0001104659-20-118751.txt : 20201028 0001104659-20-118751.hdr.sgml : 20201028 20201028084452 ACCESSION NUMBER: 0001104659-20-118751 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20201028 DATE AS OF CHANGE: 20201028 GROUP MEMBERS: 2019B CAYMAN LTD GROUP MEMBERS: CCP IV GP LTD. GROUP MEMBERS: CITIC CAPITAL CHINA PARTNERS IV, L.P. GROUP MEMBERS: CITIC CAPITAL PARTNERS LTD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: China Biologic Products Holdings, Inc. CENTRAL INDEX KEY: 0001369868 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 752308816 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-83122 FILM NUMBER: 201266306 BUSINESS ADDRESS: STREET 1: 18TH FL, JIALONG INTERNATIONALBUILDING STREET 2: 19 CHAOYANG PARK ROAD, CHAOYANG DISTRICT CITY: BEIJING STATE: F4 ZIP: 100125 BUSINESS PHONE: 86-10-6598-3111 MAIL ADDRESS: STREET 1: 18TH FL, JIALONG INTERNATIONALBUILDING STREET 2: 19 CHAOYANG PARK ROAD, CHAOYANG DISTRICT CITY: BEIJING STATE: F4 ZIP: 100125 FORMER COMPANY: FORMER CONFORMED NAME: China Biologic Products, Inc. DATE OF NAME CHANGE: 20070213 FORMER COMPANY: FORMER CONFORMED NAME: GRC Holdings, Inc. DATE OF NAME CHANGE: 20060721 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: CITIC Capital Holdings Ltd CENTRAL INDEX KEY: 0001677151 IRS NUMBER: 000000000 STATE OF INCORPORATION: K3 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 28/F, CITIC TOWER, 1 TIM MEI AVENUE, CITY: CENTRAL STATE: K3 ZIP: 00000 BUSINESS PHONE: 852-3710-6888 MAIL ADDRESS: STREET 1: 28/F, CITIC TOWER, 1 TIM MEI AVENUE, CITY: CENTRAL STATE: K3 ZIP: 00000 SC 13D/A 1 tm2034471-1_sc13da.htm SCHEDULE 13D/A

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

SCHEDULE 13D/A

 

Under the Securities Exchange Act of 1934

 

(Amendment No. 8)*

 

China Biologic Products Holdings, Inc.

(Name of Issuer)

 

Ordinary Shares, par value $0.0001 per share

(Title of Class of Securities)

 

G21515104

(CUSIP Number)

 

Eric Chan

CITIC Capital Holdings Limited

28/F, CITIC Tower

1 Tim Mei Avenue

Central, Hong Kong

Tel: 852-3710-6889

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)

 

October 26, 2020

(Date of Event which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. ¨

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

 

  

CUSIP No. G21515104

 

This Amendment No. 8 to Schedule 13D (“Amendment No. 8”) amends the Schedule 13D filed with the Securities and Exchange Commission on June 18, 2018, as previously amended (the “Schedule 13D”), by 2019B Cayman Limited (“2019B Cayman”), CITIC Capital China Partners IV, L.P., a Cayman Islands exempted limited partnership (“CCCP IV”), CCP IV GP Ltd., a company organized under the laws of the Cayman Islands (“CCP IV GP”), CITIC Capital Partners Limited, a company organized under the laws of the Cayman Islands (“CCPL”) and CITIC Capital Holdings Limited, a Hong Kong corporation (“CCHL”) (collectively, the “Reporting Persons”), with respect to the ordinary shares, par value $0.0001 per share (the “Ordinary Shares”), of China Biologic Products Holdings, Inc., a company organized under the laws of the Cayman Islands (the “Issuer”).

 

Item 4. Purpose of Transaction

 

Item 4 of the Schedule 13D is hereby amended and supplemented by adding the following before the last paragraph thereof:

 

On October 26, 2020, PWM, as the seller, entered into a share purchase agreement (the “PWM SPA”) with 2019B Cayman, as the purchaser. Pursuant to, and subject to the terms and conditions (including the approval by shareholders of PWM at an Extraordinary General Meeting of PWM) thereof, PWM agreed to sell, and 2019B Cayman agreed to purchase, 910,167 Ordinary Shares (the “PWM Sale Shares”) at a per share purchase price of $120.00. The closing of the transaction under the PWM SPA (the “PWM SPA Closing”) is subject to customary closing conditions contained in the PWM SPA, including a transaction statement on Schedule 13E-3 of the Issuer in respect of such transaction having been filed with the SEC for no less than 30 days and disseminated in accordance with Rule 13e-3(f) under the Exchange Act for 20 days. The PWM SPA Closing shall take place within 15 business days following the satisfaction or waiver of these closing conditions or such other date as may be agreed by PWM and 2019B Cayman.

 

Concurrent with the execution and delivery of the PWM SPA, PWM entered into a letter agreement with 2019B Cayman (the “PWM Letter Agreement”), pursuant to and subject to the terms and conditions of which the parties have agreed, among other things: (i) during a period from the date of the PWM Letter Agreement and until the occurrence of any of the following events (whichever is the earliest), PWM shall not rollover the PWM Sale Shares in the Transaction: (w) the PWM SPA Closing, (x) the valid termination of the PWM SPA, (y) the closing of the Transaction (the “Merger Closing”), and (z) the execution of an agreement and plan of merger with respect to the Transaction (the “Merger Agreement”) (including any amendment thereto) pursuant to which the consideration payable in the Transaction for each outstanding Ordinary Share (other than the Rollover Securities) (the “Per Share Merger Consideration”) is less than $120.00; and (ii) in the event that the Merger Closing takes place before the PWM SPA Closing, each and all of the PWM Sale Shares shall be cancelled and converted into the right to receive the Per Share Merger Consideration pursuant to the terms of the Merger Agreement, provided that the Per Share Merger Consideration is not less than $120.00.

 

On the date of the PWM SPA, PWM also entered into certain other share purchase agreements (the “Other SPAs”) with other purchasers (the “Other Purchasers”), pursuant to which PWM agreed to sell certain number of Ordinary Shares to such Other Purchasers. Under the terms of the PWM Letter Agreement, PWM may not, from the date of the PWM Letter Agreement until the PWM SPA Closing or the termination of the PWM SPA (whichever is earlier), enter into any agreement (including any amendment to the Other SPAs) with any Other Purchaser which has the effect of providing more favorable terms in any material respect to such Other Purchaser with respect to its purchase of Ordinary Shares from PWM than the terms provided to 2019B Cayman with respect to the purchase and sale of the PWM Sale Shares under the PWM SPA.

 

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CUSIP No. G21515104

 

On October 26, 2020, Parfield, as the seller, entered into a share purchase agreement (the “Parfield SPA”) with 2019B Cayman, as the purchaser, pursuant to, and subject to the terms and conditions of which, Parfield agreed to sell, and 2019B Cayman agreed to purchase, 300,000 Ordinary Shares (the “Parfield Sale Shares”) at a per share purchase price of $120.00. The closing of the transaction under the Parfield SPA (the “Parfield SPA Closing”) is subject to customary closing conditions contained in the Parfield SPA, including a transaction statement on Schedule 13E-3 of the Issuer in respect of such transaction having been filed with the SEC for no less than 30 days and disseminated in accordance with Rule 13e-3(f) under the Exchange Act for 20 days. The Parfield SPA Closing shall take place within 15 business days following the satisfaction or waiver of these closing conditions or such other date as may be agreed by Parfield and 2019B Cayman.

 

Concurrent with the execution and delivery of the Parfield SPA, Parfield entered into a letter agreement with 2019B Cayman (the “Parfield Letter Agreement”), pursuant to which, among other things: (i) during a period from the date of the Parfield Letter Agreement and until the occurrence of any of the following events (whichever is the earliest), Parfield shall not rollover the Parfield Sale Shares in the Transaction: (w) the Parfield SPA Closing, (x) the valid termination of the Parfield SPA, (y) the Merger Closing, and (z) the execution of the Merger Agreement (or any amendment thereto) which provides for Per Share Merger Consideration of less than $120.00; (ii) in the event that the Merger Closing takes place before the Parfield SPA Closing, each and all of the Parfield Sale Shares shall be cancelled and converted into the right to receive the Per Share Merger Consideration pursuant to the terms of the Merger Agreement, provided that the Per Share Merger Consideration is not less than $120.00. Under the terms of the Parfield Letter Agreement, if Parfield proposes to transfer any Ordinary Shares held by Parfield to any of the Other Purchasers or their respective affiliates within three months from the termination of the Parfield SPA or the execution of the Merger Agreement (or any amendment thereto) which provides for Per Share Merger Consideration of less than $120.00, 2019B Cayman will have a right of first refusal to purchase a maximum of 300,000 Ordinary Shares proposed to be transferred by Parfield.

 

On October 26, 2020, in connection with the transactions contemplated by, among other things, the PWM SPA and Parfield SPA, Beachhead, Double Double, Point Forward and PWM granted an irrevocable written consent pursuant to the Consortium Agreement (including, but not limited to, Section 4.4(a) and Section 4.7 thereof) for the purposes of permitting, among other things, the entry into the PWM SPA and the Parfield SPA by the relevant parties thereto, and the performance of their respective obligations thereunder by such relevant parties.

 

In connection with the entry into, among other things, the PWM SPA and the Parfield SPA, the Issuer’s Board has granted to the Initial Consortium Members and other applicable parties a waiver from complying with certain restrictions as agreed under, among other things, that certain confidentiality agreements, dated as of October 20, 2019, entered into by CCCP IV and the Issuer. The Issuer’s Board has also determined, among other things, that such Initial Consortium Members and their respective affiliates will not be deemed to be an “Acquiring Person” under the Issuer’s currently effective preferred shares rights agreement, nor shall any provision under such preferred shares rights agreement be otherwise triggered for the entry into, or the performance of any obligations under, among other things, the PWM SPA and the Parfield SPA.

 

On September 23, 2020, an entity affiliated with the Reporting Persons (“2019B GP”) entered into a letter agreement, pursuant to and subject to the terms and conditions of which, among other things, if (i) the Merger Agreement is executed prior to or on June 30, 2021, but is terminated thereafter, (ii) the Merger Agreement has not been executed by June 30, 2021, or (iii) the Merger Closing has not occurred by June 30, 2021, a co-investor in a fund controlled by 2019B GP would be permitted to withdraw from the fund and, upon such withdrawal, the co-investor would be entitled to receive such number of Ordinary Shares as equal to the product obtained by dividing (x) the amount of such co-investor’s capital contribution related to funding the acquisition of the Ordinary Shares by (y) $120, if such distribution is permitted under the Consortium Agreement and other agreements among members of the Buyer Consortium with respect to the Transaction.

 

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CUSIP No. G21515104

 

The foregoing description of the PWM SPA, PWM Letter Agreement, Parfield SPA, and Parfield Letter Agreement do not purport to be complete and is subject to, and qualified in its entirety by, the full text of the PWM SPA, PWM Letter Agreement, Parfield SPA, and Parfield Letter Agreement, which are attached as exhibits hereto and incorporated herein by reference.

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

Item 6 of the Schedule 13D is hereby amended and supplemented by adding the following before the last paragraph thereof:

 

Item 4 above summarizes certain provisions of the PWM SPA, PWM Letter Agreement, Parfield SPA, and Parfield Letter Agreement and is incorporated herein by reference. Copies of the PWM SPA, PWM Letter Agreement, Parfield SPA, and Parfield Letter Agreement are attached as exhibits to this Schedule 13D, and incorporated herein by reference.

 

Item 7. Materials to be Filed as Exhibits.

 

Item 7 of the Schedule 13D is hereby amended and supplemented by adding the following after the last paragraph thereof:

 

Exhibit 7 Share Purchase Agreement, dated October 26, 2020, by and between PW Medtech Group Limited and 2019B Cayman Limited
   
Exhibit 8 Letter Agreement, dated October 26, 2020, by and between PW Medtech Group Limited and 2019B Cayman Limited
   
Exhibit 9 Share Purchase Agreement, dated October 26, 2020, by and between Parfield International Ltd. and 2019B Cayman Limited
   
Exhibit 10 Letter Agreement, dated October 26, 2020, by and between Parfield International Ltd. and 2019B Cayman Limited

  

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CUSIP No. G21515104 

 

SIGNATURES

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Dated: October 28, 2020

 

  2019B CAYMAN LIMITED
       
  By: /s/ Rikizo Matsukawa
    Name: Rikizo Matsukawa
    Title: Director
       
  CITIC Capital China Partners IV, L.P.
   
  By: CCP IV GP LTD., its General Partner
       
  By: /s/ Chan Kai Kong
    Name: Chan Kai Kong
    Title: Director
       
  CCP IV GP LTD.
       
  By: /s/ Chan Kai Kong
    Name: Chan Kai Kong
    Title: Director
       
  CITIC CAPITAL PARTNERS LIMITED
       
  By: /s/ Chan Kai Kong
    Name: Chan Kai Kong
    Title: Director
       
  CITIC CAPITAL HOLDINGS LIMITED
       
  By: /s/ Yichen Zhang
    Name: Yichen Zhang
    Title: Director

  

[Signature page to the Amendment No. 8 to Schedule 13D]

 

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EX-99.7 2 tm2034471d1_ex7.htm EXHIBIT 7

 

Exhibit 7

 

EXECUTION VERSION

 

SHARE PURCHASE AGREEMENT

 

This SHARE PURCHASE AGREEMENT, dated as of October 26, 2020 (this “Agreement”), by and among PW Medtech Group Limited, a Cayman Islands company (the “Seller”) and 2019B Cayman Limited, an exempted company incorporated in the Cayman Islands with limited liability (the “Purchaser,” and together with the Seller, each a “Party” and collectively, the “Parties”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in Section 6.1 hereof.

 

WHEREAS, the Seller is the owner of 5,321,000 Ordinary Shares of the Issuer (as defined below).

 

WHEREAS, the Seller has agreed to sell to the Purchaser, and the Purchaser has agreed to purchase from the Seller, all of the Seller’s right, title and interest in and pertaining to 910,167 Ordinary Shares of the Issuer (the “Sale Shares”) at the Purchase Price, all upon the terms and conditions hereinafter set forth.

 

WHEREAS, in connection with the purchase and sale of the Sale Shares (as defined below) and concurrently with the execution of this Agreement, a letter agreement dated as of the date hereof (the “Letter Agreement”) has been entered into by and between the Seller and the Purchaser.

 

NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained, it is agreed as follows:

 

1.      PURCHASE AND SALE

 

1.1           Purchase and Sale. Subject to the terms and conditions set forth in this Agreement, the Purchaser agrees to purchase from the Seller, and the Seller agrees to sell, transfer and assign to the Purchaser, at the Closing (as defined below), the Sale Shares and all of the Seller’s right, interest and title therein (including all dividends, distributions and other benefits attaching to the Sale Shares) for the Purchase Price.

 

1.2           The Closing.

 

(a)            The closing of the purchase and sale of the Sale Shares and the other transactions contemplated hereby (the “Closing”) shall take place within fifteen (15) Business Days after all the conditions set forth under Sections 4.1 and 4.2 are satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing) or such other date as may be agreed by the Parties (the “Closing Date”).

 

(b)           At the Closing:

 

(i)                        the Seller shall deliver, or cause to be delivered, to the Purchaser:

 

(A)             a copy of the shareholder statements of the Issuer issued by the Transfer Agent and evidencing the Purchaser has been registered as the sole owner of the Sale Shares as of the Closing Date;

 

(B)              a copy of the director resolutions of the Seller duly authorizing and approving this Agreement and the transactions contemplated hereby; and

 

 

 

 

(ii)                       the Purchaser shall deliver, or cause to be delivered, to the Seller:

 

(A)             immediately available funds in the amount of the Purchase Price by wire transfer into an account designated by the Seller in a written notice delivered to the Purchaser at least fifteen (15) Business Days prior to the Closing Date in substantially the form attached hereto as Exhibit A; and

 

(B)              a copy of the director resolutions of the Purchaser duly authorizing and approving this Agreement and the transactions contemplated hereunder.

 

(c)            Unless otherwise agreed by the Seller and the Purchaser, all actions at Closing are inter-dependent and will be deemed to take place simultaneously and no delivery or payment will be deemed to have been made until all deliveries and payments under this Agreement due to be made at Closing have been made.

 

2.      PURCHASER’S REPRESENTATIONS AND WARRANTIES

 

The Purchaser makes the following representations and warranties to the Seller as of the date hereof and the Closing Date:

 

2.1           Authority; Binding Effect. The Purchaser has the requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. All corporate action on the part of the Purchaser and its officers, directors and shareholders necessary for the authorization, execution and delivery of this Agreement and the performance of all of its obligations hereunder, including the purchase of the Sale Shares, have been taken prior to the Closing. This Agreement has been duly and validly executed and delivered by the Purchaser and (assuming the due execution and delivery thereof by the Seller) constitutes the legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.

 

2.2           No Conflicts. The execution and delivery of this Agreement and the consummation of the transactions contemplated herein and compliance by the Purchaser with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute a breach of, or default under, require any consent or other action by any person under, give rise to any right of termination, cancellation or acceleration of any right or obligation of any person or to a loss of any benefit to which the Purchaser is entitled, or result in the creation or imposition of any tax, Lien (as defined below), limitation or restriction upon any property or assets of the Purchaser pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Purchaser is a party or by which the Purchaser is bound, or to which any of the property or assets of the Purchaser is subject, or (ii) result in any violation of the provisions of Organizational Documents of the Purchaser or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Purchaser or any of its properties.

 

2.3           No Consents. Other than any filings that may be required pursuant to applicable securities laws, no filing with, or consent, approval, authorization, order, registration, qualification or decree of, or any other action by or in respect of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the entry into of this Agreement by the Purchaser or the performance by the Purchaser of its obligations hereunder or the purchase of the Sale Shares by the Purchaser and the consummation of the transactions contemplated herein.

 

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2.4           Purchase for Investment. The Purchaser has access to such information of the Issuer as shall have been reasonably necessary for the Purchaser to evaluate the merits and risks of the transactions contemplated by this Agreement. The Purchaser is acquiring the Sale Shares for investment for its own account and not with a view toward any resale or distribution thereof except in compliance with the Securities Act. Except in connection with the Acquisition and the Acquisition Proposal (including any direct or indirect equity syndication arranged or to be arranged by the Purchaser in connection therewith), the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to any person with respect to the Sale Shares. The Purchaser hereby acknowledges that the Sale Shares have not been registered pursuant to the Securities Act and may not be transferred in the absence of such registration thereunder or an exemption therefrom, unless in a transaction not subject to the Securities Act.

 

2.5           Purchaser Status. The Purchaser either (i) is an institutional “accredited investor” (as defined in Rule 501(a) of Regulation D under the Securities Act) or (ii) is not a U.S. person and is located outside of the United States, as such terms are defined in Rule 902 of Regulation S under the Securities Act.

 

2.6           Sophisticated Investor. The Purchaser has such knowledge and experience in financial and business matters to make an informed decision with respect to the Purchaser’s purchase of the Sale Shares. The Purchaser is a sophisticated investor and has independently evaluated the merits of its decision to purchase the Sale Shares pursuant to this Agreement. In connection with such purchase, the Purchaser is not relying on the Seller or any of the Seller’s Affiliates or representatives in any respect in making its decision to make such purchase except for such representations and warranties of the Seller made under Section 3.

 

2.7           Sufficient Funds. Immediately prior to the Closing, the Purchaser will have sufficient immediately available and legitimate funds to fulfill its obligations under Section 1.2(b)(ii)(A).

 

3.     SELLER’S REPRESENTATIONS AND WARRANTIES

 

The Seller makes the following representations and warranties to the Purchaser as of the date hereof and the Closing Date:

 

3.1           Authority; Binding Effect. The Seller has the requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. All corporate action on the part of the Seller and its officers, directors and shareholders necessary for the authorization, execution and delivery of this Agreement and the performance of all of its obligations hereunder, including the sale of the Sale Shares, have been taken prior to the Closing. This Agreement has been duly and validly executed and delivered by the Seller and (assuming the due execution and delivery thereof by the Purchaser) constitutes the legal, valid and binding obligations of the Seller, enforceable against the Seller in accordance with its terms.

 

3.2           Ownership and Transfer. The Seller is the sole record and beneficial owner of the Sale Shares, free and clear of any mortgage, lien, pledge, charge, security interest or other encumbrance (collectively, “Liens”) and any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of the Sale Shares), other than the limitations or restrictions set forth in the PWM IRA and the Consortium Agreement. The Seller will transfer and deliver to the Purchaser at the Closing valid, good and marketable title to the Sale Shares free and clear of any Lien and any such limitation or restriction.

 

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3.3           No Conflicts. Other than the approval of the transactions contemplated hereby by shareholders of the Seller at an extraordinary general meeting of the Seller in accordance with requirements of the Hong Kong Listing Rules and the Organizational Documents of the Seller (such extraordinary general meeting of the Seller is referred to as the “Seller EGM”), the execution and delivery of this Agreement and the sale and delivery of the Sale Shares by the Seller and the consummation of the transactions contemplated herein and compliance by the Seller with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute a breach of, or default under, require any consent or other action by any person under, give rise to any right of termination, cancellation or acceleration of any right or obligation of any person or to a loss of any benefit to which the Seller is entitled, or result in the creation or imposition of any tax, Lien, limitation or restriction upon the Sale Shares or any property or assets of the Seller, pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Seller is a party or by which the Seller is bound, or to which any of the property or assets of the Seller is subject, or (ii) result in any violation of the provisions of Organizational Documents of the Seller or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Seller or any of its properties.

 

3.4           Consents; Waivers. Other than any filings that may be required pursuant to applicable securities laws and the approval of the transactions contemplated hereby by shareholders of the Seller at the Seller EGM, (a) no filing with, or consent, approval, authorization, order, registration, qualification or decree of, or any other action by or in respect of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the entry into of this Agreement by the Seller or the performance by the Seller of its obligations hereunder or the sale and delivery of the Sale Shares by the Seller and the consummation of the transactions contemplated herein; and (b) all consents or waivers that are necessary for the Seller to consummate the transactions contemplated hereby (including each such waiver as may be required pursuant to the Consortium Agreement and/or the PWM IRA) have been obtained and remain valid.

 

3.5           Exempt Offering. Assuming the accuracy of the Purchaser’s representations and warranties in Section 2 above, the offer and sale of the Sale Shares under this Agreement are or will be exempt from (a) the registration requirements and prospectus delivery requirements of the Securities Act and (b) the registration or qualification requirements of any other applicable securities laws and regulations.

 

4.     CONDITIONS PRECEDENT

 

4.1           The obligations of the Seller to consummate the Closing and under Section 1.2(b)(i) hereof are subject to the satisfaction (or waiver by Seller) of the following conditions:

 

(a)            All of the representations and warranties of the Purchaser contained in Section 2 shall be true and correct in all material respects (other than the Purchaser’s representations and warranties set forth in Section 2.1 which shall be true and correct in all respects) on and as of the date hereof and on the Closing Date.

 

(b)           The Purchaser has performed all of its obligations contained in this Agreement (to be performed prior to the Closing) in all material respects.

 

(c)           Shareholders of the Seller shall have duly approved the transactions contemplated hereby at the Seller EGM.

 

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(d)           (i) the SC 13E-3 Amendment (as defined in Section 5.2(b) below) has been first filed with the SEC for no less than thirty (30) days, and (ii) such SC 13E-3 Amendment has been disseminated in accordance with Rule 13e-3(f) under the Exchange Act for twenty (20) days.

 

(e)            No provision of any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court (including without limitation the SEC), domestic or foreign, shall prohibit the consummation of the Closing.

 

4.2           The obligations of the Purchaser to consummate the Closing and under Section 1.2(b)(ii) hereof are subject to the satisfaction (or waiver by the Purchaser) of the following conditions:

 

(a)           All of the representations and warranties of the Seller contained in Section 3 shall be true and correct in all material respects (other than the representations and warranties set forth in Sections 3.1 and 3.2 which shall be true and correct in all respects) on and as of the date hereof and on the Closing Date.

 

(b)           The Seller has performed all of its obligations contained in this Agreement (to be performed prior to the Closing) in all material respects.

 

(c)            Shareholders of the Seller shall have duly approved the transactions contemplated hereby at the Seller EGM.

 

(d)           (i) the SC 13E-3 Amendment has been first filed with the SEC for no less than thirty (30) days, and (ii) such SC 13E-3 Amendment has been disseminated in accordance with Rule 13e-3(f) under the Exchange Act for twenty (20) days.

 

(e)            No provision of any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court (including without limitation the SEC), domestic or foreign, shall prohibit the consummation of the Closing.

 

5.     COVENANTS

 

5.1           Notification. Each Party to this Agreement will notify the other Party as soon as reasonably practicable (but in any event prior to the Closing Date) in the event it comes to such Party’s attention that any of such Party’s representations or warranties set out in this Agreement has ceased to be true and accurate in any material respect or there has been any breach by such Party of any of its agreements contained in this Agreement or any failure by such Party to comply with any of its obligations contained in this Agreement.

 

5.2           SEC Filings.

 

(a)            Each Party agrees, confirms and undertakes that, in connection with the signing of this Agreement and the transactions contemplated hereby, such Party shall promptly file, within the time period required by applicable laws and regulations, the requisite filings with the SEC.

 

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(b)           Without limiting the generality of Section 5.2(a), the Parties agree to cooperate with each other and provide all information reasonably necessary to satisfy the applicable disclosure requirements under Rule 13e-3 under the Exchange Act (the “Rule 13e-3”) and Section 13(d) of the Exchange Act. Each Party may disclose the terms of this Agreement as required by the rules of a U.S. or foreign securities exchange, or in any filings with the SEC as required by the Securities Act or the Exchange Act, including in connection with the submissions contemplated under Rule 13e-3 and in any amendment to the Schedule 13D of the Parties relating to securities of the Issuer. As soon as reasonably practicable following the date hereof, the Parties shall cooperate to jointly prepare and use their respective commercially reasonable efforts to cause to be filed with the SEC and to be disseminated (in accordance with Rule 13e-3(f)) an amendment to the Rule 13e-3 transaction statement on Schedule 13E-3 filed by certain members of the Consortium on February 19, 2020 (as amended on March 30, 2020 and April 24, 2020, the “Original Schedule 13E-3”) in respect of the entering into this Agreement by the Parties and the transactions contemplated hereby (such amendment to the Original Schedule 13E-3 is referred to herein as the “SC 13E-3 Amendment;” and the Original Schedule 13E-3 as amended by the SC 13E-3 Amendment is referred to herein as the “Amended Schedule 13E-3”). Each Party shall (i) promptly notify the other Party upon the receipt of any comments (written or oral) from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Amended Schedule 13E-3 in connection with the transactions contemplated by this Agreement, and (ii) use its reasonable best efforts to respond jointly and promptly to any comments of the SEC or its staff with respect to the Amended Schedule 13E-3 in connection with the transactions contemplated by this Agreement. Each Party hereby represents, warrants and undertakes to the other Party that the information provided by such Party for inclusion in the Amended Schedule 13E-3, at each time it is filed with the SEC, will not contain any untrue statement of a material fact or omit to state any material fact with respect to such Party as required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under which such Amended Schedule 13E-3is made, not false or misleading, except to the extent that the information in the Amended Schedule 13E-3 is amended or superseded by a later version thereof.

 

5.3           Seller’s Covenant. In connection with the conditions precedent set out in Sections 4.1(c) and 4.2(c):

 

(a)            the Seller shall: (i) prepare, finalize and post a circular to its shareholders and/or such other announcements, documents, notices and communications as may be required by the Hong Kong Listing Rules and the Organizational Documents of the Seller (collectively, the “Required Shareholder Communication”), in each case, subject to clearance of the same (if required) by The Stock Exchange of Hong Kong Limited, as soon as practicable, which shall, amongst other things, convene the Seller EGM to consider resolutions to be passed by the relevant shareholders for the purposes set out in Sections 4.1(c) and 4.2(c); and (ii) hold such Seller EGM as soon as commercially practicable;

 

(b)            the Seller undertakes to provide the Purchaser (or advisers nominated by the Purchaser) with draft copies of the Required Shareholder Communication to be sent to the Seller’s shareholders at such time as will allow the Purchaser a reasonable opportunity to provide comments on such draft copies of Required Shareholder Communication before they are finalized and dispatched or released; and

 

(c)            subject to the requirements under the Hong Kong Listing Rules and the Organizational Documents of the Seller, the Seller undertakes and agrees to consider any reasonable comments provided by the Purchaser pursuant to Section 5.3(b) above.

 

6.     MISCELLANEOUS

 

6.1           Certain Definitions. For purposes of this Agreement, the following terms shall have the meanings specified in this Section 6.1:

 

Acquisition” means that certain acquisition transaction contemplated under the Acquisition Proposal.

 

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Acquisition Proposal” means a non-binding proposal dated as of September 18, 2019 submitted to the board of directors of the Issuer by parties to the Consortium Agreement in connection with an acquisition of the Issuer, as may be amended and/or restated from time to time.

 

Affiliate” means, with respect to a person, any other person that, directly or indirectly, Controls, is Controlled by or is under common Control with such person.

 

Business Day” means any day except any Saturday, any Sunday, any day that is a federal legal holiday in the United States or any day on which banking institutions in the State of New York, the People’s Republic of China, Hong Kong, or the Cayman Islands are authorized or required by law or other governmental action to close.

 

Consortium” means the parties to the Consortium Agreement (together with any other Persons that subsequently joined for the purpose of effecting the Acquisition but excluding those that have withdrawn therefrom).

 

Consortium Agreement” means the consortium agreement dated as of September 18, 2019 by and among the Seller and other parties named therein, as amended by an amendment No. 1 thereto dated as of January 23, 2020 and as may be amended and/or restated from to time.

 

Control” of a given person means the power or authority, whether exercised or not, to direct the business, management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

Hong Kong Listing Rules” means the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited.

 

Issuer” means China Biologic Products Holdings, Inc., a Cayman Islands exempted company.

 

Ordinary Shares” means ordinary shares, par value of US$0.0001 per share, of the Issuer.

 

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.

 

Per Share Consideration” means US$120.00.

 

Person” or “person” means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity.

 

Purchase Price” means the aggregate amount of US$109,220,040 which equals the product of (a) Per Share Consideration multiplied by (b) the number of Sale Shares.

 

PWM IRA” means that certain investor rights agreement, dated as of January 1, 2018, by and between the Issuer and the Seller, as may be amended and/or restated from time to time.

 

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SEC” means the United States Securities and Exchange Commission.

 

Securities Act” means the Securities Act of 1933, as amended.

 

Transfer Agent” means Securities Transfer Corporation, or such other transfer agent for Ordinary Shares as may be appointed by the Issuer from time to time.

 

6.2           Termination.

 

(a)            This Agreement may be terminated prior to the Closing (i) by mutual written consent of the Seller and the Purchaser; (ii) by either Party if the Closing has not occurred by the earlier of (A) the twentieth (20th) Business Day from the date on which the shareholders of the Seller have duly approved the transactions contemplated hereby at the Seller EGM and (B) the date that is six (6) months from the date hereof; or (iii) automatically without any action of either Party immediately before closing of the Acquisition; provided, that a Party shall not have the right to terminate this Agreement pursuant to the foregoing Section 6.2(a)(ii) if such Party is then in material breach of this Agreement.

 

(b)           If this Agreement is terminated in accordance with Section 6.2(a), this Agreement shall become void and have no effect, the transactions contemplated hereby shall be abandoned without further action by the Parties and there shall be no liability on the part of any Party; provided that (i) the provisions of Section 6 (Miscellaneous) shall survive the termination of this Agreement; and (ii) such termination shall not release any Party from any liability that has already accrued as of the effective date of such termination, and shall not constitute a waiver or release of any rights, remedies or claims that a Party may have under this Agreement as of such termination.

 

6.3           Further Assurances. The Parties agree to execute and deliver such other documents or agreements and to take such other action as may be necessary or desirable for the implementation of this Agreement and the consummation of the transactions contemplated hereby.

 

6.4           Complete Agreement; Amendments; Waivers. This Agreement and the Letter Agreement constitute the complete agreements between the Parties with respect to the subject matter hereof and thereof and supersede any previous agreement or understanding between them relating hereto and thereto. To the extent any terms of this Agreement conflict with the terms of the Letter Agreement, the terms of the Letter Agreement shall prevail. This Agreement may not be modified, altered or amended except as provided herein. This Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the Party against whom enforcement of any such amendment, supplement, modification or waiver is sought. The waiver by any Party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by law.

 

6.5           Expenses. Each Party shall bear its own taxes and expenses incurred in connection with the negotiation and execution of this Agreement and the consummation of the purchase and sale of the Sale Shares contemplated hereby.

 

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6.6           Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions be consummated as originally contemplated to the fullest extent possible.

 

6.7           Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a Party to this Agreement. No assignment of this Agreement or of any rights or obligations hereunder may be made by any Party hereto (by operation of law or otherwise) without the prior written consent of the other Party and any attempted assignment without the required consent shall be void; provided that prior to the Closing, the Purchaser may assign its rights and obligations hereunder to its Affiliates without the prior written consent of the Seller.

 

6.8           Governing Law. This Agreement shall be interpreted, construed and governed by and in accordance with the laws of the State of New York without regard to the conflicts of law principles thereof.

 

6.9           Dispute Resolution.

 

(a)           Any dispute, actions and proceedings against any Party arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time and as may be amended by this Section 6.9 (the “Rules”). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the tribunal shall consist of three (3) arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one (1) Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one (1) Arbitrator; and a third (3rd) Arbitrator will be nominated jointly by the first two (2) Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or respondent(s) or the first two (2) Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third (3rd) Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the HKIAC. The arbitration tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.

 

(b)           Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in Section 6.9(a), any Party may, to the extent permitted under the rules and procedures of the HKIAC, seek an interim injunction or other form of relief from the HKIAC as provided for in its Rules. Such application shall also be governed by, and construed in accordance with, the laws of the State of New York.

 

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(c)           The Parties hereto agree that the obligations imposed on them in this Agreement are special, unique and of an extraordinary character and irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each Party to this Agreement (a) shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the forum described in this Section 6.9, without proof of damages or otherwise, this being in addition to any other remedy at law or in equity, and (b) hereby waives any requirement for the posting of any bond or similar collateral in connection therewith. Each Party hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that (i) any other Party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity.

 

6.10         Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given when delivered personally or by international courier or by electronic mail to the Parties at the following addresses (or to such other address as a Party may have specified by notice given to the other Party pursuant to this provision):

 

If to the Seller, to:

 

PW Medtech Group Limited

Level 54, Hopewell Centre

183 Queen’s Road East

Hong Kong

Attention: [REDACTED]

 

With a copy to (which shall not constitute notice):

 

PW Medtech Group Limited

Building 1, No. 23 Panlong West Road

Pinggu District, Beijing

PRC 101204

Attention: [REDACTED]

 

Wilson Sonsini Goodrich & Rosati

Suite 1509, 15/F, Jardine House

1 Connaught Place, Central

Hong Kong

Attention: Weiheng Chen

 

If to the Purchaser, to:

 

c/o CITIC Capital Partners Management Limited

28/F, CITIC Tower

1 Tim Mei Avenue

Central, Hong Kong

Attention: [REDACTED]

Email: [REDACTED]

 

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With a copy to (which shall not constitute notice):

 

Latham & Watkins LLP

18th Floor, One Exchange Square

8 Connaught Place, Central

Hong Kong

Attention: Frank Sun

 

6.11         Survival. All of the representations, warranties, covenants and agreements of the Parties in this Agreement shall survive the Closing.

 

6.12         Section and Other Headings. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

 

6.13         Counterparts. This Agreement may be executed and delivered (including by facsimile or e-mail transmission) in one or more counterparts, all of which when executed and delivered shall be considered one and the same agreement.

 

[Signature pages follow]

 

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IN WITNESS WHEREOF, each of the Parties has executed this Agreement as of the day and year first above written.

 

  PW Medtech Group Limited
     
  By: /s/ Yue’e Zhang
  Name: Yue’e Zhang
  Title: Executive Director and Chief Executive Officer

 

[Signature Page to Share Purchase Agreement]

 

 

 

 

IN WITNESS WHEREOF, each of the Parties has executed this Agreement as of the day and year first above written.

 

  2019B Cayman Limited
     
  By: /s/ Rikizo Matsukawa
  Name: Rikizo Matsukawa
  Title: Director

 

[Signature Page to Share Purchase Agreement]

 

 

 

 

Exhibit A

 

Form of Payment Notice

 

 

 

 

EX-99.8 3 tm2034471d1_ex8.htm EXHIBIT 8

 

Exhibit 8

 

EXECUTION VERSION

 

LETTER AGREEMENT

 

October 26, 2020

 

2019B Cayman Limited

 

27 Hospital Road, George Town
Grand Cayman KY1-9008
Cayman Islands

 

Ladies and Gentlemen:

 

This letter agreement (this “Letter Agreement”) sets forth the agreement by and among PW Medtech Group Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“PWM”), and 2019B Cayman Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“2019B Cayman,” and together with PWM, each a “Party” and collectively, the “Parties”) in relation to the Take Private Transaction (as defined below). It is contemplated that, (a) pursuant to that certain consortium agreement, dated as of September 18, 2019, by and among PWM and other parties thereto (as amended by amendment no. 1 thereto dated as of January 23, 2020 and by a letter agreement dated as of September 16, 2020, and as further amended, restated or modified from time to time, the “Consortium Agreement”), parties to the Consortium Agreement (including other parties that subsequently join thereto from time to time but excluding those that withdraw therefrom from time to time, the “Consortium”) have submitted a preliminary non-binding proposal, dated as of September 18, 2019, to acquire all of the Ordinary Shares that are not already beneficially owned by members of the Consortium and their respective affiliates (the “Take Private Transaction”); (b) 2019B Cayman is an Affiliate of that certain member of the Consortium as of the date hereof and it intends to join the Consortium and become a party to the Consortium Agreement after the date hereof; (c) CBPO Holdings Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Parent”), CBPO Group Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“Merger Sub”) and the Issuer are negotiating and may enter into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which Merger Sub will merge with and into the Issuer (the “Merger”), with the Issuer surviving the Merger as a direct wholly-owned subsidiary of Parent; (d) concurrently with the execution and delivery of the Merger Agreement, 2019B Cayman and/or one of more of its Affiliates (collectively, “CITIC”) will provide one or more limited guarantees (collectively, the “Limited Guarantees”) to the Issuer guaranteeing the payment of a portion of the termination fee and certain other amounts payable to the Issuer by Parent pursuant to the terms of the Merger Agreement (such termination fee and other amounts payable by Parent to the Issuer are Collectively referred to as the “Parent Fee”); and (e) on the date hereof PWM and 2019B Cayman are entering into that certain share purchase agreement dated as of the date hereof (the “2019B Cayman SPA”), pursuant to which PWM will sell 910,167 Ordinary Shares held by it (such 910,167 Ordinary Shares are collectively referred to as the “Proposed Sale Shares,” and the Ordinary Shares actually acquired by 2019B Cayman under the 2019B Cayman SPA are collectively referred to as the “Sale Shares”) to 2019B Cayman. In consideration of the foregoing and as a condition and inducement to (1) the willingness of each of PWM and 2019B Cayman to enter into the 2019B Cayman SPA, and (2) CITIC’s willingness to enter into the Limited Guarantees, the Parties are entering into this Letter Agreement concurrently with the execution and delivery of the 2019B Cayman SPA.

 

 

 

Unless otherwise defined herein (including Schedule A hereto), capitalized terms used herein shall have the meanings assigned to them in the 2019B Cayman SPA.

 

1.             Rollover of Proposed Sale Shares. PWM hereby absolutely and irrevocably agrees and undertakes to 2019B Cayman that, from the date hereof until the earliest of (i) the closing of the transactions contemplated in the 2019B Cayman SPA (the “2019B Cayman SPA Closing”), (ii) the valid termination of the 2019B Cayman SPA in accordance with its terms, (iii) the closing of the Take Private Transaction pursuant to the Merger Agreement (the “Merger Closing”), and (iv) the execution of the Merger Agreement (including any amendment or supplement thereto and/or any restatement thereof) which provides that the cash consideration payable for each Ordinary Share (other than the Excluded Shares and Dissenting Shares (each as defined in Schedule A hereto)) is less than US$120, it shall:

 

(a)           not, directly or indirectly, contribute, or permit the contribution of, any of the Proposed Sale Shares held by it to Parent or its Affiliates in connection with the Merger Closing, or undertake any similar transaction, whether pursuant to the terms of the Consortium Agreement, in connection with the Take Private Transaction or otherwise; and

 

(b)           take all actions necessary (including entering into such agreements with members of the Consortium or obtaining such consents or waivers under the Consortium Agreement) to modify, amend or terminate its contribution obligations with respect to the Proposed Sale Shares to give full effect to Section 1(a) above.

 

2.             Merger Closing. PWM hereby further absolutely and irrevocably agrees, undertakes and acknowledges that in the event that the 2019B Cayman SPA Closing shall have not occurred on or before the Merger Closing, each and all of the Proposed Sale Shares shall be cancelled and converted into the right to receive the applicable cash payment pursuant to the terms of the Merger Agreement; provided that, subject to Section 7, this Section 2 shall automatically terminate upon the earlier of (i) the valid termination of the 2019B Cayman SPA in accordance with its terms and (ii) the execution of the Merger Agreement (including any amendment or supplement thereto and/or any restatement thereof) which provides that the cash consideration payable for each Ordinary Share (other than the Excluded Shares and Dissenting Shares) is less than US$120.

 

3.             Consortium Expenses.

 

(a)           PWM Consortium Fees. The Parties hereby acknowledge and agree that, notwithstanding anything to the contrary in the Consortium Agreement and subject to Section 3(c) and Section 4(c) below:

 

(i)             PWM shall bear the PWM Consortium Fees Percentage (as defined in Schedule A hereto) of all Consortium Expenses; provided that if the 2019B Cayman SPA Closing occurs, PWM shall bear the PWM Consortium Fees Percentage of all Consortium Expenses that have been incurred and accrued prior to the 2019B Cayman SPA Closing (such Consortium Expenses that PWM shall bear pursuant to the foregoing of this Section 3(a)(i) are collectively referred to as the “PWM Consortium Fees”); and

 

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(ii)            to the extent CITIC has paid any part of the PWM Consortium Fees following the date hereof, 2019B Cayman shall promptly deliver to PWM a written notice (the “PWM Consortium Fees Notice”) which shall specify in reasonable detail the amount and nature of the PWM Consortium Fees actually paid by CITIC together with a copy of reasonable written proof of such payment. Upon receipt of the PWM Consortium Fees Notice delivered pursuant to the preceding sentence, PWM shall promptly (and in any event within ten (10) Business Days) pay or cause to be paid to 2019B Cayman an amount equal to the PWM Consortium Fees actually paid by CITIC, by wire transfer of immediately available funds in U.S. dollars to a bank account designated by 2019B Cayman in the PWM Consortium Fees Notice.

 

(b)           2019B Cayman Consortium Fees. The Parties hereby acknowledge and agree that, notwithstanding anything in the Consortium Agreement to the contrary, PWM shall not be responsible for such portion (as determined on a pro rata basis pursuant to the terms of the Consortium Agreement and solely in respect of the Sale Shares) of all Consortium Expenses incurred after the 2019B Cayman SPA Closing.

 

(c)           Notwithstanding Section 3(a) above, the Parties hereby acknowledge and agree that if the Take Private Transaction is consummated by the Consortium, 2019B Cayman shall use its commercially reasonable efforts to cause the Issuer to reimburse (or cause to be reimbursed) PWM for the PWM Consortium Fees actually paid by PWM pursuant to Section 3(a) above promptly after the Merger Closing by wire transfer of immediately available funds in U.S. dollars to a bank account designated by PWM in writing.

 

4.             Parent Fee.

 

(a)           The Parties hereby acknowledge and agree that, notwithstanding anything in the Consortium Agreement to the contrary and subject to Section 4(b), if (x) the 2019B Cayman SPA is terminated pursuant to its terms (except where such termination is caused by a breach by 2019B Cayman of the terms thereof), and (y) CITIC has paid or become liable to pay any amount to the Issuer with respect to the Parent Fee pursuant to the terms of the Limited Guarantees (such amount, the “Applicable Fee”), PWM shall pay to 2019B Cayman the amount of the PWM Parent Fee (as defined in Schedule A hereto), which payment shall be made pursuant to the following:

 

(i)             2019B Cayman shall promptly following the later of the occurrence of events described in the foregoing sub-sections (x) and (y), deliver to PWM a written notice (the “PWM Parent Fee Notice”), which shall specify in reasonable detail, the amount and nature of the Applicable Fee paid and payable by CITIC, together with the due date (the “Due Date”) with respect to any amount payable by CITIC and, with respect to the Applicable Fee already paid by CITIC, a copy of reasonable written proof thereof; and

 

(ii)            PWM shall, within ten (10) Business Days after receipt of the PWM Parent Fee Notice, but in any event prior to the Due Date specified in the PWM Parent Fee Notice, if any, pay to 2019B Cayman the PWM Parent Fee by wire transfer of immediately available funds in U.S. dollars to a bank account designated by 2019B Cayman in writing in the PWM Parent Fee Notice.

 

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(b)           Notwithstanding Section 4(a) above, to the extent CITIC actually recovers and receives all or any part of the Applicable Fee from any member of the Consortium or their Affiliates pursuant to the Consortium Agreement or any other agreement among members of the Consortium (such amount of the Applicable Fee that CITIC has actually recovered and received is referred to as the “Recovered Fee”), (i) the payment that 2019B Cayman is entitled to pursuant to Section 4(a) shall be reduced by an amount equal to the product of (x) the PWM Parent Fee Percentage (as defined in Schedule A hereto) and (y) the sum of (A) the Recovered Fee less (B) any reasonable costs and expenses incurred by CITIC in obtaining the Recovered Fee (the sum of the foregoing sub-sections (A) and (B) is referred to as the “Recovered Sum”); and (ii) if CITIC receives the Recovered Fee after PWM’s payment of the PWM Parent Fee pursuant to Section 4(a), 2019B Cayman shall refund (or cause to be refunded) to PWM an amount equal to the product of the PWM Parent Fee Percentage and the Recovered Sum, promptly (and in any event within ten (10) Business Days) following the date on which CITIC has received the Recovered Fee, by wire transfer of immediately available funds in U.S. dollars to a bank account designated by PWM in writing.

 

(c)            For the avoidance of doubt, if there is any overlap between the PWM Consortium Fees and the PWM Parent Fee, Section 4 shall apply to the overlapped amount and PWM shall have no obligation to pay or cause to be paid such overlapped amount pursuant to Section 3(a).

 

5.             Conditions. Notwithstanding anything to the contrary in this Letter Agreement, PWM’s performance of its obligations under this Letter Agreement (except for its obligations under Sections 5, 6, 7 and 8 of this Letter Agreement) shall be subject to and contingent upon the approval by the shareholders of PWM at an extraordinary general meeting of PWM (the “PWM EGM”) convened pursuant to the articles of association of PWM and the Rules Governing the Listing of Securities on The Stock Exchange of Hong Kong Limited (the “Listing Rules”); provided that unless otherwise disallowed by The Stock Exchange of Hong Kong Limited pursuant to the Listing Rules, PWM shall submit this Letter Agreement and the transactions contemplated hereby for approval by the shareholders of PWM along with the 2019B Cayman SPA as one resolution at the same PWM EGM.

 

6.             Representations and Warranties. Each Party hereby represents and warrants, on behalf of such Party only, to the other Party the following:

 

(a)            (i) Such Party has the requisite corporate power and authority to execute and deliver this Letter Agreement and to perform its obligations hereunder; (ii) all corporate action on the part of such Party and its officers, directors and shareholders necessary for the authorization, execution and delivery of this Letter Agreement and the performance of all of its obligations hereunder have been taken (except that when such Party is PWM, its performance of its obligations under this Letter Agreement shall be subject to and contingent upon the approval by the shareholders of PWM at the PWM EGM); and (iii) this Letter Agreement has been duly and validly executed and delivered by such Party and (assuming the due execution and delivery thereof by each other Party) constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

 

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(b)           The execution and delivery of this Letter Agreement and the consummation of the transactions contemplated herein and compliance by such Party with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute a breach of, or default under, require any consent or other action by any person under, give rise to any right of termination, cancellation or acceleration of any right or obligation of any person or to a loss of any benefit to which such Party is entitled, or result in the creation or imposition of any tax, Lien, limitation or restriction upon any property or assets of such Party pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which such Party is a party or by which such Party is bound, or to which any of the property or assets of such Party is subject, or (ii) result in any violation of the provisions of Organizational Documents of such Party or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Party or any of its properties; provided that when such Party is PWM, its performance of its obligations under this Letter Agreement shall be subject to and contingent upon the approval by the shareholders of PWM at the PWM EGM.

 

(c)           Other than any filings that may be required pursuant to applicable securities laws, no filing with, or consent, approval, authorization, order, registration, qualification or decree of, or any other action by or in respect of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the entry into of this Letter Agreement by such Party or the performance by such Party of its obligations hereunder; except that when such Party is PWM, its performance of its obligations under this Letter Agreement shall also remain subject to and contingent upon the approval by the shareholders of PWM at the PWM EGM.

 

7.             Most Favored Nation.

 

(a)           On or about the date hereof, PWM has entered into (or is entering into) a share purchase agreement (each an “Other SPA”) with Biomedical Treasure Limited and Biomedical Future Limited (each an “Other Purchaser”), respectively, pursuant to which, among other things, PWM agrees to sell to such Other Purchaser, and such Other Purchaser agrees to purchase from PWM, all of PWM’s right, title and interest in and pertaining to such number of Ordinary Shares as set forth in the applicable Other SPA (collectively, the “Other Sale Shares”). In connection with the entry into the respective Other SPAs, PWM and each of the Other Purchasers and their respective Affiliates have entered into (or are entering into) a letter agreement (each an “Other Letter Agreement;” and the Other Letter Agreements and the Other SPAs are collectively referred to as the “Other Agreements”). PWM represents that a true and complete copy of the execution version of each Other Agreement has been provided to 2019B Cayman on or before the date hereof.

 

(b)           From the execution of this Letter Agreement until the earlier of (i) the 2019B Cayman SPA Closing and (ii) the valid termination of the 2019B Cayman SPA, PWM shall not enter into any agreement or undertaking (including any supplemental or amendment agreement with respect to the Other SPAs with any of the Other Purchasers or their respective Affiliates (collectively, the “Other Purchaser Parties”)) (each of such agreement or undertaking is referred to as an “Additional Agreement”) that has the effect of providing more favorable terms to such Other Purchaser Party with respect to its purchase of the applicable Other Sale Shares in respect of the per share price, representations and warranties, closing conditions, payment terms, termination rights, sharing of Consortium Expenses (to the extent not based upon the PWM Consortium Fees Percentage as applied mutatis mutandis with respect to the applicable Other Sale Shares) and other material aspects of such transaction than the terms provided to 2019B Cayman with respect to the purchase of the Proposed Sale Shares under the 2019B Cayman SPA and this Letter Agreement unless, in any case, (x) 2019B Cayman has consented to such Additional Agreement in writing or is otherwise a party to such Additional Agreement, or (y) such more favorable terms have been provided to 2019B Cayman and apply to the purchase of the Proposed Sale Shares. Without limiting the generality of the foregoing, in the event the long stop date referred to in the termination provision in any Other SPA is extended by PWM and the relevant Other Purchaser, and 2019B Cayman shall have not committed any material breach of the 2019B Cayman SPA as of such extension, the long stop date referred to in Section 6.2(a)(ii) of the 2019B Cayman SPA shall be equally extended.

 

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8.             Miscellaneous.

 

(a)           Each Party agrees to, and shall cause its Affiliates and its and such Affiliates respective directors, partners, members, officers, employees, agents, representatives, general or limited partners, financing sources and third party professional advisors (including financial and legal advisors) with access to the Confidential Information (each a “Representative” of such Party) to, (i) treat and hold as confidential (and not disclose or provide access to any other Person to), and not make, or cause to be made, any press release or public announcement or disclosure of, the existence, terms and subject matters of this Letter Agreement (“Confidential Information”), (ii) in the event that any Party or any of its Representatives becomes legally compelled or is otherwise required by the rules and regulations of any securities exchange or governmental authority of competent jurisdiction over such Party or such Party’s Representative to disclose any Confidential Information, provide the other Party with a reasonable opportunity to comment on the form and terms of such disclosure to the extent reasonably practicable; provided, however, that (x) this clause shall not apply to any information that, at the time of disclosure, is in the public domain and was not disclosed in breach of this clause by any Party or its Representatives; and (y) 2019B Cayman hereby acknowledges and agrees that PWM shall be permitted to provide the copy of execution version of the 2019B Cayman SPA and this Letter Agreement to each of the Other Purchaser for the purposes of PWM’s performance of its obligations under Section 7 (Most Favored Nation) of each Other Letter Agreement.

 

(b)           This Letter Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns. Nothing in this Letter Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a Party to this Letter Agreement. No assignment of this Letter Agreement or of any rights or obligations hereunder may be made by any Party hereto (by operation of law or otherwise) without the prior written consent of each other Party and any attempted assignment without such required consents shall be void.

 

(c)           The Parties are independent and nothing in this Letter Agreement constitutes a Party as the trustee, fiduciary, agent, employee, partner or joint venture of the other Party.

 

(d)           This Letter Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Hong Kong (without giving effect to any choice of law principles thereof that would cause the application of the laws of another jurisdiction).

 

(e)           Any dispute, controversy, difference or claim arising out of or relating to this Letter Agreement (including the existence, interpretation, performance, breach, termination, or validity thereof or any dispute regarding pre-contractual, contractual or non-contractual obligations arising out of or relating to it) (each, a “Dispute”) shall be resolved through consultation between the parties. If no resolution is reached within thirty (30) days from the date of notification by party to the other party of the Dispute, then such Dispute shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with its Arbitration Rules (the “HKIAC Rules”) in force when the notice of arbitration is submitted. The seat of the arbitration shall be Hong Kong. The arbitral tribunal shall consist of three (3) arbitrators to be appointed in accordance with the HKIAC Rules. The arbitration proceedings shall be conducted, and all written decisions or correspondence shall be, in English. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum. Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in this Section 8(e), any Party may, to the extent permitted under the rules and procedures of the HKIAC, seek an interim injunction or other form of relief from the HKIAC as provided for in the HKIAC Rules. Such application shall also be governed by, and construed in accordance with, the laws of Hong Kong.

 

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(f)            The provisions of Sections 6.5, 6.6, 6.9(c), 6.12 and 6.13 of the 2019B Cayman SPA shall apply mutatis mutandis to this Letter Agreement, as if all references to the “Agreement” thereunder are reference to this Letter Agreement and all reference to “Parties” thereunder are reference to the Parties hereto.

 

(g)          All notices and other communications under this Letter Agreement shall be in writing and shall be deemed given (and received by the addressee) (i) when delivered personally or (ii) if delivered by international courier, two Business Days after its delivery to such courier, or (iii) if delivered by electronic mail, on the day it is sent, if it is sent prior to 4:00pm local time on a Business Day in the place in or to which it is delivered, or otherwise on the next Business Day, in each case to the Parties at the following addresses (or to such other address as a Party may have specified by notice given to the other Party pursuant to this provision):

 

If to 2019B Cayman, to:

 

Address: 28/F CITIC Tower, 1 Tim Mei Ave, Central, Hong Kong

Attention: [REDACTED]

E-mail: [REDACTED]

 

With a copy to (which shall not constitute notice):

 

Latham & Watkins LLP

18th Floor, One Exchange Square

8 Connaught Place, Central

Hong Kong

Attention: Frank Sun

 

If to PWM, to:

 

PW Medtech Group Limited

Level 54, Hopewell Centre

183 Queen’s Road East

Hong Kong

Attention: [REDACTED]

 

With a copy to (which shall not constitute notice):

 

PW Medtech Group Limited

Building 1, No. 23 Panlong West Road

Pinggu District, Beijing

PRC 101204

Attention: [REDACTED]

 

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Wilson Sonsini Goodrich & Rosati

Suite 1509, 15/F, Jardine House

1 Connaught Place, Central

Hong Kong

Attention: Weiheng Chen

 

(h)           This Letter Agreement and the 2019B Cayman SPA constitute the entire understanding and agreement of the parties with respect to the subject matter hereof and thereof and supersedes any previous understanding or agreement between the parties with regard to the subjects hereof and thereof. This Letter Agreement can be amended, supplemented or changed, and any provision hereof can be waived, in each case only by written instrument making specific reference to this Letter Agreement signed by the Party against whom enforcement of any such amendment, supplement, modification or waiver is sought. To the extent any terms of this Letter Agreement conflict with the terms of the 2019B Cayman SPA, the terms of this Letter Agreement shall prevail.

 

[Remainder of page intentionally left blank]

 

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In witness whereof this letter has been duly executed and delivered as a deed on the date first above written.

 

SIGNED, SEALED AND DELIVERED
as a DEED by
)
)
 
as the authorized signatory for and on behalf of ) /s/ Yue’e Zhang
PW MEDTECH GROUP LIMITED ) Name: Yue’e Zhang
in the presence of: ) Title: Director

 

/s/ Yang Tiantian    
Signature of Witness    
Name: Yang Tiantian    

 

[Signature Pages to PWM Side Agreement]

 

 

 

In witness whereof this letter has been duly executed and delivered as a deed on the date first above written.

 

SIGNED, SEALED AND DELIVERED ) For and on behalf of
as a DEED by Rikizo Matsukawa ) 2019B Cayman Limited
as the authorized signatory for and on behalf
of
)
)
/s/ Rikizo Matsukawa
2019B CAYMAN LIMITED ) Name: Rikizo Matsukawa
    Title: Director
     
in the presence of:    
     
/s/ Keiko Sato      
Signature of Witness    
Name: Keiko Sato    

 

[Signature Pages to PWM Side Agreement]

 

 

 

Schedule A

 

SCHEDULE A

 

 

EX-99.9 4 tm2034471d1_ex9.htm EXHIBIT 9

 

Exhibit 9

 

Execution Version

 

SHARE PURCHASE AGREEMENT

 

This SHARE PURCHASE AGREEMENT, dated as of October 26, 2020 (this “Agreement”), by and among Parfield International Ltd., a British Virgin Islands company (the “Seller”) and 2019B Cayman Limited, a Cayman Islands company (the “Purchaser,” and together with the Seller, each a “Party” and collectively, the “Parties”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in Section 6.1 hereof.

 

WHEREAS, the Seller is the owner of 2,437,696 Ordinary Shares of the Issuer (as defined below).

 

WHEREAS, the Seller has agreed to sell to the Purchaser, and the Purchaser has agreed to purchase from the Seller, all of the Seller’s right, title and interest in and pertaining to 300,000 Ordinary Shares of the Issuer (the “Sale Shares”) at the Purchase Price, all upon the terms and conditions hereinafter set forth.

 

WHEREAS, in connection with the purchase and sale of the Sale Shares and concurrently with the execution of this Agreement, a letter agreement dated as of the date hereof (the “Letter Agreement”) has been entered into by and between the Seller and the Purchaser.

 

NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained, it is agreed as follows:

 

1.      PURCHASE AND SALE

 

1.1           Purchase and Sale. Subject to the terms and conditions set forth in this Agreement, the Purchaser agrees to purchase from the Seller, and the Seller agrees to sell, transfer and assign to the Purchaser, at the Closing (as defined below), the Sale Shares and all of the Seller’s right, interest and title therein (including all dividends, distributions and other benefits attaching to the Sale Shares) for the Purchase Price.

 

1.2           The Closing.

 

(a)            The closing of the purchase and sale of the Sale Shares and the other transactions contemplated hereby (the “Closing”, and the date on which the Closing occurs, the “Closing Date”) shall take place within fifteen (15) Business Days after all the conditions set forth under Sections 4.1 and 4.2 are satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing) or such other date as may be agreed by both the Parties.

 

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(b)           At the Closing:

 

(i)            the Seller shall deliver, or cause its custodian or broker to deliver, to the Purchaser:

 

(A)             the Sale Shares to such securities account of the custodian or broker of the Purchaser as designated by the Purchaser to the Seller in writing at least five (5) Business Days before Closing on a settlement by delivery-versus-payment basis; and

 

(B)             a copy of the director resolutions of the Seller duly authorizing and approving this Agreement and the transactions contemplated hereby; and

 

(ii)           the Purchaser shall deliver, or cause its custodian or broker to deliver, to the Seller:

 

(A)             immediately available funds in the amount of the Purchase Price by wire transfer to such bank account as designated by the Seller to the Purchaser in writing at least five (5) Business Days before Closing on a settlement by payment-versus- delivery basis; and

 

(B)              a copy of the director resolutions of the Purchaser duly authorizing and approving this Agreement and the transactions contemplated hereunder.

 

(c)            Unless otherwise agreed by the Seller and the Purchaser, all actions at Closing are inter-dependent and will be deemed to take place simultaneously and no delivery or payment will be deemed to have been made until all deliveries and payments under this Agreement due to be made at Closing have been made.

 

2.      PURCHASER’S REPRESENTATIONS AND WARRANTIES

 

The Purchaser makes the following representations and warranties to the Seller as of the date hereof and the Closing Date:

 

2.1           Authority; Binding Effect. The Purchaser has the requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. All corporate action on the part of the Purchaser and its officers, directors and shareholders necessary for the authorization, execution and delivery of this Agreement and the performance of all of its obligations hereunder, including the purchase of the Sale Shares, have been taken prior to the Closing. This Agreement has been duly and validly executed and delivered by the Purchaser and (assuming the due execution and delivery thereof by the Seller) constitutes the legal, valid and binding obligation of the Purchaser, enforceable against the Purchaser in accordance with its terms.

 

2.2           No Conflicts. Except as would not have a material impact on the Purchaser’s ability to consummate the transactions contemplated by this Agreement and perform its obligations hereunder, the execution and delivery of this Agreement and the consummation of the transactions contemplated herein and compliance by the Purchaser with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute a breach of, or default under, require any consent or other action by any person under, give rise to any right of termination, cancellation or acceleration of any right or obligation of any person or to a loss of any benefit to which the Purchaser is entitled, or result in the creation or imposition of any tax, Lien (as defined below), limitation or restriction upon any property or assets of the Purchaser pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Purchaser is a party or by which the Purchaser is bound, or to which any of the property or assets of the Purchaser is subject, or (ii) result in any violation of the provisions of Organizational Documents of the Purchaser or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Purchaser or any of its properties.

 

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2.3           No Consents. Other than any filings that may be required pursuant to applicable securities laws, no filing with, or consent, approval, authorization, order, registration, qualification or decree of, or any other action by or in respect of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the entry into of this Agreement by the Purchaser or the performance by the Purchaser of its obligations hereunder or the purchase of the Sale Shares by the Purchaser and the consummation of the transactions contemplated herein. All consents and waivers that would have a material impact on the Purchaser to consummate the transactions contemplated hereby and perform its obligations hereunder have been obtained and remain valid.

 

2.4           Purchase for Investment. The Purchaser has access to such information of the Issuer as shall have been reasonably necessary for the Purchaser to evaluate the merits and risks of the transactions contemplated by this Agreement. The Purchaser is acquiring the Sale Shares for investment for its own account and not with a view toward any resale or distribution thereof except in compliance with the Securities Act. The Purchaser hereby acknowledges that the Sale Shares have not been registered pursuant to the Securities Act and may not be transferred in the absence of such registration thereunder or an exemption therefrom, unless in a transaction not subject to the Securities Act. Except in connection with the Acquisition and the Acquisition Proposal (including any direct or indirect equity syndication arranged or to be arranged by the Purchaser in connection therewith), the Purchaser does not presently have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participations to any person with respect to the Sale Shares.

 

2.5           Purchaser Status. The Purchaser either (i) is an institutional “accredited investor” (as defined in Rule 501(a) of Regulation D under the Securities Act) or (ii) is not a U.S. person and is located outside of the United States, as such terms are defined in Rule 902 of Regulation S under the Securities Act.

 

2.6           Sophisticated Investor. The Purchaser has such knowledge and experience in financial and business matters to make an informed decision with respect to the Purchaser’s purchase of the Sale Shares. The Purchaser is a sophisticated investor and has independently evaluated the merits of its decision to purchase the Sale Shares pursuant to this Agreement. In connection with such purchase, the Purchaser is not relying on the Seller or any of the Seller’s Affiliates or representatives in any respect in making its decision to make such purchase except for such representations and warranties of the Seller made under Section 3.

 

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2.7           Sufficient Funds. Immediately prior to the Closing, the Purchaser will have sufficient immediately available and legitimate funds to fulfill its obligations under Section 1.2(b)(ii)(A).

 

3.      SELLER’S REPRESENTATIONS AND WARRANTIES

 

The Seller makes the following representations and warranties to the Purchaser as of the date hereof and the Closing Date:

 

3.1           Authority; Binding Effect. The Seller has the requisite corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. All corporate action on the part of the Seller and its officers, directors and shareholders necessary for the authorization, execution and delivery of this Agreement and the performance of all of its obligations hereunder, including the sale of the Sale Shares, have been taken prior to the Closing. This Agreement has been duly and validly executed and delivered by the Seller and (assuming the due execution and delivery thereof by the Purchaser) constitutes the legal, valid and binding obligations of the Seller, enforceable against the Seller in accordance with its terms.

 

3.2           Ownership and Transfer. The Seller is the sole record and beneficial owner of the Sale Shares (which are held under the name of the Depository Trust Company), free and clear of any mortgage, lien, pledge, charge, security interest or other encumbrance (collectively, “Liens”) and any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of the Sale Shares) other than the Parfield Existing Lien. The Seller will transfer and deliver to the Purchaser at the Closing valid, good and marketable title to the Sale Shares free and clear of any Liens (including the Parfield Existing Lien) and any such limitation or restriction.

 

3.3           No Conflicts. Except as would not have a material impact on the Seller’s ability to consummate the transactions contemplated by this Agreement and perform its obligations hereunder, the execution and delivery of this Agreement and the sale and delivery of the Sale Shares by the Seller and the consummation of the transactions contemplated herein and compliance by the Seller with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute a breach of, or default under, require any consent or other action by any person under, give rise to any right of termination, cancellation or acceleration of any right or obligation of any person or to a loss of any benefit to which the Seller is entitled, or result in the creation or imposition of any tax, Lien, limitation or restriction upon the Sale Shares or any property or assets of the Seller, pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which the Seller is a party or by which the Seller is bound, or to which any of the property or assets of the Seller is subject, or (ii) result in any violation of the provisions of Organizational Documents of the Seller or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the Seller or any of its properties.

 

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3.4           Consents; Waivers. Other than any filings that may be required pursuant to applicable securities laws, no filing with, or consent, approval, authorization, order, registration, qualification or decree of, or any other action by or in respect of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the entry into of this Agreement by the Seller or the performance by the Seller of its obligations hereunder or the sale and delivery of the Sale Shares by the Seller and the consummation of the transactions contemplated herein. All consents or waivers that would have a material impact on the Seller to consummate the transactions contemplated hereby and perform its obligations hereunder (including each such waiver as may be required pursuant to the Consortium Agreement) have been obtained and remain valid.

 

3.5           Exempt Offering. Assuming the accuracy of the Purchaser’s representations and warranties in Section 2 above, the offer and sale of the Sale Shares under this Agreement are or will be exempt from the registration requirements and prospectus delivery requirements of the Securities Act.

 

4.      CONDITIONS PRECEDENT

 

4.1           The obligations of the Seller to consummate the Closing and under Section 1.2(b)(i) hereof are subject to the satisfaction (or waiver by Seller) of the following conditions:

 

(a)           All of the representations and warranties of the Purchaser contained in Section 2 shall be true and correct in all material respects (other than the Purchaser’s representations and warranties set forth in Section 2.1 which shall be true and correct in all respects) on and as of the date hereof and on the Closing Date.

 

(b)           The Purchaser has performed all of its obligations contained in this Agreement (to be performed prior to the Closing) in all material respects.

 

(c)            The SC 13E-3 Amendment (as defined below) shall have been first duly filed with the SEC for no less than thirty (30) days and first disseminated in accordance with Rule 13e-3(f) under the Exchange Act for no less than twenty (20) days.

 

(d)           No provision of any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, shall prohibit the consummation of the Closing.

 

4.2           The obligations of the Purchaser to consummate the Closing and under Section 1.2(b)(ii) hereof are subject to the satisfaction (or waiver by the Purchaser) of the following conditions:

 

(a)           All of the representations and warranties of the Seller contained in Section 3 shall be true and correct in all material respects (other than the representations and warranties set forth in Sections 3.1 and 3.2 which shall be true and correct in all respects) on and as of the date hereof and on the Closing Date.

 

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(b)          The Seller has performed all of its obligations contained in this Agreement (to be performed prior to the Closing) in all material respects.

 

(c)           The SC 13E-3 Amendment (as defined below) shall have been first duly filed with the SEC for no less than thirty (30) days and first disseminated in accordance with Rule 13e-3(f) under the Exchange Act for no less than twenty (20) days.

 

(d)          The Parfield Existing Lien and any other Liens that the Sale Shares are subject to will be fully, unconditionally and irrevocably released and discharged upon Closing.

 

(e)           No provision of any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, shall prohibit the consummation of the Closing.

 

5.      COVENANTS

 

5.1           Notification. Each Party to this Agreement will notify the other Party as soon as reasonably practicable (but in any event prior to the Closing Date) in the event it comes to such Party’s attention that any of such Party’s representations or warranties set out in this Agreement has ceased to be true and accurate in any material respect or there has been any breach by such Party of any of its agreements contained in this Agreement or any failure by such Party to comply with any of its obligations contained in this Agreement.

 

5.2           SEC Filings.

 

(a)           Each Party agrees, confirms and undertakes that, in connection with the signing of this Agreement and the transactions contemplated hereby, such Party shall promptly file, within the time period required by applicable laws and regulations, the requisite filings with the SEC.

 

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(b)           Without limiting the generality of Section 5.2(a), the Parties agree to cooperate with each other and provide all information reasonably necessary to satisfy the applicable disclosure requirements under Rule 13e-3 under the Exchange Act (the “Rule 13e-3”) and Section 13(d) of the Exchange Act. Each Party may disclose the terms of this Agreement as required by the rules of a U.S. or foreign securities exchange, or in any filings with the SEC as required by the Securities Act or the Exchange Act, including in connection with the submissions contemplated under Rule 13e-3 and in any amendment to the Schedule 13D of the Parties relating to securities of the Issuer. As soon as reasonably practicable following the date hereof, the Parties shall cooperate to jointly prepare and use their respective commercially reasonable efforts to cause to be filed with the SEC and to be disseminated (in accordance with Rule 13e-3(f)) an amendment to the Rule 13e-3 transaction statement on Schedule 13E-3 filed by certain members of the Consortium on February 19, 2020 (as amended on March 30, 2020 and April 24, 2020, the “Original Schedule 13E-3”) in respect of the entering of this Agreement and the transactions contemplated hereby (such amendment to the Original Schedule 13E-3 is referred to herein as the “SC 13E-3 Amendment;” and the Original Schedule 13E-3 as amended by the SC 13E-3 Amendment is referred to herein as the “Amended Schedule 13E-3”). Each Party shall (i) promptly notify the other Party upon the receipt of any comments (written or oral) from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Amended Schedule 13E-3 in connection with the transactions contemplated by this Agreement, and (ii) use its reasonable best efforts to respond jointly and promptly to any comments of the SEC or its staff with respect to the Amended Schedule 13E-3 in connection with the transactions contemplated by this Agreement. Each Party hereby represents, warrants and undertakes to the other Party that the information provided by such Party for inclusion in the Amended Schedule 13E-3, at each time it is filed with the SEC, will not contain any untrue statement of a material fact or omit to state any material fact with respect to such Party as required to be stated or incorporated by reference therein or necessary in order to make the statements therein, in light of the circumstances under which such Amended Schedule 13E-3is made, not false or misleading, except to the extent that the information in the Amended Schedule 13E-3 is amended or superseded by a later version thereof.

 

5.3           Release of Parfield Existing Lien. The Seller shall immediately upon Closing, cause the Parfield Existing Lien (and any other Liens that the Sale Shares are subject to) to be fully, unconditionally and irrevocably released and discharged.

 

6.      MISCELLANEOUS

 

6.1           Certain Definitions. For purposes of this Agreement, the following terms shall have the meanings specified in this Section 6.1:

 

Acquisition” means that certain acquisition transaction contemplated under the Acquisition Proposal.

 

Acquisition Proposal” means a non-binding proposal dated as of September 18, 2019 submitted to the board of directors of the Issuer by parties to the Consortium Agreement in connection with a proposed acquisition transaction with respect to the Issuer, as may be amended and/or restated from time to time.

 

Affiliate” means, with respect to a person, any other person that, directly or indirectly, Controls, is Controlled by or is under common Control with such person.

 

Business Day” means any day except any Saturday, any Sunday, any day that is a federal legal holiday in the United States or any day on which banking institutions in the State of New York, the People’s Republic of China, Hong Kong, the Cayman Islands or the British Virgin Islands are authorized or required by law or other governmental action to close.

 

Consortium” means the parties to the Consortium Agreement (together with any other Persons that subsequently joined for the purpose of effecting the Acquisition but excluding those that have withdrawn therefrom).

 

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Consortium Agreement” means the consortium agreement dated as of September 18, 2019 by and among the Seller and other parties named therein, as amended by an amendment No. 1 thereto dated as of January 23, 2020 and as may be amended and/or restated from to time.

 

Control” of a given person means the power or authority, whether exercised or not, to direct the business, management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

 

Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

Issuer” means China Biologic Products Holdings, Inc., a Cayman Islands exempted company.

 

Ordinary Shares” means ordinary shares, par value of US$0.0001 per share, of the Issuer.

 

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.

 

“Parfield Existing Lien” means (i) the Liens over the Sale Shares disclosed in the Schedule 13G and/or Schedule 13D or any amendment thereto filed by Marc Chan and the Seller prior to the date hereof and (ii) any Liens that may from time to time after the date hereof but before Closing be created to replace such Liens or any subsequent Liens created to replace any prior Liens for refinancing the indebtedness of the Seller secured by the Liens being replaced.

 

Per Share Consideration” means US$120.00.

 

Person” or “person” means any individual, corporation, partnership, limited partnership, proprietorship, association, limited liability company, firm, trust, estate or other enterprise or entity.

 

Purchase Price” means the aggregate amount of US$36,000,000 which equals the product of (a) Per Share Consideration multiplied by (b) the number of Sale Shares.

 

SEC” means the United States Securities and Exchange Commission.

 

Securities Act” means the Securities Act of 1933, as amended.

 

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6.2           Termination.

 

(a)           This Agreement may be terminated prior to the Closing (i) by mutual written consent of the Seller and the Purchaser, or (ii) by either Party if the Closing has not occurred by the earlier of (A) the fifteenth (15th ) Business Days following the

 

satisfaction (or waiver by the Party entitled thereto) of all of the closing conditions set forth in Section 4 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing) and (B) the date which is six (6) months from the date hereof; or (iii) automatically without any action of either Party immediately before the closing of the Acquisition, provided, that a Party shall not have the right to terminate this Agreement pursuant to this Section 6.2(a)(ii) if such Party’s breach or failure to fulfill any of its obligations under this Agreement resulted in the failure of the Closing to be consummated by such time.

 

(b)          If this Agreement is terminated in accordance with Section 6.2(a), this Agreement shall become void and have no effect, the transactions contemplated hereby shall be abandoned without further action by the Parties and there shall be no liability on the part of any Party; provided that (i) the provisions of Section 6 (Miscellaneous) shall survive the termination of this Agreement; and (ii) such termination shall not release any Party from any liability that has already accrued as of the effective date of such termination, and shall not constitute a waiver or release of any rights, remedies or claims that a Party may have already accrued under this Agreement as of such termination.

 

6.3           Further Assurances. The Parties agree to execute and deliver such other documents or agreements and to take such other action as may be necessary or desirable for the implementation of this Agreement and the consummation of the transactions contemplated hereby.

 

6.4          Complete Agreement; Amendments; Waivers. This Agreement and the Letter Agreement constitute the complete agreements between the Parties with respect to the subject matter hereof and thereof and supersede any previous agreement or understanding between them relating hereto and thereof. To the extent any terms of this Agreement conflict with the terms of the Letter Agreement, the terms of the Letter Agreement shall prevail. This Agreement may not be modified, altered or amended except as provided herein. This Agreement can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this Agreement signed by the Party against whom enforcement of any such amendment, supplement, modification or waiver is sought. The waiver by any Party hereto of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. All remedies hereunder are cumulative and are not exclusive of any other remedies provided by law.

 

6.5           Expenses. Each Party shall bear its own taxes and expenses incurred in connection with the negotiation and execution of this Agreement and the consummation of the purchase and sale of the Sale Shares contemplated hereby.

 

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6.6           Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions be consummated as originally contemplated to the fullest extent possible.

 

6.7           Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns. Nothing in this Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a Party to this Agreement. No assignment of this Agreement or of any rights or obligations hereunder may be made by any Party hereto (by operation of law or otherwise) without the prior written consent of the other Party and any attempted assignment without the required consent shall be void; provided that prior to the Closing, the Purchaser may assign its rights and obligations hereunder to its Affiliates without the prior written consent of the Seller.

 

6.8           Governing Law. This Agreement shall be interpreted, construed and governed by and in accordance with the laws of the State of New York without regard to the conflicts of law principles thereof.

 

6.9           Dispute Resolution.

 

(a)           Any dispute, actions and proceedings against any Party arising out of or in any way relating to this Agreement shall be submitted to the Hong Kong International Arbitration Centre (“HKIAC”) and resolved in accordance with the Arbitration Rules of HKIAC in force at the relevant time and as may be amended by this Section 6.9 (the “Rules”). The place of arbitration shall be Hong Kong. The official language of the arbitration shall be English and the tribunal shall consist of three (3) arbitrators (each, an “Arbitrator”). The claimant(s), irrespective of number, shall nominate jointly one (1) Arbitrator; the respondent(s), irrespective of number, shall nominate jointly one (1) Arbitrator; and a third (3rd) Arbitrator will be nominated jointly by the first two (2) Arbitrators and shall serve as chairman of the arbitration tribunal. In the event the claimant(s) or respondent(s) or the first two (2) Arbitrators shall fail to nominate or agree the joint nomination of an Arbitrator or the third (3rd) Arbitrator within the time limits specified by the Rules, such Arbitrator shall be appointed promptly by the HKIAC. The arbitration tribunal shall have no authority to award punitive or other punitive-type damages. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.

 

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(b)           Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in Section 6.9(a), any Party may, to the extent permitted under the rules and procedures of the HKIAC, seek an interim injunction or other form of relief from the HKIAC as provided for in its Rules. Such application shall also be governed by, and construed in accordance with, the laws of the State of New York.

 

(c)           The Parties hereto agree that the obligations imposed on them in this Agreement are special, unique and of an extraordinary character and irreparable damage would occur if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, each Party to this Agreement (a) shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the forum described in this Section 6.9, without proof of damages or otherwise, this being in addition to any other remedy at law or in equity, and (b) hereby waives any requirement for the posting of any bond or similar collateral in connection therewith. Each Party hereto agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that (i) any other Party has an adequate remedy at law or (ii) an award of specific performance is not an appropriate remedy for any reason at law or equity.

 

6.10         Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed given when delivered personally or by international courier or by electronic mail to the Parties at the following addresses (or to such other address as a Party may have specified by notice given to the other Party pursuant to this provision):

 

If to the Seller, to:

 

Unit No. 21E, 21st Floor, United Centre

95 Queensway, Admiralty, Hong Kong

Attention: [REDACTED]

Facsimile: [REDACTED]

 

With a copy to (which shall not constitute notice):

 

 

K&L Gates LLP

925 Fourth Avenue, Suite 2900

Seattle, WA 98104-1158

United States of America

Attention: Christopher H. Cunningham

Facsimile: (206) 370-6040

 

and

 

K&L Gates

44th Floor, Edinburgh Tower

The Landmark, 15 Queen’s Road Central

Hong Kong

Attention: Michael Chan

Facsimile: (852) 2511-9515

 

11

 

 

If to the Purchaser, to:

c/o CITIC Capital Partners Management Limited

28/F, CITIC Tower

1 Tim Mei Avenue

Central, Hong Kong

Attention: [REDACTED]

Email: [REDACTED]

 

With a copy to (which shall not constitute notice):

 

Latham & Watkins LLP

18th Floor, One Exchange Square

8 Connaught Place, Central

Hong Kong

Attention: Frank Sun

 

6.11         Survival. All of the representations, warranties, covenants and agreements of the Parties in this Agreement shall survive the Closing.

 

6.12         Section and Other Headings. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

 

6.13        Counterparts. This Agreement may be executed and delivered (including by facsimile or e-mail transmission) in one or more counterparts, all of which when executed and delivered shall be considered one and the same agreement.

 

[Signature pages follow]

 

12

 

 

IN WITNESS WHEREOF, each of the Parties has executed this Agreement as of the day and year first above written.

 

  Parfield International Ltd.
   
  By: /s/ Marc Chan
  Name:  Marc Chan
  Title:   Director

 

[Signature Page to Share Purchase Agreement]

 

 

 

 

IN WITNESS WHEREOF, each of the Parties has executed this Agreement as of the day and year first above written.

 

  2019B Cayman Limited
   
  By: /s/ Rikizo Matsukawa
  Name:  Rikizo Matsukawa
  Title:   Director

 

[Signature Page to Share Purchase Agreement]

 

 

 

EX-99.10 5 tm2034471d1_ex10.htm EXHIBIT 10

 

Exhibit 10

 

Execution Version

 

LETTER AGREEMENT

 

October 26, 2020

 

2019B Cayman Limited

 

27 Hospital Road, George Town
Grand Cayman KY1-9008
Cayman Islands

 

Ladies and Gentlemen:

 

This letter agreement (this “Letter Agreement”) sets forth the agreement by and among Parfield International Ltd., a British Virgin Islands company (“Parfield”), and 2019B Cayman Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“2019B Cayman”, and together with Parfield, each a “Party” and collectively, the “Parties”) in relation to the Take Private Transaction (as defined below). It is contemplated that, (a) pursuant to that certain consortium agreement, dated as of September 18, 2019, by and among Parfield and other parties thereto (as amended by amendment no. 1 thereto dated as of January 23, 2020 and as further amended, restated or modified from time to time, the “Consortium Agreement”), parties to the Consortium Agreement (including other parties that subsequently join thereto from time to time but excluding those that withdraw therefrom from time to time, the “Consortium”) have submitted a preliminary non-binding proposal, dated as of September 18, 2019, to acquire all of the Ordinary Shares that are not already beneficially owned by members of the Consortium and their respective affiliates (the “Take Private Transaction”); (b) 2019B Cayman is an Affiliate of a certain member of the Consortium as of the date hereof and it intends to join the Consortium and become a party to the Consortium Agreement after the date hereof; and (c) on the date hereof Parfield and 2019B Cayman are entering into that certain share purchase agreement dated as of the date hereof (the “2019B Cayman SPA”), pursuant to which Parfield will sell 300,000 Ordinary Shares held by it (such 300,000 Ordinary Shares are collectively referred to as the “Proposed Sale Shares”, and the Ordinary Shares actually acquired by 2019B Cayman under the 2019B Cayman SPA are collectively referred to as the “Sale Shares”) to 2019B Cayman. In consideration of the foregoing and as a condition and inducement to the willingness of each of Parfield and 2019B Cayman to enter into the 2019B Cayman SPA, the Parties are entering into this Letter Agreement concurrently with the execution and delivery of the 2019B Cayman SPA. Unless otherwise defined herein (including Schedule A hereto), capitalized terms used herein shall have the meanings assigned to them in the 2019B Cayman SPA.

 

 

 

 

1.                  Rollover of Proposed Sale Shares. Parfield hereby absolutely and irrevocably agrees and undertakes to 2019B Cayman that, from the date hereof until the earliest of (i) the closing of the transactions contemplated in the 2019B Cayman SPA (the “2019B Cayman SPA Closing”), (ii) the valid termination of the 2019B Cayman SPA in accordance with its terms, (iii) the closing of the Take Private Transaction pursuant to the Merger Agreement (the “Merger Closing”), and (iv) the execution of the Merger Agreement (including any amendment or supplement thereto and/or any restatement thereof) which provides that the cash consideration payable for each Ordinary Share (other than the Excluded Shares and Dissenting Shares (each as defined in Schedule A hereto)) is less than US$120, it shall:

 

(a)               not, directly or indirectly, contribute, or permit the contribution of, any of the Proposed Sale Shares held by it to Parent or its Affiliates in connection with the Merger Closing, or undertake any similar transaction, whether pursuant to the terms of the Consortium Agreement, in connection with the Take Private Transaction or otherwise; and

 

(b)              take all actions necessary (including entering into such agreements with members of the Consortium or obtaining such consents or waivers under the Consortium Agreement) to modify, amend or terminate its contribution obligations with respect to the Proposed Sale Shares to give full effect to Section 1(a) above.

 

2.                  Merger Closing.

 

(a)               Parfield hereby further absolutely and irrevocably agrees, undertakes and acknowledges that in the event that the 2019B Cayman SPA Closing shall have not occurred on or before the Merger Closing, each and all of the Proposed Sale Shares shall upon the Merger Closing be cancelled and converted into the right to receive the applicable cash payment pursuant to the terms of the Merger Agreement; provided that, subject to Section 2(b), this Section 2(a) shall automatically terminate upon the earlier of (i) the valid termination of the 2019B Cayman SPA in accordance with its terms and (ii) the execution of the Merger Agreement (including any amendment or supplement thereto and/or any restatement thereof) which provides that the cash consideration payable for each Ordinary Share (other than the Excluded Shares and Dissenting Shares) is less than US$120.

 

(b)               In the event any of the events described in Sections 2(a)(i) or 2(a)(ii) occurs, then notwithstanding anything provided to the contrary in this Letter Agreement (including in Section 1 of this Letter Agreement), if Parfield proposes, within three (3) months from the occurrence of such event, to Transfer (as defined in the Consortium Agreement) any of the Ordinary Shares held by it to any Other Purchaser, Parfield shall provide 2019B Cayman a right of first refusal to purchase all such Ordinary Shares on the same terms and conditions as offered to such Other Purchaser; provided that the maximum number of Ordinary Shares that 2019B Cayman may purchase pursuant to this right of first refusal shall not exceed 300,000. For the purpose of this provision, “Other Purchaser” means any of the following Persons: (i) Biomedical Treasure Limited (“Biomedical Treasure”), an exempted company with limited liability incorporated under the laws of the Cayman Islands, an Affiliate Mr. Joseph Chow, the chairman of the board of director and chief executive officer of the Issuer, (ii) Biomedical Future Limited (“Biomedical Future”), an exempted company with limited liability incorporated under the laws of the Cayman Islands, an Affiliate Mr. Joseph Chow, the chairman of the board of director and chief executive officer of the Issuer; and (iii) any party who to the knowledge of Parfield is an Affiliate of Biomedical Treasure or Biomedical Future.

 

3.                  Consortium Expenses.

 

(a)               Parfield Consortium Fees. The Parties hereby acknowledge and agree that, notwithstanding anything to the contrary in the Consortium Agreement and subject to Section 3(b) below:

 

(i)                 Parfield shall bear the Parfield Consortium Fees Percentage (as defined in Schedule A hereto) of all Consortium Expenses; provided that if the 2019B Cayman SPA Closing occurs, Parfield shall only bear the Parfield Consortium Fees Percentage of all Consortium Expenses that have been incurred and accrued prior to the 2019B Cayman SPA Closing (such Consortium Expenses that Parfield shall bear pursuant to the foregoing of this Section 3(a)(i) are collectively referred to as the “Parfield Consortium Fees”); and

 

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(ii)              2019B Cayman shall give Parfield prior notice in writing with reasonable detail of any proposed payment if 2019B Cayman and/or any of its Affiliates (collectively “CITIC”) propose to pay any part of the Parfield Consortium Fees following the date hereof. To the extent that CITIC has paid such part of the Parfield Consortium Fees following the date hereof, 2019B Cayman shall promptly deliver to Parfield a written notice (the “Parfield Consortium Fees Notice”) which shall specify in reasonable detail the amount and nature of the Parfield Consortium Fees actually paid by CITIC together with a copy of reasonable written proof of such payment. Upon receipt of the Parfield Consortium Fees Notice delivered pursuant to the preceding sentence, Parfield shall promptly (and in any event within ten (10) Business Days) pay or cause to be paid to 2019B Cayman an amount equal to the Parfield Consortium Fees actually paid by CITIC by wire transfer of immediately available funds in U.S. dollars to a bank account designated by 2019B Cayman in the Parfield Consortium Fees Notice.

 

(b)               2019B Cayman Consortium Fees. The Parties hereby acknowledge and agree that, notwithstanding anything herein or in the Consortium Agreement to the contrary, Parfield shall not be responsible for such portion (as determined on a pro rata basis pursuant to the terms of the Consortium Agreement and solely in respect of the Sale Shares) of all Consortium Expenses incurred after the 2019B Cayman SPA Closing.

 

4.                  Parent Fee.

 

(a)               The Parties acknowledge that (i) CBPO Holdings Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (“Parent”), CBPO Group Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands and a wholly-owned subsidiary of Parent (“Merger Sub”) and the Issuer are negotiating and may enter into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which Merger Sub will merge with and into the Issuer (the “Merger”), with the Issuer surviving the Merger as a direct wholly-owned subsidiary of Parent; and (ii) concurrently with the execution and delivery of the Merger Agreement, certain members of the Consortium will provide limited guarantees to the Issuer, each to guarantee a certain percentage of the Parent’s obligation to pay any termination fee and certain other amounts payable to the Issuer pursuant to the terms of the Merger Agreement (the “Parent Obligation”).

 

(b)               Unless the 2019B Cayman SPA Closing shall have occurred already, Parfield shall ensure that the limited guarantee to be provided by Parfield and/or its Affiliates (collectively, the “Guarantor”, and such guarantee, the “Parfield Guarantee”) shall guarantee such percentage of the Parent Obligation as is determined as if Parfield’s Equity Contribution (as defined in the Consortium Agreement) included the Proposed Sale Shares and in such event, Sections 4(c) to (d) below shall apply.

 

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(c)               The Parties hereby acknowledge and agree that, notwithstanding anything in the Consortium Agreement to the contrary and subject to Section 4(d), if (x) the Guarantor has paid or become liable to pay any amount to the Issuer with respect to the Parent Obligation pursuant to the terms of the Parfield Guarantee (such amount, the “Applicable Fee”) and (y) the 2019B Cayman SPA Closing occurs, 2019B Cayman shall pay to Parfield the amount of the CITIC Parent Fee (as defined in Schedule A hereto), which payment shall be made pursuant to the following:

 

(i)                 Parfield shall promptly following the later of the occurrence of events described in the foregoing sub-sections (x) and (y), deliver to 2019B Cayman a written notice (the “CITIC Parent Fee Notice”), which shall specify in reasonable detail, the amount and nature of the Applicable Fee paid and payable by the Guarantor, together with the due date (the “Due Date”) with respect to any amount payable by the Guarantor and, with respect to the Applicable Fee already paid by the Guarantor, a copy of reasonable written proof thereof; and

 

(ii)               2019B Cayman shall, within ten (10) Business Days after receipt of the CITIC Parent Fee Notice, but in any event prior to the Due Date specified in the CITIC Parent Fee Notice, if any, pay to Parfield the CITIC Parent Fee by wire transfer of immediately available funds in U.S. dollars to a bank account designated by Parfield in writing in the CITIC Parent Fee Notice.

 

(d)               Notwithstanding Section 4(c) above, to the extent the Guarantor actually recovers and receives all or any part of the Applicable Fee from any member of the Consortium or their Affiliates pursuant to the Consortium Agreement or any other agreement among members of the Consortium (such amount of the Applicable Fee that the Guarantor has actually recovered and received is referred to as the “Recovered Fee”), (i) the payment that Parfield is entitled to pursuant to Section 4(c) shall be reduced by the CITIC Parent Fee Percentage (as defined in Schedule A hereto) of the sum of (A) the Recovered Fee less (B) any reasonable costs and expenses incurred by the Guarantor in obtaining the Recovered Fee (such sum, the “Recovered Sum”); and (ii) if the Guarantor receives the Recovered Fee after the payment of the CITIC Parent Fee by 2019B Cayman pursuant to Section 4(c), Parfield shall refund (or cause to be refunded) to 2019B Cayman the CITIC Parent Fee Percentage of the Recovered Sum, promptly (and in any event within ten (10) Business Days) following the date on which the Guarantor has received the Recovered Fee, by wire transfer of immediately available funds in U.S. dollars to a bank account designated by 2019B Cayman in writing.

 

5.                  Representations and Warranties. Each Party hereby represents and warrants, on behalf of such Party only, to the other Party as follows:

 

(a)               (i) Such Party has the requisite corporate power and authority to execute and deliver this Letter Agreement and to perform its obligations hereunder; (ii) all corporate action on the part of such Party and its officers, directors and shareholders necessary for the authorization, execution and delivery of this Letter Agreement and the performance of all of its obligations hereunder have been taken; and (iii) this Letter Agreement has been duly and validly executed and delivered by such Party and (assuming the due execution and delivery thereof by each other Party) constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.

 

(b)               The execution and delivery of this Letter Agreement and the consummation of the transactions contemplated herein and compliance by such Party with its obligations hereunder do not and will not, whether with or without the giving of notice or passage of time or both, (i) conflict with or constitute a breach of, or default under, require any consent or other action by any person under, give rise to any right of termination, cancellation or acceleration of any right or obligation of any person or to a loss of any benefit to which such Party is entitled, or result in the creation or imposition of any tax, Lien, limitation or restriction upon any property or assets of such Party pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, license, lease or other agreement or instrument to which such Party is a party or by which such Party is bound, or to which any of the property or assets of such Party is subject, or (ii) result in any violation of the provisions of Organizational Documents of such Party or any applicable treaty, law, statute, rule, regulation, judgment, order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over such Party or any of its properties.

 

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(c)               Other than any filings that may be required pursuant to applicable securities laws, no filing with, or consent, approval, authorization, order, registration, qualification or decree of, or any other action by or in respect of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the entry into of this Letter Agreement by such Party or the performance by such Party of its obligations hereunder.

 

6.                  Miscellaneous.

 

(a)               Each Party agrees to, and shall cause its Affiliates and its and such Affiliates respective directors, partners, members, officers, employees, agents, representatives, general or limited partners, financing sources and third party professional advisors (including financial and legal advisors) with access to the Confidential Information (each a “Representative” of such Party) to, (i) treat and hold as confidential (and not disclose or provide access to any other Person to), and not make, or cause to be made, any press release or public announcement or disclosure of, the existence, terms and subject matters of this Letter Agreement (“Confidential Information”), (ii) in the event that any Party or any of its Representatives becomes legally compelled or is otherwise required by the rules and regulations of any securities exchange or governmental authority of competent jurisdiction over such Party or such Party’s Representative to disclose any Confidential Information, provide the other Party with a reasonable opportunity to comment on the form and terms of such disclosure to the extent reasonably practicable; provided, however, that this clause shall not apply to any information that, at the time of disclosure, is in the public domain and was not disclosed in breach of this clause by any Party or its Representatives.

 

(b)               This Letter Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors and permitted assigns. Nothing in this Letter Agreement shall create or be deemed to create any third party beneficiary rights in any person or entity not a Party to this Letter Agreement. No assignment of this Letter Agreement or of any rights or obligations hereunder may be made by any Party hereto (by operation of law or otherwise) without the prior written consent of each other Party and any attempted assignment without such required consents shall be void.

 

(c)               The Parties are independent and nothing in this Letter Agreement constitutes a Party as the trustee, fiduciary, agent, employee, partner or joint venture of the other Party.

 

(d)               This Letter Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Hong Kong (without giving effect to any choice of law principles thereof that would cause the application of the laws of another jurisdiction).

 

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(e)               Any dispute, controversy, difference or claim arising out of or relating to this Letter Agreement (including the existence, interpretation, performance, breach, termination, or validity thereof or any dispute regarding pre-contractual, contractual or non-contractual obligations arising out of or relating to it) (each, a “Dispute”) shall be resolved through consultation between the parties. If no resolution is reached within thirty (30) days from the date of notification by party to the other party of the Dispute, then such Dispute shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with its Arbitration Rules (the “HKIAC Rules”) in force when the notice of arbitration is submitted. The seat of the arbitration shall be Hong Kong. The arbitral tribunal shall consist of three (3) arbitrators to be appointed in accordance with the HKIAC Rules. The arbitration proceedings shall be conducted, and all written decisions or correspondence shall be, in English. The award of the arbitration tribunal shall be final and binding upon the disputing parties. Any party to an award may apply to any court of competent jurisdiction for enforcement of such award and, for purposes of the enforcement of such award, the Parties irrevocably and unconditionally submit to the jurisdiction of any court of competent jurisdiction and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum. Notwithstanding the foregoing, the Parties hereby consent to and agree that in addition to any recourse to arbitration as set out in Section 6(e), any Party may, to the extent permitted under the rules and procedures of the HKIAC, seek an interim injunction or other form of relief from the HKIAC as provided for in its Rules. Such application shall also be governed by, and construed in accordance with, the laws of Hong Kong.

 

(f)                The provisions of Sections 6.5, 6.6, 6.9(c), 6.12 and 6.13 of the 2019B Cayman SPA shall apply mutatis mutandis to this Letter Agreement, as if all references to the “Agreement” thereunder are reference to this Letter Agreement and all reference to “Parties” thereunder are reference to the Parties hereto.

 

(g)               All notices and other communications under this Letter Agreement shall be in writing and shall be deemed given (and received by the addressee) (i) when delivered personally or (ii) if delivered by international courier, two Business Days after its delivery to such courier, or (iii) if delivered by electronic mail, on the day it is sent, if it is sent prior to 4:00pm local time on a Business Day in the place in or to which it is delivered, or otherwise on the next Business Day, in each case to the Parties at the following addresses (or to such other address as a Party may have specified by notice given to the other Party pursuant to this provision):

 

 

If to 2019B Cayman, to:

 

Address:            28/F CITIC Tower, 1 Tim Mei Ave, Central, Hong Kong
Attention:          [REDACTED]
E-mail:              [REDACTED]

 

with a copy to (which shall not constitute notice):

 

Latham & Watkins LLP

18th Floor, One Exchange Square

8 Connaught Place, Central

Hong Kong

Attention: Frank Sun

 

6

 

 

If to Parfield, to:

 

Unit No. 21E, 21st Floor, United Centre

95 Queensway, Admiralty Hong Kong

Attention: [REDACTED]

Fax: [REDACTED]

 

With a copy to (which shall not constitute notice):

 

K&L Gates LLP

925 Fourth Avenue, Suite 2900

Seattle, WA 98104-1158

United States of America

Attention: Christopher H. Cunningham

Facsimile: (206)370-6040

 

and

 

K&L Gates

44/F., Edinburgh Tower

The Landmark

15 Queen’s Road Central, Hong Kong

Attention: Michael Chan

Facsimile: (852)25119515

 

(h)               This Letter Agreement and the 2019B Cayman SPA constitute the entire understanding and agreement of the parties with respect to the subject matter hereof and thereof and supersedes any previous understanding or agreement between the parties with regard to the subjects hereof and thereof. This Letter Agreement can be amended, supplemented or changed, and any provision hereof can be waived, in each case only by written instrument making specific reference to this Letter Agreement signed by the Party against whom enforcement of any such amendment, supplement, modification or waiver is sought. To the extent any terms of this Letter Agreement conflict with the terms of the 2019B Cayman SPA, the terms of this Letter Agreement shall prevail.  

 

[Remainder of page intentionally left blank]

 

7

 

 

In witness whereof this letter has been duly executed and delivered as a deed on the date first above written.

 

SIGNED, SEALED AND DELIVERED) 
as a DEED by Marc Chan) 
as the authorized signatory for and on behalf )/s/ Marc Chan
of)Name: Marc Chan
PARFIELD INTERNATIONAL LTD.)Title: Director

 

in the presence of:

 

/s/ Karen Pang 
Signature of Witness 
Name: Karen Pang 
  

[Signature Pages to Parfield Side Agreement]

 

 

 

 

 

In witness whereof this letter has been duly executed and delivered as a deed on the date first above written.

 

SIGNED, SEALED AND DELIVERED)For and on behalf of
as a DEED by Rikizo Matsukawa)2019B Cayman Limited
as the authorized signatory for and on behalf ) 
of)/s/ Rikizo Matsukawa
2019B CAYMAN LIMITED)Name: Rikizo Matsukawa
  Title: Director

in the presence of:

 

/s/ Keiko Sato 
Signature of Witness 
Name: Keiko Sato 

 

[Signature Pages to Parfield Side Agreement]

 

 

 

 

Schedule A

 

SCHEDULE A