UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No. 6)*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

	Qiao Yang	With a copy to:
	Fosun Industrial Co., Limited	Brian Spires
	Level 54	Baker & McKenzie LLP
	Hopewell Centre	Suite 3401, China World Tower 2
	183 Queen’s Road East	China World Trade Center
	Hong Kong	1 Jianguomenwai Dajie
	China (86)(21) 2313 8185	Beijing 100004, PRC +86 10 6535 3928

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

 

(Date of Event Which Requires Filing of this Statement)

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

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

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

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

 

 

 

(1) Number of shares is the number of shares of the Issuer’s common stock, par value $0.01.

 

(2) Fosun Industrial is a party to a Support Agreement (as defined below in Item 4), dated February 17, 2014, with the Separately Filing Persons (as defined below in Item 4), among other parties, which agreement contains, among other things, certain voting agreements and limitations on the sale of Common Shares owned by Fosun Industrial and the Separately Filing Persons. As a result, Fosun Industrial may be deemed to be a member of a “group”, within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), comprised of Fosun Industrial and the Separately Filing Persons. Common Shares listed as beneficially owned by Fosun Industrial exclude Common Shares held by any of the Separately Filing Persons, in each case as to which Fosun Industrial disclaims beneficial ownership.

 

(3) The percent of class reported is based on 17,081,744 shares of the Issuer’s Common Stock outstanding as of April 10, 2014 as provided in the Amended Merger Agreement (as defined below).

 

2

 

This Amendment No. 6 amends the Schedule 13D filed with the Securities and Exchange Commission (“SEC”) on June 17, 2010 (the “Original 13D”) by Fosun Industrial Co., Limited (“Fosun Industrial”) with respect to the common stock, par value $0.01 per share, of Chindex International, Inc. (the “Issuer”), as previously amended by Amendment No. 1 to the Original 13D filed with the SEC on July 7, 2010, Amendment No. 2 to the Original 13D filed with the SEC on July 30, 2010, Amendment No. 3 to the original 13D filed with the SEC on August 3, 2010, Amendment No. 4 to the Original 13D filed with the SEC on August 27, 2010 and Amendment No.5 to the Original 13D filed with the SEC on February 18, 2014.  Unless otherwise stated herein, the Original 13D as amended by Amendments Nos. 1, 2, 3, 4 and 5 remains in full force and effect.  Terms used therein and not defined herein have the meanings ascribed thereto in the Original 13D.

 

Item 2. Identity Background

 

Item 2 is hereby amended and restated in its entirety to read as follows:

 

This Schedule 13D is being filed by Fosun Industrial, a corporation organized under the laws of Hong Kong, China, pursuant to Rule 13d-1(k) promulgated by the SEC under Section 13 of the Exchange Act.

 

The principal business address of Fosun Industrial is Level 54, Hopewell Centre, 183 Queen’s Road East, Hong Kong, China.

 

·    Fosun Industrial is principally engaged in investment, selling and providing consulting services for Chinese and Western medicines, diagnostic reagents and medical devices, as well as import and export business. Fosun Industrial is a wholly-owned subsidiary of Shanghai Fosun Pharmaceutical (Group) Co., Ltd. (“Fosun Pharma”);

 

·    Fosun Pharma is a leading Chinese pharmaceutical company listed on The Shanghai Stock Exchange and the Stock Exchange of Hong Kong Limited. Fosun Pharma focuses on pharmaceutical manufacturing and research and development, pharmaceutical distribution and retail, healthcare services and medical diagnosis and medical devices. Fosun Pharma is a subsidiary of, and is beneficially held approximately 39.83% by Shanghai Fosun High Technology (Group) Co., Ltd. (“Fosun High Technology”);

 

·    Fosun High Technology is principally engaged in insurance, industrial operations, investment and asset management in China. Fosun High Technology is a wholly-owned subsidiary of Fosun International Limited (“Fosun International”);

 

·    Fosun International is principally engaged in businesses including insurance, industrial operations, investment and asset management. Fosun International is a Hong Kong company, the ordinary shares of which are listed on the main board of The Stock Exchange of Hong Kong Limited. Fosun International is a subsidiary of, and is beneficially held approximately 79.03% by Fosun Holdings Limited (“Fosun Holdings”);

 

·    Fosun Holdings is a holding company without any substantive operations. Fosun Holdings is a wholly-owned subsidiary of Fosun International Holdings Ltd. (“Fosun International Holdings”); and

 

·    Fosun International Holdings is a holding company without any substantive operations. Guo Guangchang controls Fosun International Holdings and could therefore be deemed as the beneficial owner of the Common Stock held by Fosun Industrial.

 

The place of organization, principal business address and principal business of Fosun Industrial, Fosun Pharma, Fosun High Technology, Fosun International, Fosun Holdings and Fosun International Holdings is set forth in Exhibit 99.1, which is attached hereto and incorporated by reference. The name, business address, present principal employment and citizenship of Mr. Guo Guangchang and each director and executive officer of Fosun Industrial, Fosun Pharma, Fosun High Technology, Fosun International, Fosun Holdings and Fosun International Holdings is also set forth in Exhibit 99.1.

 

Fosun Industrial may be deemed to be a member of a “group,” within the meaning of Section 13(d)(3) of the Exchange Act, comprised of Fosun Industrial and the Separately Filing Persons (as defined below in Item 4). It is Fosun Industrial’s understanding that the Separately Filing Persons are filing separate Schedule 13Ds pursuant to Rule 13d-1(k)(2) under the Exchange Act.

 

During the last five years, neither Fosun Industrial nor, to Fosun Industrial’s knowledge (a) any executive officer or director of Fosun Industrial; (b) any person controlling Fosun Industrial; or (c) any executive officer or director of any corporation or other person ultimately in control of Fosun Industrial has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, is or was subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

3

 

Item 4                             Purpose of Transaction

 

This Amendment amends and restates the last two paragraphs of Item 4 of the Amendment No. 5 to the Original 13D filed with the SEC on February 18, 2014 in their entirety as set forth below:

 

“Revised Proposal

 

In response to a definitive proposal from a financial bidder received by a committee of independent directors of the board of directors of the Issuer (the “Transaction Committee”) that the Transaction Committee determined to be a “Superior Proposal” under the Merger Agreement, Parent submitted a revised proposal to the Issuer just before midnight on April 17, 2014 in a letter addressed to the members of the Transaction Committee (the “Revised Proposal”).  Pursuant to the Revised Proposal, Parent proposed to acquire all of the outstanding Common Shares, other than the Common Shares to be contributed to Parent by the Rollover Investors and the additional rollover stockholders, at a price of $24.00 per share in cash.

 

Amended Merger Agreement

 

In connection with the Revised Proposal, on April 18, 2014, the Issuer entered into an amended and restated agreement and plan of merger (the “Amended Merger Agreement”) with Parent and Merger Sub, pursuant to which the terms of the Merger Agreement were amended to provide that, among other things, (i) the outstanding Common Shares (excluding (A) any Common Shares held by any of Parent, Merger Sub and any other subsidiary of Parent, including each Common Share contributed to Parent by the Rollover Investors and each Common Share contributed to Parent by the additional rollover stockholders and Common Shares held in the treasury of the Issuer or owned by any subsidiary of the Issuer and (B) any Common Shares held by a dissenting shareholder of the Issuer who shall have complied with the provisions of Section 262 of the DGCL) will be converted into the right to receive an amount in cash equal to $24.00 per Common Share, without any interest thereon, and (ii) the consummation of the Merger by the Sponsor is no longer subject to the approval of the stockholders of Fosun Pharma, the parent of Fosun Industrial (the “Fosun Stockholder Approval”).

 

Support Agreement Side Letter

 

In connection with the Revised Proposal, on April 18, 2014, the Sponsor, Ms. Lipson and Fosun Industrial entered into a side letter (the “Support Agreement Side Letter”), pursuant to which the parties agreed to amend certain of the terms of the shareholders agreement to be entered into pursuant to the Support Agreement to reflect the terms set forth in Exhibit A to the Support Agreement Side Letter.

 

4

 

Limited Guarantee Termination Agreement

 

In connection with the Revised Proposal, on April 18, 2014, Fosun Industrial entered into a termination agreement to the limited guarantee (the “Limited Guarantee Termination Agreement”) with the Issuer, pursuant to which the Limited Guarantee was terminated with immediate effect.

 

Amended and Restated Equity Commitment Letter

 

In connection with the Revised Proposal, on April 18, 2014, Fosun Industrial entered into an amended and restated equity commitment letter (the “Amended and Restated Equity Commitment Letter”) with the Issuer, pursuant to which the terms of the Equity Commitment Letter were amended to provide that, among other things, Fosun Industrial will commit to invest $159,000,000 in Parent to fund the Merger. The funding of Fosun Industrial’s commitment to Parent is subject to (i) the Fosun Stockholder Approval, (ii) the due execution and delivery of the Amended Merger Agreement by the Issuer, (iii) the satisfaction or waiver of each of the conditions to Parent’s and Merger Sub’s obligations to effect the closing set forth in Sections 7.1 and 7.2 of the Amended Merger Agreement, and (iv) the substantially simultaneous consummation of the Merger in accordance with the terms of the Merger Agreement.

 

New Waiver Agreement

 

In connection with the Revised Proposal, on April 18, 2014, Fosun Industrial entered into a new waiver agreement (the “New Waiver Agreement”) with the Issuer, pursuant to which certain actions, including (i) the execution and performance of the Amended Merger Agreement, (ii) the execution and performance of the Support Agreement Side Letter, (iii) the execution and performance of the Amended and Restated Equity Commitment Letter, (iv) the occurrence of the transactions contemplated in each of the foregoing, including, without limitation, the Merger, (v) the execution and performance of the Agreement by and among Parent, Sponsor and Fosun Industrial dated as of April 18, 2014 and (vi) the execution and performance of the other agreements and arrangements set forth in Section 5.8 of the amended and restated parent disclosure schedule to the Amended Merger Agreement shall not be a breach of the Stockholder Agreement dated as of June 14, 2010 between the Issuer, Fosun Industrial and Fosun Pharma. In addition, until such time as the Merger Agreement is terminated in accordance with its terms, Sections 2.1 and 2.2 of the Stockholder Agreement are waived to the extent that they require Fosun Industrial or Fosun Pharma to vote or grant a proxy with respect to any matter set forth in clauses (y) and (z) of Section 2.1(b)(ii) as would interfere with or prevent Fosun Industrial, Fosun Pharma or any of its affiliates from performing as required under the agreements or arrangements referred to in clauses (i) — (vi) above.

 

The Agreement by and among Parent, Sponsor and Fosun Industrial

 

In connection with the Revised Proposal, on April 18, 2014, Fosun Industrial, Parent and Sponsor entered into an agreement (the “Agreement by and among Parent, Sponsor and Fosun Industrial”), pursuant to which the funding of Fosun Industrial’s equity commitment to Parent (the “Fosun Commitment”), in accordance with the Amended and Restated Equity Commitment Letter, shall be subject to (i) the Fosun Stockholder Approval, (ii) the due execution and delivery of the Amended Merger Agreement by the Issuer, (iii) the satisfaction or waiver of each of the conditions to Parent’s and Merger Sub’s obligations to effect the closing set forth in Sections 7.1 and 7.2 of the Amended Merger Agreement, and (iv) the substantially simultaneous consummation of the Merger in accordance with the terms of the Amended Merger Agreement.

 

Pursuant to the Agreement by and among Parent, Sponsor and Fosun Industrial, if the Fosun Stockholder Approval is not obtained, Fosun Industrial and Sponsor shall, for a period of one month after Fosun Pharma’s stockholder meeting, discuss alternative arrangements relating to Fosun Industrial acquiring or investing in Parent on terms and conditions acceptable to each of them in their sole discretion.

 

In addition, pursuant to the Agreement by and among Parent, Sponsor and Fosun Industrial, if (i) the Merger is consummated and the Fosun Commitment or any alternative commitment is not funded in full for any reason, or (ii) the reverse termination fee under the Amended Merger Agreement becomes payable solely due to the breach of Fosun Industrial’s obligation to fund the Fosun Commitment, Fosun Industrial shall pay to Sponsor $30,834,000 (the “Fee”) after the effective time of the Merger or the termination of the Amended Merger Agreement, as applicable.

 

Fosun Industrial shall grant (or cause to be granted) to Sponsor a first priority security interest in all of its right, title and interest in, to the shares of the Issuer’s Common Stock beneficially owned by Fosun Industrial to secure its obligations to fund Fosun Commitment and to pay the Fee, pursuant to a share pledge agreement to be mutually agreed and entered into within 30 days of the Agreement by and among Parent, Sponsor and Fosun Industrial.

 

If the Merger is consummated and Fosun Commitment or any alternative commitment is not funded in full for any reason, Parent, Fosun Industrial and Sponsor agree that no shareholders agreement shall be entered into among them unless otherwise agreed; provided that (i) Sponsor and Fosun Industrial shall enter into an agreement reflecting the rights of Sponsor described under “Exit Provisions” of the term sheet attached to the Support Agreement, (ii) Sponsor shall grant Fosun Industrial the right to appoint one director to the board of directors of the general partner of Parent and (iii) Sponsor and Fosun Industrial shall discuss other minority rights of Fosun Industrial.

 

The Agreement by and among Parent, Sponsor and Fosun Industrial shall come into effect automatically on June 30, 2014.

 

5

 

Other than as described above, Fosun Industrial currently does not have any plans or proposals that relate to or would result in any action specified in Item 4 of this Schedule 13D. Fosun Industrial may, at any time and from time to time, formulate other purposes, plans or proposals regarding the Issuer or the Common Shares beneficially owned by Fosun Industrial, or any other actions that could involve one or more of the types of transactions or have one or more of the results described in Item 4 of Schedule 13D. The forgoing is subject to change at any time, and there can be no assurance that Fosun Industrial will take any of the actions set forth above.

 

References to and descriptions of the Merger Agreement, the Support Agreement, the Limited Guarantee, the Equity Commitment Letter, the Pipeline Letter of Commitment, the CML Agreement, the Service Fee Letter Agreement, the Waiver Agreement, the Amended Merger Agreement, the Support Agreement Side Letter, the Amended Limited Guarantee, the Amended Equity Commitment Letter, the New Waiver Agreement and the Agreement by and among Parent, Sponsor and Fosun Industrial set forth above in this Item 4 do not purport to be complete and are qualified in their entirety by reference to the full text of each of the he Merger Agreement, the Support Agreement, the Limited Guarantee, the Equity Commitment Letter, the Pipeline Letter of Commitment, the CML Agreement, the Service Fee Letter Agreement, the Waiver Agreement, the Amended Merger Agreement, the Support Agreement Side Letter, the Amended Limited Guarantee, the Amended and Restated Equity Commitment Letter, the New Waiver Agreement and the Agreement by and among Parent, Sponsor and Fosun Industrial, which have been filed as Exhibits 99.8, 99.9, 99.10, 99.11, 99.12, 99.13, 99.14, 99.15, 99.16, 99.17, 99.18, 99.19, 99.20 and 99.21 respectively, and are incorporated herein by reference.”

 

Item 5.                          Interest in Securities of the Issuer

 

Item 5 is hereby amended and restated in its entirety as follows:

 

(a) See Items 11 and 13 of the cover pages to this Amendment for the aggregate number and percentage of Common Stock that are beneficially owned by Fosun Industrial as of April 17, 2014.

 

(b) See Items 7 through 10 of the cover pages to this Amendment for the number and percentage of Common Stock beneficially owned by Fosun Industrial as of April 17, 2014 as to which there is sole or shared power to vote or direct the vote, and sole or shared power to dispose or direct the disposition.

 

Except insofar as Mr. Guo Guangchang may be deemed to beneficially own the Common Stock held by Fosun Industrial, none of the directors and officers of Fosun Industrial, Fosun Pharma, Fosun High Technology, Fosun International, Fosun Holdings or Fosun International Holdings beneficially owns any Common Stock.

 

Fosun Industrial disclaims beneficial ownership of the shares held by any of the Separately Filing Persons. The filing of this Amendment No.6 to Schedule 13D shall not be constructed as an admission that Fosun Industrial is, for the purposes of Section 13(d) of the Act or otherwise, the beneficial owner of shares held by any of the Separately Filing Persons.

 

(c) During the 60 days preceding the filing of this Amendment, Fosun Industrial has not effected any transactions in the Common Shares of the Issuer.

 

(d) No other person is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities covered by this Schedule 13D.

 

(e) Not Applicable.

 

6

 

Item 7.                          Material to be Filed as Exhibits.

 

Item 7 is hereby amended and restated in its entirety to read as follows:

 

Exhibit 99.1		List of directors and executive officers of Fosun Industrial, persons controlling Fosun Industrial and executive officers and directors of other persons in control of Fosun Industrial (filed herein).
Exhibit 99.2		Stock Purchase Agreement, dated as of June 14, 2010, by and among Fosun Industrial, Fosun Pharma and the Issuer (incorporated by reference to Exhibit 10.1 to the Issuer’s Current Report on Form 8-K filed with the SEC on June 14, 2010).
Exhibit 99.3		Stockholder Agreement, dated as of June 14, 2010, by and among Fosun Industrial, Fosun Pharma and the Issuer (incorporated by reference to Exhibit 10.2 to the Issuer’s Current Report on Form 8-K filed with the SEC on June 14, 2010).
Exhibit 99.4		Waiver Agreement, dated as of June 15, 2010, by and among Fosun Industrial, Fosun Pharma and the Issuer (incorporated herein by reference to Exhibit 99.4 to the Original 13D filed on June 17, 2010 by Fosun Industrial with the SEC).
Exhibit 99.5		Information regarding purchases by Fosun Industrial of shares of Common Stock of Chindex International, Inc. since the filing of the Original 13D (incorporated herein by reference to Exhibit 99.5 to Amendment No. 1 to the Original 13D filed on July 7, 2010 by Fosun Industrial with the SEC).
Exhibit 99.6		Information regarding purchases by Fosun Industrial of shares of Common Stock of Chindex International, Inc. since the filing of Amendment No. 1 to the Original 13D (incorporated herein by reference to Exhibit 99.6 to Amendment No. 2 to the Original 13D filed on July 30, 2010 by Fosun Industrial with the SEC).
Exhibit 99.7		Information regarding purchases by Fosun Industrial of shares of Common Stock of Chindex International, Inc. since the filing of Amendment No. 2 to the Original 13D (incorporated herein by reference to Exhibit 99.7 to Amendment No. 3 to the Original 13D filed on August 2, 2010 by Fosun Industrial with the SEC).
Exhibit 99.8		Agreement and Plan of Merger, dated February 17, 2014, by and among the Issuer, Parent and Merger Sub (incorporated herein by reference to Exhibit 2.1 to the Issuer’s Report on Form 8-K filed on February 17, 2014).
Exhibit 99.9		Support Agreement, dated February 17, 2014, by and among the Rollover Investors, Ms. Elyse Silverberg, Mr. Lawrence Pemble, Parent and Sponsor (incorporated herein by reference to Exhibit 99.9 to Amendment No. 5 to the Original 13D filed on February 18, 2014 by Fosun Industrial with the SEC).
Exhibit 99.10		Limited Guaranty, dated February 17, 2014, between Fosun Industrial and the Issuer (incorporated herein by reference to Exhibit 99.10 to Amendment No. 5 to the Original 13D filed on February 18, 2014 by Fosun Industrial with the SEC).

 

7

 

Exhibit 99.11		Equity Commitment Letter, dated February 17, 2014, from Fosun Industrial to Parent (incorporated herein by reference to Exhibit 99.11 to Amendment No. 5 to the Original 13D filed on February 18, 2014 by Fosun Industrial with the SEC).
Exhibit 99.12		Pipeline Letter of Commitment, dated February 17, 2014, from Fosun Industrial to Parent (incorporated herein by reference to Exhibit 99.12 to Amendment No. 5 to the Original 13D filed on February 18, 2014 by Fosun Industrial with the SEC).
Exhibit 99.13		CML Letter, dated February 17, 2014, from Fosun Pharma to Parent (incorporated herein by reference to Exhibit 99.13 to Amendment No. 5 to the Original 13D filed on February 18, 2014 by Fosun Industrial with the SEC).
Exhibit 99.14		Service Fee Letter Agreement, dated February 17, 2014, from Parent to Fosun Industrial (incorporated herein by reference to Exhibit 99.14 to Amendment No. 5 to the Original 13D filed on February 18, 2014 by Fosun Industrial with the SEC).
Exhibit 99.15		Waiver Agreement, dated February 17, 2014, by and among Fosun Industrial, Fosun Pharma and the Issuer (incorporated herein by reference to Exhibit 99.15 to Amendment No. 5 to the Original 13D filed on February 18, 2014 by Fosun Industrial with the SEC).
Exhibit 99.16		Amended and Restated Agreement and Plan of Merger, dated April 18, 2014, by and among Issuer, Parent and Merger Sub (incorporated herein by reference to Exhibit 2.1 to the Issuer’s Report on Form 8-K filed with the SEC on April 21, 2014).
Exhibit 99.17		Support Agreement Side Letter, dated April 18, 2014, among Fosun Industrial, Sponsor and Roberta Lipson (filed herein).
Exhibit 99.18		Termination Agreement to the Limited Guarantee, dated April 18, 2014, between Fosun Industrial and the Issuer (filed herein).
Exhibit 99.19		Amended and Restated Equity Commitment Letter, dated April 18, 2014, from Fosun Industrial to the Issuer (filed herein).
Exhibit 99.20		New Waiver Agreement, dated April 18, 2014, between Fosun Industrial, Parent and Fosun Pharma (filed herein).
Exhibit 99.21		The Agreement, dated April 18, 2014, among Fosun Industrial, Parent and Sponsor (filed herein).

 

8

 

SIGNATURE

 

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

 

 

			Dated:  April 21, 2014
	FOSUN INDUSTRIAL CO., LIMITED
	By:	/s/Qiyu Chen
		Qiyu Chen
		Chairman of the Board of Directors

 

9

Exhibit 99.1

 

DIRECTORS AND EXECUTIVE OFFICERS OF FOSUN INDUSTRIAL,

PERSONS CONTROLLING FOSUN INDUSTRIAL AND EXECUTIVE OFFICERS AND DIRECTORS

OF OTHER PERSONS IN CONTROL OF FOSUN INDUSTRIAL

 

Fosun Industrial is a corporation organized under the laws of Hong Kong with its principal business address at Level 54, Hopewell Centre, 183 Queen’s Road East, Hong Kong SAR. The telephone number of Fosun Industrial’s principal executive office is (+86) 21 2313 8185. Fosun Industrial is principally engaged in investment, selling and providing consulting services for Chinese and Western medicines, diagnostic reagents and devices as well as import and export business.

 

The name, business address, present principal employment and citizenship of each director and executive officer of Fosun Industrial is set forth below.

 

Fosun Industrial

 

Name		Business Address		Present Principal Employment		Citizenship
Qiyu Chen		No.2 East Fuxing Road, Shanghai, China		Chairman of the Board of Directors		China
Fang Yao		No.2 East Fuxing Road, Shanghai, China		Director		China
Xiaohui Guan		No.2 East Fuxing Road, Shanghai, China		Director		China

 

Fosun Industrial is a wholly owned subsidiary of Fosun Pharma. Fosun Pharma is a corporation organized under the laws of People’s Republic of China and listed on both the Shanghai Stock Exchange and The Stock Exchange of Hong Kong Limited with its principal business address at No. 2 East Fuxing Road, Shanghai, China. The telephone number of Fosun Pharma’s principal executive office is (8621) 2313 8000. Fosun Pharma is principally engaged in Bio-chemical products, reagents, biological “four-tech” service, manufacture and sale of self-developed products, instruments and apparatuses, electronic products, computer, chemical raw materials (except dangerous products), consulting service, exportation business on self-produced products and their related technologies, and importation business on any required materials, equipments, instruments and apparatuses, accessories and technologies, related with self-produced products.

 

The name, business address, present principal employment and citizenship of each director and executive officer of Fosun Pharma is set forth below.

 

Fosun Pharma

 

Name		Business Address		Present Principal Employment		Citizenship
Qiyu Chen		No.2 East Fuxing Road, Shanghai, China		Chairman of the Board of Directors and Executive Director		China
Fang Yao		No.2 East Fuxing Road, Shanghai, China		Vice Chairman of the Board of Directors, Executive Director and President		China
Qunbin Wang		No.2 East Fuxing Road, Shanghai, China		Non-executive Director		China
Guangchang Guo		No.2 East Fuxing Road, Shanghai, China		Non-executive Director		China
Guozheng Zhang		No.2 East Fuxing Road, Shanghai, China		Non-executive Director		China
Pinliang Wang		No.2 East Fuxing Road, Shanghai, China		Non-executive Director		China
Lan Kang		No.2 East Fuxing Road, Shanghai, China		Non-executive Director		China
Jiong Han		19F, One Lujiazui, 68 Yin Cheng Road Middle, Shanghai, China		Independent Non-executive Director		China
Weijiong Zhang		Room 305, the First Teaching Building, No.699, Hongfeng Road, Shanghai, China		Independent Non-executive Director		China
Li Man-Kiu Adrian David		18/F, 10 Des Voeux Road Central, Hong Kong		Independent Non-executive Director		U.K.
Huimin Cao		No. 2800 Wenxiang Road, Shanghai, China		Independent Non-executive Director		China

 

Fosun Pharma is beneficially held approximately 39.83% by Fosun High Technology. Fosun High Technology is a corporation organized under the laws of People’s Republic of China with its principal business address at No.2 East Fuxing Road, Shanghai, China. The telephone number of Fosun High Technology’s principal executive office is (8621) 2315 6666. Fosun High Technology is principally engaged in insurance, industrial operations, investment and asset management in China.

 

The name, business address, present principal employment and citizenship of each director and executive officer of Fosun High Technology is set forth below.

 

Fosun High Technology

 

Name		Business Address		Present Principal Employment		Citizenship
Guangchang Guo		No.2 East Fuxing Road, Shanghai, China		Chairman of the Board		China
Xinjun Liang		No.2 East Fuxing Road, Shanghai, China		Vice Chairman of the Board and Chief Executive Officer		China
Qunbin Wang		No.2 East Fuxing Road, Shanghai, China		Director and President		China
Wei Fan		No.2 East Fuxing Road, Shanghai, China		Director
Guoqi Ding		No.2 East Fuxing Road, Shanghai, China		Director, Chief Financial Officer and Senior Vice President		China
Xuetang Qin		No.2 East Fuxing Road, Shanghai, China		Director and Senior Vice President		China
Ping Wu		No.2 East Fuxing Road, Shanghai, China		Director and Senior Vice President		China

 

 

Fosun High Technology is a subsidiary of Fosun International. Fosun International is a corporation organized under the laws of Hong Kong with its principal business address at Room 808, ICBC Tower, 3 Garden Road, Central, Hong Kong. Fosun International’s ordinary shares are listed on the main board of The Stock Exchange of Hong Kong Limited. The telephone number of Fosun International’s principal executive office is 852-25093228. Fosun International is principally engaged in businesses including insurance, industrial operations, investment and asset management.

 

The name, business address, present principal employment and citizenship of each director and executive officer of Fosun International is set forth below.

 

Fosun International

 

Name		Business Address		Present Principal Employment		Citizenship
Guangchang Guo		No.2 East Fuxing Road, Shanghai, China		Executive Director, Chairman of the Board		China
Xinjun Liang		No.2 East Fuxing Road, Shanghai, China		Executive Director, Vice Chairman of the Board and Chief Executive Officer		China
Qunbin Wang		No.2 East Fuxing Road, Shanghai, China		Executive Director and President		China
Wei Fan		No.2 East Fuxing Road, Shanghai, China		Non-executive Director		China
Guoqi Ding		No.2 East Fuxing Road, Shanghai, China		Executive Director, Senior Vice President and Chief Financial Officer		China
Xuetang Qin		No.2 East Fuxing Road, Shanghai, China		Executive Director and Senior Vice President		China
Ping Wu		No.2 East Fuxing Road, Shanghai, China		Executive Director and Senior Vice President		China
Shengman Zhang		50/F Citibank Tower, Citibank Plaza,3 Garden Road, Hong Kong		Independent Non-executive Director of Fosun International; Chairman of Asia Pacific of Citigroup		Hong Kong
Andrew Y. Yan		Rooms 2516-2520, Two Pacific Place, Hong Kong		Independent Non-executive Director of Fosun International; Managing partner of SAIF Partners		Hong Kong
Huaqiao Zhang		Room 805, Diamond Business Building (North Tower), 23 Gongyi Road, Huadu District, Guangzhou, China		Independent Non-executive Director of Fosun International; Director of Guangzhou Huadu Wansui Micro Credit Co, Ltd.;		Hong Kong
David T. Zhang		26th Floor, Gloucester Tower, The Landmark 15 Queen’s Road Central, Hong Kong		Independent Non-executive Director of Fosun International; Partner of Kirkland & Ellis LLP		Hong Kong

 

Fosun International is a subsidiary of Fosun Holdings. Fosun Holdings is a corporation organized under the  laws of Hong Kong with its principal business address at Room 808, ICBC Tower, 3 Garden Road, Central, Hong Kong. The telephone number of Fosun Holdings’ principal executive office is 852-25093228. Fosun Holdings is principally engaged in investment holding.

 

The name, business address, present principal employment and citizenship of each director and executive officer of Fosun Holdings is set forth below.

 

Fosun Holdings

 

Name		Business Address		Present Principal Employment		Citizenship
Guangchang Guo		No.2 East Fuxing Road, Shanghai, China		Director		China

 

Fosun Holdings is a subsidiary of Fosun International Holdings. Fosun International Holdings is a corporation organized under the laws of British Virgin Islands with its principal business address at Akara Building, 24 De Castro Street, Wickhams Cay I, Road Town, Tortola, British Virgin Islands. The telephone number of Fosun International Holdings’ principal executive office is 852-25093228. Fosun International Holdings is principally engaged in investment holding.

 

The name, business address, present principal employment and citizenship of each director and executive officer of Fosun International Holdings is set forth below.

 

Fosun International Holdings

 

Name		Business Address		Present Principal Employment		Citizenship
Guangchang Guo		No.2 East Fuxing Road, Shanghai, China		Director		China

 

Fosun International Holdings is owned 58% by Guangchang Guo with the remaining shares owned 22% by Xinjun Liang, 10% by Qunbin Wang and 10% by Wei Fan. Guangchang Guo’s principal business address is No. 2 East Fuxing Road, Shanghai, China. He is a citizen of China. His present principal employment includes executive director and chairman of Fosun International, director of both Nanjing Nangang Iron & Steel United Co., Ltd., Shanghai Forte Land Co., Ltd., Peak Reinsurance Company Limited and Club Méditerranée S.A. and non-executive director of Fosun Pharma and China Minsheng Banking Corp., Ltd.

 

Exhibit 99.17

 

Fosun Industrial Co., Limited

c/o Shanghai Fosun Pharmaceutical Group Co., Ltd.
9th Floor, No.2 East Fuxing Road,
Shanghai 200010, PRC
Attention: Qiao Yang

 

Roberta Lipson

c/o Chindex International, Inc.
4340 East West Highway
Bethesda, MD 20814
Attention: Chief Executive Officer and Corporate Secretary

 

April 18, 2014

 

Ladies and Gentlemen:

 

Reference is made to the Support Agreement (as may be amended, supplemented and restated from time to time, the “Support Agreement”), dated as of February 17, 2014, by and among Healthy Harmony Holdings, L.P., a Cayman Islands limited partnership (“Parent”), TPG Asia VI, L.P. (“Sponsor”) and the existing shareholders of Chindex International, Inc., a Delaware corporation (the “Company”), named therein. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Support Agreement.

 

Whereas, pursuant to Section 9(a) of the Support Agreement, Sponsor, Ms. Roberta Lipson and Significant Stockholder agree to promptly following the date of the Support Agreement use their reasonable best efforts to negotiate and enter into a shareholders agreement (the “Shareholders Agreement”) which shall reflect the terms set forth in the Term Sheet attached as Exhibit B to the Support Agreement.

 

Whereas, Sponsor, Ms. Roberta Lipson and Significant Stockholder agree to amend the Shareholders Agreement to reflect the terms set forth in the term sheet attached hereto as Exhibit A.

 

NOW, THEREFORE, Sponsor, Ms. Roberta Lipson and Significant Stockholder hereby agree as follows:

 

1. Amendment of the Shareholders Agreement.  Promptly following the execution of the Shareholders Agreement, Sponsor, Ms. Roberta Lipson and Significant Stockholder shall amend the Shareholders Agreement to reflect the terms set forth in the term sheet attached hereto as Exhibit A.

 

 

Please indicate your agreement to the foregoing by signing and returning to the undersigned a copy of this letter agreement.

 

	Very truly yours,
	TPG ASIA VI, L.P.
	By: TPG Asia GenPar VI, L.P., its general partner
	By: TPG Asia GenPar VI Advisors, Inc., its general partner
	By:		/s/ Ronald Cami
		Name:	Ronald Cami
		Title:	Vice President

 

Accepted and agreed:

 

Fosun Industrial Co., Limited
By:	/s/ Qiyu Chen
	Name:	Qiyu Chen
	Title:	Chairman of the Board of Directors
Roberta Lipson
By:	/s/ Roberta Lipson

 

[Signature Page to Letter Agreement]

 

 

EXHIBIT A

 

Term Sheet

 

Exhibit 99.18

 

TERMINATION AGREEMENT TO THE LIMITED GUARANTEE

 

This Termination Agreement (the “Termination Agreement”), dated as of April 18, 2014, is entered by and between Fosun Industrial Co., Limited, a corporation organized under the laws of Hong Kong (the “Guarantor”), and Chindex International, Inc., a Delaware corporation (the “Guaranteed Party”). The Guarantor and the Guaranteed Party are collectively referred to as the “Parties” or individually as a “Party” as the context may require.

 

WHEREAS, the Guarantor entered into an limited guarantee (the “Limited Guarantee”), dated as of February 17, 2014, in favor of the Guaranteed Party.

 

WHEREAS, the Parties intend to terminate the Limited Guarantee subject to the terms and conditions herein.

 

NOW, THEREFORE, the Parties herby agree as follows:

 

1.              Notwithstanding any provision in the Limited Guarantee (including but not limited to Section 8 of the Limited Guarantee), the Parties agree to terminate the Limited Guarantee with immediate effect from the date of this Agreement.

 

2.              Each Party hereby irrevocably and unconditionally releases and discharges each of the other Parties from any and all obligations, liabilities, losses, damages, demands, claims, suits or actions of whatsoever nature arising from or in any way relating to the Limited Guarantee.

 

[Remainder of page intentionally left blank]

 

 

IN WITNESS WHEREOF, the Parties have duly executed this Agreement on the date set out above.

 

	FOSUN INDUSTRIAL CO., LIMITED
	By:	/s/Qiyu Chen
	Name:	Qiyu Chen
	Title:	Chairman of the Board of Directors

 

[TERMINATION AGREEMENT TO THE LIMITED GUARANTEE SIGNATURE PAGE]

 

 

	CHINDEX INTERNATIONAL, INC.
	By:	/s/ Kenneth A. Nilsson
	Name:	Kenneth A. Nilsson
	Title:	Chairman of the Board of Directors

 

[TERMINATION AGREEMENT TO THE LIMITED GUARANTEE SIGNATURE PAGE]

 

Exhibit 99.19

 

April 18, 2014

 

Healthy Harmony Holdings, L.P.

 

c/o TPG Capital, L.P.
345 California Street, Suite 3300, San Francisco, CA 94104
Attention: Ronald Cami, Esq.
Telephone No.: (415) 743-1532
Facsimile No.: (415) 743-1501

Email address: rcami@tpg.com

 

Ladies and Gentlemen:

 

This letter agreement (this “Agreement”) amends and restates the letter agreement entered into between Fosun Industrial Co., Limited, a corporation organized under the laws of Hong Kong (“Significant Stockholder”), and Healthy Harmony Holdings, L.P., a Cayman Islands limited partnership (“Parent”), on February 17, 2014, and sets forth the commitments of Significant Stockholder, subject to the terms and conditions contained herein, to purchase, directly or indirectly, certain limited partnership interests of Parent.  It is contemplated that, pursuant to that certain Amended and Restated Agreement and Plan of Merger (as further amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), dated as of the date hereof, by and among Chindex International, Inc., a Delaware corporation (the “Company”), Parent and Healthy Harmony Acquisition, Inc., a Delaware corporation and a wholly-owned Subsidiary of Parent (“Merger Sub”), Merger Sub will be merged with and into the Company (the “Merger”), with the Company being the surviving entity of such Merger and a wholly-owned subsidiary of Parent.  Concurrently with the delivery of this Agreement, TPG Asia VI, L.P. , a Cayman Islands limited partnership (“Sponsor”), is entering into a letter agreement (the “Other Equity Commitment Letter”) committing to invest in Parent.  Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

 

1.                                      Commitments.  The Significant Stockholder hereby commits (its “Commitment”), subject to the terms and conditions set forth herein, that, at or prior to the Closing, it shall purchase, or shall cause the purchase of, directly or indirectly through one or more intermediate entities, limited partnership interests of Parent (“LP Interests”) with an aggregate purchase price of $159,000,000, at a price per LP Interest equal to the price per LP Interest paid by Sponsor at the Closing, solely to (i) fund all amounts required to be paid by the Parent pursuant to Sections 3.2(a) and 3.4(a) of the Merger Agreement, (ii) fund other payment obligations of Parent and Merger Sub required to be performed prior to and including the Effective Time under the Merger Agreement  and (iii) pay all fees and expenses required to be paid by Parent pursuant to the Merger Agreement; provided, that the Significant Stockholder shall not, under any circumstances, be obligated under this Agreement to contribute more than the Commitment to Parent.

 

 

2.                                      Conditions.  The funding of Significant Stockholder’s Commitment shall be subject to (i) Shanghai Fosun Pharmaceutical (Group) Co., Ltd., a corporation incorporated under the Laws of China and the parent company of Significant Stockholder (“Significant Stockholder Parent”), having obtained the approval of the Transactions and the transactions contemplated by this Agreement by the stockholders of Significant Stockholder Parent at a duly convened general meeting (the “Significant Stockholder Parent’s Meeting”) of stockholders of Significant Stockholder Parent (the “Requisite Significant Stockholder Stockholder Approval”), (ii) the due execution and delivery of the Merger Agreement by the Company, (iii) the satisfaction or waiver of each of the conditions to Parent’s and Merger Sub’s obligations to effect the Closing set forth in Sections 7.1 and 7.2 of the Merger Agreement (in each case, other than any conditions that by their nature are to be satisfied at the Closing, but subject to the prior or substantially concurrent satisfaction or waiver of such conditions), and (iv) the substantially simultaneous consummation of the Merger in accordance with the terms of the Merger Agreement.

 

3.                                      Parties in Interest; Third Party Beneficiaries.  The parties hereto hereby agree that, except as otherwise agreed between Significant Stockholder and Sponsor, their respective agreements and obligations set forth herein are solely for the benefit of the other party hereto and its respective successors and permitted assigns, in accordance with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any Person other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the obligations set forth herein.

 

4.                                      Enforceability.  This Agreement may only be enforced by Parent in accordance with the Support Agreement.

 

5.                                      No Modification; Entire Agreement.  This Agreement may not be amended or otherwise modified without the prior written consent of Parent and Significant Stockholder.  Together with the Merger Agreement, the Guarantee, the Other Equity Commitment Letter, the Support Agreement, a Side Letter to the Support Agreement, dated as of April 18, 2014, an Agreement by and among Sponsor, Parent and Significant Stockholder, dated as of April 18, 2014, the Confidentiality Agreement (as amended, supplemented or waived from time to time), the Confidentiality Agreement dated July 27, 2013, by and among the Company, Significant Stockholder Parent and Significant Stockholder, the Waiver and Confidentiality Agreement dated August 19, 2013, by and among the Company, Significant Stockholder Parent and Significant Stockholder, the Waiver Agreement, dated as of February 17, 2014, between the Company, Significant Stockholder Parent and Significant Stockholder, and the Waiver Agreement, dated as of April 18, 2014, by and among the Company, Significant Stockholder Parent and Significant Stockholder, this Agreement constitutes the sole agreement, and supersedes all prior agreements, understandings and statements, written or oral, between Significant Stockholder or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, with respect to the transactions contemplated hereby.  Except as expressly permitted in Section 2 hereof, no transfer of any rights or obligations hereunder shall be permitted without the consent of Parent and Significant Stockholder.  Any transfer in violation of the preceding sentence shall be null and void ab initio.

 

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6.                                      Governing Law; Arbitration.

 

(a)                                 This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware that apply to agreements made and performed entirely within the State of Delaware, without regard to the conflicts of laws provisions thereof or of any other jurisdiction.

 

(b)                                 Any dispute, controversy, difference or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to it shall be referred to and finally resolved by arbitration administered by the Hong Kong International Arbitration Centre (“HKIAC”) under the HKIAC’s Administered Arbitration Rules in force when the Notice of Arbitration is submitted (it being understood and agreed that any Proceeding arising out of or relating to the Merger Agreement, the Support Agreement, the Guarantee for Sponsor and the Equity Commitment Letter for Sponsor shall be referred to and finally resolved by litigation in accordance with the provisions thereof).  The seat of the arbitration shall be Hong Kong.  The arbitral tribunal shall consist of three arbitrators; each party shall appoint one arbitrator and the third arbitrator, who shall act as the presiding arbitrator, shall be appointed by the two party appointed arbitrators.  Each arbitrator shall be an experienced U.S. qualified attorney. If no agreement can be reached within the time period required by HKIAC, the presiding arbitrator shall be appointed by HKIAC.  The arbitral award shall be non-appealable, final and binding upon both parties. The arbitration proceedings shall be conducted in English. The arbitral tribunal is hereby expressly authorized to establish such extension period as referred to in the fourth sentence of Section 9.13 (a) of the Merger Agreement as it may deem appropriate.  This arbitration agreement shall be governed by the laws of Hong Kong, without regard to the conflict of laws provisions thereof or any other jurisdiction.

 

7.                                      Counterparts.  This Agreement may be executed in two (2) or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when each party has received counterparts signed by each of the other parties, it being understood and agreed that delivery of a signed counterpart of this Agreement by facsimile transmission or by email shall constitute valid and sufficient delivery thereof.

 

8.                                      Confidentiality.  This Agreement shall be treated as confidential and is being provided to Parent and the Company solely in connection with the Merger.  Except as otherwise agreed between Significant Stockholder and Sponsor, this Agreement may not be used, circulated, quoted or otherwise referred to in any document by Parent or the Company except with the prior written consent of Significant Stockholder in each instance; provided, that no such written consent is required for any disclosure of the existence or content of this Agreement  (i) to the extent required by applicable Law, the rules of any applicable securities exchange, or in connection with any SEC filing relating to the Merger, the Guarantee or the Merger Agreement (provided, that Parent or the Company, as applicable, will provide Significant Stockholder an opportunity to review such required disclosure in advance of such public disclosure being made), (ii) in connection with any Proceeding related to the enforcement of the terms of this Agreement, the Guarantee or the Merger Agreement or seeking the specific performance of the obligations of Significant Stockholder under this Agreement or (iii) to Parent’s or the Company’s Representatives.

 

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9.                                      Termination.  Except as otherwise agreed between Significant Stockholder and Sponsor, the obligation of Significant Stockholder under or in connection with this Agreement will terminate automatically and immediately upon the earliest to occur of (a) the consummation of the Closing (at which time all such obligations shall be discharged, but subject to the performance of such obligations), (b) the termination of the Merger Agreement pursuant to its terms, (c) the Company or any of its Affiliates accepting all of the Parent Termination Fee pursuant to the Merger Agreement (plus any expense reimbursement due thereunder) or accepting payment in full from the Guarantor (as defined in the Guarantee) under the Guarantee in respect of such obligations, (d) the date and time, after April 25, 2014 that either party gives notice to the other if the Merger Agreement has not yet been executed by the Company by the time of such notice and (e) the effectiveness of a mutual agreement of the parties hereto to terminate this Agreement.

 

10.                               No Assignment.  The Commitments evidenced by this Agreement shall not be assignable, in whole or in part, by Parent without the Significant Stockholder’s prior written consent, and the granting of such consent in a given instance shall be solely in the discretion of Significant Stockholder and, if granted, shall not constitute a waiver of this requirement as to any subsequent assignment.  Any purported assignment of this Agreement or the Commitment in contravention of this Section 11 shall be null and void ab initio.

 

11.                               Representations and Warranties.  Significant Stockholder hereby represents and warrants to Parent that (a) it is a corporation duly formed, validly existing and in good standing under the laws of Hong Kong, (b) it has all corporate power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, subject to the receipt of the Requisite Significant Stockholder Stockholder Approval, (c) the execution, delivery and performance of this Agreement by it have been duly and validly authorized and approved by all necessary limited partnership, corporate or other organizational action, and no other actions or proceedings on the part of Significant Stockholder are necessary to authorize the execution and delivery by Significant Stockholder of this Agreement and the consummation of the transactions contemplated hereby, in each case except for the Requisite Significant Stockholder Stockholder Approval, (d) this Agreement has been duly and validly executed and delivered by it and, assuming the receipt of the Requisite Significant Stockholder Stockholder Approval, constitutes a valid and legally binding obligation of it, enforceable against it in accordance with the terms of this Agreement, (e) it has uncalled capital commitments or otherwise has available funds in excess of the sum of its Commitment hereunder plus the aggregate amount of all other commitments and obligations it currently has outstanding and (f) the execution, delivery and performance by Significant Stockholder of this Agreement, assuming the receipt of the Requisite Significant Stockholder Stockholder Approval, do not (i) violate the organizational documents of Significant Stockholder, (ii) violate any applicable Law or judgment or (iii) result in a violation or breach of, or constitute a default under any Contract to which Significant Stockholder is a party or by which it or its properties or assets may be bound.

 

[remainder of the page intentionally left blank — signature page follows]

 

4

 

	Sincerely,
	FOSUN INDUSTRIAL CO., LIMITED
	By:	/s/Qiyu Chen
	Name:	Qiyu Chen
	Title:	Chairman of the Board of Directors

 

[Signature page to Equity Commitment Letter (Fosun)]

 

 

Agreed to and accepted:
HEALTHY HARMONY HOLDINGS, L.P.
By: Healthy Harmony GP, Inc., its general partner
By:	/s/ Ronald Cami
Name:	Ronald Cami
Title:	Vice President

 

[Signature page to Equity Commitment Letter (Fosun)]

 

Exhibit 99.20

 

WAIVER AGREEMENT

 

This WAIVER AGREEMENT, dated as of April 18, 2014 (this “Agreement”), is by and among Chindex International, Inc., a Delaware corporation (the “Company”), Fosun Industrial Co., Limited, a Hong Kong corporation (the “Investor”), and Shanghai Fosun Pharmaceutical (Group) Co., Ltd., a Chinese corporation (the “Warrantor”).

 

W I T N E S S E T H:

 

WHEREAS, the Company, the Investor and the Warrantor are parties to a stockholder agreement, dated as of June 14, 2010 (the “Stockholder Agreement”) and desire to waive to a limited extent certain provisions thereof;

 

WHEREAS, the Company, Healthy Harmony Holdings, L.P., a Cayman Islands limited partnership (“Parent”), and Healthy Harmony Acquisition, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), entered into an agreement and plan of merger, dated as of February 17, 2014 (the “Original Merger Agreement”);

 

WHEREAS, after the execution of the Original Merger Agreement, the Company, Parent and Merger Sub have agreed to amend and restate the Original Merger Agreement; and

 

WHEREAS, following the execution of this Agreement, the Company, Parent and Merger Sub are entering into an amended and restated agreement and plan of merger (the “Merger Agreement”), with capitalized terms used and not defined herein having the meanings ascribed to them in the Merger Agreement.

 

NOW, THEREFORE, in consideration of the premises and the mutual agreements, covenants and conditions set forth herein, and intending to be legally bound, the Company, the Investor and the Warrantor hereby agree as follows:

 

Section 1. 1.  The parties agree that the following shall not be a breach of any of the provisions of Section 3.1 or Article 4 of the Stockholder Agreement: (i) the execution and performance of the Merger Agreement, (ii) the execution and performance of a letter agreement re Support Agreement, dated as of April 18, 2014, by and among Sponsor, Ms. Roberta Lipson and the Investor, (iii) the execution and performance of the Amended and Restated Equity Commitment Letter dated April 18, 2014 by the Investor in favor of Parent, (iv) the occurrence of the transactions contemplated in each of the foregoing, including, without limitation, the Merger, (v) the execution and performance of the Agreement by and among Parent, Sponsor and the Investor dated as of April 18, 2014 and (vi) the execution and performance of the other agreements and arrangements set forth in Section 5.8 of the Parent Disclosure Schedule to the Merger Agreement. The Company represents that the resolution attached hereto as Annex A has been unanimously adopted by the Company’s Board of Directors and is in full force and effect. Accordingly, the Company agrees that Investor, Warrantor and any of their Affiliates may enter into and perform the aforementioned agreements, documents and arrangements.  Notwithstanding anything to the contrary in this Agreement, the parties agree that except as expressly provided above, the terms of the Stockholder Agreement shall remain unchanged and in full force and effect; provided that until such time as the Merger Agreement is terminated in accordance with its terms, Sections 2.1 and 2.2 of the Stockholder Agreement are hereby waived to the extent that they require the Investor or the Warrantor to vote or grant a proxy with respect to any matter set forth in clauses (y) and (z) of Section 2.1(b)(ii) as would interfere with or prevent the Investor, the Warrantor or any of its Affiliates from performing as required under the agreements or arrangements referred to in clauses (i) — (vi) above.

 

 

Section 1. 2.  This Agreement may be executed and delivered (including by facsimile transmission or portable document format (“.pdf”)) in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.

 

Section 1. 3.  All other terms and provisions of the Stockholder Agreement shall mutatis mutandis apply to this Agreement.

 

[Signature page follows]

 

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

 

	CHINDEX INTERNATIONAL, INC.
	By:	/s/ Kenneth A. Nilsson
		Name:	Kenneth A. Nilsson
		Title:	Chairman of the Board
	FOSUN INDUSTRIAL CO., LTD.
	By:	/s/ Qiyu Chen
		Name:	Qiyu Chen
		Title:	Chairman of the Board of Directors
	SHANGHAI FOSUN PHARMACEUTICAL
	(GROUP) CO., LTD.
	By:	/s/ Qiyu Chen
		Name:	Qiyu Chen
		Title:	Chairman of the Board of Directors and Executive Director

 

[Waiver Agreement Signature Page]

 

 

ANNEX A

 

RESOLUTION OF THE BOARD OF DIRECTORS

CHINDEX INTERNATIONAL, INC.

 

RESOLVED, that the following shall not be a breach of any of the provisions of Section 3.1 or Article 4 of the Stockholder Agreement: (i) the execution and performance of the Merger Agreement, (ii) the execution and performance of a letter agreement re Support Agreement, dated as of April 18, 2014, by and among Sponsor, Ms. Roberta Lipson and the Investor relating to the Support Agreement, (iii) the execution and performance of the Amended and Restated Equity Commitment Letter dated April 18, 2014 by the Investor in favor of Parent, (iv) the occurrence of the transactions contemplated in each of the foregoing, including, without limitation, the Merger, (v) the execution and performance of the Agreement by and among Parent, Sponsor and the Investor dated as of April 18, 2014 and (vi) the execution and performance of the other agreements and arrangements set forth in Section 5.8 of the Parent Disclosure Schedule to the Merger Agreement.

 

Exhibit 99.21

 

EXECUTION

 

AGREEMENT

 

This Agreement (the “Agreement”) is entered into as of April 18, 2014, by and among TPG Asia VI, L.P. (“Sponsor”), Healthy Harmony Holdings, L.P. (“Parent”) and Fosun Industrial Co., Limited (“Significant Stockholder”, and together with Parent and Sponsor, the “parties”).

 

WHEREAS, Parent, Chindex International, Inc. (the “Company”) and Healthy Harmony Acquisition, Inc., a wholly owned subsidiary of Parent, propose to enter into an Amended and Restated Agreement and Plan of Merger dated the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “Merger Agreement”), pursuant to which Merger Sub will be merged with and into the Company (the “Merger”), with the Company being the surviving entity of the Merger and a wholly-owned subsidiary of Parent. Capitalized terms used but not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.

 

WHEREAS, concurrently herewith, Sponsor is executing and delivering (a) an amended and restated equity financing commitment letter with and in favor of Parent, pursuant to which, subject to the terms and conditions therein, Sponsor will commit to invest in Parent the amount set forth therein, and (b) an amended and restated limited guarantee (the “Guarantee”) with and in favor of the Company with respect to certain obligations of Parent and Merger Sub under the Merger Agreement.

 

WHEREAS, concurrently herewith, Significant Stockholder is executing and delivering an amended and restated equity financing commitment letter (the “Significant Stockholder ECL”) with and in favor of Parent, pursuant to which, subject to the terms and conditions therein, Significant Stockholder will commit to invest in Parent the amount set forth therein.

 

WHEREAS, concurrently herewith, the parent company of Significant Stockholder Parent, Shanghai Fosun High Technology (Group) Co., Ltd., is executing and delivering an amended and restated voting agreement in the form attached as Exhibit A hereto.

 

WHEREAS, on February 17, 2014, Parent and Shanghai Fosun Pharmaceuticals (Group) Co., Ltd. (“Significant Stockholder Parent”) entered into a letter agreement (the “CML Agreement”) regarding the acquisition by Significant Stockholder Parent of a 30% shareholding in Chindex Medical Limited (“CML”).

 

WHEREAS, on February 17, 2014, each of Sponsor and Significant Stockholder entered into a letter of commitment (the “Letters of Commitment”), pursuant to which it each had committed, subject to the terms and conditions therein, to subscribe for limited partnership interests in Parent;

 

1

 

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties hereto, intending to be legally bound, hereby agree as follows:

 

1.                                      Certain Definitions.  All capitalized terms that are used but not defined herein shall have the respective meanings ascribed to them in the Merger Agreement.  For all purposes of and under this Agreement, the following terms shall have the following respective meanings:

 

(a)         “Agreement” shall have the meaning set forth in the preamble.

 

(b)         “Alternative Commitment” shall have the meaning set forth in Section 2(e) hereof.

 

(c)          “CML” shall have the meaning set forth in the recitals.

 

(d)         “CML Agreement” shall have the meaning set forth in the recitals.

 

(e)          “Commitment” shall have the meaning set forth in Section 2(a) hereof.

 

(f)           “Dispute” shall have the meaning set forth in Section 19 hereof.

 

(g)          “Expiration Date” shall mean the earliest to occur of (i) the date and time, after April 25, 2014 that either party gives notice to the other if the Merger Agreement has not yet been executed by the Company by the time of such notice, (ii) the date and time the Merger Agreement is terminated in accordance with its terms and provisions without the Merger having been consummated, (iii) the 30th day after the date of this Agreement if the Pledge Agreement has not been delivered by Significant Stockholder and Sponsor gives written notice of such termination, and (iv) the effectiveness of a mutual written agreement of the parties hereto to terminate this Agreement.

 

(h)         “Fee” shall have the meaning set forth in Section 2(c) hereof.

 

(i)             “Guarantee” shall have the meaning set forth in the recitals.

 

(j)            “HKIAC” shall have the meaning set forth in Section 19 hereof.

 

(k)         “Letters of Commitment” shall have the meaning set forth in the recitals.

 

(l)             “LP Interests” shall have the meaning set forth in Section 2(a) hereof.

 

(m)     “Merger” shall have the meaning set forth in the recitals.

 

(n)         “Merger Agreement” shall have the meaning set forth in the recitals.

 

(o)         “Merger Sub” shall have the meaning set forth in the recitals.

 

(p)         “parties” shall have the meaning set forth in the preamble.

 

(q)         “Parent” shall have the meaning set forth in the preamble.

 

(r)            “Pledge Agreement” shall have the meaning set forth in Section 4 hereof.

 

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(s)           “Requisite Significant Stockholder Stockholder Approval” shall have the meaning set forth in Section 2(b) hereof.

 

(t)            “Shares” shall have the meaning set forth in the recitals.

 

(u)         “Significant Stockholder” shall have the meaning set forth in the preamble.

 

(v)         “Significant Stockholder Parent” shall have the meaning set forth in Section 2(b) hereof.

 

(w)       “Significant Stockholder Parent’s Meeting” shall have the meaning set forth in Section 2(b) hereof.

 

(x)                     “Sponsor” shall have the meaning set forth in the preamble.

 

2.                                      Equity Commitments.

 

(a)                                 Pursuant to the Significant Stockholder ECL, Significant Stockholder has committed (the “Commitment”), subject to the terms and conditions set forth therein, that, at or prior to the Closing, to purchase, or cause the purchase of, directly or indirectly through one or more intermediate entities, limited partnership interests of Parent (“LP Interests”) with an aggregate purchase price of $159,000,000, at a price per LP Interest equal to the price per LP Interest paid by Sponsor at the Closing. Based on the share count information as of February 7, 2014 and the assumptions regarding capitalization set forth in the term sheet attached to the Support Agreement, if the Merger is consummated and Significant Stockholder’s Commitment is funded in full, Sponsor and Significant Stockholder are expected to hold approximately 47.6% and 48.1% of the LP Interests, respectively, at the Effective Time.

 

(b)                                 The funding of Significant Stockholder’s Commitment shall be subject to (i) Shanghai Fosun Pharmaceutical (Group) Co., Ltd., a corporation incorporated under the Laws of China and the parent company of Significant Stockholder (“Significant Stockholder Parent”), having obtained the approval of the Transactions and the transactions contemplated by this Agreement by the stockholders of Significant Stockholder Parent at a duly convened general meeting (the “Significant Stockholder Parent’s Meeting”) of stockholders of Significant Stockholder Parent (the “Requisite Significant Stockholder Stockholder Approval”), (ii) the due execution and delivery of the Merger Agreement by the Company, (iii) the satisfaction or waiver of each of the conditions to Parent’s and Merger Sub’s obligations to effect the Closing set forth in Sections 7.1 and 7.2 of the Merger Agreement (in each case, other than any conditions that by their nature are to be satisfied at the Closing, but subject to the prior or substantially concurrent satisfaction or waiver of such conditions), and (iv) the substantially simultaneous consummation of the Merger in accordance with the terms of the Merger Agreement.

 

(c)                                  If (i) the Merger is consummated and Significant Stockholder’s Commitment or the Alternative Commitment is not funded in full for any reason (including, without limitation, the failure to obtain the Requisite Significant Stockholder Stockholder Approval contemplated by Section 2(b)(i) above), or (ii) the Parent Termination Fee becomes payable solely due to the breach of Significant Stockholder’s obligation to fund its Commitment, Significant Stockholder shall pay to Sponsor or its designee an amount equal to US$$30,834,000 (the “Fee”) in cash by wire transfer of same day funds, as promptly as practicable (and in any event within two (2) Business Days) after the Effective Time or the termination of the Merger Agreement, as the case may be.  For the avoidance of doubt, the Fee shall not be payable if the Alternative Commitment is funded in full at or prior to the Closing.

 

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(d)                             If the Requisite Significant Stockholder Approval is not obtained, Significant Stockholder and Sponsor shall, for a period of one month after the Significant Stockholder Parent’s Meeting, discuss alternative arrangements relating to Significant Stockholder acquiring or investing in additional LP Interests on terms and conditions acceptable to each of Significant Stockholder and Sponsor in its sole discretion, including alternative arrangements for Significant Stockholder to fund its full Commitment at Closing on terms and conditions acceptable to each of Significant Stockholder and Sponsor in its sole discretion (any so agreed arrangement, an “Alternative Commitment”). Notwithstanding anything to the contrary, none of Sponsor, Parent or their respective affiliates shall be obligated to issue or sell LP Interests to Significant Stockholder pursuant to this Section 2(d).

 

(e)                                  If the Merger is consummated and Significant Stockholder’s Commitment or the Alternative Commitment is not funded in full for any reason (including, without limitation, the failure to obtain the Requisite Significant Stockholder Stockholder Approval contemplated by Section 2(b)(i) above), Parent, Sponsor and Significant Stockholder agree that, notwithstanding anything in the contrary in the Support Agreement, no shareholders agreement shall be entered into among them unless otherwise agreed between Significant Stockholder and Sponsor in their sole discretion; provided that (i) Sponsor and Significant Stockholder shall enter into an agreement reflecting the rights of Sponsor described under “Exit Provisions” of the term sheet attached to the Support Agreement (as may be amended from time to time), (ii) Sponsor shall grant Significant Stockholder the right  to appoint one director to the board of directors of the general partner of Parent and (iii) Sponsor and Significant Stockholder shall discuss other minority rights of Significant Stockholder.

 

3.                                      Significant Stockholder Parent’s Meeting. Significant Stockholder shall exercise its best efforts to cause Significant Stockholder Parent to call, give notice of, convene and hold the Significant Stockholder Parent’s Meeting for the purpose of obtaining the Requisite Significant Stockholder Stockholder Approval by June 30, 2014.

 

4.                                      Security.  Significant Shareholder shall grant (or cause to be granted) to Sponsor a first priority security interest in all of its right, title and interest in, to the shares of Common Stock, par value $0.01 per share, of the Company beneficially owned by Significant Shareholder to secure its obligations to fund its commitment under Section 2(a) hereof and to pay the Fee, pursuant to a share pledge agreement to be mutually agreed (the “Pledge Agreement”) and entered into within 30 days hereof.

 

5.                                      Guaranteed Obligations.  If Section 10(c) of the Support Agreement does not apply, Significant Stockholder agrees to bear 50% of the Guaranteed Obligations (as defined in the Guarantee) payable by Sponsor under the Guarantee.

 

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6.                                      CML Agreement.  If the Requisite Significant Stockholder Stockholder Approval shall not have been obtained prior to the Closing, Significant Stockholder shall, or shall cause Ample Up Limited and/or one or more subsidiaries of Significant Stockholder Parent to, acquire 30% of the issued and outstanding share capital of CML based on the terms contained in the CML Agreement.

 

7.                                      Term.  This Agreement shall come into effect automatically on June 30, 2014 and shall terminate on the Expiration Date; provided that no party shall be relieved from any liability or obligation for any breach of this Agreement prior to such termination.

 

8.                                      Representations and Warranties.  Each of Sponsor and Significant Stockholder hereby represents and warrants that (a) it is a corporate entity or limited partnership duly formed, validly existing and in good standing under the laws of its jurisdiction of incorporation, (b) it has all limited partnership or corporate power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, (c) the execution, delivery and performance of this Agreement by it have been duly and validly authorized and approved by all necessary limited partnership, corporate or other organizational action, and no other actions or proceedings on the part of it is necessary to authorize the execution and delivery by it of this Agreement and the consummation of the transactions contemplated hereby, (d) this Agreement has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with the terms of this Agreement, (e) with respect to the Significant Stockholder, it has uncalled capital commitments or otherwise has available funds to fulfill its obligations under Section 2 hereof and (f) the execution, delivery and performance by it of this Agreement do not and will not (i) violate its organizational documents, (ii) violate any applicable Law or judgment or (iii) result in a violation or breach of, or constitute a default under any Contract to which it is a party or by which it or its properties or assets may be bound.

 

9.                                      Publicity.  So long as this Agreement is in effect, each party and its Affiliates shall not issue or cause the publication of any press release or other announcement with respect to the Merger, this Agreement or any of the other transactions contemplated hereby or thereby without the prior written approval of the other parties, except as may be required by Law or by the rules of any applicable securities exchange as determined in the good faith judgment of the party wanting to make such release or announcement, in which event such party shall use its reasonable best efforts to provide a meaningful opportunity to the other party to review and comment upon such press release or announcement prior to making it.

 

10.                               Assignment.  No party hereto may assign any obligations hereunder to any other party without the prior written consent of the other parties (which consent shall not be unreasonably withheld); provided, however, that Sponsor may, without the consent of Significant Stockholder, assign its rights under this Agreement in whole or in part to any of its Affiliates.

 

11.                               Amendments and Waivers.  No amendment, supplement or modification of this Agreement nor waiver of the terms or conditions hereof shall be binding upon the other parties hereto unless and until approved in writing by an authorized representative of each such party.  The failure of a party to this Agreement to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that party of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement.

 

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12.                               Successors. This Agreement and all the obligations and benefits hereunder shall inure to the successors and permitted assigns of the parties.

 

13.                               Entire Agreement.  This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes any prior communication or agreement with respect thereto.

 

14.                               Specific Performance.  The parties hereto agree that irreparable damage would occur if the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that each of the parties hereto shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof, in addition to any other remedy to which such party is entitled.

 

15.                               Severability.  If in any proceedings a court shall refuse to enforce any provision of this Agreement, then such unenforceable provision shall be deemed eliminated from this Agreement for the purpose of such proceedings to the extent necessary to permit the remaining provisions to be enforced.  To the full extent, however, that the provisions of any applicable law may be waived, they are hereby waived to the end that this Agreement be deemed to be valid and binding agreement enforceable in accordance with its terms, and in the event that any provision hereof shall be found to be invalid or unenforceable, such provision shall be construed by limiting it so as to be valid and enforceable to the maximum extent consistent with and possible under applicable law.

 

16.                               Notices.  Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or electronic mail and receipt is confirmed, at the facsimile telephone number or email address specified in this Section 16, prior to 5:00 p.m., New York City time, on a Business Day, (ii) the first Business Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile telephone number specified in this Section 16 (x) at or after 5:00 p.m., local time of the receiving party, on a Business Day or (y) on a day that is not a Business Day, (iii) when received, if sent by nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom such notice is required or permitted to be given.  The address for such notices and communications (unless changed by the applicable party by like notice) shall be as follows:

 

If to Sponsor:

 

c/o TPG Capital, L.P.
345 California Street, Suite 3300, San Francisco, CA 94104
Attention: Ronald Cami, Esq.
Telephone No.: (415) 743-1532
Facsimile No.: (415) 743-1501

Email address: rcami@tpg.com

 

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with copies (which shall not constitute notice or constructive notice) to:

 

Cleary Gottlieb Steen & Hamilton LLP

Twin Towers - West (23Fl), Jianguomenwai Da Jie

Chaoyang District

Beijing 100022, China

Attention: Ling Huang

Telephone No.: (86) 10 5920-1000
Facsimile No: (852) 2160-1087

Email address: lhuang@cgsh.com

 

and

 

Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
Attention: Victor Lewkow
Telephone No.: (212) 225-2000
Facsimile No: (212) 225-3999

Email address: vlewkow@cgsh.com

 

If to Significant Stockholder:

 

Qiao Yang
Shanghai Fosun Pharmaceutical Group Co., Ltd.
9th Floor, No.2 East Fuxing Road
Shanghai 200010, PRC
Telephone No.: +86 21 23138000*8185/23128185 
Facsimile No.: +86 21 23138127 
Email address: yangq@fosunpharma.com

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

 

Baker & McKenzie LLP
Suite 3401, China World Tower 2

China World Trade Center, 1 Jianguomenwai Dajie
Beijing 100004, China

Attention: Chengfei Ding

Telephone No.: :+86 10 6535 3928
Facsimile No: +86 10 6505 2309

Email address: chengfei.ding@bakermckenzie.com

 

17.                               Counterparts.  This Agreement may be executed in any number of counterparts and by each of the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which together shall constitute one and the same agreement.

 

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18.                               Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the Hong Kong SAR without giving effect to the principles thereof relating to the conflicts of laws.

 

19.                               Dispute Resolution.  The parties intend that all disputes, controversies or claims among the parties arising out of or relating to this Agreement (each, a “Dispute”) shall be finally settled by arbitration in Hong Kong using the English language administered by the Hong Kong International Arbitration Centre (“HKIAC”) in accordance with the HKIAC Administered Arbitration Rules then in effect, except as they may be modified in this Agreement or by agreement of the parties to the arbitration. The arbitration shall be resolved by a panel of three (3) arbitrators. Parent and Sponsor, collectively, and Significant Stockholder, collectively, shall each be entitled to, and shall, appoint one arbitrator each within twenty one (21) days of the notice of arbitration, failing which the appointment shall be made by the Chairman of HKIAC. The third arbitrator shall be appointed by the other two arbitrators within fifteen (15) Business Days of the appointment of the second arbitrator, failing which the appointment shall be made by the Chairman of HKIAC. The arbitrators shall have the authority to grant specific performance, and to allocate between the parties the costs of arbitration in such equitable manner as the arbitrators may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses incurred in connection therewith. Judgment upon the award so rendered may be entered in any court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, any party shall have the right to institute a legal action in a court of proper jurisdiction for injunctive relief and/or a decree for specific performance pending final settlement by arbitration.

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

 

 

	TPG ASIA VI, L.P.
	By: TPG Asia GenPar VI, L.P., its general partner
	By: TPG Asia GenPar VI Advisors, Inc., its general partner
	By:	/s/ Ronald Cami
		Name:	Ronald Cami
		Title:	Vice President
	FOSUN INDUSTRIAL CO., LIMITED
	By:	/s/ Qiyu Chen
		Name: Qiyu Chen
		Title: Chairman of the Board of Directors
	HEALTHY HARMONY HOLDINGS, L.P.
	By: Healthy Harmony GP, Inc., its general partner
	By:	/s/ Ronald Cami
		Name:	Ronald Cami
		Title:	Vice President

 

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