|
|
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SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
TO
Tender
Offer Statement under Section 14(d)(1) or 13(e)(1)
of the
Securities Exchange Act of 1934
(Name
of Subject Company (Issuer) and Name of Filing Person (Issuer))
Warrants
to Purchase Ordinary Shares
(Title of
Class of Securities)
KYG211071181
Albert
Chen
+852
3605 8180
48th
Floor, Bank of China Tower
1
Garden Road
Central,
Hong Kong S.A.R.
(Name,
Address and Telephone Number of Person
Authorized
to Receive Notices and Communications on Behalf of Filing Persons)
with
a copy to:
Mitchell
S. Nussbaum, Esq.
Loeb
& Loeb LLP
345
Park Avenue
New
York, New York 10154
(212)
407-4000
CALCULATION
OF FILING FEE
|
Transaction
valuation*
$4,622,180.85
|
Amount
of filing fee
$329.56
|
|
*
|
Estimated
for purposes of calculating the amount of the filing fee only. China Cord
Blood Corporation (the “Company”) is offering holders of 13,206,231 of the
Company’s warrants (the “Warrants”), which consist of (i) 11,289,663
warrants initially issued in the initial public offering of the Company’s
predecessor, Pantheon China Acquisition Corp. (“Pantheon”) and (ii)
1,916,568 warrants initially issued to certain of Pantheon’s founding
shareholders in a private placement that closed simultaneously with its
initial public offering, the opportunity to exchange such Warrants for the
Company’s shares, par value $0.0001 per share (“Shares”) by tendering
eight (8) Warrants in exchange for one (1) Share. The amount of
the filing fee assumes that all outstanding Warrants will be exchanged and
is calculated pursuant to Rule 0-11(b) of the Securities Exchange Act of
1934, as amended, which equals $71.30 for each $1,000,000 of the value of
the transaction. The transaction value was determined by using
the average of the high and low prices of publicly traded Warrants on
November 9, 2010, which was
$0.35.
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|
¨
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Check
the box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its
filing.
|
|
Amount
Previously Paid:
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N/A
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Filing
Party:
|
N/A
|
|
Form
or Registration No.:
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N/A
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Date
Filed:
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N/A
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¨
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Check
the box if the filing relates solely to preliminary communications made
before the commencement of a tender
offer.
|
Check the
appropriate boxes below to designate any transactions to which the statement
relates:
¨ third-party
tender offer subject to Rule 14d-1.
þ issuer
tender offer subject to Rule 13e-4.
¨ going-private
transaction subject to Rule 13e-3.
¨ amendment
to Schedule 13D under Rule 13d-2.
Check the
following box if the filing is a final amendment reporting the results of the
tender offer: ¨
SCHEDULE
TO
This
Tender Offer Statement on Schedule TO (this “Schedule TO”) is filed by China
Cord Blood Corporation, a Cayman Islands company (the “Company”). This
Schedule TO relates to the offer by the Company to all holders of the Company’s
outstanding warrants (the “Warrants”) to purchase an aggregate of 13,206,231
shares of the Company, par value $0.0001 per share (the “Shares”), to receive
one (1) Share in exchange for every eight (8) of our Warrants tendered by the
holders thereof. The ratio was selected by the Company to provide the holders of
the Warrants with an incentive to exchange the Warrants. The offer is
subject to the terms and conditions set forth in the Offer Letter, dated
November 10, 2010 (the “Offer Letter”), a copy of which is filed herewith as
Exhibit (a)(1)(A), and in the related Letter of Transmittal, a copy of which is
filed herewith as Exhibit (a)(1)(B) (which, together with any amendments or
supplements thereto, collectively constitute the “Offer”). The Warrants consist
of publicly traded warrants to purchase an aggregate of 11,289,663 Shares that
were issued in the initial public offering of the Company’s predecessor Pantheon
China Acquisition Corp. (“Pantheon”) and warrants to purchase an aggregate of
1,916,568 Shares that were
issued in a private placement that closed simultaneously with the initial public
offering.
This
Schedule TO is intended to satisfy the reporting requirements of Rule 13e-4
under the Securities Exchange Act of 1934, as amended. The information in the
Offer Letter and the related Letter of Transmittal is incorporated by reference
as set forth below.
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Item
1.
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Summary
Term Sheet.
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The
information set forth in the section of the Offer Letter titled “Summary” is
incorporated herein by reference.
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Item
2.
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Subject
Company Information.
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(a)
Name and Address.
The name
of the subject company and the filing person is China Cord Blood Corporation, a
Cayman Islands company. Its principal executive offices are located
at 48th Floor, Bank of China Tower, 1 Garden Road, Central, Hong Kong
S.A.R. The Company’s telephone number is +852 3605 8180.
(b)
Securities.
The
securities that are the subject of this Schedule TO are
13,206,231Warrants. The warrants are exercisable for an aggregate of
13,206,231 Shares of the Company.
(c)
Trading Market and Price.
The
information set forth in the Offer Letter under “The Offer, Section 6. Price
Range of Shares, Warrants and Units” is incorporated herein by
reference.
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Item
3.
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Identity
and Background of Filing Person.
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(a)
Name and Address.
The
Company is the subject company and the filing person. The business
address and telephone number of the Company are set forth under Item 2(a)
above.
The names
of the executive officers and directors of the Company who are persons specified
in Instruction C to Schedule TO are set forth below. The business
address for each such person is 48th Floor, Bank of China Tower, 1 Garden Road,
Central, Hong Kong S.A.R. and the telephone number for each such person is +852
3605 8180.
1
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Name
|
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Position
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Ting
Zheng
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Chairperson
of the Board and Chief Executive Officer
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Albert
Chen
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Chief
Financial Officer and Director
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Mark
D. Chen(1)(2)(3)
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Independent
Non-executive Director
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Dr.
Ken Lu(1)(2)(3)
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Independent
Non-executive Director
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Jennifer
J. Weng(1)(2)(3)
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Independent
Non-executive Director
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Feng
Gao
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Managing
Director — China Region
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Yue
Deng
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Chief
Executive Officer — Beijing Division
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Rui
Arashiyama
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Chief
Executive Officer — Guangdong Division
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Xin
Xu
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Chief
Technology Officer
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(1) Members
of audit committee
(2) Member
of compensation committee
(3) Member
of nominating and corporate governance committee
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Item
4.
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Terms
of the Transaction.
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(a)
Material Terms.
(1)(i)
The information set forth in the Offer Letter under “The Offer, Sections 1
through 13” is incorporated herein by reference. There will be no material
differences in the rights of security holders as a result of this
transaction.
(b)
Purchases.
Other
than Warrants held by Mr. Mark D. Chen and Ms. Jennifer J. Weng, to the
Company’s knowledge, no officer or director of the Company holds
Warrants. See Item 8(a) herein for more information.
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Item
5.
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Past
Contracts, Transactions, Negotiations and
Arrangements.
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(a)
Agreements Involving the Subject Company’s Securities.
The
information set forth in the Offer Letter under “The Offer, Section 8.
Transactions and Agreements Concerning the Company’s Securities” is incorporated
herein by reference.
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Item
6.
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Purposes
of the Transaction and Plans or
Proposals.
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(a)
Purposes.
The
information set forth in the Offer Letter under “The Offer, Section 5.C.
Purpose of the Offer” is incorporated herein by reference.
(b)
Uses of Securities Acquired.
The
securities will be retired and cancelled.
(c)
Plans.
No plans
or proposals described in this Schedule TO or in any materials sent to the
holders of the Warrants in connection with the Offer relate to or would result
in the conditions or transactions described in Regulation M-A, Items
1006(c)(1)-(8) and (10). The exchange of every eight (8) Warrants pursuant
to the Offer will result in the acquisition by the exchanging holder of one (1)
Share of the Company.
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Item
7.
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Source
and Amount of Funds or Other
Consideration.
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(a)
Sources of Funds.
No funds
will be used by the Company in connection with the Offer, other than funds used
to pay the expenses of the Offer, including cash paid in lieu of fractional
shares for Warrants tendered in the Offer.
(b)
Conditions.
Not
applicable.
(d)
Borrowed funds.
Not
applicable.
2
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Item
8.
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Interest
in Securities of the Subject
Company.
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(a)
Securities ownership.
The
information set forth in the Offer Letter under “The Offer, Section 5.D.
Interests of Directors and Officers” is incorporated herein by
reference.
(b)
Securities transactions.
Neither
the Company nor to the Company’s knowledge after reasonable inquiry have any of
its other officers or directors engaged in any transactions in the Warrants
required to be disclosed in this Item 8(b).
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Item
9.
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Person/Assets,
Retained, Employed, Compensated or
Used.
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(a)
Solicitations or Recommendations.
The
Company has retained Continental Stock Transfer & Trust Company
(“Continental”) to act as the Depositary and Advantage Proxy (“Advantage”) to
act as the Information Agent. The Company may contact holders of Warrants over
the Internet, by mail, telephone, fax, email or other electronic means, and may
request brokers, dealers, commercial banks, trust companies and other nominee
holders to forward material relating to the Offer to beneficial owners. Each of
Continental and Advantage will receive reasonable and customary compensation for
its services in connection with the Offer, plus reimbursement for out-of-pocket
expenses, and will be indemnified by the Company against certain liabilities and
expenses in connection therewith.
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Item
10.
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Financial
Statements.
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(a)
Financial Information.
Incorporated
herein by reference are (i) the Company’s financial statements that were filed
with its Annual Report on Form 20-F filed with the Securities and Exchange
Commission on July 16, 2010, as amended by Amendment No. 1 to the Company’s
Annual Report on Form 20-F/A filed with the Securities and Exchange Commission
on October 20, 2010, and (ii) the Company’s financial results for the first
quarter ended June 30, 2010, that were included in the Company’s Form 6-K filed
with the Securities and Exchange Commission on September 10, 2010. In
addition, the information set forth in the Offer Letter under “The Offer,
Section 9. Financial Information Regarding the Company” is incorporated herein
by reference.
(b)
Pro Forma Information.
Not
applicable.
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Item
11.
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Additional
Information.
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The
information set forth in the Offer Letter and the related Letter of Transmittal,
copies of which are filed as Exhibits (a)(l)(A) and (a)(l)(B) hereto,
respectively, is incorporated herein by reference.
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Item
12.
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Exhibits.
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Exhibit
Number
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Description
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(a)(1)(A)
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Offer
Letter dated November 10, 2010.
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(a)(1)(B)
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Letter
of Transmittal (including Guidelines of the Internal Revenue Service for
Certification of Taxpayer Identification Number on Substitute Form
W-9).
|
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(a)(1)(C)
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Form
of Notice of Guaranteed Delivery.
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(a)(1)(D)
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Form
of letter to brokers, dealers, commercial banks, trust companies and other
nominees to their clients.
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(a)(1)(E)
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Form
of letter to be used by brokers, dealers, commercial banks, trust
companies and other nominees for their clients.
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(a)(5)(A)
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Financial
statements of China Cord Blood Corporation(1)
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(a)(5)(B)
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The
Company’s Annual Report on Form 20-F filed with the SEC on July 16,
2010.
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3
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(a)(5)(C)
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Amendment
No. 1 to the Company’s Annual Report on Form 20-F/A filed with the SEC on
October 20, 2010.
|
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(a)(5)(D)
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The
Company’s Reports of Foreign Private Issuer on Form 6-K submitted to the
Commission on September 10, 2010, September 13, 2010, September 15, 2010,
October 7, 2010, November 4, 2010 and November 8, 2010.
|
|
| (a)(5)(E) | Press Release, dated November 10, 2010. | |
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(b)
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Not
applicable.
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(c)
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Not
applicable.
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(d)(1)
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Form
of Registration Rights Agreement among Pantheon China Acquisition Corp.
and the founders(2)
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(d)(2)
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Form
of Lock-Up Agreement for Warrantholders
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(d)(3)
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Warrant
Agreement, dated as of December 13 ,2007, by and between Pantheon China
Acquisition Corp. and Continental Stock Transfer & Trust Company(2)
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(e)
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Not
applicable.
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|
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(f)
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Not
applicable.
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|
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(g)
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Not
applicable.
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(h)
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Not
applicable.
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(1)
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Incorporated
by reference to (i) the Company’s financial statements that were filed
with its Annual Report on Form 20-F filed with the Securities and Exchange
Commission on July 16, 2010, as amended by Amendment No. 1 to the
Company’s Annual Report on Form 20-F/A filed with the Securities and
Exchange Commission on October 20, 2010 and (ii) the Company’s financial
results for the first quarter ended June 30, 2010, that were included in
the Company’s Form 6-K filed with the Securities and Exchange Commission
on September 10, 2010
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(2)
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Incorporated
by reference to Pantheon China Acquisition Corp.’s Registration Statement
on Form S-1 or amendments thereto (File No.
333-136590).
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Item
13.
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Information
Required by Schedule 13e-3.
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Not
applicable.
4
SIGNATURE
After due
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.
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CHINA
CORD BLOOD CORPORATION
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|
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By:
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/s/
Albert Chen
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Name:
Albert Chen
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Title:
Chief Financial Officer
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Date:
November 10, 2010
5
INDEX
TO EXHIBITS
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Exhibit
Number
|
Description
|
|
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(a)(1)(A)
|
Offer
Letter dated November 10, 2010.
|
|
|
(a)(1)(B)
|
Letter
of Transmittal (including Guidelines of the Internal Revenue Service for
Certification of Taxpayer Identification Number on Substitute Form
W-9).
|
|
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(a)(1)(C)
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Form
of Notice of Guaranteed Delivery.
|
|
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(a)(1)(D)
|
Form
of letter to brokers, dealers, commercial banks, trust companies and other
nominees to their clients.
|
|
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(a)(1)(E)
|
Form
of letter to be used by brokers, dealers, commercial banks, trust
companies and other nominees for their clients.
|
|
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(a)(5)(A)
|
Financial
statements of China Cord Blood Corporation(1)
|
|
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(a)(5)(B)
|
The
Company’s Annual Report on Form 20-F filed with the SEC on July 16,
2010.
|
|
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(a)(5)(C)
|
Amendment
No. 1 to the Company’s Annual Report on Form 20-F/A filed with the SEC on
October 20, 2010.
|
|
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(a)(5)(D)
|
The
Company’s Reports of Foreign Private Issuer on Form 6-K submitted to the
Commission on September 10, 2010, September 13, 2010, September 15, 2010,
October 7, 2010, November 4, 2010 and November 8, 2010.
|
|
| (a)(5)(E) | Press Release, dated November 10, 2010. | |
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(b)
|
Not
applicable.
|
|
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(c)
|
Not
applicable.
|
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(d)(1)
|
Form
of Registration Rights Agreement among Pantheon China Acquisition Corp.
and the founders(2)
|
|
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(d)(2)
|
Form
of Lock-Up Agreement for Warrantholders
|
|
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(d)(3)
|
Warrant
Agreement, dated as of December 13 ,2007, by and between Pantheon China
Acquisition Corp. and Continental Stock Transfer & Trust Company(2)
|
|
|
(e)
|
Not
applicable.
|
|
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(f)
|
Not
applicable.
|
|
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(g)
|
Not
applicable.
|
|
|
(h)
|
Not
applicable.
|
|
(1)
|
Incorporated
by reference to (i) the Company’s financial statements that were filed
with its Annual Report on Form 20-F filed with the Securities and Exchange
Commission on July 16, 2010, as amended by Amendment No. 1 to the
Company’s Annual Report on Form 20-F/A filed with the securities and
Exchange Commission on October 20, 2010 and (ii) the Company’s financial
results for the first quarter ended June 30, 2010, that were included in
the Company’s Form 6-K filed with the Securities and Exchange Commission
on September 10, 2010
|
|
(2)
|
Incorporated
by reference to Pantheon China Acquisition Corp.’s Registration Statement
on Form S-1 or amendments thereto (File No.
333-136590).
|
6
Exhibit
99 (a)(1)(A)
OFFER
LETTER
TO
ALL HOLDERS OF WARRANTS
TO
PURCHASE ORDINARY SHARES OF
CHINA
CORD BLOOD CORPORATION
NOVEMBER
10, 2010
THE
OFFER PERIOD AND YOUR RIGHT TO WITHDRAW WARRANTS THAT YOU TENDER WILL EXPIRE AT
5:00 P.M., EASTERN TIME, ON DECEMBER 10, 2010, UNLESS THE OFFER PERIOD IS
EXTENDED. THE COMPANY MAY EXTEND THE OFFER PERIOD AT ANY TIME.
THE
OFFER IS BEING MADE SOLELY UNDER THIS OFFER LETTER AND THE RELATED LETTER OF
TRANSMITTAL TO ALL HOLDERS OF WARRANTS, INCLUDING WARRANTS HELD AS PART OF
UNITS. THE OFFER IS NOT BEING MADE TO, NOR WILL TENDERS BE ACCEPTED FROM OR ON
BEHALF OF, HOLDERS OF WARRANTS RESIDING IN ANY U.S. STATE IN WHICH THE MAKING OF
THE OFFER OR ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE SECURITIES,
BLUE SKY OR OTHER LAWS OF SUCH U.S. STATE.
China
Cord Blood Corporation (the “Company” or “CCBC”) is making an offer, upon the
terms and conditions in this Offer Letter and related Letter of Transmittal
(which together constitute the “Offer”), to all holders of the Company’s
outstanding warrants (the “Warrants”), including warrants held as part of Units,
as such term is defined below, to purchase an aggregate of 13,206,231 of the
Company’s ordinary shares, par value $0.0001 per share (the “Shares”), to
receive one (1) Share in exchange for every eight (8) Warrants tendered by the
holders of Warrants. The ratio of the exchange was selected by the Company in
order to provide the holders of the Warrants with an incentive to exchange the
Warrants. The Warrants consist of publicly traded warrants to
purchase an aggregate of 11,289,663 Shares that were issued by Pantheon China
Acquisition Corp. (“Pantheon”), our predecessor, in its initial public offering
and such warrants were exchanged into CCBC warrants on June 30, 2009 (the
“Public Warrants”) and warrants to purchase an aggregate of 1,916,568 Shares
that were issued at a purchase price of $0.60 per Warrant in a private placement
that closed simultaneously with Pantheon’s initial public offering and such
warrants were exchanged into CCBC warrants on June 30, 2009 (the “Private
Warrants”). The “Offer Period” is the period commencing on November 10, 2010 and
ending at 5:00 p.m., Eastern Time, on December 10, 2010, or such later date to
which the Company may extend the Offer (the “Expiration Date”).
Our
Shares have been listed on the NYSE under the symbol CO since November 19, 2009.
Prior to November 19, 2009, our Shares were quoted on the OTCBB, under the
symbol CNDZF. Our Public Warrants have been traded on the OTCBB since July 1,
2009 under the symbol CNDWF. We also have a current trading market
for our units (“Units”). One Unit consists of one Share and two Public Warrants.
The Units trade on the OTCBB, under the symbol CNDUF. Prior to
July 1, 2009 and the exchange of our Shares, Public Warrants and Units for the
securities of Pantheon, our securities were not listed or quoted on any exchange
or market. The shares, warrants and units of Pantheon China
Acquisition Corp., our predecessor, were quoted on the OTCBB from its initial
public offering in December 2006 until June 30, 2009 under the symbols PCQC,
PCQCW and PCQCU, respectively. On November 9, 2010, the last reported
sale prices for the Shares, Public Warrants and Units securities were $4.11,
$0.35 and $4.75, respectively, but no Units have traded since July 6,
2009.
The Offer
is to permit holders of Warrants to tender eight (8) Warrants in exchange for
one (1) Share. A holder may tender as few or as many Warrants as the holder
elects. No script or fractional shares will be issued. Warrants may only be
exchanged for whole shares. In lieu of issuing fractional shares, any
holder of warrants who would otherwise have been entitled to receive fractional
shares will, after aggregating all such fractional shares of such holder, be
paid cash (without interest) in an amount equal to such fractional part of a
share multiplied by the last sale price of the shares on the New York Stock
Exchange on the last trading day prior to the Expiration
Date. Holders may also be entitled to exercise their Warrants on a
cash basis during the Offer Period in accordance with the terms of the
Warrant.
You may
tender some or all of your Warrants on these terms. If you elect to
tender Warrants in response to the Offer, please follow the instructions in this
Offer Letter and the related documents, including the Letter of Transmittal. If
you are entitled to exercise your Warrants on a cash basis in accordance with
their terms, please follow the instructions for exercise included in the
Warrants.
If you
tender Warrants, you may withdraw your tendered Warrants before the Expiration
Date and retain them on their terms by following the instructions
herein.
Investing
in the Shares involves a high degree of risk. See Section 12 of this Offer
Letter for a discussion of information that you should consider before tendering
Warrants in the Offer.
The Offer
will commence on November 10, 2010 (the date the materials relating to the Offer
are first sent to the holders) and end on the Expiration Date.
All of
the currently outstanding Warrants are subject to the Offer, including those
Warrants that are a part of outstanding Units. If the Warrants you are tendering
are part of Units held by you, then you must instruct your broker to separate
the Warrants from the Units prior to tendering your Warrants pursuant to the
Offer. For specific instructions regarding separation of Units, please
see the Client Letter, which includes an instruction form for your completion
which provides a box to check to request separation of the Units.
A
detailed discussion of the Offer is contained in this Offer Letter. Holders of
Warrants are strongly encouraged to read this entire package of materials, and
the publicly-filed information about the Company referenced herein, before
making a decision regarding the Offer.
THE
COMPANY’S BOARD OF DIRECTORS HAS APPROVED THE OFFER. HOWEVER, NONE OF THE
COMPANY, ITS DIRECTORS, OFFICERS OR EMPLOYEES, NOR THE DEPOSITARY OR THE
INFORMATION AGENT (EACH AS DEFINED BELOW) MAKES ANY RECOMMENDATION WHETHER YOU
SHOULD TENDER WARRANTS. EACH HOLDER OF A WARRANT MUST MAKE HIS, HER OR ITS OWN
DECISION WHETHER TO TENDER SOME OR ALL OF HIS, HER OR ITS WARRANTS.
IMPORTANT
PROCEDURES
If you
want to tender some or all of your Warrants, you must do one of the following
before the Offer expires:
|
|
·
|
if
your Warrants are registered in the name of a broker, dealer, commercial
bank, trust company or other nominee, contact the nominee and have the
nominee tender your Warrants for you, which can typically be done
electronically;
|
|
|
·
|
if
you hold Warrant certificates in your own name, complete and sign the
Letter of Transmittal according to its instructions, and deliver the
Letter of Transmittal, together with any required signature guarantee, the
certificates for your Warrants and any other documents required by the
Letter of Transmittal, to Continental Stock Transfer & Trust
Company, the depositary for the Offer (“Continental” or the “Depositary”);
or
|
|
|
·
|
if
you are an institution participating in The Depository Trust Company,
called the “book-entry transfer facility” in this Offer Letter, tender
your Warrants according to the procedure for book-entry transfer described
in Section 2.
|
If you
want to tender your Warrants, but:
|
|
·
|
your
certificates for the Warrants are not immediately available or cannot be
delivered to the Depositary; or
|
|
|
·
|
you
cannot comply with the procedure for book-entry transfer;
or
|
|
|
·
|
your
other required documents cannot be delivered to the Depositary before the
expiration of the Offer,
|
then you
can still tender your Warrants if you comply with the guaranteed delivery
procedure described in Section 2.
You may
tender Warrants held as part of a Unit in the Offer. If any or all of
your Warrants are held as part of a Unit, you will need to separate the Unit and
undertake all actions necessary to allow for tender of the separated
Warrant. For specific instructions regarding separation of Units,
please see the Client Letter, which includes an instruction form for your
completion which provides a box to check to request separation of the
Units.
TO
TENDER YOUR WARRANTS, YOU MUST CAREFULLY FOLLOW THE PROCEDURES DESCRIBED IN THIS
OFFER LETTER, THE LETTER OF TRANSMITTAL AND THE OTHER DOCUMENTS DISCUSSED HEREIN
RELATED TO THE OFFER.
NO
SCRIPT OR FRACTIONAL SHARES WILL BE ISSUED. WARRANTS MAY ONLY BE EXCHANGED FOR
WHOLE SHARES. IN LIEU OF ISSUING FRACTIONAL SHARES, ANY HOLDER OF
WARRANTS WHO WOULD OTHERWISE HAVE BEEN ENTITLED TO RECEIVE FRACTIONAL SHARES
WILL, AFTER AGGREGATING ALL SUCH FRACTIONAL SHARES OF SUCH HOLDER, BE PAID CASH
(WITHOUT INTEREST) IN AN AMOUNT EQUAL TO SUCH FRACTIONAL PART OF A SHARE
MULTIPLIED BY THE LAST SALE PRICE OF THE SHARES ON THE NEW YORK STOCK EXCHANGE
ON THE LAST TRADING DAY PRIOR TO THE EXPIRATION DATE.
If you
have any questions or need assistance, you should contact Advantage Proxy, the
Information Agent for the Offer (“Advantage” or the “Information Agent”). You
may request additional copies of this Offer Letter, the Letter of Transmittal or
the Notice of Guaranteed Delivery from the Information Agent. Advantage may be
reached at:
ADVANTAGE
PROXY
24925
13TH
PLACE SOUTH
DES
MOINES, WA 98198
Warrant
holders and banks and brokerage firms, please call:
Toll
Free: 877-870-8565
Main
Phone: 206-870-8565
You may
also email your requests to [email protected].
The
address of the Depositary is:
Continental
Stock Transfer & Trust Company
17
Battery Place, 8th Floor
New York,
NY 10004
TABLE
OF CONTENTS
|
SECTION
|
|
PAGE
|
||
|
SUMMARY
|
|
1
|
||
|
THE
OFFER
|
|
5
|
||
|
1.
|
|
GENERAL
TERMS
|
|
5
|
|
2.
|
|
PROCEDURE
FOR TENDERING WARRANTS
|
|
6
|
|
3.
|
|
WITHDRAWAL
RIGHTS
|
|
9
|
|
4.
|
|
ACCEPTANCE
OF WARRANTS AND ISSUANCE OF SHARES
|
|
10
|
|
5.
|
|
BACKGROUND
AND PURPOSE OF THE OFFER
|
|
10
|
|
6.
|
|
PRICE
RANGE OF SHARES, WARRANTS AND UNITS
|
|
12
|
|
7.
|
|
SOURCE
AND AMOUNT OF FUNDS
|
|
13
|
|
8.
|
|
TRANSACTIONS
AND AGREEMENTS CONCERNING THE COMPANY’S SECURITIES
|
|
13
|
|
9.
|
|
FINANCIAL
INFORMATION REGARDING THE COMPANY
|
|
14
|
|
10.
|
|
TERMINATION;
AMENDMENTS; CONDITIONS
|
|
18
|
|
11.
|
|
MATERIAL
U.S. FEDERAL INCOME TAX CONSEQUENCES
|
|
19
|
|
12.
|
|
RISK
FACTORS; FORWARD-LOOKING STATEMENTS
|
|
20
|
|
13.
|
|
ADDITIONAL
INFORMATION; MISCELLANEOUS
|
|
21
|
Unless otherwise stated in this
Offer Letter, references to “we,” “our,” “us,” or the “Company” refer to China
Cord Blood Corporation. An investment in our Shares involves risks. You should
carefully consider the information provided under the heading “Risk Factors”
beginning on page 20.
SUMMARY
|
The
Company
|
China
Cord Blood Corporation, a Cayman Islands company. Our principal
executive offices are located at 48th Floor, Bank of China Tower, 1 Garden
Road, Central, Hong Kong S.A.R. Our telephone number is (852)
3605-8180.
|
|
|
The
Warrants
|
As
of November 10, 2010, the Company had 11,289,663 Public Warrants and
1,916,568 Private Warrants outstanding. The Warrants are exercisable for
an aggregate of 13,206,231 Shares. Each Warrant is exercisable for one
Share at an exercise price of $5.00. By their terms, the Warrants will
expire on December 13, 2010, unless sooner redeemed by the Company, as
permitted under the Warrants.
|
|
|
Market
Price of the Shares, Public Warrants and Units
|
Our
Shares have been listed on the NYSE under the symbol CO since November 19,
2009. Prior to November 19, 2009, our Shares were quoted on the OTCBB,
under the symbol CNDZF. Our Public Warrants have been traded on the OTCBB
since July 1, 2009 under the symbol CNDWF. We also have a
current trading market for our units (“Units”). One Unit consists of one
Share and two Public Warrants. The Units trade on the OTCBB, under the
symbol CNDUF. Prior to July 1, 2009 and the exchange of
our Shares, Public Warrants and Units for the securities of Pantheon, our
securities were not listed or quoted on any exchange or
market. The shares, warrants and units of Pantheon China
Acquisition Corp., our predecessor, were quoted on the OTCBB from its
initial public offering in December 2006 until June 30, 2009 under the
symbols PCQC, PCQCW and PCQCU, respectively. On November 9,
2010, the last reported sale prices for the Shares, Public Warrants and
Units securities were $4.11, $0.35 and $4.75, respectively, but no Units
have traded since July 6, 2009.
|
|
|
The
Offer
|
Until
the Expiration Date, holders can tender eight (8) Warrants in exchange for
one (1) Share. A holder may tender as few or as many Warrants as the
holder elects. Warrants may only be exchanged for whole
shares. In lieu of issuing fractional shares, any holder of
warrants who would otherwise have been entitled to receive fractional
shares will, after aggregating all such fractional shares of such holder,
be paid cash (without interest) in an amount equal to such fractional part
of a share multiplied by the last sale price of the shares on the New York
Stock Exchange on the last trading day prior to the Expiration
Date. Holders may also be entitled to exercise their Warrants
on a cash basis during the Offer Period in accordance with the terms of
the Warrant. See Section 1, “General Terms.”
|
|
|
Reasons
for the Offer
|
The
Offer is being made to all holders of Warrants. The purpose of the Offer
is to reduce the number of Shares that would become outstanding upon the
exercise of Warrants. See Section 5.C., “Background and Purpose
of the Offer—Purpose of the
Offer.”
|
1
|
Expiration
Date of Offer
|
5:00
p.m., Eastern Time, on December 10, 2010, or such date on which we may
extend the Offer. All Warrants and related paperwork must be received by
the Depositary by this time, as instructed herein. See Section
10, “Extensions; Amendments; Conditions; Termination.”
|
|
|
Withdrawal
Rights
|
If
you tender your Warrants and change your mind, you may withdraw your
tendered Warrants at any time until the Expiration Date, as described in
greater detail in Section 3 herein. See Section 3,
“Withdrawal Rights.”
|
|
|
Participation
by Officers and Directors
|
To
our knowledge, Mark D. Chen and Jennifer J. Weng, each an independent
non-executive director, intend to participate in the Offer. See
Section 5.D., “Background and Purpose of the Offer—Interests of Directors
and Officers.”
|
|
|
Conditions
of the Offer
|
The
conditions of the Offer
are:
|
|
(A)
|
no
action or event shall have occurred, no action shall have been taken, and
no statute, rule, regulation, judgment, order, stay, decree or injunction
shall have been promulgated, enacted, entered or enforced applicable to
the Offer or the exchange of Warrants for Shares under the Offer by or
before any court or governmental regulatory or administrative agency,
authority or tribunal of competent jurisdiction, including, without
limitation, taxing authorities, that challenges the making of the Offer or
the exchange of Warrants for Shares under the Offer or would reasonably be
expected to, directly or indirectly, prohibit, prevent, restrict or delay
consummation of, or would reasonably be expected to otherwise adversely
affect in any material manner, the Offer or the exchange of Warrants for
Shares under the Offer;
|
||
|
(B)
|
there
shall not have occurred:
·
any general suspension of or limitation on trading in securities on
the NYSE or OTCBB markets, whether or not mandatory,
·
a declaration of a banking moratorium or any suspension of payments
in respect of banks by federal or state authorities in the United States,
whether or not mandatory,
·
a commencement of a war, armed hostilities, a terrorist act or
other national or international calamity directly or indirectly relating
to the United States, or
·
in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening
thereof;
|
||
|
(C)
|
at
least 50% of the Warrants being tendered in the Offer;
and
|
||
|
(D)
|
there
shall not have been any commission or other remuneration paid by us with
respect to the solicitation of Warrant holders in connection with the
Offer.
|
2
|
|
We
may terminate the Offer if any of the conditions of the Offer are not
satisfied prior to the Expiration Date. See Section 10,
“Extensions; Amendments; Conditions; Termination.”
|
|
|
Fractional
Shares
|
No
script or fractional shares will be issued. Warrants may only be exchanged
for whole shares. In lieu of issuing fractional shares, any
holder of warrants who would otherwise have been entitled to receive
fractional shares will, after aggregating all such fractional shares of
such holder, be paid cash (without interest) in an amount equal to such
fractional part of a share multiplied by the last sale price of the shares
on the New York Stock Exchange on the last trading day prior to the
Expiration Date. See Section 1.B., “General Terms—Partial
Tender Permitted.”
|
|
|
Board
of Directors’ Recommendation
|
Our
Board of Directors has approved the Offer. However, none of the Company,
its directors, officers or employees, nor the Depositary or the
Information Agent makes any recommendation as to whether to tender
Warrants. You must make your own decision as to whether to tender some or
all of your Warrants. See Section 1C., “General Terms—Board
Approval of the Offer; No Recommendation; Holder’s Own
Decision.”
|
|
|
How
to Tender Warrants
|
To
tender your Warrants, you must complete the actions described herein under
Section 2 before the Offer expires. You may also contact the Information Agent
or your broker for assistance. The contact information for the Information
Agent is Advantage Proxy, 24925 13th
Place South, Des Moines, WA 98198. Warrant holders and banks
and brokerage firms, please call toll free 877-870-8565 or
206-870-8565. You may also email your questions and requests to
[email protected]. See Section 2, “Procedure for
Tendering Warrants.”
|
|
|
Warrant
Holder Lock-Up Agreements
|
In
connection with the Offer, Jayhawk Private Equity Fund II, LP, Jayhawk
China Fund (Cayman) and Pantheon China Acquisition Limited (collectively,
the “Locked-Up Warrant Holders”) each entered into a Lock-Up Agreement
pursuant to which 100% of the Warrants of the Company beneficially owned
by them are locked-up until the earliest of (i) consummation or earlier
termination by the Company of the Offer, (ii) the date that is ten
business days after the date of the Lock-Up Agreement, if the Company has
not launched the Offer by such date, (iii) the date that is 90 calendar
days after the date of the Lock-Up Agreement, if the Offer has not been
consummated by such date, (iv) the filing of any voluntary or involuntary
bankruptcy or other insolvency case or proceeding involving the Company or
any of its subsidiaries or (v) the commencement of a proceeding by any
court or regulatory authority having jurisdiction over the Company seeking
to enjoin, restrict, modify or prohibit the Offer. Mark D.
Chen, our independent non-executive director, controls Pantheon China
Acquisition Limited. The Warrants held by the Locked-Up Warrant
Holders represent an aggregate of approximately 68.9% of the outstanding
Warrants. See Section 8, “Transactions and Agreements
Concerning the Company’s Securities—Warrant Holder Lock-Up
Agreements.”
|
3
|
Exchanging
Holder Lock-Up Agreements
|
If
you tender your Warrants, you will be agreeing to purchase the Shares
issuable pursuant to the Offer, pursuant to the terms and subject to the
conditions described herein and the Letter of Transmittal, including, but
not limited to, the agreement not to offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, such Shares; or
enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of such
Shares until the 46th calendar day following the closing of the
Offer.
|
|
|
Further
Information
|
Please
direct questions or requests for assistance, or for additional copies of
this Offer Letter, Letter of Transmittal or other materials, in writing,
to the Information Agent:
Advantage Proxy, 24925 13th
Place South, Des Moines, WA 98198. Warrant holders and banks
and brokerage firms, please call toll free 877-870-8565 or
206-870-8565. You may also email your questions and requests to
[email protected]. See Section 13, “Additional
Information;
Miscellaneous.”
|
4
THE
OFFER
Risks
of Participating In the Offer
Participation
in the Offer involves a number of risks, including, but not limited to, the
risks identified in Section 12 below. Holders should carefully consider
these risks and are urged to speak with their personal financial, investment
and/or tax advisors as necessary before deciding whether to participate in the
Offer. In addition, the Company strongly encourages you to read this Offer
Letter in its entirety and review the documents referred to in Sections 8, 9, 12
and 13.
|
1.
|
GENERAL
TERMS
|
Subject
to the terms and conditions of the Offer, the Company is making an offer to the
holders of Warrants to tender Warrants in exchange for Shares. For every eight
(8) Warrants tendered, the holder will receive one (1) Share. A holder may
tender as few or as many Warrants as the holder elects. No script or fractional
shares will be issued. Warrants may only be exchanged for whole
shares. In lieu of issuing fractional shares, any holder of warrants
who would otherwise have been entitled to receive fractional shares will, after
aggregating all such fractional shares of such holder, be paid cash (without
interest) in an amount equal to such fractional part of a share multiplied by
the last sale price of the shares on the New York Stock Exchange on the last
trading day prior to the Expiration Date. Holders may also be
entitled to exercise their Warrants on a cash basis during the Offer Period in
accordance with the terms of the Warrant.
You may
tender some or all of your Warrants on these terms. If you elect to
tender Warrants in response to the Offer, please follow the instructions in this
Offer Letter and the related documents, including the Letter of
Transmittal.
If you
tender Warrants, you may withdraw your tendered Warrants before the Expiration
Date and retain them on their terms by following the instructions
herein.
The Offer
is subject to the tender of at least 50% of the Warrants.
The
Offer is made pursuant to the exemption from registration provided by
Section 3(a)(9) of the Securities Act of 1933, as amended (the “Securities
Act”).
If
you tender Public Warrants pursuant to the Offer, you will receive unlegended
Shares, which shall be freely tradable by non-affiliates of the Company. If you
tender Private Warrants pursuant to the Offer, you will receive legended Shares
and you will generally be entitled to “tack” your holding period for purposes of
Rule 144.
|
|
A.
|
Period of
Offer
|
The Offer
will only be open for a period beginning on November 10, 2010 and ending on the
Expiration Date. The Company expressly reserves the right, in its sole
discretion, at any time or from time to time, to extend the period of time
during which the Offer is open. There can be no assurance, however, that the
Company will exercise its right to extend the Offer.
|
|
B.
|
Partial
Tender Permitted
|
If you
choose to participate in the Offer, you may tender less than all of your
Warrants pursuant to the terms of the Offer. No script or fractional shares will
be issued. Warrants may only be exchanged for whole shares. In lieu of issuing
fractional shares, any holder of warrants who would otherwise have been entitled
to receive fractional shares will, after aggregating all such fractional shares
of such holder, be paid cash (without interest) in an amount equal to such
fractional part of a share multiplied by the last sale price of the shares on
the New York Stock Exchange on the last trading day prior to the Expiration
Date.
5
HOLDERS
MAY ALSO BE ENTITLED TO EXERCISE THEIR WARRANTS ON A CASH BASIS DURING THE OFFER
PERIOD IN ACCORDANCE WITH THE TERMS OF THE WARRANT.
|
|
C.
|
Board
Approval of the Offer; No Recommendation; Holder’s Own
Decision
|
THE
COMPANY’S BOARD OF DIRECTORS HAS APPROVED THE OFFER. HOWEVER, NONE OF THE
COMPANY, ITS DIRECTORS, OFFICERS OR EMPLOYEES, OR THE DEPOSITARY OR THE
INFORMATION AGENT MAKES ANY RECOMMENDATION AS TO WHETHER TO TENDER WARRANTS.
EACH HOLDER OF A WARRANT MUST MAKE HIS, HER OR ITS OWN DECISION AS TO WHETHER TO
TENDER SOME OR ALL OF HIS, HER OR ITS WARRANTS.
|
|
D.
|
Extensions of
the Offer
|
The
Company expressly reserves the right, in its sole discretion, and at any time or
from time to time, to extend the period of time during which the Offer is open.
There can be no assurance, however, that the Company will exercise its right to
extend the Offer. If the Company extends the Offer, it will give notice of such
extension by press release or other public announcement no later than 9:00 a.m.,
Eastern Time, on the next business day after the previously scheduled expiration
date of the Offer.
|
2.
|
PROCEDURE FOR
TENDERING WARRANTS
|
|
|
A.
|
Proper Tender
of Warrants
|
To tender
Warrants validly pursuant to the Offer, a properly completed and duly executed
Letter of Transmittal or photocopy thereof, together with any required signature
guarantees, must be received by the Depositary at its address set forth on the
last page of this document prior to the Expiration Date. The method of delivery
of all required documents is at the option and risk of the tendering Warrant
holders. If delivery is by mail, the Company recommends registered mail with
return receipt requested (properly insured). In all cases, sufficient time
should be allowed to assure timely delivery.
In the
Letter of Transmittal, the tendering Warrant holder must: (i) set forth
his, her or its name and address; (ii) set forth the number of Warrants
tendered; and (iii) set forth the number of the Warrant certificate(s)
representing such Warrants.
Where
Warrants are tendered by a registered holder of the Warrants who has completed
either the box entitled “Special Issuance Instructions” or the box entitled
“Special Delivery Instructions” on the Letter of Transmittal, all signatures on
the Letters of Transmittal must be guaranteed by an “Eligible
Institution.”
An
“Eligible Institution” is a bank, broker dealer, credit union, savings
association or other entity that is a member in good standing of the Securities
Transfer Agents Medallion Program or a bank, broker, dealer, credit union,
savings association or other entity which is an “eligible guarantor
institution,” as that term is defined in Rule 17Ad-15 promulgated under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”).
If the
Warrants are registered in the name of a person other than the signer of the
Letter of Transmittal, the Warrants must be endorsed or accompanied by
appropriate instruments of assignment, in either case signed exactly as the
name(s) of the registered owner(s) appear on the Warrants, with the signature(s)
on the Warrants or instruments of assignment guaranteed.
6
A tender
of Warrants pursuant to the procedures described below in this Section 2 will
constitute a binding agreement between the tendering holder and the Company upon
the terms and subject to the conditions of the Offer.
ALL
DELIVERIES IN CONNECTION WITH THE OFFER, INCLUDING A LETTER OF TRANSMITTAL AND
WARRANTS, MUST BE MADE TO THE DEPOSITARY OR THE BOOK-ENTRY TRANSFER
FACILITY.
NO
DELIVERIES SHOULD BE MADE TO THE COMPANY, AND ANY DOCUMENTS DELIVERED TO THE
COMPANY WILL NOT BE FORWARDED TO THE DEPOSITARY OR THE BOOK-ENTRY TRANSFER
FACILITY AND THEREFORE WILL NOT BE DEEMED TO BE PROPERLY TENDERED. IN ALL CASES,
SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
BOOK-ENTRY DELIVERY. The
Depositary will establish an account for the Warrants at The Depository Trust
Company (“DTC”) for purposes of the Offer, within two business days after the
date of this Offer Letter. Any financial institution that is a participant in
DTC’s system may make book-entry delivery of Warrants by causing DTC to transfer
such Warrants into the Depositary’s account in accordance with DTC’s procedure
for such transfer. Even though delivery of Warrants may be effected through
book-entry transfer into the Depositary’s account at DTC, a properly completed
and duly executed Letter of Transmittal (or copy thereof), with any required
signature guarantee, or an Agent’s Message in the case of a book-entry
transfer, and any other
required documentation, must in any case be transmitted to and received by the
Depositary at its address set forth on the last page of this Offer Letter prior
to the Expiration Date, or the guaranteed delivery procedures set forth herein
must be followed. Delivery of the Letter of Transmittal (or other required
documentation) to DTC does not constitute delivery to the Depositary. The term
“Agent’s Message” means a message, transmitted by DTC to, and received by, the
Depositary and forming a part of a Book-Entry Confirmation, which states that
DTC has received an express acknowledgment from the participant in DTC
exchanging the Warrants that such participant has received and agrees to be
bound by the terms of the Letter of Transmittal and that the Company may enforce
such agreement against the participant.
WARRANTS HELD IN STREET NAME.
If Warrants are held through a direct or indirect DTC participant, such as a
broker, dealer, commercial bank, trust company or other financial intermediary,
you must instruct that holder to tender your Warrants on your behalf. A letter
of instructions is included in these materials, and as an exhibit to the
Schedule TO. The letter may be used by you to instruct a custodian to tender and
deliver Warrants on your behalf.
Unless
the Warrants being tendered are delivered to the Depositary by 5:00 p.m.,
Eastern Time, on the Expiration Date accompanied by a properly completed and
duly executed Letter of Transmittal or a properly transmitted Agent’s Message,
the Company may, at its option, treat such tender as invalid. Issuance of Shares
upon tender of Warrants will be made only against the valid tender of
Warrants.
GUARANTEED DELIVERY. If you
want to tender your Warrants pursuant to the Offer, but (i) your Warrants
are not immediately available, (ii) the procedure for book-entry transfer
cannot be completed on a timely basis, or (iii) time will not permit all
required documents to reach the Depositary prior to the Expiration Date, you can
still tender your Warrants, if all the following conditions are
met:
|
(A)
|
the tender is made by or through
an Eligible Institution;
|
|
|
(B)
|
the Depositary receives by hand,
mail, overnight courier or fax, prior to the Expiration Date, a properly
completed and duly executed Notice of Guaranteed Delivery in the form the
Company has provided with this Offer Letter (with signatures guaranteed by
an Eligible Institution);
and
|
|
|
(C)
|
the Depositary receives, within
three NYSE trading days after the date of its receipt of the Notice of
Guaranteed Delivery:
|
7
|
|
(1)
|
the certificates for all tendered
Warrants, or confirmation of receipt of the Warrants pursuant to the
procedure for book-entry transfer as described above,
and
|
|
|
(2)
|
a properly completed and duly
executed Letter of Transmittal (or copy thereof), or an Agent’s Message in
the case of a book-entry transfer, and any other documents required by the
Letter of Transmittal.
|
In any
event, the issuance of Shares for Warrants tendered pursuant to the Offer and
accepted pursuant to the Offer will be made only after timely receipt by the
Depositary of Warrants, properly completed, duly executed Letter(s) of
Transmittal and any other required documents.
SEPARATION OF UNITS. You may
tender Warrants held as part of a Unit in the Offer. If any or all of your
Warrants are held as part of a Unit, you will need to separate the Unit and
undertake all actions necessary to allow for tender of the separated Warrant.
For specific instructions regarding separation of Units, please see the Client
Letter, which includes an instruction form for your completion which provides a
box to check to request separation of the Units.
|
|
B.
|
Conditions of
the Offer
|
The
conditions of the Offer are:
|
(A)
|
no action or event shall have
occurred, no action shall have been taken, and no statute, rule,
regulation, judgment, order, stay, decree or injunction shall have been
promulgated, enacted, entered or enforced applicable to the Offer or the
exchange of Warrants for Shares under the Offer by or before any court or
governmental regulatory or administrative agency, authority or tribunal of
competent jurisdiction, including, without limitation, taxing authorities,
that challenges the making of the Offer or the exchange of Warrants for
Shares under the Offer or would reasonably be expected to, directly or
indirectly, prohibit, prevent, restrict or delay consummation of, or would
reasonably be expected to otherwise adversely affect in any material
manner, the Offer or the exchange of Warrants for Shares under the
Offer;
|
|
(B)
|
there
shall not have occurred:
|
|
·
|
any
general suspension of or limitation on trading in securities on the NYSE
or OTCBB markets, whether or not
mandatory,
|
|
·
|
a
declaration of a banking moratorium or any suspension of payments in
respect of banks by federal or state authorities in the United States,
whether or not mandatory,
|
|
·
|
a
commencement of a war, armed hostilities, a terrorist act or other
national or international calamity directly or indirectly relating to the
United States, or
|
|
·
|
in
the case of any of the foregoing existing at the time of the commencement
of the Offer, a material acceleration or worsening
thereof;
|
|
(C)
|
at
least 50% of the Warrants being tendered in the Offer;
and
|
|
(D)
|
there
shall not have been any commission or other remuneration paid by us with
respect to the solicitation of Warrant holders in connection with the
Offer.
|
We may
terminate the Offer if any of the conditions of the Offer are not satisfied
prior to the Expiration Date. In the event that we terminate the Offer, all
Warrants tendered by a Warrant holder in connection with the Offer shall be
returned to such Warrant holder and the Warrants will expire in accordance with
their terms on December 13, 2010 and will otherwise remain subject to their
original terms.
|
|
C.
|
Determination
of Validity
|
All
questions as to the form of documents and the validity, eligibility (including
time of receipt) and acceptance for exchange of any tenders of Warrants will be
determined by the Company, in its sole discretion, and its determination shall
be final and binding, subject to the judgment of any court. The Company reserves
the absolute right, subject to the judgment of any court, to reject any or all
tenders of Warrants that it determines are not in proper form or reject tenders
of Warrants that may, in the opinion of the Company’s counsel, be unlawful. The
Company also reserves the absolute right, subject to the judgment of any court,
to waive any defect or irregularity in any tender of Warrants. Neither the
Company nor any other person will be under any duty to give notice of any defect
or irregularity in tenders, nor shall any of them incur any liability for
failure to give any such notice.
8
The
tender of Warrants pursuant to the procedure described above will constitute a
binding agreement between the tendering Warrant holder and the Company upon the
terms and subject to the conditions of the Offer.
|
|
D.
|
Signature
Guarantees
|
Except as
otherwise provided below, all signatures on a Letter of Transmittal by a person
residing in or tendering Warrants in the U.S. must be guaranteed by an Eligible
Institution. Signatures on a Letter of Transmittal need not be guaranteed if
(i) the Letter of Transmittal is signed by the registered holder of the
Warrant(s) tendered therewith and such holder has not completed the box entitled
“Special Delivery Instructions” or “Special Issuance Instructions” in the Letter
of Transmittal; or (ii) such Warrant(s) are tendered for the account of an
Eligible Institution. See Instructions 1 and 5 of the Letter of
Transmittal.
|
3.
|
WITHDRAWAL
RIGHTS
|
Tenders
of Warrants made pursuant to the Offer may be rescinded at any time prior to the
Expiration Date. Thereafter, such tenders are irrevocable. If the Company
extends the period of time during which the Offer is open for any reason, then,
without prejudice to the Company’s rights under the Offer and in a manner
compliant with Rule 14e-1(c) of the Exchange Act, the Company may retain all
Warrants tendered and tenders of such Warrants may not be rescinded, except as
otherwise provided in this Section 3. Notwithstanding the foregoing,
tendered Warrants may also be withdrawn, if the Company has not accepted the
Warrants for exchange by the 40th business day after the initial commencement of
the Offer.
To be
effective, a written notice of withdrawal must be timely received by the
Depositary at its address identified in this Offer Letter. Any notice of
withdrawal must specify the name of the person who tendered the Warrants for
which tenders are to be withdrawn and the number of Warrants to be withdrawn. If
the Warrants to be withdrawn have been delivered to the Depositary, a signed
notice of withdrawal must be submitted to the Depositary prior to release of
such Warrants. In addition, such notice must specify the name of the registered
holder (if different from that of the tendering Warrant holder) and the serial
numbers shown on the particular certificates evidencing the Warrants to be
withdrawn. Withdrawal may not be cancelled, and Warrants for which tenders are
withdrawn will thereafter be deemed not validly tendered for purposes of the
Offer. However, Warrants for which tenders are withdrawn may be tendered again
by following one of the procedures described in Section 2 at any time prior
to the Expiration Date.
A holder
of Warrants desiring to withdraw tendered Warrants previously delivered through
DTC should contact the DTC participant through which such holder holds his, her
or its Warrants. In order to withdraw previously tendered Warrants, a DTC
participant may, prior to the Expiration Date, withdraw its instruction
previously transmitted through the WARR PTS function of DTC’s ATOP procedures by
(i) withdrawing its acceptance through the WARR PTS function, or
(ii) delivering to the Depositary by mail, hand delivery or fax, a notice
of withdrawal of such instruction. The notices of withdrawal must contain the
name and number of the DTC participant. A withdrawal of an instruction must be
executed by a DTC participant as such DTC participant’s name appears on its
transmission through the WARR PTS function to which such withdrawal relates. A
DTC participant may withdraw a tendered Warrant only if such withdrawal complies
with the provisions described in this paragraph.
A holder
who tendered his, her or its Warrants other than through DTC should send written
notice of withdrawal to the Depositary specifying the name of the Warrant holder
who tendered the Warrants being withdrawn. All signatures on a notice of
withdrawal must be guaranteed by a Medallion Signature Guarantor; provided,
however, that signatures on the notice of withdrawal need not be guaranteed if
the Warrants being withdrawn are held for the account of an Eligible
Institution. Withdrawal of a prior Warrant tender will be effective upon receipt
of the notice of withdrawal by the Depositary. Selection of the method of
notification is at the risk of the Warrant holder, and notice of withdrawal must
be timely received by the Depositary.
9
All
questions as to the form and validity (including time of receipt) of any notice
of withdrawal will be determined by the Company, in its sole discretion, which
determination shall be final and binding, subject to the judgments of any courts
that might provide otherwise. Neither the Company nor any other person will be
under any duty to give notification of any defect or irregularity in any notice
of withdrawal or incur any liability for failure to give any such notification,
subject to the judgment of any court. You may combine withdrawn Warrants and
Shares back into Units by sending a letter of instruction to your broker
requesting the combination. The broker will then instruct the Company’s transfer
agent to process the combination.
|
4.
|
ACCEPTANCE OF
WARRANTS AND ISSUANCE OF
SHARES
|
Upon the
terms and subject to the conditions of the Offer, the Company will accept for
exchange Warrants validly tendered as of the Expiration Date. The Shares to be
issued will be delivered promptly following the Expiration Date. In all cases,
Warrants will only be accepted for exchange pursuant to the Offer after timely
receipt by the Depositary of certificates for Warrants either physically or
through the book-entry delivery, a properly completed and duly executed Letter
of Transmittal or manually signed copy thereof and the surrender of Warrants
being tendered.
For
purposes of the Offer, the Company will be deemed to have accepted for exchange
Warrants that are validly tendered and for which tenders are not withdrawn,
unless the Company gives written notice to the Warrant holder of its
non-acceptance prior to the Expiration Date.
If
you tender Public Warrants pursuant to the Offer, you will receive unlegended
Shares, which shall be freely tradable by non-affiliates of the Company. If you
tender Private Warrants pursuant to the Offer, you will receive legended Shares
and you will generally be entitled to “tack” your holding period for purposes of
Rule 144.
|
5.
|
BACKGROUND
AND PURPOSE OF THE OFFER
|
|
A.
|
Information
Concerning China Cord Blood
Corporation
|
We are a
leading provider of cord blood banking services in China. We provide cord blood
storage services for expectant parents interested in capturing the opportunities
made available by evolving medical treatments and technologies such as cord
blood transplants. We also preserve cord blood units donated by the public,
provide matching services on such donated units and deliver matching units to
patients in need of transplants. Our Beijing-based subsidiary, Jiachenhong, was
the first operator of a licensed cord blood bank in China. As a matter of
policy, the PRC government only grants one cord blood banking license per
province or municipality. China’s Ministry of Health has authorized, seven such
licenses to date and an additional three licenses are expected to be granted in
the future. Our operations currently benefit from exclusive cord blood banking
licenses issued in China, including licenses for Beijing and Guangdong, and
indirect interest in the license for Shandong province through a 19.9% ownership
in Qilu Stem Cells Engineering Company Limited and we have entered into a
framework agreement regarding the formation of a indirect, non-wholly own
subsidiary to operate the cord blood bank for the Zhejiang
province.
Our
principal executive offices are located at 48th Floor, Bank of China Tower, 1
Garden Road, Central, Hong Kong S.A.R. Our telephone number is (852)
3605-8180.
|
B.
|
Establishment
of Offer Terms; Approval of the
Offer
|
The
Company’s Board of Directors met on September 13, 2010 to approve the terms of
the Offer, including the exchange ratio. The Board set the
exchange ratio in order to provide the holders of the Warrants with an incentive
to exchange the Warrants.
10
|
C.
|
Purpose of
the Offer
|
The Offer
is being made to all holders of Warrants. The purpose of the Offer is to reduce
the number of Shares that would become outstanding upon the exercise of
Warrants. The Company’s Board of Directors believes that by allowing holders of
Warrants to exchange eight (8) Warrants for one (1) Share, the Company can
potentially reduce the substantial number of Shares that would be issuable upon
conversion of the Warrants, thus providing investors and potential investors
with greater certainty as to the Company’s capital structure. For example, if
50% of the Warrants were validly tendered in the Offer, the Company would issue
825,389 Shares in exchange for such tendered Warrants. However, if 50% of the
Warrants were exercised for Shares pursuant to the terms of the Warrants, the
Company would issue 6,603,115 Shares in such conversion. The Offer is not made
pursuant to a plan to periodically increase a securityholder’s proportionate
interest in the assets or earnings and profits of the Company.
The
Warrants acquired pursuant to the exchange will be retired and
cancelled.
|
D.
|
Interests of
Directors and Officers
|
The names
of the executive officers and directors of the Company are set forth below. The
business address for each such person is: c/o China Cord Blood Corporation, 48th
Floor, Bank of China Tower, 1 Garden Road, Central, Hong Kong S.A.R., and the
telephone number for each such person is +(852) 3605-8180.
|
Name
|
|
Position
|
|
Ting
Zheng
|
Chairperson
of the Board and Chief Executive Officer
|
|
|
Albert
Chen
|
Chief
Financial Officer and Director
|
|
|
Mark
D. Chen(1)(2)(3)
|
Independent
Non-executive Director
|
|
|
Dr.
Ken Lu(1)(2)(3)
|
Independent
Non-executive Director
|
|
|
Jennifer
J. Weng(1)(2)(3)
|
Independent
Non-executive Director
|
|
|
Feng
Gao
|
Managing
Director — China Region
|
|
|
Yue
Deng
|
Chief
Executive Officer — Beijing Division
|
|
|
Rui
Arashiyama
|
Chief
Executive Officer — Guangdong Division
|
|
|
Xin
Xu
|
Chief
Technology Officer
|
(1) Members
of audit committee
(2) Member
of compensation committee
(3) Member
of nominating and corporate governance committee
To our
knowledge, Mark D. Chen and Jennifer J. Weng, each an independent non-executive
director and who are married, collectively own Warrants 1,291,667 (representing
approximately 9.8% of the outstanding Warrants) and intend to participate in the
Offer. The Company does not beneficially own any Warrants, nor to the Company’s
knowledge after reasonable inquiry do any of its other officers or directors own
any Warrants.
Except as
set forth below in Section 8 hereunder, there are no present plans or proposals
by the Company that relate to or would result in: (a) an extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
the Company or any of its subsidiaries; (b) a purchase, sale or transfer of
a material amount of assets of the Company or any of its subsidiaries;
(c) any change in the present Board of Directors or management of the
Company including, but not limited to, any plans or proposals to change the
number or the term of directors, to fill any existing vacancy on the Board or to
change any material term of the employment contract of any executive officer;
(d) any material change in the present dividend rate or policy, or
indebtedness or capitalization of the Company; (e) any other material
change in the Company’s corporate structure or business; (f) changes in the
Company’s Memorandum and Articles of Association or instruments corresponding
thereto or other actions which may impede the acquisition of control of the
Company by any person; (g) a class of equity security of the Company
becoming eligible for termination of registration pursuant to
Section 12(g)(4) of the Exchange Act; or (h) the suspension of the
issuer’s obligation to file reports pursuant to Section 15(d) of the
Exchange Act. The exchange of Warrants pursuant to the Offer will result in the
acquisition by each exchanging holder of one (1) Share for every eight (8)
Warrants exchanged.
11
THE
COMPANY’S BOARD OF DIRECTORS HAS APPROVED THE OFFER. HOWEVER, NONE OF THE
COMPANY, ITS DIRECTORS, OFFICERS OR EMPLOYEES OR THE DEPOSITARY OR THE
INFORMATION AGENT MAKES ANY RECOMMENDATION WHETHER YOU SHOULD TENDER ANY
WARRANTS. EACH HOLDER OF A WARRANT MUST MAKE HIS, HER OR ITS OWN DECISION
WHETHER TO TENDER SOME OR ALL OF HIS, HER OR ITS WARRANTS.
|
6.
|
PRICE RANGE
OF SHARES, WARRANTS AND
UNITS
|
Our
Shares have been listed on the NYSE under the symbol CO since November 19, 2009.
Prior to November 19, 2009, our Shares were quoted on the OTCBB, under the
symbol CNDZF. Our Public Warrants have been traded on the OTCBB since July 1,
2009 under the symbol CNDWF. We also have a current trading market for our units
(“Units”). One Unit consists of one Share and two Public Warrants. The Units
trade on the OTCBB, under the symbol CNDUF. Prior to July 1, 2009 and the
exchange of our Shares, Public Warrants and Units for the securities of
Pantheon, our securities were not listed or quoted on any exchange or market.
The shares, warrants and units of Pantheon China Acquisition Corp., our
predecessor, were quoted on the OTCBB from its initial public offering in
December 2006 until June 30, 2009 under the symbols PCQC, PCQCW and PCQCU,
respectively. On November 9, 2010, the last reported sale prices for the Shares,
Public Warrants and Units securities were $4.11, $0.35 and $4.75, respectively,
but no Units have traded since July 6, 2009.
The
Company recommends that holders obtain current market quotations for the Shares,
Public Warrants and Units, among other factors, before deciding whether or not
to tender their Warrants.
The
following table shows, the high and low sale prices of the Shares, Public
Warrants and Units for the indicated periods:
|
Shares
|
Public
Warrants
|
Units
|
||||||||||||||||||||||
|
High
|
Low
|
High
|
Low
|
High
|
Low
|
|||||||||||||||||||
|
US$
|
US$
|
US$
|
US$
|
US$
|
US$
|
|||||||||||||||||||
|
Annual
Highs and Lows
|
||||||||||||||||||||||||
|
Fiscal
2010
|
12.85 | 5.00 | 1.75 | 0.21 | 4.75 | 4.75 | ||||||||||||||||||
|
Fiscal
2011 (through November 9)
|
6.11 | 3.84 | 0.98 | 0.17 | N/A | N/A | ||||||||||||||||||
|
Quarterly
Highs and Lows
|
||||||||||||||||||||||||
|
Fiscal
2010
|
||||||||||||||||||||||||
|
Second
Quarter
|
7.50 | 5.98 | 0.80 | 0.39 | 9.00 | 2.00 | ||||||||||||||||||
|
Third
Quarter
|
12.85 | 5.39 | 1.75 | 0.21 | N/A | N/A | ||||||||||||||||||
|
Fourth
Quarter
|
6.75 | 5.00 | 1.65 | 0.54 | N/A | N/A | ||||||||||||||||||
|
Fiscal
2011
|
||||||||||||||||||||||||
|
First
Quarter
|
6.11 | 5.00 | 0.98 | 0.22 | N/A | N/A | ||||||||||||||||||
|
Second
Quarter
|
5.96 | 3.86 | 0.70 | 0.17 | N/A | N/A | ||||||||||||||||||
|
Third
Quarter (through November 9)
|
5.79 | 3.84 | 0.60 | 0.25 | N/A | N/A | ||||||||||||||||||
|
Monthly
Highs and Lows
|
||||||||||||||||||||||||
|
April
2010
|
6.11 | 5.70 | 0.98 | 0.80 | N/A | N/A | ||||||||||||||||||
|
May
2010
|
6.00 | 5.60 | 0.85 | 0.65 | N/A | N/A | ||||||||||||||||||
|
June
2010
|
5.90 | 5.00 | 0.80 | 0.22 | N/A | N/A | ||||||||||||||||||
|
July
2010
|
5.40 | 4.76 | 0.25 | 0.17 | N/A | N/A | ||||||||||||||||||
|
August
2010
|
5.30 | 4.00 | 0.36 | 0.24 | N/A | N/A | ||||||||||||||||||
|
September
2010
|
5.96 | 3.86 | 0.70 | 0.24 | N/A | N/A | ||||||||||||||||||
|
October
2010
|
5.71 | 4.95 | 0.60 | 0.43 | N/A | N/A | ||||||||||||||||||
|
November
2010 (through November 9)
|
5.79 | 3.84 | 0.60 | 0.25 | N/A | N/A | ||||||||||||||||||
12
|
7.
|
SOURCE AND
AMOUNT OF FUNDS
|
Because
this transaction is an offer to holders to exchange their existing Warrants for
Shares, there is no source of funds or other cash consideration being paid by
the Company to those tendering Warrants. We will use our existing funds to pay
expenses associated with the Offer, including cash paid in lieu of fractional
shares for Warrants tendered in the Offer.
|
8.
|
TRANSACTIONS
AND AGREEMENTS CONCERNING THE COMPANY’S
SECURITIES
|
Other
than as set forth below and as set forth in the Company’s Memorandum and
Articles of Association, there are no agreements, arrangements or understandings
between the Company, or any of its directors or executive officers, and any
other person with respect to the Warrants.
Registration
Rights Agreement
Pursuant
to a registration rights agreement between Pantheon China Acquisition Corp., our
predecessor, and its founders and special advisors, Pantheon’s founders and
special advisors are entitled to certain registration rights. The holders of the
majority of Private Warrants will be entitled to make up to two demands that we
register these the Private Warrants and underlying Shares pursuant to such
registration rights agreement. In addition, these security holders have certain
“piggy-back” registration rights with respect to registration statements filed
by us. The holders of Private Warrants do not have the rights or privileges of
holders of our Shares or any voting rights until such holders exercise their
respective PrivateWarrants and receive Shares. Permitted transferees that
receive any of the above described securities from our founders will, under
certain circumstances, be entitled to the registration rights described herein.
We will bear the expenses incurred in connection with the filing of any such
registration statements.
Warrant
Holder Lock-Up Agreements
In
connection with the Offer, Jayhawk Private Equity Fund II, LP, Jayhawk China
Fund (Cayman) and Pantheon China Acquisition Limited (collectively, the
“Locked-Up Warrant Holders”) each entered into a Lock-Up Agreement pursuant to
which 100% of the Warrants of the Company beneficially owned by them are
locked-up until the earliest of (i) consummation or earlier termination by the
Company of the Offer, (ii) the date that is ten business days after the date of
the Lock-Up Agreement, if the Company has not launched the Offer by such date,
(iii) the date that is 90 calendar days after the date of the Lock-Up Agreement,
if the Offer has not been consummated by such date, (iv) the filing of any
voluntary or involuntary bankruptcy or other insolvency case or proceeding
involving the Company or any of its subsidiaries or (v) the commencement of a
proceeding by any court or regulatory authority having jurisdiction over the
Company seeking to enjoin, restrict, modify or prohibit the Offer. Mark D. Chen,
our independent non-executive director, controls Pantheon China Acquisition
Limited. The Warrants held by the Locked-Up Warrant Holders represent an
aggregate of approximately 68.9% of the outstanding Warrants.
Other
Agreements
In
connection with its initial public offering and the appointment of a warrant
agent for the Public Warrants, the Company entered into a Warrant Agreement with
Continental. The Warrant Agreement provides for the various terms, restrictions
and governing provisions that dictate all the terms of the Public
Warrants.
The
Company has retained Continental to act as the Depositary and Advantage to act as
the Information Agent. The Company may contact warrant holders by mail,
telephone, facsimile, or other electronic means, and may request brokers,
dealers, commercial banks, trust companies and other nominee warrant holders to
forward material relating to the offer to beneficial owners. Continental and
Advantage will receive reasonable and customary compensation for their
respective services in connection with the Offer, plus reimbursement for
out-of-pocket expenses, and will be indemnified by the Company against certain
liabilities and expenses in connection therewith.
13
|
9.
|
FINANCIAL
INFORMATION REGARDING THE
COMPANY
|
The
following summary consolidated statement of operations and cash flow data for
the years ended March 31, 2008, 2009 and 2010 and the selected consolidated
balance sheet data as at March 31, 2009 and 2010 have been derived from our
audited consolidated financial statements included in our annual report on
Form 20-F/A for the year ended March 31, 2010. The following summary
consolidated statement of operations and cash flow data for the three months
ended June 30, 2009 and 2010 and the selected consolidated balance sheet data as
at June 30, 2010 have been derived from our unaudited consolidated financial
statements included in our report of foreign issuer on Form 6-K furnished to the
SEC on September 10, 2010. Results for interim periods are not indicative of
those to be expected for any future period. The summary consolidated financial
data should be read in conjunction with those financial statements and the
accompanying notes and “Item 5. Operating and Financial Review and
Prospects” included in our annual report on Form 20-F/A for the year ended
March 31, 2010. Our consolidated financial statements are prepared and
presented in accordance with United States generally accepted accounting
principles, or U.S. GAAP. Our historical results do not necessarily
indicate our results expected for any future periods.
More
comprehensive financial information is included in such reports and the
financial information which follows is quantified in its entirety by reference
to such reports and all of the financial statements and related notes contained
therein, copies of which may be obtained as set forth below under “Additional
Information; Miscellaneous.
|
For the three months
ended June 30,
|
For the year
ended March 31,
|
|||||||||||||||||||||||||||
|
2010
|
2010
|
2009
|
2010
|
2010
|
2009
|
2008
|
||||||||||||||||||||||
|
$
|
RMB
|
RMB
|
$
|
RMB
|
RMB
|
RMB
|
||||||||||||||||||||||
|
(in
thousands except per share and operating data)
|
||||||||||||||||||||||||||||
|
Selected
statement of operation data:
|
||||||||||||||||||||||||||||
|
Revenues
|
10,572 | 71,696 | 57,928 | 38,566 | 261,536 | 194,537 | 233,081 | |||||||||||||||||||||
|
Gross
profit
|
8,028 | 54,444 | 41,672 | 28,873 | 195,806 | 145,366 | 172,346 | |||||||||||||||||||||
|
Operating income(1)
|
3,444 | 23,355 | 23,055 | 14,332 | 97,193 | 85,197 | 125,403 | |||||||||||||||||||||
|
Net income/(loss) attributable to CCBC
shareholders(2)(3)
|
2,593 | 17,586 | (4,592 | ) | 7,251 | 49,177 | 20,695 | 117,010 | ||||||||||||||||||||
|
Net
income/(loss) attributable per ordinary share, basic
|
0.04 | 0.26 | (0.18 | ) | 0.12 | 0.82 | (0.07 | ) | 1.59 | |||||||||||||||||||
|
Net
income/(loss) attributable per ordinary share, diluted
|
0.04 | 0.26 | (0.18 | ) | 0.12 | 0.78 | (0.07 | ) | 1.54 | |||||||||||||||||||
|
Net
income attributable per redeemable ordinary share, basic
|
- | - | 0.22 | 0.03 | 0.22 | 1.63 | 3.46 | |||||||||||||||||||||
|
Net
income attributable per redeemable ordinary share, diluted
|
- | - | 0.22 | 0.03 | 0.22 | 1.63 | 3.41 | |||||||||||||||||||||
|
Selected
operating data:
|
||||||||||||||||||||||||||||
|
New
subscriber sign-ups
|
12,180 | 10,381 | 45,252 | 34,678 | 26,060 | |||||||||||||||||||||||
|
New
donations accepted
|
1,230 | 182 | 3,390 | 698 | 693 | |||||||||||||||||||||||
|
Total units stored (end of period)(4)(5)(6)
|
156,340 | 104,851 | 142,930 | 94,288 | 58,912 | |||||||||||||||||||||||
|
Units deposited by subscribers (end of period)(6)
|
141,492 | 94,441 | 129,312 | 84,060 | 49,382 | |||||||||||||||||||||||
|
Units contributed by donors (end of period)(4)(5)
|
14,848 | 10,410 | 13,618 | 10,228 | 9,530 | |||||||||||||||||||||||
|
(1)
|
Includes:
|
14
|
For the three months
ended June 30,
|
For the year
ended March 31,
|
|||||||||||||||||||||||||||
|
2010
|
2010
|
2009
|
2010
|
2010
|
2009
|
2008
|
||||||||||||||||||||||
|
$
|
RMB
|
RMB
|
$
|
RMB
|
RMB
|
RMB
|
||||||||||||||||||||||
|
(in
thousands)
|
||||||||||||||||||||||||||||
|
Share-based
compensation expenses
|
— | — | — | — | — | — | 3,191 | |||||||||||||||||||||
|
Write-back
of deferred revenues (included in revenues)
|
— | — | — | — | — | — | 136,510 | |||||||||||||||||||||
|
Write-back
of deferred cord blood processing costs
|
||||||||||||||||||||||||||||
|
–
included in direct costs
|
— | — | — | — | — | — | 32,946 | |||||||||||||||||||||
|
–
included in operating expenses
|
— | — | — | — | — | — | 4,219 | |||||||||||||||||||||
Deferred
revenue written back in the year ended March 31, 2008 related to cord blood
storage agreements executed in the following periods:
|
For the year ended March 31,
|
RMB
|
|||
|
(in thousands)
|
||||
|
2005
and before
|
15,601 | |||
|
2006
|
27,042 | |||
|
2007
|
53,960 | |||
|
2008
|
39,907 | |||
| 136,510 | ||||
Deferred
cord blood processing costs written back in the year ended March 31, 2008
related to cord blood storage agreements executed in the following
periods:
|
For the year ended March 31,
|
RMB
|
|||
|
(in
thousands)
|
||||
|
2005
and before
|
4,559 | |||
|
2006
|
7,566 | |||
|
2007
|
14,141 | |||
|
2008
|
10,899 | |||
| 37,165 | ||||
15
|
(2)
|
Reflects
a one-time write off of deferred reverse recapitalization costs that
amounted to RMB21.6 million ($3.2 million) for the year ended March 31,
2010. Also reflects net other income/(expenses), which includes interest
income, interest expense, exchange (loss)/gain and impairment loss on
available-for-sale equity securities of RMB37.4 million and write-off of
deferred offering costs of RMB9.5 million for the year ended March 31,
2009. As a result of the change in revenue recognition policy on September
25, 2007, we recognized the previously deferred revenues of approximately
RMB136.5 million, related deferred processing costs of approximately
RMB37.2 million and related deferred tax expense of RMB14.9 million for
the year ended March 31, 2008.
|
|
(3)
|
After
taking into account income tax expense of RMB17.8 million, RMB17.9 million
and RMB24.8 million for the years ended March 31, 2008, 2009 and 2010,
respectively, and income tax expenses of RMB5.8 million and RMB6.1 million
for the three months ended June 30, 2009 and 2010, respectively.
Jiachenhong was entitled to 50% reduction of PRC income tax for the years
ended December 31, 2007 and 2008. Such income tax benefits increased net
income and net income per share as
follows:
|
|
For the three months ended
June 30,
|
For the year ended
March 31,
|
|||||||||||||||||||||||||||
|
2010
|
2010
|
2009
|
2010
|
2010
|
2009
|
2008
|
||||||||||||||||||||||
|
$
|
RMB
|
RMB
|
$
|
RMB
|
RMB
|
RMB
|
||||||||||||||||||||||
|
(in
thousands except per share data)
|
||||||||||||||||||||||||||||
|
Increase
in net income
|
— | — | — | — | — | 3,444 | 4,395 | |||||||||||||||||||||
|
Increase
in basic net income attributable per ordinary share
|
— | — | — | — | — | 0.06 | 0.08 | |||||||||||||||||||||
|
Increase
in diluted net income attributable per ordinary share
|
— | — | — | — | — | 0.06 | 0.07 | |||||||||||||||||||||
|
Increase
in basic net income attributable per redeemable ordinary
share
|
— | — | — | — | — | 0.06 | 0.08 | |||||||||||||||||||||
|
Increase
in diluted net income attributable per redeemable ordinary
share
|
— | — | — | — | — | 0.06 | 0.07 | |||||||||||||||||||||
|
(4)
|
As
at period end, “Total units stored” and “Units contributed by donors” take
into account the withdrawal of donated units when we are successful in
providing matching services.
|
|
(5)
|
Includes
1,253 units received in connection with our acquisition of Guangzhou
Municipality Tianhe Nuoya Bio-engineering Company Limited in May
2007.
|
|
(6)
|
Includes
subscribers who are delinquent on payments and for whom we have ceased to
recognize revenue generated from storage
fees.
|
16
|
For the three months
ended June 30,
|
For the year
ended March 31,
|
|||||||||||||||||||||||||||
|
2010
|
2010
|
2009
|
2010
|
2010
|
2009
|
2008
|
||||||||||||||||||||||
|
$
|
RMB
|
RMB
|
$
|
RMB
|
RMB
|
RMB
|
||||||||||||||||||||||
|
(in
thousands)
|
||||||||||||||||||||||||||||
|
Summary
statement of cash flow data:
|
||||||||||||||||||||||||||||
|
Net
cash provided by/(used in) operating activities
|
5,352 | 36,303 | (4,631 | ) | 5,362 | 36,365 | 4,051 | 68,864 | ||||||||||||||||||||
|
Net
cash used in investing activities
|
(387 | ) | (2,629 | ) | (7,531 | ) | (23,423 | ) | (158,849 | ) | (34,444 | ) | (162,853 | ) | ||||||||||||||
|
Net
cash provided by/(used in) financing activities
|
1,424 | 9,654 | 79,328 | 35,743 | 242,393 | (35,276 | ) | 172,002 | ||||||||||||||||||||
|
As at June 30,
|
As at March 31,
|
|||||||||||||||||||
|
2010
|
2010
|
2010
|
2010
|
2009
|
||||||||||||||||
|
$
|
RMB
|
$
|
RMB
|
RMB
|
||||||||||||||||
|
(in
thousands)
|
||||||||||||||||||||
|
Summary
balance sheet data:
|
||||||||||||||||||||
|
Cash
and cash equivalents
|
47,676 | 323,315 | 41,142 | 280,835 | 161,406 | |||||||||||||||
|
Working capital(i)
|
40,544 | 274,954 | 36,540 | 247,800 | 180,425 | |||||||||||||||
|
Total
assets
|
159,763 | 1,083,435 | 154,396 | 1,047,034 | 696,391 | |||||||||||||||
|
Deferred
revenue
|
21,575 | 146,309 | 19,056 | 129,229 | 92,582 | |||||||||||||||
|
Redeemable
ordinary shares
|
— | — | — | — | 386,577 | |||||||||||||||
|
Share
capital
|
7 | 46 | 7 | 46 | 34 | |||||||||||||||
|
Retained
earnings
|
15,465 | 104,876 | 12,872 | 87,290 | 44,082 | |||||||||||||||
|
Total
CCBC shareholders’ equity
|
121,398 | 823,263 | 119,278 | 808,886 | 165,542 | |||||||||||||||
(i) Working
capital is calculated as total current assets minus total current
liabilities.
The
Company incorporates by reference (i) its financial statements that were filed
with its Annual Report on Form 20-F filed with the Securities and Exchange
Commission on July 16, 2010, as amended by Amendment No. 1 to the Company’s
Annual Report on Form 20-F/A filed with the Securities and Exchange Commission
on October 20, 2010, and (ii) its financial results for the first quarter ended
June 30, 2010, that were included in the Company’s Form 6-K filed with the
Securities and Exchange Commission on September 10, 2010.
17
As of
June 30, 2010, the book value per share was $1.80.
|
10.
|
EXTENSIONS;
AMENDMENTS; CONDITIONS;
TERMINATION
|
The
Company expressly reserves the right, in its sole discretion, and at any time or
from time to time, to extend the period of time during which the Offer is open.
There can be no assurance, however, that the Company will exercise its right to
extend the Offer. If the Company extends the Offer, it will give notice of such
extension by press release or other public announcement no later than 9:00 a.m.,
Eastern Time, on the next business day after the previously scheduled expiration
date of the Offer.
Amendments
to the Offer will be made by written notice thereof to the holders of the
Warrants. Material changes to information previously provided to holders of the
Warrants in this Offer Letter or in documents furnished subsequent thereto will
be disseminated to holders of Warrants. Also, should the Company, pursuant to
the terms and conditions of the Offer, materially amend the Offer, the Company
will ensure that the Offer remains open long enough to comply with U.S. federal
securities laws.
The
minimum period during which an Offer must remain open following any material
change in the terms of the Offer or information concerning the Offer (other than
a change in price, change in dealer’s soliciting fee or change in percentage of
securities sought, all of which require up to 10 additional business days) will
depend on the facts and circumstances, including the relative materiality of
such terms or information.
The
conditions of the Offer are:
|
(A)
|
no action or event shall have
occurred, no action shall have been taken, and no statute, rule,
regulation, judgment, order, stay, decree or injunction shall have been
promulgated, enacted, entered or enforced applicable to the Offer or the
exchange of Warrants for Shares under the Offer by or before any court or
governmental regulatory or administrative agency, authority or tribunal of
competent jurisdiction, including, without limitation, taxing authorities,
that challenges the making of the Offer or the exchange of Warrants for
Shares under the Offer or would reasonably be expected to, directly or
indirectly, prohibit, prevent, restrict or delay consummation of, or would
reasonably be expected to otherwise adversely affect in any material
manner, the Offer or the exchange of Warrants for Shares under the
Offer;
|
|
(B)
|
there
shall not have occurred:
|
|
·
|
any
general suspension of or limitation on trading in securities on the NYSE
or OTCBB markets, whether or not
mandatory,
|
|
·
|
a
declaration of a banking moratorium or any suspension of payments in
respect of banks by federal or state authorities in the United States,
whether or not mandatory,
|
|
·
|
a
commencement of a war, armed hostilities, a terrorist act or other
national or international calamity directly or indirectly relating to the
United States, or
|
|
·
|
in
the case of any of the foregoing existing at the time of the commencement
of the Offer, a material acceleration or worsening
thereof;
|
|
(C)
|
at
least 50% of the Warrants being tendered in the Offer;
and
|
|
(D)
|
there
shall not have been any commission or other remuneration paid by us with
respect to the solicitation of Warrant holders in connection with the
Offer.
|
We may
terminate the Offer if any of the conditions of the Offer are not satisfied
prior to the Expiration Date. In the event that we terminate the Offer, all
Warrants tendered by a Warrant holder in connection with the Offer shall be
returned to such Warrant holder and the Warrants will expire in accordance with
their terms on December 13, 2010 and will otherwise remain subject to their
original terms.
18
If you
tender your Warrants, you will be agreeing to purchase the Shares issuable
pursuant to the Offer, pursuant to the terms and subject to the conditions
described herein and the Letter of Transmittal, including, but not limited to,
the agreement not to offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, or otherwise transfer or dispose of,
directly or indirectly, such Shares; or enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of such Shares until the 46th calendar day following the closing of
the Offer.
|
11.
|
MATERIAL U.S.
FEDERAL INCOME TAX
CONSEQUENCES
|
The
following is a summary of the material U.S. federal income tax consequences to
holders that own and hold Warrants as capital assets, within the meaning of
Section 1221 of the Internal Revenue Code of 1986, as amended (the “Code”), and
that exchange Warrants for Shares pursuant to the Offer. This discussion does
not address all of the tax consequences that may be relevant to a holder based
on its individual circumstances and does not address tax consequences applicable
to holders that may be subject to special tax rules, such as: financial
institutions; insurance companies; regulated investment companies; tax-exempt
organizations; dealers or traders in securities or currencies; holders that
actually or constructively own 5% or more of our Shares; holders that hold
Warrants as part of a position in a straddle or a hedging, conversion or
integrated transaction for U.S. federal income tax purposes; holders that have a
functional currency other than the U.S. dollar; holders that received their
Warrants as compensation for the performance of services; or holders that are
not U.S. persons (as defined for U.S. federal income tax purposes). This summary
assumes that the Company is not treated as a passive foreign investment company
(“PFIC”) for its current taxable year and has not been treated as a PFIC in any
prior taxable year for U.S. federal income tax purposes. Moreover, this summary
does not address any state, local or foreign tax consequences or any U.S.
federal non-income tax consequences of the exchange of Warrants for Shares
pursuant to the Offer or, except as discussed herein, any tax reporting
obligations of a holder. Holders should consult their tax advisors as to the
specific tax consequences to them of the Offer in light of their particular
circumstances.
If an
entity treated as a partnership for U.S. federal income tax purposes holds
Warrants, the tax treatment of a partner in the partnership will generally
depend on the status of the partner and the activities of the partnership.
Holders owning their Warrants through a partnership should consult their tax
advisors regarding the U.S. federal income tax consequence of exchanging
Warrants for Shares pursuant to the Offer.
This
summary is based on the Code, applicable Treasury regulations, administrative
pronouncements and judicial decisions, each as in effect on the date hereof. All
of the foregoing are subject to change, possibly with retroactive effect, or
differing interpretations by the Internal Revenue Service (“IRS”) or a court,
which could affect the tax consequences described herein.
The
exchange of Warrants for Shares pursuant to the Offer should be treated as a
“recapitalization” pursuant to which (i) no gain or loss should be
recognized on the exchange of Warrants for Shares, (ii) a holder’s
aggregate tax basis in the Shares received in the exchange should equal the
holder’s aggregate tax basis in its Warrants surrendered in exchange therefor
(except to the
extent of any tax basis allocated to a fractional share for which a cash payment
is received in connection with the Offer), and (iii) a holder’s
holding period for the Shares received in the exchange should include its
holding period for the surrendered Warrants. Special tax basis and holding
period rules apply to holders that acquired different blocks of Warrants at
different prices or at different times. Holders should consult their tax
advisors as to the applicability of these special rules to their particular
circumstances. Any cash received in lieu of a fractional share pursuant to the
Offer should result in gain or loss to a holder equal to the difference between
the cash received and the holder’s tax basis in the fractional
share.
Certain
of our “significant” holders exchanging Warrants for Shares pursuant to the
Offer may be required to furnish certain information to the IRS, including the
fair market value of the holder’s Warrants exchanged for Shares pursuant to the
Offer and certain tax basis information. Holders should consult their tax
advisors as to the applicability of these reporting requirements to their
particular circumstances.
19
|
12.
|
RISK FACTORS;
FORWARD-LOOKING STATEMENTS
|
This
Offer Letter contains forward-looking statements. Such forward-looking
statements involve certain risks and uncertainties, including statements
regarding the Company’s strategic direction, prospects and future results.
Certain factors, including factors outside of the Company’s control, may cause
actual results to differ materially from those contained in the forward-looking
statements. All forward looking statements included in this report are based on
information available to the Company as of the date hereof.
An
investment in our Shares involves a high degree of risk. Please refer to our
filings with the SEC, including our Annual Report on Form 20-F for the fiscal
year ended March 31, 2010 filed on July 16, 2010, as amended by Amendment No. 1
to the Company’s Annual Report on Form 20-F/A filed with the securities and
Exchange Commission on October 20, 2010, for a discussion of these risks.
Additional risks and uncertainties not presently known to the Company or that
the Company currently deems immaterial also may impair our business operations.
If any of the matters identified as potential risks materialize, our business
could be harmed. In that event, the trading price of our Shares, Public Warrants
and Units could decline.
There
is no guarantee that your decision whether to tender your Warrants in the Offer
will put you in a better future economic position.
We can
give no assurance as to the price at which a shareholder may be able to sell its
Shares in the future following the completion of the Offer. If you choose to
tender some or all of your Warrants in the Offer, certain future events may
cause an increase in our Share price and may result in a lower value realized
now than you might realize in the future had you not agreed to exercise your
Warrants. Similarly, if you do not tender your Warrants in the Offer, you will
continue to bear the risk of ownership of your Warrants after the closing of the
Offer, and there can be no assurance that you can sell your Warrants (or
exercise them for Shares) in the future at a higher price than would have been
obtained by participating in the Offer. You should consult your own individual
tax and/or financial advisor for assistance on how this may affect your
individual situation.
There
is no assurance that our Exchange Offer will be successful.
There is
no assurance that any significant number of Warrants will be tendered in the
Offer. Moreover, even if a significant number of Warrants are tendered in the
Offer, there is no assurance that the price of our Share price will increase.
The price of our Share and the decision of any investors to make an equity
investment in the Company are based on numerous material factors, of which our
Warrant overhang is only one. Eliminating or significantly reducing our Warrant
overhang will not generate any capital for our Company.
The
issuance of additional Shares upon the exchange of tendered Warrants will dilute
our existing shareholders as well as our future shareholders. If the holders of
our Warrants accept the Offer, we will issue additional Shares. The issuance
will dilute the percentage ownership interests in the Company of other holders
of our Shares.
Certain
members of our Board are subject to conflicts of interest with respect to the
Exchange Offer.
Mr. Mark
D. Chen and Ms. Jennifer J. Weng, members of our Board, which unanimously
approved this transaction, are the beneficial owners of Warrants to purchase
1,291,667 Shares. The Warrants held by Mr. Mark D. Chen and Ms. Jennifer J. Weng
collectively represented approximately 9.8% of the outstanding Warrants.
Additionally, Mr. Mark D. Chen and Ms. Jennifer J. Weng, are both shareholder of
the Company. We did not obtain a “fairness opinion” in connection with the Offer
nor did we engage an independent financial advisor to assist it with its
analysis and structuring of the Offer.
20
The
market price of our Shares will fluctuate and it may adversely affect Warrants
holders who tender their Warrants for Shares.
The
market price of our Shares will fluctuate between the date the Offer is
commenced, the Expiration Date of Offer and the date on which Shares are issued
to tendering Warrant holders. Accordingly, the market price of Shares upon
settlement of the Offer could be less than the price on which the Warrants could
be sold. The Company does not intend to re-adjust the exchange ratio of Shares
for Warrants based on any fluctuation in our Share price.
Our
ability to raise capital in the future may be adversely affected if the Offer is
not successful.
Historically,
we have satisfied our funding needs primarily through capital generated from
operations, equity financings and debt financings. As of June 30, 2010, the
Company had aggregate cash and cash equivalents of approximately RMB323.3
million. On November 5, 2010 the Company entered into an underwriting agreement
to issue 7 million shares in return for a gross proceed of $31.5 million. We
intend to use the majority of these funds for general working capital and
potential expansion. We anticipate that our current liquidity, along with cash
generated from operations, will be sufficient for sustaining our operating
activities. However, if future expansion or capital requirement exceed our
estimates, we may need to raise additional funds. We may not be able to obtain
additional financing in amounts or on terms acceptable to us, if at all. In
addition, we believe that if the Offer is not successful, our outstanding
Warrants will be a significant impediment to us raising any additional capital.
As such, our ability to pursuit potential business opportunities and grow our
business will be significantly impaired.
The
value of the Shares that you receive may fluctuate.
We are
offering Shares for validly tendered Warrants. The price of our Shares may
fluctuate widely in the future. If the market price of our Shares declines, the
value of the Shares you will receive in exchange for your Warrants will decline.
The trading value of our Shares could fluctuate depending upon any number of
factors, including those specific to us and those that influence the trading
prices of equity securities generally, many of which are beyond our control.
There can be no assurance that tendering your Warrants will put you in a better
financial position than you would be in if you continued to hold your Warrants
following the Expiration Date of Offer.
Additional
number of Shares issued pursuant to the Offer may adversely affect the Share
price.
Holders
of Public Warrants receiving Shares in the Offer will be freely tradable. In
light of the current trading volume of our Shares, if the holders of Public
Warrants sought to sell a significant portion of the Shares obtained from the
Offer, it could have a negative impact on the trading price of our
Shares.
No
rulings or opinions have been received as to the tax consequences of the Offer
to holders of Warrants
The tax
consequences that will result to the Warrant holder that participates in the
Offer are not well defined by the existing authorities. No ruling of any
governmental authority and no opinion of counsel has been issued or rendered on
these matters. Warrant holders must therefore rely on the advice of their own
tax advisors in assessing these matters.
|
13.
|
ADDITIONAL
INFORMATION; MISCELLANEOUS
|
The
Company has filed with the Securities and Exchange Commission a Tender Offer
Statement on Schedule TO, of which this Offer Letter is a part. This Offer
Letter does not contain all of the information contained in the Schedule TO and
the exhibits to the Schedule TO. The Company recommends that holders review the
Schedule TO, including the exhibits, and the Company’s other materials that have
been filed with the Securities and Exchange Commission before making a decision
on whether to accept the Offer. The Company will amend its Schedule TO to
include material changes from previously filed information, including updated
interim financial information to the extent filed on Form 6-K, or otherwise made
publicly available.
21
The
Company is subject to the information requirements of the Exchange Act and in
accordance therewith files and furnishes reports and other information with the
SEC. All reports and other documents the Company has filed or furnished with the
SEC, including the Schedule TO relating to the Offer, or will file or furnish
with the Securities and Exchange Commission in the future, can be accessed
electronically on the SEC’s website at www.sec.gov.
Sincerely,
China
Cord Blood Corporation
48th
Floor
Bank of
China Tower
1 Garden
Road, Central
Hong Kong
S.A.R.
22
THE
DEPOSITARY FOR THE OFFER IS:
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
BY
MAIL, HAND OR OVERNIGHT DELIVERY:
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
17
BATTERY PLACE, 8TH FLOOR
NEW YORK,
NY 10004
BY
FAX:
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
FAX:
(212) 616-7610
CONFIRM
BY TELEPHONE:
(212)
509-4000 ext. 536
THE
INFORMATION AGENT FOR THE OFFER IS:
ADVANTAGE
PROXY
24925
13TH
PLACE SOUTH
DES
MOINES, WA 98198
Warrant
holders and banks and brokerage firms, please call:
Toll
Free: 877-870-8565
Main
Phone: 206-870-8565
You may
also email your requests to [email protected].
ANY
QUESTION OR REQUEST FOR ASSISTANCE MAY BE DIRECTED TO THE INFORMATIONAGENT AT
THE ADDRESS, PHONE NUMBER AND EMAIL ADDRESS LISTED ABOVE. REQUESTS FOR
ADDITIONAL COPIES OF THE OFFER LETTER, THE LETTER OF TRANSMITTAL OR OTHER
DOCUMENTS RELATED TO THE OFFER MAY ALSO BE DIRECTED TO THEINFORMATION
AGENT.
23
Exhibit
99 (a)(1)(B)
LETTER
OF TRANSMITTAL
TO
EXCHANGE WARRANTS
OF
CHINA
CORD BLOOD CORPORATION
PURSUANT
TO THE OFFER
NOVEMBER
10, 2010
THE
OFFER AND WITHDRAWAL EXPIRE AT 5:00 P.M., U.S.
EASTERN
TIME ON THE NIGHT OF DECEMBER 10, 2010 UNLESS THE OFFER IS EXTENDED
The
Depositary for the Offer is:
Continental
Stock Transfer & Trust Company
BY
MAIL, HAND OR OVERNIGHT DELIVERY:
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
17
BATTERY PLACE 8TH FLOOR
NEW YORK,
NY 10004
DESCRIPTION
OF WARRANTS EXCHANGED AND
NAME(S)
AND ADDRESS(ES) OF REGISTERED HOLDER(S)
|
Name(s) and Address(es) of Registered Holder(s)
( Please fill in, if blank, exactly as name(s)
appear(s) on certificate(s)
(Attach additional signed list if necessary)
|
Certificate
Number(s)
|
Total Number of
Warrants
Represented by
Certificate(s)
|
Total Warrants
Exchanged
|
|||||||||
|
|
||||||||||||
|
|
||||||||||||
|
Total
Warrants
|
||||||||||||
1
PLEASE
READ THE ENTIRE LETTER OF TRANSMITTAL,
INCLUDING
THE ACCOMPANYING INSTRUCTIONS, CAREFULLY
Ladies
and Gentlemen:
The
undersigned hereby exchanges the above described Warrants of China Cord Blood
Corporation (the “Company” ), a company
incorporated under the laws of the Cayman Islands and successor to Pantheon
China Acquisition Corp., a Delaware corporation, pursuant to the Company’s Offer
Letter, dated November 10, 2010, and this Letter of Transmittal (which together
constitute the “Offer”).
The Board
of Directors of the Company has extended the Offer to all holders of the
Company’s warrants (the “Warrants”) to purchase an
aggregate of up to 13,206,231 shares of the Company, par value $.0001 per share
(“Shares”), which were
issued by the Company’s predecessor Pantheon China Acquisition Corp.
(“Pantheon”) in connection with Pantheon’s initial public offering and a private
placement concurrent with Pantheon’s initial public offering, to receive one (1)
Share in exchange for every eight (8) Warrants tendered by the holders of
Warrants.
NO
SCRIPT OR FRACTIONAL SHARES WILL BE ISSUED. WARRANTS MAY ONLY BE EXCHANGED FOR
WHOLE SHARES. IN LIEU OF ISSUING FRACTIONAL SHARES, ANY HOLDER OF
WARRANTS WHO WOULD OTHERWISE HAVE BEEN ENTITLED TO RECEIVE FRACTIONAL SHARES
WILL, AFTER AGGREGATING ALL SUCH FRACTIONAL SHARES OF SUCH HOLDER, BE PAID CASH
(WITHOUT INTEREST) IN AN AMOUNT EQUAL TO SUCH FRACTIONAL PART OF A SHARE
MULTIPLIED BY THE LAST SALE PRICE OF THE SHARES ON THE NEW YORK STOCK EXCHANGE
ON THE LAST TRADING DAY PRIOR TO THE EXPIRATION DATE.
WARRANTS
NOT EXCHANGED FOR SHARES SHALL REMAIN SUBJECT TO THEIR ORIGINAL TERMS AND SHALL
EXPIRE ON DECEMBER 13, 2010.
IT
IS THE COMPANY’S CURRENT INTENTION NOT TO CONDUCT ANOTHER OFFER DESIGNED TO
INDUCE THE EXCHANGE OF THE WARRANTS. HOWEVER, THE COMPANY RESERVES
THE RIGHT TO DO SO IN THE FUTURE, AS WELL AS TO EXERCISE ITS ABILITY TO REDEEM
THE WARRANTS IF AND WHEN IT IS PERMITTED TO DO SO PURSUANT TO THE TERMS OF THE
WARRANTS.
Subject
to and effective upon acceptance of the tender of the Warrants exchanged hereby
in accordance with the terms and subject to the conditions of the Offer
(including, if the Offer is extended or amended, the terms and conditions of
such extension or amendment), the undersigned hereby agrees to subscribe for and
purchase the Shares, upon the exchange of eight (8) Warrants per one (1) Share,
as indicated on the first page of this Letter of Transmittal.
The
undersigned acknowledges that the undersigned has been advised to consult with
their own advisors as to the consequences of participating or not participating
in the Offer.
The
undersigned hereby represents and warrants to the Company that:
(a) the
undersigned has full power and authority to tender and subscribe for and
purchase all of the Shares of the Company which may be received upon exchange of
the Warrants;
(b) the
undersigned has good, marketable and unencumbered title to the Warrants, free
and clear of all security interests, liens, restrictions, charges, encumbrances,
conditional sales agreements or other obligations relating to their exchange,
sale or transfer, and not subject to any adverse claim;
(c) on
request, the undersigned will execute and deliver any additional documents the
Company deems necessary to complete the exchange of the Warrants tendered
hereby;
2
(d) the
undersigned understands that tenders of Warrants pursuant to the Offer and in
the instructions hereto will constitute the undersigned’s acceptance of the
terms and conditions of the Offer; and
(e) the
undersigned agrees to all of the terms of the Offer.
All
authorities conferred or agreed to be conferred in this Letter of Transmittal
shall survive the death or incapacity of the undersigned, and any obligation of
the undersigned hereunder shall be binding upon the heirs, personal
representatives, executors, administrators, successors, assigns, trustees in
bankruptcy, and legal representatives of the undersigned. Except as stated in
the Offer, this tender is irrevocable.
Delivery
of this Letter of Transmittal and all other documents to an address, or
transmission of instructions to a facsimile number, other than as set forth
above, does not constitute a valid delivery. Please read carefully the entire
Letter of Transmittal, including the accompanying instructions, before checking
any box below. This Letter of Transmittal is to be used only if (a) certificates
are to be forwarded herewith (or such certificates will be delivered pursuant to
a Notice of Guaranteed Delivery previously sent to the depositary) or (b)
delivery of Warrants is to be made by book-entry transfer to the depositary’s
account at The Depositary Trust Company (the “DTC”) pursuant to the
procedures set forth in the Offer to Purchase.
If you
desire to exchange Warrants pursuant to the Offer and you cannot deliver your
Warrant certificate(s) (or you are unable to comply with the procedures for
book-entry transfer on a timely basis) and all other documents required by this
Letter of Transmittal are delivered to the depositary prior to the Expiration
Date, you may tender your Warrants according to the guaranteed delivery
procedures set forth in Section 2 of the Offer Letter, ‘‘Procedure for Tendering
Warrants—A. Proper Tender of Warrants—Guaranteed Delivery.’’ See Instruction
2.
Delivery
of documents to DTC does not constitute delivery to Continental Stock Transfer
& Trust Company (the “Depositary”).
‘‘Expiration
Date’’ means 5:00 P.M., New York City time, on December 10, 2010, unless and
until the Company, in its sole discretion, extends the Offer, in which case the
‘‘Expiration Date’’ means the latest time and date at which the Offer, as
extended, expires.
3
THE
UNDERSIGNED UNDERSTANDS THAT ACCEPTANCE OF WARRANTS BY THE
COMPANY
FOR EXCHANGE WILL CONSTITUTE A BINDING AGREEMENT
BETWEEN
THE UNDERSIGNED AND THE COMPANY UPON THE TERMS AND
SUBJECT
TO THE CONDITIONS OF THE OFFER.
NOTE:
SIGNATURES MUST BE PROVIDED BELOW.
PLEASE
READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
This
Letter of Transmittal is to be completed by a holder of Warrants if either (i)
Warrant Certificates are to be forwarded with this Letter of Transmittal or (ii)
the Warrants the holder is electing to exchange are to be delivered by
book-entry transfer pursuant to the procedures set forth in the Offer Letter
under Section 2, ‘‘Procedure for Tendering Warrants—A. Proper Tendering of
Warrants—Book-Entry Delivery.’’ Delivery of documents to The
Depository Trust Company (‘‘DTC’’) or to the Company does not constitute
delivery to the Depositary.
The
undersigned hereby: (i) elects to exchange the Warrants described under
“Election to Exchange” below (Box 1); and (ii) agrees to purchase the Shares
issuable thereunder, in each case pursuant to the terms and subject to the
conditions described in the Offer Letter and this Letter of Transmittal
(including, but not limited to, the agreement to the undersigned not to offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly,
such Shares issuable thereunder; or enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of such Shares until the 46th
calendar day following the closing of such Exchange). If the undersigned holds
Warrants for beneficial owners, the undersigned represents that it has received
from each beneficial owner thereof (collectively, the “Beneficial Owners”) a duly completed and
executed form of “Instructions to Registered Holder”, a form of which is
attached to the “Letter to Clients” accompanying this Letter of Transmittal,
instructing the undersigned to take the action described in this Letter of
Transmittal. Subject to, and effective upon, the Company’s acceptance of the
undersigned’s election to exchange the Warrants described in Box 1 below, the
undersigned hereby assigns and transfers to, or upon the order of, the Company,
all right, title and interest in, to, and under the Warrants being exchanged
hereby, waives any and all other rights with respect to such Warrants and
releases and discharges the Company from any and all claims the undersigned may
have now, or may have in the future, arising out of, or related to, such
Warrants.
The
undersigned hereby irrevocably constitutes and appoints the Depositary as the
true and lawful agent and attorney-in-fact of the undersigned with respect to
the Warrants the undersigned is electing to exchange, with full power of
substitution (the power of attorney being deemed to be an irrevocable power
coupled with an interest), to deliver the Warrants the undersigned is electing
to exchange to the Company or cause ownership of such Warrants to be transferred
to, or upon the order of, the Company, on the books of the Depositary and
deliver all accompanying evidences of transfer and authenticity to, or upon the
order of, the Company upon receipt by the Company’s Depositary, as the
undersigned’s agent, of the Shares to which the undersigned is entitled upon
acceptance by the Company of the undersigned’s election to exchange Warrants
pursuant to the Offer.
Unless
otherwise indicated under “Special Issuance Instructions” below (Box 2), please
issue the Shares for the exchanged Warrants in the name(s) of the undersigned.
Similarly, unless otherwise indicated under “Special Delivery Instructions”
below (Box 3), please send or cause to be sent the certificates for the Shares
(and accompanying documents, as appropriate) to the undersigned at the address
shown above under “Description of Warrants” (on the cover page of this Letter of
Transmittal) or provide the name of the account with the Depositary or at DTC to
which the Shares should be issued.
The
undersigned understands that elections to exchange Warrants pursuant to the
procedures described under Section 1, “General Terms” in the Offer Letter and in
the instructions to this Letter of Transmittal will constitute a binding
agreement between the undersigned and the Company upon the terms of the Offer
set forth in the Offer Letter under the caption Section 1, “General Terms”, and
subject to the conditions of the Offer set forth in the Offer Letter under
Section 2.B., “Conditions of the Offer,” subject only to withdrawal of elections
to exchange on the terms set forth in the Offer Letter under Section 3,
“Withdrawal Rights.” All authority conferred in this Letter of Transmittal or
agreed to be conferred will survive the death, bankruptcy or incapacity of the
undersigned and any Beneficial Owner(s), and every obligation of the undersigned
of any Beneficial Owners under this Letter of Transmittal will be binding upon
the heirs, personal representatives, executors, administrators, successors,
assigns, trustees in bankruptcy and other legal representatives of the
undersigned and such Beneficial Owner(s).
4
The
undersigned hereby represents and warrants that it has full power and authority
to exchange, assign and transfer the Warrants the undersigned has elected to
exchange pursuant to this Letter of Transmittal. The undersigned and each
Beneficial Owner will, upon request, execute and deliver any additional
documents reasonably requested by the Company or the Company’s Depositary as
necessary or desirable to complete and give effect to the transactions
contemplated hereby.
5
NOTE:
SIGNATURES MUST BE PROVIDED BELOW.
PLEASE
READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY BEFORE
COMPLETING
THE BOXES.
|
¨
|
CHECK
HERE IF THE WARRANTS ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER, AND
COMPLETE BOX 4 BELOW.
|
|
|
Name:
|
||
|
Address:
|
||
Box
1
ELECTION
TO EXCHANGE
|
A
|
B
|
C
|
||
|
Number
of Warrants Being
Exchanged
|
Shares
to be Issued (Divide Column
A
by 8 and round DOWN to the
nearest
whole number)
|
Fractional
Shares, if any (Subtract
Column
B from the result of Column
A
divided by 8)(1)
|
||
(1) No
script or fractional shares will be issued. Warrants may only be exchanged for
whole shares. In lieu of issuing fractional shares, any holder of
warrants who would otherwise have been entitled to receive fractional shares
will, after aggregating all such fractional shares of such holder, be paid cash
(without interest) in an amount equal to such fractional part of a share
multiplied by the last sale price of the shares on the New York Stock Exchange
on the last trading day prior to the Expiration Date.
Box
2
SPECIAL
ISSUANCE INSTRUCTIONS
To be
completed ONLY if certificates for Shares purchased hereby are to be issued in
the name of someone other than the undersigned.
Issue
Share certificates:
Name(s)
(please
print)
Address(es)
6
Box
3
SPECIAL
DELIVERY INSTRUCTIONS
To be
completed ONLY if certificates for Shares of the Company purchased are to be
mailed to someone other than the undersigned, or to the undersigned at an
address other than that shown below.
Mail
Certificates to:
Name(s)
(please
print)
Address(es)
Box
4
USE
OF BOOK-ENTRY TRANSFER
To be
completed ONLY if
delivery of Warrants is to be made by book-entry transfer.
|
Name
of Tendering Institution:
|
||
|
Participant
Account Number:
|
||
|
Transaction
Code Number:
|
Box
5
EXERCISING
HOLDER SIGNATURE
PLEASE
SIGN HERE
(To
be completed by all Warrant Holders)
(U.S.
Holders Please Also Complete the Enclosed IRS Form W-9)
(Non
U.S.-Holders Please Obtain and Complete IRS Form W-8BEN or Other Applicable IRS
Form W-8)
(Signature
of Registered Holder(s) or Authorized Signatory)
Dated: ________________,
2010
(Must be
signed by the registered holder(s) exactly as name(s) appear(s) on
certificate(s) or on a security position or by person(s) authorized to become
registered holder(s) by certificate(s) and documents transmitted with his Letter
of Transmittal. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or another person acting in a
fiduciary or representative capacity, please set forth full title. See
Instruction 5.)
|
Name(s)
|
|
|
(please
print)
|
|
|
Address(es)
|
|
|
Capacity
(full title):
|
|
|
Area
Code and Telephone Number:
|
|
|
Tax
Identification or Social Security No.
|
7
GUARANTEE
OF SIGNATURE(S)
(For
use by Eligible Institutions only; see Instruction1)
|
Name
of Firm:
|
|
|
Authorized
Signature:
|
|
|
Name:
|
|
|
(please
print)
|
|
|
Title:
|
|
|
Address:
|
|
|
Area
Code and Telephone Number:
|
|
|
Dated: ________________,
2010
|
8
INSTRUCTIONS
FORMING
PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF
SIGNATURE.
No
signature guarantee is required if either:
(a) this
Letter of Transmittal is signed by the registered holder of the Warrants exactly
as the name of the registered holder appears on the certificate tendered with
this Letter of Transmittal and such owner has not completed the box entitled
‘‘Special Delivery Instructions’’ or ‘‘Special Issuance Instructions’’;
or
(b) such
Warrants are tendered for the account of a member firm of a registered national
securities exchange, a member of the Financial Industry Regulatory Authority
(FINRA) or a commercial bank or trust company (not a savings bank or savings and
loan association) having an office, branch or agency in the United States which
is a participant in an approval Signature Guarantee Medallion Program (each such
entity, an ‘‘Eligible Institution’’); or
(c) the
Holders of such Warrants reside outside of the U.S. and are not otherwise
tendering the Warrants in the U.S.
In all
other cases, an Eligible Institution must guarantee all signatures on this
Letter of Transmittal. See Instruction 5.
2. DELIVERY
OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY
PROCEDURES.
This
Letter of Transmittal is to be used only if:
|
|
·
|
certificates
for Warrants are delivered with it to the Depositary;
or
|
|
|
·
|
the
certificates will be delivered pursuant to a Notice of Guaranteed Delivery
previously sent to the Depositary;
or
|
|
|
·
|
Warrants
are exchanged pursuant to the procedure for tender by book-entry transfer
set forth in SECTION 2 of the Offer
Letter.
|
Unless
Warrants are being tendered by book-entry transfer, as described below, (a) a
properly completed and duly executed Letter of Transmittal or duly executed and
manually signed facsimile copy of it, in accordance with the instructions of the
Letter of Transmittal (including any required signature guarantees), (b)
certificates for the Warrants being exchanged, and (c) any other documents
required by the Letter of Transmittal should be mailed or delivered to the
Depositary at the appropriate address set forth on the front page of this
document and must be received by the Depositary prior to the expiration of the
Offer. If certificates are forwarded to the Depositary in multiple deliveries, a
properly completed and duly executed Letter of Transmittal must accompany each
such delivery.
Warrants
may be validly tendered pursuant to the procedures for book-entry transfer as
described in the Offer Letter. In order for Warrants to be validly tendered by
book-entry transfer, the Depositary must receive, prior to the Expiration Date,
(a) confirmation of such delivery and (b) either a properly completed and
executed Letter of Transmittal (or manually signed facsimile thereof) or an
Agent’s Message if the tendering shareholder has not delivered a Letter of
Transmittal, and (c) all documents required by the Letter of Transmittal. The
term “Agent’s Message” means a message, transmitted by DTC to, and received by,
the Depositary and forming a part of a Book-Entry Confirmation, which states
that DTC has received an express acknowledgment from the participant in DTC
exchanging the Warrants that such participant has received and agrees to be
bound by the terms of the Letter of Transmittal and that the Company may enforce
such agreement against the participant. If you are tendering by book-entry
transfer, you must expressly acknowledge that you have received and agreed to be
bound by the Letter of Transmittal and that the Letter of Transmittal may be
enforced against you.
9
If your
Warrant certificates are not immediately available, you cannot deliver your
warrants and all other required documents to the Depositary or you cannot
complete the procedure for delivery by book-entry transfer prior to the
expiration date, you may tender your Warrants pursuant to the guaranteed
delivery procedure set forth in the Offer Letter. Pursuant to such
procedure:
(i) such
tender must be made by or through an Eligible Institution;
(ii) a
properly completed and duly executed Notice of Guaranteed Delivery substantially
in the form provided by the Company (with any required signature guarantees)
must be received by the Depositary prior to the Expiration Date;
and
(iii) the
certificates for all physically delivered Warrants in proper form for transfer
by delivery, or a confirmation of a book-entry transfer into the Depositary’s
account at DTC of all Warrants delivered electronically, in each case together
with a properly completed and duly executed Letter of Transmittal (or manually
signed facsimile thereof) with any required signature guarantees (or, in the
case of a book-entry transfer, an Agent’s Message), and any other documents
required by this Letter of Transmittal, must be received by the Depositary
within three New York Stock Exchange trading days after the date the Depositary
receives such Notice of Guaranteed Delivery, all as provided in the Offer
Letter.
The
method of delivery of all documents, including Warrant certificates, the Letter
of Transmittal and any other required documents, is at the election and risk of
the tendering Warrant holder, and the delivery will be deemed made only when
actually received by the Depositary. If delivery is by mail, registered mail
with return receipt requested, properly insured, is recommended. In all cases,
sufficient time should be allowed to ensure timely delivery.
Except as
specifically permitted by the Offer Letter, no alternative or contingent
exchanges will be accepted.
3. INADEQUATE SPACE.
If the space provided in the box captioned ‘‘Description
of Warrants Exchanged’’ is inadequate, the certificate numbers and/or the number
of Warrants should be listed on a separate signed schedule and attached to this
Letter of Transmittal.
4. WARRANTS EXCHANGED.
Warrant holders who choose to participate in the Offer
may exchange some or all of such holder’s Warrants pursuant to the terms of the
Offer.
5. SIGNATURES
ON LETTER OF TRANSMITTAL.
(a) If
this Letter of Transmittal is signed by the registered holder(s) of the Warrants
tendered hereby, the signature(s) must correspond exactly with the name(s) as
written on the face of the certificate(s) without any change
whatsoever.
(b) If
the Warrants are held of record by two or more persons or holders, all such
persons or holders must sign this Letter of Transmittal.
(c) If
any tendered Warrants are registered in different names on several certificates,
it will be necessary to complete, sign and submit as many separate Letters of
Transmittal (or photocopies of it) as there are different registrations of
certificates.
10
(d) When
this Letter of Transmittal is signed by the registered holder(s) of the Warrants
listed and transmitted hereby, no endorsement(s) of certificate(s) representing
such Warrants or separate instruments of transfer are required. EXCEPT AS
OTHERWISE PROVIDED IN INSTRUCTION 1, SIGNATURE(S) ON SUCH CERTIFICATE(S) MUST BE
GUARANTEED BY AN ELIGIBLE INSTITUTION. If this Letter of Transmittal is signed
by a person other than the registered holder(s) of the certificate(s) listed,
the certificate(s) must be endorsed or accompanied by appropriate instruments of
transfer, in either case signed exactly as the name(s) of the registered
holder(s) appears on the certificate(s), and the signature(s) on such
certificate(s) or share power(s) must be guaranteed by an Eligible Institution.
See Instruction 1.
(e) If
this Letter of Transmittal or any certificate(s) or share power(s) are signed by
trustees, executors, administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and must submit proper evidence
satisfactory to the Company of the authority so to act. If the certificate has
been issued in the fiduciary or representative capacity, no additional
documentation will be required.
6. SPECIAL DELIVERY AND SPECIAL
ISSUANCE INSTRUCTIONS. If certificates for Shares
purchased upon exchange of the Warrants are to be issued in the name of a person
other than the signer of the Letter of Transmittal or if such certificates are
to be sent to someone other than the person signing the Letter of Transmittal or
to the signer at a different address, the boxes captioned ‘‘Special Issuance
Instructions’’ and/or ‘‘Special Delivery Instructions’’ on this Letter of
Transmittal must be completed as applicable and signatures must be guaranteed as
described in Instruction 1.
7. IRREGULARITIES.
All questions as to the number of Warrants to be
accepted, the validity, form, eligibility (including time of receipt) and
acceptance of any tender of Warrants will be determined by the Company in its
sole discretion, which determinations shall be final and binding on all parties,
subject to the judgment of any court. The Company reserves the absolute right to
reject any or all tenders of Warrants it determines not to be in proper form or
to reject those Warrants, the acceptance of which may, in the opinion of the
Company’s counsel, be unlawful, subject to the judgment of any court. The
Company also reserves the absolute right to waive any of the conditions of the
Offer and any defect or irregularity in the tender of any particular Warrant,
and the Company’s interpretation of the terms of the Offer (including these
instructions) will be final and binding on all parties, subject to the judgment
of any court. No tender of Warrants will be deemed to be properly made until all
defects and irregularities have been cured or waived. Unless waived, any defects
or irregularities in connection with tenders must be cured within such time as
the Company shall determine. Neither the Company nor any other person is or will
be obligated to give notice of any defects or irregularities in tenders, and
none of them will incur any liability for failure to give any such
notice.
8. SUBSTITUTE FORM W-9 AND FORM
W-8. To avoid backup withholding, a tendering
warrant holder is required to provide the Depositary with a correct Taxpayer
Identification Number (“TIN”) on Substitute Form W-9, which is provided
herewith, and to certify, under penalties of perjury, that such number is
correct and that such warrant holder is not subject to backup withholding of
U.S. federal income tax, and that such warrant holder is a U.S. person (as
defined for U.S. federal income tax purposes). If a tendering warrant
holder has been notified by the Internal Revenue Service (“IRS”) that such
warrant holder is subject to backup withholding, such warrant holder must cross
out item (2) of the Certification box of the Substitute Form W-9,
unless such warrant holder has since been notified by the IRS that such warrant
holder is no longer subject to backup withholding. Failure to provide the
information on the Substitute Form W-9 may subject the tendering warrant
holder to U.S. federal income tax withholding on payments made in lieu of
fractional shares. If the tendering warrant holder has not been issued a TIN and
has applied for one or intends to apply for one in the near future, such warrant
holder should check the box in Part 3 of the Substitute Form W-9, and
sign and date the Substitute Form W-9. If the box in Part 3 is checked
and the Depositary is not provided with a TIN by the time of payment, the
Depositary will withhold a portion of all payments to such warrant holder until
a TIN is provided to the Depositary.
Certain
warrant holders (including, among others, all corporations and certain foreign
individuals and entities) may not be subject to backup withholding. Foreign
warrant holders should submit an appropriate and properly completed IRS
Form W-8, a copy of which may be obtained from the Depositary, in order to
avoid backup withholding. Such warrant holders should consult a tax advisor to
determine which Form W-8 is appropriate. See the enclosed “Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9” for
more instructions.
11
9. QUESTIONS AND REQUESTS FOR
ASSISTANCE AND ADDITIONAL COPIES. Please direct
questions or requests for assistance, or for additional copies of the Offer
Letter, Letter of Transmittal or other materials, in writing to:
ADVANTAGE
PROXY
24925
13TH PLACE SOUTH
DES
MOINES, WA 98198
Warrant
holders and banks and brokerage firms,
please
call:
Toll
Free: 877-870-8565
Main
Phone: 206-870-8565
You may
also email your requests to
IMPORTANT:
THIS LETTER OF TRANSMITTAL (OR A PHOTOCOPY THEREOF) TOGETHER WITH WARRANT
CERTIFICATES AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE DEPOSITARY
ON OR PRIOR TO 5:00 P.M., U.S. EASTERN TIME ON THE EXPIRATION DATE (AS DEFINED
IN THE OFFER).
IMPORTANT
TAX INFORMATION
Under
U.S. federal income tax law, a warrant holder who is a U.S. person (as
defined for U.S. federal income tax purposes) surrendering Warrants must,
unless an exemption applies, provide the Depositary (as payer) with the warrant
holder’s correct TIN on IRS Form W-9 or on the Substitute Form W-9
included in this Letter of Transmittal. If the warrant holder is an individual,
the warrant holder’s TIN is such warrant holder’s Social Security number. If the
correct TIN is not provided, the warrant holder may be subject to a $50 penalty
imposed by the IRS and payments of cash to the warrant holder (or other payee)
pursuant to the Offer may be subject to backup withholding of a portion of all
payments of the purchase price.
Certain
warrant holders (including, among others, corporations and certain foreign
individuals and entities) may not be subject to backup withholding and reporting
requirements. In order for an exempt foreign warrant holder to avoid backup
withholding, such person should complete, sign and submit an appropriate
Form W-8 signed under penalties of perjury, attesting to his or her foreign
status. A Form W-8 can be obtained from the Depositary. Such warrant
holders should consult a tax advisor to determine which Form W-8 is
appropriate. Exempt warrant holders, other than foreign warrant holders, should
furnish their TIN, check the box in Part 4 of the Substitute Form W-9
and sign, date and return the Substitute Form W-9 to the Depositary in
order to avoid erroneous backup withholding. See the enclosed “Guidelines for
Certification of Taxpayer Identification Number on Substitute Form W-9” for
additional instructions.
If backup
withholding applies, the Depositary is required to withhold and pay over to the
IRS a portion of any payment made to a warrant holder. Backup withholding is not
an additional tax. Rather, the U.S. federal income tax liability of persons
subject to backup withholding will be reduced by the amount of tax withheld. If
backup withholding results in an overpayment of taxes, a refund may be obtained
from the IRS.
Purpose
of Substitute Form W-9
To
prevent backup withholding on payments that are made to a warrant holder with
respect to Shares purchased pursuant to the Offer, the warrant holder is
required to notify the Depositary of the warrant holder’s correct TIN by
completing the Substitute Form W-9 included in this Letter of Transmittal
certifying (1) that the TIN provided on the Substitute Form W-9 is
correct (or that such warrant holder is awaiting a TIN), (2) that the
warrant holder is not subject to backup withholding because (i) the warrant
holder is exempt from backup withholding, (ii) the warrant holder has not
been notified by the IRS that the warrant holder is subject to backup
withholding as a result of a failure to report all interest and dividends or
(iii) the IRS has notified the warrant holder that the warrant holder is no
longer subject to backup withholding and (3) the warrant holder is a
U.S. person (as defined for U.S. federal income tax
purposes).
12
What
Number to Give the Depositary
The
tendering warrant holder is required to give the Depositary the TIN, generally
the Social Security number or Employer Identification Number, of the record
holder of the Warrants tendered hereby. If the Shares are in more than one name
or are not in the name of the actual owner, consult the enclosed “Guidelines for
Certification of Taxpayer Identification Number on Substitute W-9” for
additional guidance on which number to report. If the tendering warrant holder
has not been issued a TIN and has applied for a number or intends to apply for a
number in the near future, such warrant holder should check the box in
Part 3 of the Substitute Form W-9, sign and date the Substitute
Form W-9 and sign and date the Certificate of Awaiting Taxpayer
Identification Number, which appears in a separate box below the Substitute
Form W-9. If the box in Part 3 of the Substitute Form W-9 is
checked and the Depositary is not provided with a TIN by the time of payment,
the Depositary will withhold a portion of all payments of the purchase price
until a TIN is provided to the Depositary. If the Depositary is provided with an
incorrect TIN in connection with such payments, the warrant holder may be
subject to a $50.00 penalty imposed by the IRS.
13
THIS
FORM MUST BE COMPLETED BY ALL TENDERING U.S. HOLDERS
|
PAYER’S
NAME:
|
|||||
|
SUBSTITUTE
FORM W-9
|
Part 1 —
PLEASE PROVIDE YOUR TIN IN THE BOX AT RIGHT AND CERTIFY BY SIGNING AND
DATING BELOW.
|
Social
Security Number or Employer Identification Number
|
|||
|
Department
of the Treasury Internal Revenue Service
Payer’s
Request for Taxpayer
Identification
Number (“TIN”)
|
CHECK
APPROPRIATE BOX:
¨ Individual/Sole
Proprietor
¨ Corporation
¨ Partnership
¨ Other
|
Part
3 —
Awaiting
TIN ¨
Part
4 —
Exempt
¨
|
|||
|
Please
fill in your name and address below.
|
Part
2 — Certification —
Under
penalties of perjury, I certify that:
|
||||
|
Name
Address
(Number and Street)
City,
State and Zip Code
|
(1)
The number shown on this form is my correct Taxpayer Identification Number
(or I am waiting for a number to be issued to me);
(2)
I am not subject to backup withholding because: (a) I am exempt from
backup withholding, or (b) I have not been notified by the Internal
Revenue Service (the “IRS”) that I am subject to backup withholding as a
result of a failure to report all interest or dividends or (c) the IRS has
notified me that I am no longer subject to backup withholding;
and
(3)
I am a U.S. Person (including a U.S. resident alien).
Certification Instructions
— You must cross out Item (2) above if you have been notified by
the IRS
|
||||
|
Signature
:
|
Date
:
|
||||
|
NOTE:
|
FAILURE
TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF
A PORTION OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW
THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL
DETAILS.
|
YOU MUST
COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE BOX IN PART 3 OF
SUBSTITUTE FORM W-9.
CERTIFICATE
OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify
under penalties of perjury that a taxpayer identification number has not been
issued to me, and either (1) I have mailed or delivered an application to
receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office, or (2) I intend to
mail or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of payment, a portion of
all reportable payments made to me will be withheld, but that such amounts will
be refunded to me if I then provide a Taxpayer Identification Number within
sixty (60) days.
|
Signature:
|
|
Date:
|
14
GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER
ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER
IDENTIFICATION NUMBER TO GIVE THE PAYER. — Social Security numbers
have nine digits separated by two hyphens: i.e., 000-00-0000. Employer
identification numbers have nine digits separated by only one hyphen: i.e.,
00-0000000. The table below will help determine the number to give the
payer.
WHAT
NAME AND NUMBER TO GIVE THE PAYER
|
|
|
|
|
For this type of account:
|
Give name and SSN of:
|
|
|
1.
|
Individual
|
The
individual
|
|
2.
|
Two
or more individuals (joint account)
|
The
actual owner of the account or, if combined funds, the first individual on
the account(1)
|
|
3.
|
Custodian
account of a minor (Uniform Gift to Minors Act)
|
The
minor(2)
|
|
4.
|
a.
The usual revocable savings trust (grantor is also
trustee)
|
The
grantor-trustee(1)
|
|
b.
So-called trust account that is not a legal or valid trust under state
law
|
The
actual owner(1)
|
|
|
5.
|
Sole
proprietorship or disregarded entity owned by an
individual
|
The
owner(3)
|
|
For
this type of account:
|
Give
name and EIN of:
|
|
|
6.
|
Disregarded
entity not owned by an individual
|
The
owner
|
|
7.
|
A
valid trust, estate or pension trust
|
The
legal entity(4)
|
|
8.
|
Corporate
or LLC electing corporate status on Form 8832
|
The
corporation
|
|
9.
|
Association,
club, religious, charitable, educational, or other tax-exempt
organization
|
The
organization
|
|
10.
|
Partnership
or multi-member LLC
|
The
partnership
|
|
11.
|
A
broker or registered nominee
|
The
broker or nominee
|
|
12.
|
Account
with the Department of Agriculture in the name of a public entity (such as
state or local government, school district, or prison) that receives
agricultural program payments
|
The
public
entity
|
|
(1)
|
List
first and circle the name of the person whose number you furnish. If only
one person on a joint account has an SSN, that person’s number must be
furnished.
|
|
(2)
|
Circle
the minor’s name and furnish the minor’s
SSN.
|
|
(3)
|
You
must show your individual name and you may also enter your business or
“DBA” name on the second name line. You may use either your SSN or EIN (if
you have one) but the IRS encourages you to use your
SSN.
|
|
(4)
|
List
first and circle the name of the trust, estate or pension trust. (Do not
furnish the TIN of the personal representative or trustee unless the legal
entity itself is not designated in the account
title.)
|
NOTE. If no name is
circled when more than one name is listed, the number will be considered to be
that of the first name listed.
15
GUIDELINES
FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER
ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING
A NUMBER
If you
don’t have a taxpayer identification number or you don’t know your number,
obtain Form SS-5, Application for a Social Security Number Card, or
Form SS-4, Application for Employer Identification Number, at the local
office of the Social Security Administration or the Internal Revenue Service and
apply for a number.
PAYEES
EXEMPT FROM BACKUP WITHHOLDING
Payees
specifically exempted from backup withholding on ALL payments include the
following:
|
|
·
|
An
organization exempt from tax under section 501(a), any IRA or a
custodial account under section 403(b)(7) if the account satisfies the
requirements of section 401(f)(2).
|
|
|
·
|
The
United States or any agency or instrumentality
thereof.
|
|
|
·
|
A
state, the District of Columbia, a possession of the United States, or any
subdivision or instrumentality
thereof.
|
|
|
·
|
A
foreign government, a political subdivision of a foreign government, or
any agency or instrumentality
thereof.
|
|
|
·
|
An
international organization or any agency or instrumentality
thereof.
|
Payees
that may be exempt from back-up withholding include the following:
|
|
·
|
A
corporation.
|
|
|
·
|
A
financial institution.
|
|
|
·
|
A
dealer in securities or commodities required to register in the U.S., the
District of Columbia or a possession of the
U.S.
|
|
|
·
|
A
real estate investment trust.
|
|
|
·
|
A
common trust fund operated by a bank under
section 584(a).
|
|
|
·
|
A
trust exempt from tax under section 664 or described in
section 4947(a)(1).
|
|
|
·
|
An
entity registered at all times under the Investment Company Act of
1940.
|
|
|
·
|
A
foreign central bank of issue.
|
|
|
·
|
A
futures commission merchant registered with the Commodity Futures Trading
Commission.
|
|
|
·
|
A
middleman known in the investment community as a nominee or
custodian.
|
Payments
of dividends and patronage dividends not generally subject to backup withholding
include the following:
|
|
·
|
Payments
to nonresident aliens subject to withholding under
section 1441.
|
|
|
·
|
Payments
to partnerships not engaged in a trade or business in the U.S. and which
have at least one nonresident
partner.
|
|
|
·
|
Payments
of patronage dividends where the amount received is not paid in
money.
|
|
|
·
|
Payments
made by certain foreign
organizations.
|
16
Payments
of interest not generally subject to backup withholding include the
following:
|
|
·
|
Payments
of interest on obligations issued by individuals. Note: You may be subject
to backup withholding if this interest is $600 or more and is paid in the
course of the payer’s trade or business and you have not provided your
correct taxpayer identification number to the
payer.
|
|
|
·
|
Payments
described in section 6049(b)(5) to non-resident
aliens.
|
|
|
·
|
Payments
on tax-free covenant bonds under
section 1451.
|
|
|
·
|
Payments
made by certain foreign
organizations.
|
|
|
·
|
Mortgage
or student loan interest paid to
you.
|
Exempt
payees described above should file Form W-9 to avoid possible erroneous
backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER
IDENTIFICATION NUMBER, WRITE “EXEMPT” ON THE FACE OF THE FORM, AND RETURN IT TO
THE PAYER. IF THE PAYMENTS ARE INTEREST, DIVIDENDS, OR PATRONAGE DIVIDENDS, ALSO
SIGN AND DATE THE FORM.
Certain
payments, other than interest, dividends, and patronage dividends, that are not
subject to information reporting, are also not subject to backup withholding.
For details, see the regulations under sections 6041, 6041A(a), 6045, and
6050A.
PRIVACY
ACT NOTICE — Section 6109 requires most recipients of dividend,
interest, or other payments to give taxpayer identification numbers to payers
who must report the payments to IRS. IRS uses the numbers for identification
purposes. Payers must be given the numbers whether or not recipients are
required to file tax returns. Payers must generally withhold a portion of
taxable interest, dividend, and certain other payments to a payee who does not
furnish a taxpayer identification number to a payer. Certain penalties may also
apply.
PENALTIES
(1) PENALTY
FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER — If you fail to
furnish your taxpayer identification number to a payer, you are subject to a
penalty of $50 for each such failure unless your failure is due to reasonable
cause and not to willful neglect.
(2) CIVIL
PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING — If you make a
false statement with no reasonable basis which results in no imposition of
backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL
PENALTY FOR FALSIFYING INFORMATION — Falsifying certifications or
affirmations may subject you to criminal penalties including fines and/or
imprisonment.
FOR
ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
17
Exhibit
99(a)(1)(C)
OF
WARRANTS OF
CHINA
CORD BLOOD CORPORATION
PURSUANT
TO THE OFFER DATED NOVEMBER 10, 2010
This
Notice of Guaranteed Delivery, or one substantially in the form hereof, must be
used to accept the Offer (as defined below) if:
|
|
•
|
Warrants are not immediately
available or Warrant holders cannot deliver Warrants to Continental Stock
Transfer & Trust Company (the “Depositary”) prior to the Expiration Date,
or
|
|
|
•
|
Time will not permit all required
documents, including a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile of the Letter of Transmittal)
and any other required documents, to reach the Depositary prior to the
Expiration Date.
|
The Offer
and the related Letter of Transmittal, as amended or supplemented from time to
time, together constitute the “Offer.”
TO: CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
BY
MAIL, HAND OR OVERNIGHT DELIVERY:
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
17
BATTERY PLACE, 8TH
FLOOR
NEW YORK,
NY 10004
BY
FACSIMILE TRANSMISSION:
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
FACSIMILE:
(212) 616-7610
CONFIRM
BY TELEPHONE: (212) 509-4000 ext. 536
This
Notice of Guaranteed Delivery, properly completed and duly executed, may be
delivered by hand, mail, overnight courier or facsimile transmission to the
Depositary. See Section 2 of the Offer Letter.
For this
notice to be validly delivered, it must be received by the Depositary at one of
the above addresses before the Offer expires. Delivery of this notice to another
address will not constitute a valid delivery. Delivery to the Company, the
information agent or the book-entry transfer facility will not be forwarded to
the Depositary and will not constitute a valid delivery.
This form
is not to be used to guarantee signatures. If a signature on a Letter of
Transmittal is required to be guaranteed by an Eligible Institution (as defined
in the Letter of Transmittal) under the instructions to the Letter of
Transmittal, such signature guarantee must appear in the applicable space
provided in the signature box on the Letter of Transmittal.
By
signing this Notice of Guaranteed Delivery, you exchange, upon the terms and
subject to the conditions described in the Offer and the related Letter of
Transmittal, receipt of which you hereby acknowledge, the number of Warrants
specified below pursuant to the guaranteed delivery procedure described in
Section 2 of the Offer Letter.
NUMBER
OF WARRANTS EXCHANGED:____________________________________
SIGNATURES
Signatures:
Name(s)
of Warrant Holders(s):_____________________________________________
(please type or print)
Certificate
Nos.:_________________________________________________________
Address:______________________________________________________________
(Include Zip Code)
Daytime
Area Code and Telephone Number:___________________________________
Date:_________________________________________________________________
If
Warrants will be delivered by book-entry transfer, provide the Account
Number.
Account
Number:________________________________________________________
GUARANTEE
OF DELIVERY
(Not
to be Used for Signature Guarantee)
The
undersigned, a bank, broker dealer, credit union, savings association or other
entity that is a member in good standing of the Securities Transfer Agents
Medallion Program or a bank, broker, dealer, credit union, savings association
or other entity which is an “eligible guarantor institution,” as that term is
defined in Rule 17Ad-15 promulgated under the Securities Exchange Act of 1934,
as amended, (each of the foregoing constituting an (“Eligible Institution”), guarantees
delivery to the Depositary of the Shares tendered, in proper form for transfer,
or a confirmation that the Warrants tendered have been delivered pursuant to the
procedure for book-entry transfer described in the Offer Letter into the
Depositary’s account at the book-entry transfer facility, in each case together
with a properly completed and duly executed Letter(s) of Transmittal (or a
facsimile(s) thereof), or an Agent’s Message in the case of a book-entry
transfer, and any other required documents, all within three New York Stock
Exchange trading days after the date of receipt by the Depositary of this Notice
of Guaranteed Delivery.
The
Eligible Institution that completes this form must communicate the guarantee to
the Depositary and must deliver the Letter of Transmittal and certificates for
Warrants to the Depositary within the time set forth above. Failure to do so
could result in a financial loss to such Eligible Institution.
Name of
Firm:___________________________________________________________
Authorized
Signature:_____________________________________________________
Name:_________________________________________________________________
(Please Print)
Title:__________________________________________________________________
Address:_______________________________________________________________
Areas
Code(s) and Telephone
Number(s):______________________________________
Dated:________________________________,
2010
NOTE:
DO NOT SEND WARRANTS WITH THIS FORM. WARRANTS SHOULD BE SENT WITH THE LETTER OF
TRANSMITTAL.
Exhibit
99 (a)(1)(D)
Offer
Letter to Exchange for Shares
by
CHINA
CORD BLOOD CORPORATION
of
up
to 13,206,231 of its Outstanding Warrants
at
an Exchange Rate of Eight (8) Warrants for One (1) Share of the
Company
THE
TENDER OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON December 10, 2010, UNLESS THE TENDER OFFER IS EXTENDED.
November
10, 2010
To
Brokers, Dealers, Commercial Banks,
Trust
Companies and Other Nominees:
Enclosed
for your consideration are the Offer Letter, dated November 10, 2010 (the “Offer Letter”), and the
related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the ‘‘Offer’’), in connection with
the offer by China Cord Blood Corporation (the “Company”), a company
incorporated under the laws of the Cayman Islands and successor to Pantheon
China Acquisition Corp., a Delaware corporation, to the holders of the Company’s
issued and outstanding public warrants (the “Warrants”) to purchase an
aggregate of 13,206,231 shares of the Company, par value $0.0001 per share (the
‘‘Shares’’), to permit,
during the Offer Period, the exchange of eight (8) Warrants for one (1)
Share. The “Offer
Period” is the period of time commencing on November 10, 2010 and ending
at 5:00 p.m. Eastern Time, on December 10, 2010, or such later date to which the
Company may extend the Offer (the “Expiration
Date”).
NO
SCRIPT OR FRACTIONAL SHARES WILL BE ISSUED. WARRANTS MAY ONLY BE EXCHANGED FOR
WHOLE SHARES. IN LIEU OF ISSUING FRACTIONAL SHARES, ANY HOLDER OF
WARRANTS WHO WOULD OTHERWISE HAVE BEEN ENTITLED TO RECEIVE FRACTIONAL SHARES
WILL, AFTER AGGREGATING ALL SUCH FRACTIONAL SHARES OF SUCH HOLDER, BE PAID CASH
(WITHOUT INTEREST) IN AN AMOUNT EQUAL TO SUCH FRACTIONAL PART OF A SHARE
MULTIPLIED BY THE LAST SALE PRICE OF THE SHARES ON THE NEW YORK STOCK EXCHANGE
ON THE LAST TRADING DAY PRIOR TO THE EXPIRATION DATE.
WARRANTS
NOT EXCHANGED FOR SHARES SHALL EXPIRE IN ACCORDANCE WITH THEIR TERMS ON DECEMBER
13, 2010 AND OTHERWISE REMAIN SUBJECT TO THEIR ORIGINAL TERMS.
IT
IS THE COMPANY’S CURRENT INTENTION NOT TO CONDUCT ANOTHER OFFER DESIGNED TO
INDUCE THE EXCHANGE OF THE WARRANTS. HOWEVER, THE COMPANY RESERVES
THE RIGHT TO DO SO IN THE FUTURE, AS WELL AS TO EXERCISE ITS ABILITY TO REDEEM
THE WARRANTS IF AND WHEN IT IS PERMITTED TO DO SO PURSUANT TO THE TERMS OF THE
WARRANTS.
Enclosed
with this letter are copies of the following documents:
|
1.
|
Letter of Transmittal, for your
use in accepting the Offer and exchanging Warrants of and for the
information of your clients;
|
|
|
|
|
2.
|
Notice of Guaranteed Delivery
with respect to Warrants, to be used to accept the Offer in the event you
are unable to deliver the Warrant certificates, together with all other
required documents, to the Depositary before the Expiration Date (as
defined in the Offer Letter), or if the procedure for book-entry transfer
cannot be completed before the Expiration Date;
and
|
|
3.
|
Form of letter that may be sent
to your clients for whose accounts you hold Warrants registered in your
name or in the name of your nominee, along with an Instruction Form
provided for obtaining such client’s instructions with regard to the
Offer.
|
Certain
conditions to the Offer are described in Sections 1 through 4 of the Offer
Letter.
We
urge you to contact your clients promptly. Please note that the Offer and
withdrawal rights will expire at 5:00 p.m., New York City Time, on December 10,
2010, unless the Offer is extended.
Other
than as described herein, the Company will not pay any fees or commissions to
any broker or dealer or other person (other than the Depositary, as described in
the Offer Letter) in connection with the solicitation of tenders of Warrants
pursuant to the tender offer. However, the Company will, on request, reimburse
you for customary mailing and handling expenses incurred by you in forwarding
copies of the enclosed tender offer materials to your clients.
Questions
regarding the Offer may be directed to Advantage Proxy, as Information Agent, at
24925 13th Place South, Des Moines, WA 98198, attention Karen Smith (telephone
number: toll Free: 877-870-8565 or 206-870-8565 and email
[email protected]) or to Continental Stock Transfer & Trust Company,
as Depositary, at 17 Battery Place, 8th Floor, New York, New York 10004
(telephone number: 212-509-4000, Ext. 536).
Very
truly yours,
China
Cord Blood Corporation
Nothing
contained in this letter or in the enclosed documents shall render you or any
other person the agent of the Company, the Depositary, or any affiliate of any
of them or authorize you or any other person affiliated with you to give any
information or use any document or make any statement on behalf of any of them
with respect to the Offer other than the enclosed documents and the statements
contained therein.
Exhibit
99 (a)(1)(E)
Offer
Letter to Exchange for Shares
by
CHINA
CORD BLOOD CORPORATION
of
up
to 13,206,231 of its Outstanding Warrants
at
an Exchange Rate of Eight (8) Warrants for One (1) Share of the
Company
THE
TENDER OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME,
ON DECEMBER 10, 2010, UNLESS THE TENDER OFFER IS EXTENDED.
To Our
Clients:
Enclosed
for your consideration are the Offer Letter, dated November 10, 2010 (the “Offer Letter”), and the
related Letter of Transmittal (which, together with any amendments or
supplements thereto, collectively constitute the “Offer”), in connection with
the offer by China Cord Blood Corporation (the “Company”), a company
incorporated under the laws of the Cayman Islands and successor to Pantheon
China Acquisition Corp., a Delaware corporation, to the holders of the Company’s
issued and outstanding public warrants (the “Warrants”) to purchase an
aggregate of 13,206,231 shares of the Company, par value $0.0001 per share (the
“Shares”), to permit,
during the Offer Period, the exchange of eight (8) Warrants for one (1)
Share. The “Offer
Period” is the period of time commencing on November 10, 2010 and
ending at 5:00 p.m. Eastern Time, on December 10, 2010, or such later date to
which the Company may extend the Offer (the “Expiration
Date”).
NO
SCRIPT OR FRACTIONAL SHARES WILL BE ISSUED. WARRANTS MAY ONLY BE EXCHANGED FOR
WHOLE SHARES. IN LIEU OF ISSUING FRACTIONAL SHARES, ANY HOLDER OF
WARRANTS WHO WOULD OTHERWISE HAVE BEEN ENTITLED TO RECEIVE FRACTIONAL SHARES
WILL, AFTER AGGREGATING ALL SUCH FRACTIONAL SHARES OF SUCH HOLDER, BE PAID CASH
(WITHOUT INTEREST) IN AN AMOUNT EQUAL TO SUCH FRACTIONAL PART OF A SHARE
MULTIPLIED BY THE LAST SALE PRICE OF THE SHARES ON THE NEW YORK STOCK EXCHANGE
ON THE LAST TRADING DAY PRIOR TO THE EXPIRATION DATE.
WARRANTS
NOT EXCHANGED FOR SHARES SHALL EXPIRE IN ACCORDANCE WITH THEIR TERMS ON DECEMBER
13, 2010 AND OTHERWISE REMAIN SUBJECT TO THEIR ORIGINAL TERMS.
IT
IS THE COMPANY’S CURRENT INTENTION NOT TO CONDUCT ANOTHER OFFER DESIGNED TO
INDUCE THE EXCHANGE OF THE WARRANTS. HOWEVER, THE COMPANY RESERVES
THE RIGHT TO DO SO IN THE FUTURE, AS WELL AS TO EXERCISE ITS ABILITY TO REDEEM
THE WARRANTS IF AND WHEN IT IS PERMITTED TO DO SO PURSUANT TO THE TERMS OF THE
WARRANTS.
You may tender and exchange some or
all of your Warrants. Please follow the instructions in
this document and the related documents, including the accompanying Letter of
Transmittal, to submit your Warrants. In addition, in the event Warrants
you wish to exchange pursuant to the Offer are included as part of a unit held
by you, you must instruct us in the accompanying letter from you to separate the
units prior to exchange.
On the
terms and subject to the conditions of the Offer, the Company will allow you to
exchange all Warrants properly tendered before the Expiration Date and not
properly withdrawn at an exchange rate of eight (8) Warrants for one (1)
Share.
We are
the owner of record of shares held for your account. As such, we are the only
ones who can exchange and tender your Warrants, and then only pursuant to your
instructions. We are sending
you the Letter of Transmittal for your information only; you cannot use it to
exchange and tender Warrants we hold for your account.
Please
instruct us as to whether you wish us to exchange any or all of the Warrants we
hold for your account on the terms and subject to the conditions of the
Offer.
Please
note the following:
|
1.
|
You
may exchange your Warrants at the rate of eight (8) Warrants for one (1)
Share of the Company.
|
|
2.
|
The
Offer is subject to certain conditions set forth in Sections 1 through 4
of the Offer Letter.
|
|
3.
|
The
Offer and withdrawal rights will expire at 5:00 p.m., New York City time,
on December 10, 2010, unless the Company extends the
Offer.
|
|
4.
|
The
Offer is for up to 13,206,231 Warrants, constituting 100% of the issued
and outstanding Warrants of the Company as of November 10,
2010.
|
|
5.
|
Tendering
Warrant holders who are registered Warrant holders or who tender their
Warrants directly to Continental Stock Transfer & Trust Company will
not be obligated to pay any brokerage
commissions.
|
|
6.
|
If
your Warrants are held as part of the Company’s outstanding Units, you
must first instruct us to separate the Units before the Warrants can be
exchanged.
|
If you
wish to have us exchange any or all of your Warrants, please so instruct us by
completing, executing, detaching and returning to us the attached Instruction
Form. If you authorize us to exchange your Warrants, we will tender for exchange
all your Warrants unless you specify otherwise on the attached Instruction
Form.
Your
prompt action is requested. Your Instruction Form should be forwarded to us in
ample time to permit us to submit a tender on your behalf before the Expiration
Date of the Offer. Please note that the Offer and withdrawal rights will expire
at 5:00 p.m., New York City time, on December 10, 2010, unless the Offer is
extended.
The Offer
is being made solely under the Offer Letter and the Letter of Transmittal and is
being made to all holders of Warrants. The Offer is not being made to, nor will
tenders be accepted from or on behalf of, holders of Warrants residing in any
jurisdiction in which the making of the tender offer or acceptance thereof would
not be in compliance with the securities, blue sky or other laws of such
jurisdiction.
The
Company’s Board of Directors has approved the Offer. However, neither the
Company’s management nor its Board of Directors, Officers, or Employees, nor the
Depositary or the Information Agent makes any recommendation to any warrant
holder as to whether to exchange or refrain from tendering and exchanging any
Warrants. The Company has not authorized any person to make any recommendation.
You should carefully evaluate all information in the Offer and should consult
your own investment and tax advisors. You must decide whether to exchange your
Warrants and, if so, how many Warrants to exchange. In doing so, you
should read carefully the information in the Offer Letter and the Letter of
Transmittal.
Instruction
Form with Respect
to
Offer
Letter to Exchange for Shares
by
CHINA
CORD BLOOD CORPORATION
of
up
to 13,206,231 of its Outstanding Warrants
at
an Exchange Rate of Eight (8) Warrants for One (1) Share of the
Company
The
undersigned acknowledges receipt of your letter and the enclosed Offer Letter,
dated November 10, 2010 (the “Offer Letter”), and the Letter
of Transmittal (which, together with any amendments or supplements thereto,
collectively constitute the ‘‘Offer’’), in connection
with the offer by China Cord Blood Corporation (the “Company”), a company
incorporated under the laws of the Cayman Islands and successor to Pantheon
China Acquisition Corp., a Delaware corporation, to the holders of the Company’s
issued and outstanding public warrants (the “Warrants”) to purchase an
aggregate of 13,206,231 shares of the Company, par value $0.0001 per share, (the
“Shares”), during the
Offer Period, to permit the exchange of eight (8) Warrants for one (1)
Share. The “Offer
Period” is the period of time commencing on November 10, 2010 and ending
at 5:00 p.m. Eastern Time, on December 10, 2010, or such later date to which the
Company may extend the Offer (the “Expiration
Date”).
The
undersigned hereby instructs you to exchange the number of Warrants indicated
below or, if no number is indicated, all Warrants you hold for the account of
the undersigned, on the terms and subject to the conditions of the
Offer.
|
o
|
(Please
check if any or all of your Warrants being exchanged are part of a Unit.)
As the Warrants you are being instructed to exchange pursuant to the Offer
are held as part of a Unit, please separate the Unit and undertake all
actions necessary to allow for the exchange of the outstanding
Warrants.
|
In
participating in the Offer, the undersigned acknowledges that: (1) the Offer is
established voluntarily by the Company, it is discretionary in nature and it may
be extended, modified, suspended or terminated by the Company as provided in the
Offer Letter; (2) the undersigned is voluntarily participating in the Offer and
is aware of the conditions of the Offer; (3) the future value of the Company’s
Shares is unknown and cannot be predicted with certainty; (4) the undersigned
has received the Offer Letter; and (5) regardless of any action that the Company
takes with respect to any or all income/capital gains tax, social security or
insurance, transfer tax or other tax-related items (“Tax Items”) related to the
tender offer and the disposition of Warrants, the undersigned acknowledges that
the ultimate liability for all Tax Items is and remains his or her sole
responsibility. In that regard, the undersigned authorizes the Company to
withhold all applicable Tax Items legally payable by the
undersigned.
(continued
on following page)
Number
of Warrants to be exchanged by you for the account of the
undersigned:
_________________
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*
|
No
script or fractional shares will be issued. Warrants may only be exchanged
for whole shares. In lieu of issuing fractional shares, any
holder of warrants who would otherwise have been entitled to receive
fractional shares will, after aggregating all such fractional shares of
such holder, be paid cash (without interest) in an amount equal to such
fractional part of a share multiplied by the last sale price of the shares
on the New York Stock Exchange on the last trading day prior to the
Expiration Date.
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**
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Unless
otherwise indicated it will be assumed that all Warrants held by us for
your account are to be exchanged
|
Signature(s):
Name(s):
(Please
Print)
Taxpayer
Identification Number:
Address(es):
(Including Zip
Code)
Area
Code/Phone Number:
Date:
,
2010
Exhibit
99 (a)(5)(E)
China
Cord Blood Corporation Commences Warrant Exchange Offer
Details
of Exchange Offer Provided
HONG KONG, China, November 10 - China
Cord Blood Corporation (NYSE: CO) (“CCBC” or “the Company”), the first
and largest cord blood bank operator in China, today commenced its previously
announced warrant exchange offer, and provided warrant holders with
participation details. The Company will offer to exchange one
ordinary share for every eight warrants. As agreed with the
underwriter of the Company’s recent public offering, persons receiving ordinary
shares in the exchange offer agree not to offer or sell such shares until the
46th
day after the consummation of the exchange offer. The warrant
exchange tender offer will continue for a period of at least 20 business days
starting from November 10, 2010, and is scheduled to expire on December 10,
2010, at 5:00pm United States Eastern Time.
Ms. Ting
Zheng, Chairperson and CEO of China Cord Blood Corporation commented, “Our
warrant exchange offer is being implemented to significantly simplify our
corporate structure, reduce the potential dilutive impact of the warrants, and
further align the interest among management, shareholders and
warrantholders.”
China
Cord Blood Corporation had approximately 13,206,231 warrants and 73,746,350
ordinary shares issued and outstanding as of November 10, 2010. The
company expects to issue 1,650,778 ordinary shares in exchange for 13,206,231
warrants, representing approximately 2.2% of the total ordinary shares issued
and outstanding. To participate in the exchange program,
warrantholders must tender their warrants in accordance with the instructions
included in the Offer Letter, no later than 5:00pm United States Eastern Time on
December 10, 2010.
Ms. Ting
Zheng concluded, “The past nine months marked several important milestones in
our corporate development history. We are excited as our operations
in Beijing and Guangdong continue to bear fruits, and our nationwide roll-up
strategy also yields astonishing achievements. In conjunction with
our simplified corporate structure and improved liquidity profile, we are
strongly convinced that shareholders will be greatly rewarded in the long
run."
About
China Cord Blood Corporation
China
Cord Blood Corporation is the first and largest cord blood banking operator in
China in terms of geographical coverage and is the only cord blood bank operator
with multiple licenses. Under the current PRC government regulations,
only one licensed cord blood bank operator is permitted to operate in each
licensed region and only seven licenses have been authorized as of
today. China Cord Blood Corporation provides cord blood collection,
laboratory testing, hematopoietic stem cell processing, and stem cell storage
services. For more information, please visit our website at
http://www.chinacordbloodcorp.com.
Important
Additional Information
The
tender offer to exchange common stock for warrants referenced in this press
release has been made pursuant to a Tender Offer Statement on Schedule TO,
containing an exchange offer statement, and other documents relating to the
tender offer (“Tender Offer Statement”), which China Cord Blood filed with the
SEC on November 10, 2010.
This
press release and the description contained herein are for informational
purposes only and are not an offer to purchase or a solicitation of an offer to
sell securities of the Company. The exchange offer described herein
has not yet been commenced. At the time the exchange offer is
commenced, the Company intends to file a tender offer statement on a Schedule TO
containing an offer to exchange, a letter of transmittal and other related
documents with the Securities and Exchange Commission (the
“SEC”). Such documents will be mailed to warrant holders of record
and will also be made available for distribution to beneficial owners of
warrants of the Company. The solicitation of offers to exchange
warrants for ordinary shares of the Company will only be made pursuant to the
offer to exchange, the letter of transmittal and related
documents. Warrant holders are advised to read the offer to exchange,
the letter of transmittal and all related documents, if and when such documents
are filed and become available, as they will contain important information about
the exchange offer and proposed warrant exchange. Security holders
can obtain these documents when they are filed and become available free of
charge from the SEC’s website at www.sec.gov. In addition, copies of
these documents and other filings containing information about the Company may
be obtained, if and when available, without charge, by directing a request to
China Cord Blood Corporation, Attention: Albert Chen, Chief Financial Officer,
at +852 3605 8180, or on the Company’s corporate website at
http://www.chinacordbloodcorp.com.
Safe
Harbor Statement
This
press release contains forward-looking statements as defined by the Private
Securities Litigation Reform Act of 1995. Forward-looking statements include
statements concerning plans, objectives, goals, strategies, future events,
performance and results of operations, and underlying assumptions and other
statements that are other than statements of historical facts. These statements
are subject to uncertainties and risks including, but not limited to, product
and service demand and acceptance, changes in technology, economic conditions,
the impact of competition and pricing, government regulation, and other risks
contained in statements filed from time to time with the Securities and Exchange
Commission. All such forward-looking statements, whether written or oral, and
whether made by or on behalf of the Company, are expressly qualified by the
cautionary statements and any other cautionary statements which may accompany
the forward-looking statements. In addition, the Company disclaims any
obligation to update any forward-looking statements to reflect events or
circumstances after the date hereof.
For
more information, please contact:
China
Cord Blood Corporation
Ms.
Joeling Law
Tel:
(+852) 3605-8180
Email:
[email protected]
ICR,
LLC
In New
York: Ashley M. Ammon or Christine Duan: 1-646-277-1227
In
Beijing: Wen Lei Zheng: +86-10-6599-7968
Exhibit
99 (d)(2)
FORM
OF LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this
“Agreement”)
dated as of November ___, 2010, is entered into among China Cord Blood
Corporation, a Cayman Islands company (“Company”)
and ________________ (the “Securityholder”).
WITNESSETH:
WHEREAS, the Company intends
to make an offer (the “Exchange
Offer”) to the holders of the Company’s public warrants (each, a “Warrant”)
for ordinary shares of the Company (“Ordinary
Shares”);
WHEREAS, as of the date
hereof, the Securityholder
beneficially owns the number of Warrants listed on the signature page hereto
(the “Securities”);
WHEREAS, the Company desires
to enter into this Agreement in connection with its efforts to consummate the
Exchange Offer, and in consideration of the value of Ordinary Shares to be
delivered to the Securityholder pursuant to the Exchange Offer, the
Securityholder has agreed to enter into this Agreement; and
NOW, THEREFORE, in
contemplation of the foregoing and in consideration of the mutual agreements,
covenants, representations and warranties contained herein and intending to be
legally bound hereby, the parties hereto agree as follows:
1. Certain
Covenants
1.1 Lock-Up. Subject to
Section 1.2, the Securityholder hereby covenants and agrees that during the term
of this Agreement, the Securityholder will not (a) directly or indirectly, sell,
transfer, assign, pledge, hypothecate, tender, encumber or otherwise dispose of
or limit its right to vote in any manner, any of the Securities, or agree to do
any of the foregoing, or (b) take any action which would have the effect of
preventing or disabling the Securityholder from performing its obligations under
this Agreement. Notwithstanding the foregoing, the Securityholder may transfer
any or all of the Securities as follows: (i) in the case of the Securityholder
that is an entity, to any subsidiary, partner, or member of the Securityholder,
and (ii) in the case of an individual Securityholder, to the Securityholder’s
spouse, ancestors, descendants or any trust for any of their benefits or to a
charitable trust; provided, however, that in any such
case, prior to and as a condition to the effectiveness of such transfer, each
person or entity to which any of such Securities or any interest in any of such
Securities is or may be transferred executes and delivers a letter to the
Company in the form described in, and otherwise complies with, the provisions of
subsection 6.4 of this Agreement.
1.2 Tender of
Securities.
(a) The
Securityholder agrees to tender the Securities to the Company in the Exchange
Offer as soon as practicable following the commencement of the Exchange Offer,
and in any event not later than ten (10) business days following the
commencement of the Exchange Offer, and so long as the Exchange Offer
substantially conforms with the terms of the Exchange Offer Documents (as
defined below and as they may be amended with the consent of the Securityholder
as provided herein), the Securityholder shall not withdraw any Securities so
tendered unless the Exchange Offer is terminated or has expired. Subject to the
terms and conditions of the Exchange Offer, the Company hereby agrees to accept
the Securities so tendered and to issue to the Securityholder one (1) Ordinary
Share for every eight (8) Warrants so tendered.
(b) The
Securityholder further agrees that when it tenders its Securities pursuant to
paragraph (a) of this Section 1.2, it will promptly deliver to the Company at
the address set forth in Section 6.9 of this Agreement, copies of all tender
documents (whether such tender is effected by execution of a Letter of
Transmittal or via instructions to a broker-dealer) together with proof of
delivery of such tender documents to the exchange agent, such that the Company
may verify and track the tender of the Securities.
1.3 Public Announcement.
The Securityholder shall consult with the Company before issuing any press
releases or otherwise making any public statements with respect to the
transactions contemplated herein and shall not issue any such press release or
make any such public statement without the approval of the Company, except as
may be required by law.
1.4 Disclosure. The
Securityholder hereby authorizes the Company to publish and disclose in any
announcement or disclosure required by the Securities and Exchange Commission
(“the “SEC”) and
in the offer documents relating to the Exchange Offer (including all documents
and schedules filed with the SEC in connection with either of the foregoing),
its identity and ownership of the Securities and the nature of its commitments,
arrangements and understandings under this Agreement; provided, however, that the Company shall
(i) afford the Securityholder a reasonable opportunity to review such public
disclosures of its identity and ownership and (ii) make any modifications or
revisions thereto reasonably requested by the Securityholder. The Company hereby
authorizes the Securityholder to make such disclosure or filings as may be
required by the SEC.
1.5 Restriction on changes to
terms of Exchange Offer. The conditions to the Exchange Offer shall be
substantially as set forth on Exhibit A. The Company shall not waive any of the
conditions or otherwise modify any material terms or conditions of the Exchange
Offer without the prior written consent of the Securityholder.
2. Representations and
Warranties of Securityholder. The Securityholder, severally and not
jointly, hereby represents and warrants to the Company, as of the date hereof
and as of the date the Company accepts tenders of Warrants pursuant to the
Exchange Offer, that:
2.1 Ownership. The
Securityholder has good and marketable title to, and is the sole legal and
beneficial owner of the Securities, in each case free and clear of all
liabilities, claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character whatsoever (collectively, “Liens”).
At the time that the Company accepts tenders of Warrants pursuant to the
Exchange Offer, the Securityholder shall have transferred and conveyed to the
Company or its designee good and marketable title to the Securities, free and
clear of all Liens created by or arising through the
Securityholder.
2
2.2 Authorization. The
Securityholder has all requisite power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby and has
sufficient voting power and sufficient power of disposition with respect to the
Securities with no restrictions on its voting rights or rights of disposition
pertaining thereto. The Securityholder has duly executed and delivered this
Agreement and this Agreement is a legal, valid and binding agreement of the
Securityholder, enforceable against the Securityholder in accordance with its
terms, subject to the qualification, however, that enforcement of the rights and
remedies created hereby is subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general application
related to or affecting creditors’ rights and to general equity
principles.
2.3 No Violation. Neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby will (a) require the Securityholder to file or
register with, or obtain any material permit, authorization, consent or approval
of, any governmental agency, authority, administrative or regulatory body, court
or other tribunal, foreign or domestic, or any other entity, or (b) violate, or
cause a breach of or default under, any material contract or agreement, any
statute or law, or any judgment, decree, order, regulation or rule of any
governmental agency, authority, administrative or regulatory body, court or
other tribunal, foreign or domestic, or any other entity or any arbitration
award binding upon the Securityholder, except for such violations, breaches or
defaults which are not reasonably likely to have a material adverse effect on
the Securityholder’s ability to satisfy its obligations under this Agreement. No
proceedings are pending which, if adversely determined, will have a material
adverse effect on any ability to vote or dispose of any of the Securities. The
Securityholder has not previously assigned or sold any of the Securities to any
third party.
2.4 The Securityholder Has
Adequate Information. The Securityholder is an “accredited investor” as
such term is defined in Regulation D under the Securities Act of 1933, as
amended (the “Securities
Act”), and has adequate information concerning the business and financial
condition of the Company to make an informed decision regarding the sale of the
Securities. The Securityholder acknowledges that the Company has not made and
does not make any representation or warranty, whether express or implied, of any
kind or character except as expressly set forth in this Agreement and in the
Exchange Offer Documents (as defined below).
2.5 No Setoff. The
Securityholder has no liability or obligation related to or in connection with
the Securities other than the obligations to the Company as set forth in this
Agreement.
3. Representations and
Warranties of the Company. The Company hereby represents and warrants to
the Securityholder, as of the date hereof and as of the date that the Company
accepts tenders of Trust Securities pursuant to the Exchange Offer,
that:
3
3.1 Authorization. The
Company has all requisite corporate power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby. The
Exchange Offer and the transactions contemplated thereby have been duly
authorized by the Company’s Board of Directors, the Company has duly executed
and delivered this Agreement and this Agreement is a legal, valid and binding
agreement of the Company, enforceable against it in accordance with its terms,
subject to the qualification, however, that enforcement of the rights and
remedies created hereby is subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general application
related to or affecting creditors’ rights and to general equity
principles.
3.2 No Violation. Neither
the execution and delivery of this Agreement by the Securityholder nor the
consummation by the Securityholder of the transactions contemplated hereby will
(i) violate any provision of the Company’s organizational documents; or (ii)
violate, or cause a breach of or default under, any material contract or
agreement, any statute or law, or any judgment, decree, order, regulation or
rule of any governmental agency, authority, administrative or regulatory body,
court or other tribunal, foreign or domestic, or any other entity or any
arbitration award binding upon the Company, except for such violations, breaches
or defaults which are not reasonably likely to have a Material Adverse Effect. A
“Material Adverse
Effect” shall mean any change, event, occurrence, effect or state of
facts that, individually, or aggregated with other such matters, is materially
adverse to, or otherwise could reasonably be expected to materially adversely
affect, the business, assets (including intangible assets), properties,
financial condition or results of operations of the Company and its subsidiaries
taken as a whole or the ability of the Company to perform its obligations under
this Agreement.
3.3 Company SEC
Documents. Since July 1, 2009, the Company has filed with the SEC all
Company SEC Documents. “Company
SEC Documents” means all forms, reports, schedules, statements and other
documents, as supplemented and amended since the time of filing through the date
hereof, required to be filed by the Company with the SEC under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”) or the
Securities Act. The Company’s Exchange Offer documents to be filed with the SEC
(as the same may be amended as provided herein, the “Exchange Offer
Documents”), when filed (and on the dates of any amending or superseding
filing) (a) taken as a whole will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading, and (b) will comply in all material
respects with the applicable requirements of the Exchange Act.
3.4 No Material Adverse
Effect. There has not occurred or become known to the Company any event,
development or circumstance since July 1, 2009 that (i) has caused or could
reasonably be expected to cause a Material Adverse Effect, or (ii) has or could
reasonably be expected to have a material adverse effect on the Company’s
ability to consummate the Exchange Offer that, in the case of clause (i) only,
has not been disclosed in the Company SEC Documents, the Exchange Offer
Documents or disclosed in writing to the Securityholder prior to the date
hereof.
3.5 No Governmental Filings,
etc. Except as required by the Exchange Act and the rules and regulations
promulgated by the SEC thereunder or pursuant to securities regulation of the
various states commonly referred to as “Blue Sky Laws”, the execution, delivery
and performance by the Company of this Agreement, the Exchange Offer and the
transactions contemplated thereby do not and shall not require any registration
or filing with, the consent or approval of, notice to, or any other action with
respect to, any Federal, state or other governmental authority or regulatory
body.
4
3.6 Issuance under Section
3(a)(9). The issuance of the Ordinary Shares in the Exchange Offer will
be exempt from registration under the Securities Act pursuant to Section 3(a)(9)
thereof. No commissions or other remuneration has been or will be paid directly
or indirectly for soliciting the exchange pursuant to the Exchange
Offer.
3.7 Issuance of Ordinary
Shares. Upon issuance pursuant to the Exchange Offer, the Ordinary Shares
issued to the Securityholder shall be duly authorized, validly issued, fully
paid and nonassessable shares of capital stock of the Company.
4. Survival of Representations
and Warranties. The respective representations and warranties of the
Securityholder and the Company contained herein shall not be deemed waived or
otherwise affected by any investigation made by the other party hereto, and each
representation and warranty contained herein shall survive the closing of the
transactions contemplated hereby until the expiration of the applicable statute
of limitations, including extensions thereof.
5. Specific Performance.
The Securityholder acknowledges that the Company will be irreparably harmed and
that there will be no adequate remedy at law for a violation of any of the
covenants or agreements of the Securityholder which are contained in this
Agreement. It is accordingly agreed that, in addition to any other remedies
which may be available to the Company upon the breach by the Securityholder of
such covenants and agreements, the Company shall have the right to obtain
injunctive relief to restrain any breach or threatened breach of such covenants
or agreements or otherwise to obtain specific performance of any of such
covenants or agreements.
6. Miscellaneous.
6.1 Term. This Agreement
shall terminate upon the earliest of (i) the consummation or earlier termination
by the Company of the Exchange Offer, (ii) the date that is ten business days
after the date hereof, if the Company has not launched the Exchange Offer by
such date, (iii) the date that is 90 calendar days after the date hereof, if the
Exchange Offer has not been consummated by such date, (iv) the filing of any
voluntary or involuntary bankruptcy or other insolvency case or proceeding
involving the Company or any of its subsidiaries or (v) the commencement of a
proceeding by any court or regulatory authority having jurisdiction over the
Company seeking to enjoin, restrict, modify or prohibit the Exchange Offer (the
“Termination
Date”). At the Termination Date, this Agreement shall thereupon become
void and be of no further force and effect, provided that nothing herein shall
relieve any party from liability hereof for breaches of this Agreement prior to
the Termination Date.
6.2 Expenses. Each of the
parties hereto shall pay its own expenses incurred in connection with this
Agreement. Each of the parties hereto warrants and covenants to the others that
it will bear all claims for brokerage fees attributable to action taken by
it.
5
6.3 Binding Effect. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective representatives and permitted
successors and assigns.
6.4 Entire Agreement.
This Agreement contains the entire understanding of the parties and supersedes
all prior agreements and understandings between the parties with respect to its
subject matter, other than prior agreements and understandings set forth in any
confidentiality agreements entered into between the Company and the
Securityholder. This Agreement may be amended only by a written instrument duly
executed by the parties hereto.
6.5 Headings. The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement. Time is
of the essence with respect to all provisions of this Agreement.
6.6 Assignment. This
Agreement shall be binding upon and inure to the benefit of the parties named
herein and their respective successors and permitted assigns. Except as provided
in Section 1.1, no party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written approval of the
other parties; provided, however, that the
Company may freely assign its rights to a direct or indirect wholly owned
subsidiary of the Company without such prior written approval but no such
assignment shall relieve the Company of any of its obligations hereunder. Any
purported assignment without such consent shall be void.
6.7 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be an
original, but each of which together shall constitute one and the same
Agreement. Delivery of an executed counterpart of a signature page by facsimile
shall be effective as delivery of a manually executed counterpart.
6.8 Notices. All notices,
requests, claims, demands and other communications hereunder shall be in writing
and shall be given (and shall be deemed to have been duly given if so given) by
delivery, telegram or telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any national courier service,
provided that any notice delivered as herein provided shall also be delivered by
telecopy at the time of such delivery. All communications hereunder shall be
delivered to the respective parties at the following addresses (or at such other
address for a party as shall be specified by like notice, provided that notices
of a change of address shall be effective only upon receipt
thereof):
If to the
Securityholder:
___________________________
___________________________
___________________________
Attention:
Tel:
Fax:
6
If to the
Company:
China
Cord Blood Corporation
48th
Floor, Bank of China Tower
1 Garden
Road, Central
Hong Kong
S.A.R.
Attention:
Albert Chen, Chief Financial Officer
Tel: (852)
3605-8180
Fax: (852)
3605-8181
6.9 Governing Law. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of New York, without regard to its principles of conflicts of
laws.
6.10 Enforceability. The
invalidity or unenforceability of any provision or provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
6.11 Further Assurances.
From time to time at or after the date accepted tendered Securities pursuant to
the Exchange Offer, at the Company’s request and without further consideration,
the Securityholder shall execute and deliver to the Company such documents and
take such action as the Company may reasonably request in order to consummate
more effectively the transactions contemplated hereby and to vest in the Company
good, valid and marketable title to the Securities, including, but not limited
to, using its best efforts to cause the appropriate transfer agent or registrar
to transfer of record the Securities.
6.12 Remedies Not
Exclusive. All rights, powers and remedies provided under this Agreement
or otherwise available in respect hereof at law or in equity will be cumulative
and not alternative, and the exercise of any thereof by either party will not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party.
6.13 Waiver of Jury Trial.
EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
[Remainder
of page intentionally left blank]
7
IN WITNESS WHEREOF, the
Company and the Securityholder have caused this Agreement to be duly executed as
of the day and year first above written.
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CHINA
CORD BLOOD CORPORATION
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By:
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Name:Albert
Chen
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Title:
Chief Financial Officer
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[SECURITY
HOLDER]
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By:
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Name:
|
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Title:
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Number of Warrants:
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8
EXHIBIT A
Conditions
of the Exchange Offer
The
Exchange Offer is conditioned upon the following:
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§
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no
action or event shall have occurred, no action shall have been taken, and
no statute, rule, regulation, judgment, order, stay, decree or injunction
shall have been promulgated, enacted, entered or enforced applicable to
the Exchange Offer or the exchange of Trust Securities for Ordinary Shares
under the Exchange Offer by or before any court or governmental regulatory
or administrative agency, authority or tribunal of competent jurisdiction,
including, without limitation, taxing authorities, that challenges the
making of the Exchange Offer or the exchange of Trust Securities for
Ordinary Shares under the Exchange Offer or would reasonably be expected
to, directly or indirectly, prohibit, prevent, restrict or delay
consummation of, or would reasonably be expected to otherwise adversely
affect in any material manner, the Exchange Offer or the exchange of Trust
Securities for Ordinary Shares under the Exchange
Offer;
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§
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there
shall not have occurred:
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§
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any
general suspension of or limitation on trading in securities on the
over-the-counter market, whether or not
mandatory,
|
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§
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a
declaration of a banking moratorium or any suspension of payments in
respect of banks by federal or state authorities in the United States,
whether or not mandatory,
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§
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a
commencement of a war, armed hostilities, a terrorist act or other
national or international calamity directly or indirectly relating to the
United States, or
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§
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in
the case of any of the foregoing existing at the time of the commencement
of the Exchange Offer, a material acceleration or worsening thereof;
and
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§
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at
least 50% of the Warrants being tendered in the Exchange
Offer.
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Subject
to the terms of the Lock-up Agreement, the Company may, in its sole and
reasonable discretion, waive any of the conditions to the Exchange Offer prior
to expiration of the Exchange Offer. The conditions to the Exchange Offer are
for the sole benefit of the Company, and may be waived at any time prior to
expiration of the exchange offer for any reason. Failure by the Company to
exercise any of its rights will not be a waiver of those rights. If the Company
waives a material condition to the Exchange Offer, it will notify holders of
securities of such waiver and hold the offer open for acceptances and
withdrawals for at least five business days after the notification of the waiver
of such condition.