the underwriters have a 30-day option to purchase up to 105,000 additional
shares of common stock from the Company and 345,000 additional shares of common stock from the selling stockholders.
The Company intends to use the proceeds from
the offering primarily for general corporate purposes. In addition, if appropriate opportunities arise in the future to acquire
or invest in complementary businesses, products or technologies, the Company may use a portion of the net proceeds for such acquisition
or investment. The Company will not receive any proceeds from the sale of shares by the selling stockholders.
Morgan Stanley & Co. International plc,
Credit Suisse Securities (USA) LLC, Merrill Lynch, Pierce, Fenner & Smith Incorporated and Jefferies LLC are acting as joint
book-running managers for the offering and Lazard Frères & Co. LLC is acting as a co-manager.
The offering will be made pursuant to an automatically
effective shelf registration statement filed with the Securities and Exchange Commission (the “SEC”). A preliminary
prospectus supplement and the accompanying prospectus relating to the offering have been filed with the SEC and are available on
its website at www.sec.gov. Copies of the preliminary prospectus supplement and the accompanying prospectus, when available, may
also be obtained by contacting (i) Morgan Stanley, Prospectus Department, 180 Varick Street, 2nd Floor, New York, NY, 10014, United
States of America, or by calling 1-866-718-1649, or by email at prospectus@morganstanley.com; (ii) Credit Suisse, Prospectus Department,
Eleven Madison Avenue, 1B, New York, NY 10010, or by calling 1-800-221-1037, or by email at newyork.prospectus@credit-suisse.com;
(iii) BofA Merrill Lynch, Prospectus Department, 222 Broadway, New York, New York 10038, or by email at dg.prospectus_requests@baml.com;
(iv) Jefferies, Equity Syndicate Prospectus Department, 520 Madison Avenue, 2nd Floor, New York, NY 10022, or by calling 1-877-547-6340,
or by email at Prospectus_Department@Jefferies.com; or (v) Lazard, 30 Rockefeller Plaza, New York, NY 10012, or by calling 1-212-632-6000.
This press release shall not constitute an
offer to sell or the solicitation of an offer to buy nor may there be any sale of these securities in any state or jurisdiction
in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws
of any such state or jurisdiction. The offering of these securities will be made only by means of the prospectus supplement and
accompanying prospectus.
Cautionary Note Regarding
Forward-Looking Statements
This release
contains forward-looking statements about the proposed offering and the use of the offering proceeds that involve risks and uncertainties.
Any forward-looking statements and all other statements that may be made in this news release that are not historical facts are
subject to a number of risks and uncertainties, and actual results may differ materially. Specific risks include stock market conditions
and our ability to complete the offering on acceptable terms. Please refer to China Biologic filings
with the SEC for more information on the risk factors that could cause our actual results to differ. The Company assumes no obligation
and does not intend to update these forward-looking statements, except as required by law.
Contact:
China Biologic Products, Inc.
Mr. Ming Yin
Vice President
Phone: +86-10-6598-3099
Email: ir@chinabiologic.com
ICR Inc.
Mr. Bill Zima
Phone: +86-10-6583-7511 or +1-646-405-5191
E-mail: william.zima@icrinc.com
China Bioligic Products (NASDAQ:CBPO)
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China Bioligic Products (NASDAQ:CBPO)
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