UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(RULE 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box:
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Proxy Statement
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Definitive Additional Materials
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Soliciting Material Pursuant to §240.14a -12
CHINA HEALTHCARE ACQUISITION CORP.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title of each class of securities to which transaction applies:
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(2)
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Aggregate number of securities to which transaction applies:
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(3)
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Per unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and
state how it was determined):
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(4)
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Proposed maximum aggregate value of transaction:
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(5)
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Total fee paid:
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing
by registration statement number, or the Form or Schedule and the
date of its filing.
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(1)
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Amount previously paid:
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(2)
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Form, Schedule or Registration Statement No.:
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(3)
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Filing Party:
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(4)
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Date Filed:
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Copies of all communications to:
Elizabeth R. Hughes, Esq.
Roxana M. Tuculescu, Esq.
Venable LLP
8010 Towers Crescent Drive, Suite 300
Vienna, Virginia 22182
(703) 760-1600
CHINA
HEALTHCARE ACQUISITION CORP.
To the Stockholders of China Healthcare Acquisition Corp.:
You are cordially invited to attend an annual meeting of the
stockholders of China Healthcare Acquisition Corp.
(CHM, the Company, we,
our, or us), which annual meeting will
be held at 10:00 a.m., Eastern Time,
on ,
200 , at the offices of Venable LLP, 575
7th Street, NW, Washington, DC 20004.
At this important meeting, you will be asked to consider and
vote upon the following proposals:
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to amend our certificate of incorporation to permit the early
distribution of the trust account
(Trust Account) holding the proceeds of
CHMs initial public offering (IPO) to the
holders of the shares of common stock issued in the IPO and the
related cancellation of the outstanding shares of common stock
issued in the IPO and conversion of such shares into the right
to receive the trust distribution (Early Distribution
Proposal);
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to elect Richard Prins to CHMs board of directors to hold
office as a Class I director for a period to expire at the
third annual meeting after this annual meeting;
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to ratify the selection of Goldman Parks Kurland Mohidin-GPKM
LLP (GPKM) to serve as our independent registered
public accounting firm for fiscal year 2008;
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to approve any adjournments or postponements of the annual
meeting to a later date or dates, if necessary, for the purpose
of soliciting additional proxies (the Adjournment
Proposal);
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to amend and restate our certificate of incorporation
(i) to permit CHM to continue as a corporation beyond the
time currently specified in our certificate of incorporation
without the limitations related to our IPO and (ii) to
remove Article VI from our certificate of incorporation,
which, among other blank check company-related restrictions,
requires us to dissolve in the event that CHM does not
consummate a qualifying business combination by the time period
currently specified in our certificate of incorporation
(collectively, the Amendment and Restatement
Proposal); and
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to transact such other business as may properly come before the
meeting and any postponement or adjournment thereof.
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Holders of our common stock as of the record date for the annual
meeting are each entitled to one vote for each share of record.
However, the Amendment and Restatement Proposal will not be
presented to our stockholders for a vote at the annual meeting
(i.e., the polls will not be opened for voting on the Amendment
and Restatement Proposal) unless and until the Early
Distribution Proposal has been approved by our stockholders and
the early distribution amendment has been filed with the
Secretary of State of Delaware. We expect that filing to occur
immediately following confirmation from the inspector of
elections that the Early Distribution Proposal has been approved
by the stockholders. At the time of the filing, all outstanding
shares of common stock issued in the IPO will be automatically
cancelled and converted into the right to receive a pro rata
portion of CHACs IPO Trust Account pursuant to the
terms of the early distribution amendment. Accordingly, at the
time the Amendment and Restatement Proposal is presented to the
stockholders for a vote at the annual meeting, only the shares
of common stock issued prior to the IPO will be outstanding and
entitled to vote with respect to the Amendment and Restatement
Proposal. As a matter of corporate law, stockholders who
previously held shares of common stock issued in the IPO that
were outstanding as of the record date and otherwise would have
been entitled to vote on the Amendment and Restatement Proposal
will not be entitled to vote on the Amendment and Restatement
Proposal by virtue of the cancellation of the common stock
issued in the IPO prior to the opening of the polls.
Accordingly, the proxy cards for the holders of the common stock
issued in the IPO included with this solicitation do not contain
voting boxes with respect to the Amendment and Restatement
Proposal and no ballots will be used for in-person voting by
holders of the common stock issued in the IPO with respect to
the Amendment and Restatement Proposal. The remaining proposals
will be presented at the meeting whether or not the Early
Distribution Proposal is approved.
After careful consideration, CHMs board of directors has
determined that each of the proposals is fair to and in the best
interests of CHM and its stockholders.
Our board of directors
unanimously recommends that you vote or give instruction to vote
FOR the Early Distribution Proposal, FOR
the election of the nominee to our board of directors,
FOR the ratification of selection of GPKM,
FOR the Adjournment Proposal, and FOR
the Amendment and Restatement Proposal.
We are soliciting the enclosed proxy cards on behalf of the
board of directors, and we will pay all costs of preparing,
assembling and mailing the proxy materials. In addition to
mailing out proxy materials, our officers may solicit proxies by
telephone or fax, without receiving any additional compensation
for their services. We have requested brokers, banks and other
fiduciaries to forward proxy materials to the beneficial owners
of our stock.
Enclosed is a notice of annual meeting and proxy statement
containing detailed information concerning the Early
Distribution Proposal and the other proposals listed above.
Whether or not you plan to attend the annual meeting, we urge
you to read this material carefully.
YOUR VOTE IS IMPORTANT. WHETHER YOU PLAN TO ATTEND THE ANNUAL
MEETING OR NOT, PLEASE SIGN, DATE AND RETURN THE APPROPRIATE
ENCLOSED PROXY CARD AS SOON AS POSSIBLE IN THE ENVELOPE
PROVIDED.
This proxy statement is
dated ,
200 , and is first being mailed to CHM stockholders
on or
about ,
200 .
I look forward to seeing you at the meeting.
Sincerely,
Alwin Tan
Chief Executive Officer
CHINA
HEALTHCARE ACQUISITION CORP.
1233
Encino Drive
Pasadena, CA 91108
(626) 568-9924
NOTICE OF
ANNUAL MEETING OF STOCKHOLDERS
To Be Held
on ,
200
TO THE STOCKHOLDERS OF CHINA HEALTHCARE ACQUISITION CORP.:
NOTICE IS HEREBY GIVEN that an annual meeting of stockholders of
China Healthcare Acquisition Corp., a Delaware corporation, will
be held at 10:00 a.m., Eastern Time,
on ,
200 , at the offices of Venable LLP, 575
7th Street, NW, Washington, DC 20004 for the following
purposes:
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to amend our certificate of incorporation to permit the early
distribution of the Trust Account holding the proceeds of
CHMs IPO to the holders of the shares of common stock
issued in the IPO and the related cancellation of the
outstanding shares of common stock issued in the IPO and
conversion of such shares into the right to receive the trust
distribution (Early Distribution Proposal);
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to elect Richard Prins to CHMs board of directors to hold
office as a Class I director for a period to expire at the
third meeting after this annual meeting;
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to ratify the selection of Goldman Parks Kurland Mohidin-GPKM
LLP (GPKM) to serve as our independent registered
public accounting firm for fiscal year 2008;
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to approve any adjournments or postponements of the annual
meeting to a later date or dates, if necessary, for the purpose
of soliciting additional proxies;
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to amend and restate our certificate of incorporation
(i) to permit CHM to continue as a corporation beyond the
time currently specified in our certificate of incorporation
without the limitations related to our IPO and (ii) to
remove Article VI from our certificate of incorporation,
which, among other blank check company-related restrictions,
requires us to dissolve in the event that CHM does not
consummate a qualifying business combination by the time period
currently specified in our certificate of incorporation
(collectively, the Amendment and Restatement
Proposal); and
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to transact such other business as may properly come before the
meeting and any postponement or adjournment thereof.
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Our board of directors has fixed the close of business
on ,
200 as the date for which our stockholders are
entitled to receive notice of, and to vote at, our annual
meeting and any adjournments or postponements thereof. Only the
holders of record of our common stock on that date are entitled
to have their votes counted at our annual meeting and any
adjournments or postponements thereof.
Holders of our common stock as of the record date for the annual
meeting are each entitled to one vote for each share of record.
However, the Amendment and Restatement Proposal will not be
presented to our stockholders for a vote at the annual meeting
(i.e., the polls will not be opened for voting on the Amendment
and Restatement Proposal) unless and until the Early
Distribution Proposal has been approved by our stockholders and
the early distribution amendment has been filed with the
Secretary of State of Delaware. We expect that filing to occur
immediately following confirmation from the inspector of
elections that the Early Distribution Proposal has been approved
by the stockholders. At the time of the filing, all outstanding
shares of common stock issued in the IPO will be automatically
cancelled and converted into the right to receive a pro rata
portion of CHACs IPO Trust Account pursuant to the
terms of the early distribution amendment. Accordingly, at the
time the Amendment and Restatement Proposal is presented to the
stockholders for a vote at the annual meeting, only the shares
of common stock issued prior to the IPO will be outstanding and
entitled to vote with respect to the Amendment and Restatement
Proposal. As a matter of corporate law, stockholders who
previously held shares of common stock issued in the IPO that
were outstanding as of the record date and otherwise would have
been entitled to vote on the Amendment and Restatement Proposal
will not be entitled to vote on the Amendment and Restatement
Proposal by virtue of the cancellation of the common stock
issued in the IPO prior to the opening of the polls.
Accordingly, the proxy cards for the holders of the common stock
issued in the IPO included with this solicitation do not contain
voting boxes with respect to the Amendment and Restatement
Proposal and no ballots will be used for in-person voting by
holders of the common stock issued in the IPO with respect to
the Amendment and Restatement Proposal. The remaining proposals
will be presented at the meeting whether or not the Early
Distribution Proposal is approved.
Your vote is important. Please sign, date and return the
appropriate proxy card as soon as possible to make sure that
your shares are represented at the annual meeting. If you are a
stockholder of record of our common stock, you may also cast
your vote in person at the annual meeting. If your shares are
held in an account at a brokerage firm or bank, you must
instruct your broker or bank on how to vote your shares.
Our board of directors unanimously recommends that you vote
FOR each of the proposals, which are described in
detail in the accompanying proxy statement.
By Order of the Board of Directors,
Mark Tan
Corporate Secretary
Date: ,
200
PROXY
STATEMENT FOR ANNUAL MEETING OF
STOCKHOLDERS OF
CHINA HEALTHCARE ACQUISITION CORP.
TABLE OF
CONTENTS
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A-1
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B-1
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ii
QUESTIONS
AND ANSWERS
The following briefly addresses some commonly asked questions
about the Early Distribution Proposal, the election of director,
the ratification of selection of an accounting firm, the
adjournment proposal, the Amendment and Restatement Proposal,
and other matters relating to the annual meeting of the
stockholders of CHM. These questions and answers may not include
all of the information that is important to you.
We urge you
to read carefully this entire document, including the annexes
and the other documents to which we have referred you.
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Q.
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Why am I
receiving this proxy statement?
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CHM was incorporated in Delaware on June 7, 2006 as a blank
check company formed for the purpose of acquiring, through a
merger, capital stock exchange, asset acquisition or other
similar business combination, one or more businesses with
operations primarily in the Peoples Republic of China. Our
registration statement for our initial public offering
(IPO) was declared effective on April 19, 2007.
The Companys ability to commence operations was contingent
upon obtaining adequate financial resources through a public
offering of up to 8,500,000 units (Units). Each
Unit consists of one share of common stock and two warrants.
This IPO was consummated on April 25, 2007, and the Company
received net proceeds of $46,448,485. Additionally on
May 9, 2007, the Company received net proceeds of
$7,171,410 from the sale of 1,251,555 Units in conjunction with
the exercise of the underwriters over-allotment option by
the underwriters. Upon the closing of the IPO, and the exercise
of the over-allotment option by the underwriters, $57,307,802
was placed in a trust account (the
Trust Account), including $2,133,867 of
deferred underwriting fees and $1,500,000 in net proceeds from a
private placement (the Private Placement) to the
Chairman of our board of directors (the Chairman)
prior to the IPO. Our amended and restated certificate of
incorporation (the Amended and Restated Certificate of
Incorporation) provides that CHMs existence shall
cease on the Termination Date, unless amended in connection with
the consummation of a qualifying business combination, except
for the purpose of winding up its affairs, and that the officers
of CHM shall take all such action necessary to dissolve and
liquidate CHM as soon as reasonably practicable. Our Amended and
Restated Certificate of Incorporation also provides that, in the
event of such a dissolution and liquidation, only the holders of
the common stock issued in the IPO are entitled to receive
liquidating distributions. Further, our Amended and Restated
Certificate of Incorporation provides that the holders of common
stock issued in the IPO have no rights or interest of any kind
in or to the Trust Account except that a holder of shares
of common stock issued in the IPO is entitled to receive
distributions from the Trust Account only in the event of a
liquidation of CHM or in the event he demands conversion of his
shares in accordance with the Amended and Restated Certificate
of Incorporation.
Our Amended and Restated Certificate of Incorporation defines
the Termination Date as April 19, 2009. On
August 6, 2008, CHM, Europe Asia Huadu Environment Pte,
Ltd., TeamBest International Limited, and Madame Wang Lahua
(collectively, Seller) signed a definitive stock
purchase agreement (Stock Purchase Agreement).
Effective November 10, 2008, CHM and Seller mutually agreed
to terminate the Stock Purchase Agreement among them. CHM
determined that it would not receive the votes of its
stockholders required for approval of the acquisition.
In light of the foregoing, our board of directors determined
that it is no longer possible for us to consummate a qualifying
business combination prior to the Termination Date. Our Amended
and Restated Certificate of Incorporation provides that
CHMs existence shall cease on the Termination Date and
that CHM must be dissolved and liquidated as soon as reasonably
practicable thereafter. Further, upon a liquidation of the
Company, our Amended and Restated Certificate of Incorporation
entitles the holders of our common stock issued in the IPO to
liquidating distributions from the Trust Account.
As of November 28, 2008, there was approximately
$57,511,268 in the Trust Account. Our board of directors
determined that it would be in the best interests of our
stockholders to (i) amend our certificate of incorporation
to permit the early distribution of the Trust Account
holding the proceeds of CHMs IPO to the holders of the
shares of common stock issued in the IPO and the related
cancellation of the outstanding shares of common stock issued in
the IPO and conversion of such shares into the right to receive
the trust distribution, (ii) continue our corporate
existence after the distribution of the Trust Account,
rather than terminate our existence on the Termination Date,
(iii) remove Article VI from our certificate of
incorporation, which contains blank check company-related
restrictions, and (iv) retain the Companys current
management to pursue the acquisition of one or more operating
companies.
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Q. What
is being voted on?
There are five proposals being voted on:
1. To amend our certificate of incorporation to permit the
early distribution of the Trust Account holding the
proceeds of CHMs IPO to the holders of the shares of
common stock issued in the IPO and the related cancellation of
the outstanding shares of common stock issued in the IPO and
conversion of such shares into the right to receive the trust
distribution (Early Distribution Proposal);
2. To elect Richard Prins to CHMs board of directors
to hold office as a Class I director for a period to expire
at the third annual meeting of stockholders after this meeting;
3. To ratify the selection of Goldman Parks Kurland
Mohidin, LLP (GPKM) as our independent registered
public accounting firm for the 2008 fiscal year;
4. To approve any adjournments or postponements of the
annual meeting to a later date or dates, if necessary, for the
purpose of soliciting additional proxies (the Adjournment
Proposal); and
5. To amend and restate our certificate of incorporation
(i) to permit CHM to continue as a corporation beyond the
time currently specified in our certificate of incorporation
without the limitations related to our IPO and (ii) to
remove Article VI from our certificate of incorporation,
which, among other blank check company-related restrictions,
requires us to dissolve in the event that CHM does not
consummate a qualifying business combination by the time period
currently specified in our certificate of incorporation
(collectively, the Amendment and Restatement
Proposal).
Q. Why
is CHM proposing the Early Distribution Proposal?
CHM was formed for the purpose of acquiring, through a merger,
capital stock exchange, asset acquisition or other similar
business combination, one or more business operations primarily
in the Peoples Republic of China. Our board of directors
determined that it was no longer possible to fulfill this
purpose within the time frame required by our Amended and
Restated Certificate of Incorporation. Accordingly, our board of
directors has determined that it would be in the best interests
of our stockholders to accelerate the distribution of the funds
in our Trust Account to the holders of our common stock
issued in the IPO, which otherwise would not occur until after
April 19, 2009, pursuant to the terms of our Amended and
Restated Certificate of Incorporation. We are seeking an
amendment to our Amended and Restated Certificate of
Incorporation expressly to permit early distribution of the
funds in the Trust Account. If approved, this proposed
amendment will cancel all of the shares issued in the IPO when
filed with the Secretary of State of Delaware. This proposed
amendment to our Amended and Restated Certificate of
Incorporation is attached as
Annex A
hereto.
Q. Why
is CHM proposing the Amendment and Restatement
Proposal?
Conditioned on approval of the Early Distribution Proposal,
CHMs stockholders whose shares of common stock are
outstanding when this proposal is presented at the meeting are
also being asked to approve the amendment and restatement of our
Amended and Restated Certificate of Incorporation. The purpose
of the amendment and restatement of our Amended and Restated
Certificate of Incorporation is to permit CHM to continue its
corporate existence (rather than expiring, as currently required
by our Amended and Restated Certificate of Incorporation upon
the Termination Date) and to do so with a corporate charter that
does not contain blank check company-related provisions and
other restrictions. Specifically, the Amendment and Restatement
Proposal involves amending our Amended and Restated Certificate
of Incorporation:
(i) to permit CHM to continue as a corporation beyond the
time currently specified in our Amended and Restated Certificate
of Incorporation without the limitations related to our
IPO, and
(ii) to remove Article VI from our Amended and
Restated Certificate of Incorporation, which, among other blank
check company-related restrictions, requires us to dissolve in
the event that CHM does not consummate a qualifying business
combination by the time period currently specified in our
Amended and Restated Certificate of Incorporation.
2
If the elimination of blank check company restrictions is
approved, CHM may pursue the acquisition of one or more
operating companies.
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Q.
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What vote
is required in order to approve the Early Distribution Proposal
and the Amendment and Restatement Proposal?
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The approval of the Early Distribution Proposal will require the
affirmative vote of a majority of the outstanding shares of
common stock issued in the IPO and a majority of the outstanding
shares of common stock. The affirmative vote of a majority of
the outstanding shares of common stock issued prior to our IPO
is required to approve the Amendment and Restatement Proposal.
Our officers and directors intend to vote all of their shares of
common stock in favor of the proposals.
If the Early Distribution Proposal is not approved, then the
Amendment and Restatement Proposal will not be presented for
approval.
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Q.
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What vote
is required to ratify the selection of GPKM as our independent
registered public accounting firm for fiscal year
2008?
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The ratification of the selection of GPKM as our independent
registered public accounting firm will require the affirmative
vote of a majority of the outstanding shares of our common stock
that are present in person or by proxy and entitled to vote at
the meeting.
Q. What
vote is required in order to elect the board member?
The election of a nominee to the board requires the affirmative
vote of a plurality of the outstanding shares of our common
stock that are present in person or by proxy and entitled to
vote at the meeting. Plurality means that the individuals who
receive the largest number of votes cast are elected as
directors. Consequently, votes that are withheld and broker
shares that are not voted in the election of directors will not
be included in determining the number of votes cast.
Q. What
vote is required in order to approve the Adjournment
Proposal?
The approval of the Adjournment Proposal will require the
affirmative vote of a majority of the outstanding shares of our
common stock that are present in person or by proxy and entitled
to vote at the meeting.
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Q.
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What is
the relationship between the Early Distribution Proposal and the
Amendment and Restatement Proposal?
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The Amendment and Restatement Proposal will not be presented to
our stockholders for a vote at the annual meeting (i.e., the
polls will not be opened for voting on the Amendment and
Restatement Proposal) unless and until the Early Distribution
Proposal has been approved by our stockholders and the early
distribution amendment (attached as
Annex A
hereto)
has been filed with the Secretary of State of Delaware.
Q. What
will happen at the Annual Meeting if the Early Distribution
Proposal is approved?
If the Early Distribution Proposal is approved, CHM will cause
the early distribution amendment to be filed with the Secretary
of State of Delaware immediately following the vote. While the
annual meeting will continue, the polls for voting on the
Amendment and Restatement Proposal will not open until after we
have received confirmation from the Secretary of State of
Delaware that the distribution amendment has been filed.
Q. What
will I receive if the Early Distribution Proposal is
approved?
If the Early Distribution Proposal is approved, the Company will
commence the distribution of the proceeds in the
Trust Account as soon as practicable after filing the early
distribution amendment to our Amended and Restated Certificate
of Incorporation with the State of Delaware. If you are a holder
of IPO shares as of the record date, your IPO Shares will be
cancelled and you will be entitled to receive cash equal to a
pro rata portion of the proceeds in the Trust Account,
which as of November 28, 2008 is equal to approximately
$5.89 per share. In connection with the
3
distribution of the proceeds in the Trust Account, holders
of the IPO Shares will receive total consideration of
$57,511,268 in cash.
Q. When
do you expect the distribution of trust funds to be
completed?
If the Early Distribution Proposal is approved, the distribution
of funds in the Trust Account is expected to occur as soon
as practicable after filing of the early distribution amendment
to our Amended and Restated Certificate of Incorporation with
the Secretary of State of Delaware. The early distribution
amendment will be filed as promptly as practicable following its
approval.
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Q.
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What
happens to the funds deposited in the Trust Account after
completion of the distribution of the funds in the
Trust Account?
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Upon completion of the distribution of the funds in the
Trust Account, there will not be any funds remaining in the
Trust Account. Furthermore, we do not expect there to be
any cash outside the Trust Account in excess of currently
accrued liabilities and anticipated expenses as of the date of
the annual meeting.
Q. If
I vote in favor of the Early Distribution Proposal, should I
send in my stock certificates now?
No. If the Early Distribution Proposal is approved at the annual
meeting, you will receive written instructions after the annual
meeting explaining how to exchange your shares of common stock
issued in the IPO for the cash from the Trust Account to
which you will be entitled.
Q. What
will happen if the Amendment and Restatement Proposal is
approved?
If the Amendment and Restatement Proposal is approved, we will
eliminate Article VI from our Amended and Restated
Certificate of Incorporation, which, among other blank check
company restrictions, requires us to dissolve following the
distribution of the funds in the Trust Account. Following
the filing of our Second Amended and Restated Certificate of
Incorporation, we will continue our corporate existence without
any of the blank check company restrictions that were previously
applicable to us and pursue the acquisition of one or more
operating businesses.
Q. What
happens if the Amendment and Restatement Proposal is not
approved?
If the Amendment and Restatement Proposal is not approved, on
April 19, 2009 our corporate existence will cease by
operation of law and we will distribute only to our public
stockholders the amount in our Trust Account inclusive of
the $2,040,000 attributable to the deferred underwriters
non-accountable expense allowance and the deferred portion of
the underwriting discount, and proceeds from the private
placement of the warrants plus any remaining net assets. Upon
notice from us, the trustee of the Trust Account will
liquidate the investments constituting the Trust Account
and will turn over the proceeds to our transfer agent for
distribution to our public stockholders as part of our plan of
dissolution and liquidation. We estimate that as of
November 28, 2008, the balance of the Trust Account
assets for distribution will be approximately $57,511,268, or
$5.89 per share held by our public stockholders.
Q. What
happens to the Company warrants if the Amendment and Restatement
Proposal is not approved?
If the Amendment and Restatement Proposal is not approved and if
we have not consummated a qualifying business combination by
April 19, 2009, our corporate existence will cease by
operation of law and we will distribute only to our public
stockholders the amount in our Trust Account inclusive of
the $2,040,000 attributable to the deferred underwriters
non-accountable expense allowance and the deferred portion of
the underwriting discount, and proceeds from the private
placement of the warrants plus any remaining net assets and your
warrants will become worthless.
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Q.
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Does the
Companys board of directors recommend voting for the
approval of the Early Distribution Proposal and the Amendment
and Restatement Proposal?
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Yes. After careful consideration of the terms and conditions of
these proposals, the board of directors of the Company has
determined that the Early Distribution Proposal and the
Amendment and Restatement Proposal are fair to, and in the best
interests of, the Company and its stockholders and recommends
that stockholders vote FOR each of these proposals.
Q. How
is the Companys management voting?
The Companys initial stockholders, including all of its
directors and officers and their affiliates, who purchased or
received shares of our common stock prior to our IPO, presently
own an aggregate of approximately 17.86% of our outstanding
shares of common stock (11,876,555). All of our initial
stockholders, including all of our officers and directors, have
agreed to vote the shares of common stock owned by them in favor
of the Early Distribution Proposal and the Amendment and
Restatement Proposal.
Q. What
interests do the Companys directors and officers have in
the approval of the proposals?
The Companys directors and officers have interests in the
proposals that may be different from, or in addition to, your
interests as a stockholder. These interests include control of
the Company, ownership of warrants that may become exercisable
in the future, the possibility of future compensatory
arrangements and the possibility of participation in future
financings. See the section entitled Background
Information-Interests of CHM Directors and Officers in the
Proposals.
Q. What
is the quorum requirement?
A quorum of stockholders is necessary to hold a valid meeting. A
quorum will be present if the holders of a majority of the
capital stock issued and outstanding on the record date are
present at the meeting or by proxy.
Your shares will be counted towards the quorum only if you
submit a valid proxy (or one is submitted on your behalf by your
broker, bank or other nominee) or if you vote in person at the
annual meeting. Abstentions and broker non-votes will be counted
towards the quorum requirement. If there is no quorum, a
majority of the votes present at the meeting may adjourn the
meeting to another date.
Q. Who
can vote at the meeting?
Only holders of record of CHMs common stock at the close
of business
on ,
200 are entitled to have their vote counted at the
annual meeting and any adjournments or postponements thereof,
subject to the cancellation of the shares of common stock issued
in the IPO immediately upon the filing of the early distribution
amendment, as described above. On this record date, there
were shares
of common stock outstanding and entitled to vote.
Q. Do
I have dissenter or appraisal rights in connection with the
proposals?
No dissenter or appraisal rights are available under the
Delaware General Corporation Law for our stockholders in
connection with the Early Distribution Proposal or any other
proposal.
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Q.
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If I am
not going to attend the Annual Meeting of stockholders in
person, should I return my proxy card instead?
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Yes. After carefully reading and considering the information
contained in this proxy statement, please complete and sign your
proxy card. Be certain to select the appropriate proxy card, as
two forms of proxy card have been enclosed. For example, if you
are a holder of shares of common stock issued in the IPO, then
complete and sign the proxy card entitled Common Stock
Issued in the Initial Public Offering Card. Then return
the proxy card in the return envelope provided herewith as soon
as possible, so that your shares may be represented at our
annual meeting.
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Q. What
will happen if I abstain from voting or fail to vote or withhold
my vote?
An abstention or a failure to vote will have the same effect as
a vote AGAINST the Early Distribution Proposal and the Amendment
and Restatement Proposal. An abstention will have the same
effect as a vote AGAINST the proposal ratifying our selection of
auditors and the Adjournment Proposal. In the election of the
director, shareholders may withhold the vote. A withheld vote
will have no effect on the outcome of election of the director.
Q. What
do I do if I want to change my vote?
If you wish to change your vote, please send a later-dated,
signed proxy card prior to the date of the annual meeting or
attend the annual meeting and vote in person. You may revoke
your proxy by sending a notice of revocation to our CEO, Alwin
Tan, at the address of our corporate headquarters prior to the
annual meeting.
Q. If
my shares are held in street name by my broker, will
my broker vote my shares for me?
No, except with respect to the proposals to elect Mr. Prins
as a director, to ratify the selection of GPKM as our
independent registered public accounting firm for fiscal year
2008, and the adjournment proposal. Your broker cannot vote your
shares on the remaining proposals unless you provide
instructions on how to vote in accordance with the information
and procedures provided to you by your broker.
Q. What
should I do if I receive more than one set of voting
materials?
You may receive more than one set of voting materials, including
multiple copies of this proxy statement and multiple proxy cards
or voting instruction cards, if your shares are registered in
more than one name or are registered in different accounts. For
example, if you hold your shares in more than one brokerage
account, you will receive a separate voting instruction card for
each brokerage account in which you hold shares. Please
complete, sign, date and return each proxy card and voting
instruction card that you receive in order to cast a vote with
respect to all of your shares.
Q. Who
is paying for this proxy solicitation?
The Company will pay for the entire cost of soliciting proxies.
In addition to these mailed proxy materials, our directors and
officers may also solicit proxies in person, by telephone or by
other means of communication. These parties will not be paid any
additional compensation for soliciting proxies. We may also
reimburse brokerage firms, banks and other agents for the cost
of forwarding proxy materials to beneficial owners.
Q. Who
can help answer my questions?
If you have questions about the proposals, you may write, fax,
email or call Alwin Tan, China Healthcare Acquisition Corp.,
1233 Encino Drive, Pasadena, CA 91108. Telephone:
(626) 568-9924.
Fax:
(626) 410-1180.
Email:
acorp458@yahoo.com
.
6
FORWARD
LOOKING STATEMENTS
We believe that some of the information in this proxy statement
constitutes forward-looking statements within the definition of
the Private Securities Litigation Reform Act of 1995. You can
identify these statements by forward-looking words such as
may, will, should,
believes, expects, intends,
anticipates, thinks, plans,
estimates, seeks, predicts,
potential or similar words or the negative of these
words or other variations on these words or comparable
terminology. You should read statements that contain these words
carefully because they discuss future expectations, contain
projections of future results of operations or financial
conditions or state other forward looking information.
While we believe it is important to communicate our expectations
to our stockholders, there may be events in the future that we
are not able to accurately predict or over which we have no
control. The cautionary language discussed in this proxy
statement provides examples of risks, uncertainties and events
that may cause actual results to differ materially from the
expectations described by us in our forward-looking statements,
including among other things:
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Claims by third parties against the Trust Account.
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Unanticipated delays in the distribution of the funds from the
Trust Account.
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The application of Rule 419.
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Other restrictions to future financings or business combinations
and CHMs ability to finance and consummate acquisitions
following the distribution of the funds from the
Trust Account.
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You should be aware that the occurrence of the events described
in this proxy statement could have a material adverse effect on
our business, financial condition and results of operations.
You are cautioned not to place undue reliance on these
forward-looking statements, which speak only as of the date of
this proxy statement.
All forward-looking statements included herein attributable to
us or any person acting on either partys behalf are
expressly qualified in their entirety by the cautionary
statements contained or referred to in this section. Except to
the extent required by applicable laws and regulations, we
undertake no obligation to update these forward-looking
statements to reflect events or circumstances after the date of
this proxy statement or to reflect the occurrence of
unanticipated events.
Before you grant your proxy or instruct how your vote should be
cast or vote on the proposals described in this proxy statement,
you should be aware that the occurrence of the events described
in this proxy statement could have a material adverse effect on
us.
THE
ANNUAL MEETING OF CHMS STOCKHOLDERS
Date,
Time and Place of Annual Meeting
The annual meeting of stockholders of CHM will be held at
10:00 a.m., Eastern Time,
on ,
200 at the offices of Venable LLP, 575
7th Street, NW, Washington, DC 20004.
Purpose
of the Annual Meeting
The purpose of the annual meeting is to:
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consider and vote upon the Early Distribution Proposal;
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elect one director to serve as Class I director until the
third annual meeting after this meeting and until his successor
is elected qualified;
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ratify the selection of GPKM as our independent registered
public accounting firm for fiscal year 2008;
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consider and vote upon the Adjournment Proposal;
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consider and vote upon the Amendment and Restatement Proposal*;
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transact such other business as may properly come before the
meeting and any postponement or adjournment thereof.
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Who Can
Vote at the Annual Meeting
Only the stockholders of record at the close of business
on ,
200 , the record date for the annual meeting, and
whose shares of common stock are outstanding on the record date,
will be entitled to notice of, and to vote at, the annual
meeting or any adjournments or postponements of the annual
meeting.
On the record date, there
were shares
of common stock outstanding. Each share of common stock is
entitled to one vote on each matter properly brought before the
meeting, except that the common stock issued in the IPO that is
cancelled immediately upon the filing of the early distribution
amendment, as described below, will not be able to vote on the
Amendment and Restatement Proposal. Shares that are held in
treasury are not outstanding or entitled to vote at the annual
meeting.
In accordance with Delaware law, a list of stockholders entitled
to vote at the meeting will be available at the meeting, and for
10 days prior to the meeting, at 1233 Encino Drive,
Pasadena, CA 91108, between the hours of 9 a.m. and
4 p.m., local time.
Vote
Required
Vote
Required To Approve The Early Distribution
Proposal
The approval of the Early Distribution Proposal will require the
affirmative vote of a majority of the outstanding shares of
common stock issued in the IPO and a majority of the outstanding
shares of common stock. Approval of the Early Distribution
Proposal is not conditioned upon approval of the Amendment and
Restatement Proposal, the election of director proposal, the
ratification of auditors proposal or the Adjournment Proposal.
Vote
Required To Approve The Amendment and Restatement
Proposal
The approval of the Amendment and Restatement Proposal will
require the affirmative vote of a majority of the outstanding
shares of common stock issued prior to our IPO. Approval of the
Amendment and Restatement proposal is conditioned upon the
approval of the Early Distribution Proposal, but is not
conditioned upon approval of the election of director proposal,
the ratification of auditors proposal or the Adjournment
Proposal.
Vote
Required To Approve The Election Of Director
The election of the proposed director will require the
affirmative vote of a plurality of the outstanding shares of our
common stock that are present in person or by proxy and entitled
to vote at the meeting. Election of the director is not
conditioned upon the approval of any other proposal.
Vote
Required To Ratify The Selection Of Auditors
The approval of the ratification of selection of auditors will
require the affirmative vote of a majority of the outstanding
shares of our common stock that are present in person or by
proxy and entitled to vote at the meeting. Approval of the
ratification of the selection of auditors is not conditioned
upon the approval of any other proposal.
Vote
Required To Approve The Adjournment Proposal
The approval of the Adjournment Proposal will require the
affirmative vote of a majority of the outstanding shares of our
common stock that are present in person or by proxy and entitled
to vote at the meeting. Approval of the Adjournment Proposal is
not conditioned upon the approval of any other proposal.
* This proposal will be presented for approval only if the
Early Distribution Proposal is approved.
8
Effect
of Withheld Votes and Abstentions; Broker
Non-Votes
All shares of common stock represented at the annual meeting,
but not voting, including abstentions and broker non-votes, will
be treated as present for purposes of determining the presence
or absence of a quorum for all matters for consideration of the
annual meeting.
In the election of directors, stockholders may withhold their
vote. Withheld votes will be excluded from the vote and will
have no effect on the outcome. Stockholders may also vote to
abstain on each of the other proposals. If you vote
to abstain, it will have the same effect as vote
against the Early Distribution Proposal, the Amendment and
Restatement Proposal, the proposal to ratify the selection of
GPKM as our independent registered public accounting firm for
fiscal year 2008, and the Adjournment Proposal. Broker
non-votes, if any, will not be counted for purposes
of the proposal to ratify the selection of GPKM as our
independent registered public accounting firm for fiscal year
2008 or the Adjournment Proposal. However, a broker non-vote
will have the same effect as a vote against the Early
Distribution Proposal and the Amendment and Restatement Proposal.
If stockholders return a proxy but do not indicate how to vote,
the common stock represented by such proxy will be voted in
favor of all matters for consideration at the annual meeting.
Proxies
and Voting Procedures
Revoking
a Proxy
You may revoke your proxy at any time before it is exercised by
timely delivering a properly executed, later-dated proxy
(including by voting over the Internet or telephone) or by
voting by ballot at the annual meeting. Simply attending the
annual meeting without voting will not revoke your proxy.
Shares
held in Street Name
If your shares of common stock are held in an account at a
broker, bank or other nominee and you wish to vote, you must
return your instructions to the broker, bank or other nominee.
If you own shares of common stock through a broker, bank or
other nominee and attend and vote at the annual meeting, you
should bring a letter from your broker, bank or other nominee
identifying you as the beneficial owner of such shares of common
stock and authorizing you to vote.
BACKGROUND
INFORMATION
General
CHM was incorporated in Delaware on June 7, 2006 as a blank
check company formed for the purpose of acquiring, through a
merger, capital stock exchange, asset acquisition or other
similar business combination, one or more businesses with
operations primarily in the Peoples Republic of China
whose fair market value is at least equal to 80% of our net
assets at the time of such business combination.
Initial
Public Offering
A registration statement for our IPO was declared effective on
April 19, 2007. On April 25, 2007, we consummated our
IPO of 8,500,000 units (Units). Each Unit
consists of one share of the Companys common stock and two
warrants. Our common stock and warrants started trading
separately as of May 29, 2007. For more information about
our securities, see the section entitled Description of
Securities.
The IPO was consummated on April 25, 2007, and we received
net proceeds of $46,448,485. Additionally on May 9, 2007,
we received net proceeds of $7,171,410 from the sale of
1,251,555 Units in conjunction with the exercise of the
underwriters over-allotment option by the underwriters of
our IPO. Preceding the consummation of the IPO on April 25,
2007, our Chairman of the Board of Directors (the
Chairman) purchased an aggregate of 3,000,000
warrants at $0.50 per warrant from us in a private placement
(the Private Placement). We received net proceeds
from the Private Placement of the warrants of $1,500,000. Upon
the closing of the IPO, including the
9
exercise of the over-allotment option by the underwriters,
$57,307,802 was placed in the Trust Account, including
$2,133,867 of deferred underwriting fees.
Our Amended and Restated Certificate of Incorporation requires
us to dissolve and liquidate if we do not effect a business
combination as described in the registration statement for our
IPO by April 19, 2009 (the Termination Date).
Termination
of the Stock Purchase Agreement
On August 6, 2008, CHM and Europe Asia Huadu Environment
Pte, Ltd., TeamBest International Limited, and Madame Wang Lahua
(collectively, Seller) signed a definitive stock
purchase agreement (Stock Purchase Agreement).
Effective November 10, 2008, CHM and Seller mutually agreed
to terminate the Stock Purchase Agreement among them. Our board
of directors has determined that it would not receive the votes
of its stockholders required for approval of the acquisition.
Furthermore, our board of directors has determined that it is no
longer possible for CHM to consummate a qualifying business
combination prior to the Termination Date. Based upon this
determination, our board of directors believes it is in the best
interests of our stockholders to take the necessary actions to
return to the holders of our common stock the amounts held in
the Trust Account with interest (net of applicable taxes,
if any) prior to the Termination Date.
Early
Distribution of the Trust Account
CHMs stockholders are being asked to approve an amendment
to our Amended and Restated Certificate of Incorporation to
expressly permit CHM to begin proceedings to distribute the
funds in the Trust Account to the common stockholders of
shares issued in the IPO as of the date of the annual meeting.
If the early distribution amendment is approved, CHM will make
the Trust Account distribution as soon as practicable after
the annual meeting. Furthermore, we do not expect there to be
any cash outside the Trust Account in excess of currently
accrued liabilities and anticipated expenses as of the date of
the annual meeting.
As of November 28, 2008, there was approximately
$57,511,268 (approximately $5.89 per share) in the
Trust Account. Only holders of shares of common stock
issued in our IPO are entitled to receive proceeds from the
distribution of the Trust Account.
Continuation
of CHM Following the Distribution of the
Trust Account
General
The purpose of the elimination of blank check company
restrictions proposal, which is conditioned upon the approval of
the amendment to permit early distribution of the
Trust Account and the filing of the early distribution
amendment with the Secretary of State of Delaware, is to permit
CHM to continue its corporate existence (rather than dissolving,
as currently required by our Amended and Restated Certificate of
Incorporation following the passage of the Termination Date
without consummation of a qualifying business combination) and
to do so with a corporate charter that does not contain blank
check company-related provisions and other restrictions.
Specifically, the Amendment and Restatement Proposal includes
removing the restrictive provisions relating to the operations
of CHM as a blank check company.
Future
Acquisition Plans
If the elimination of blank check company restrictions proposal
is approved, CHM intends to pursue the acquisition of one or
more operating companies, subject to several important factors,
including the availability of financing and the role and level
of involvement of CHMs current board of directors and
management in CHMs post-blank check company operations. We
cannot assure you that we will be able to acquire an operating
business. As an alternative, CHM might seek to obtain value from
its status as a public shell through a sale to or combination
with an operating company seeking such status as a means of
going public.
Since the termination of the Stock Purchase Agreement in
November 2008, CHM has reduced its operations to maintaining its
contacts in the business community and conducting informal,
preliminary talks with potential
10
acquisition candidates and others who might provide leads and
referrals to potential acquisition candidates. As of the date of
this proxy statement, CHM has no arrangements in place with any
acquisition candidates and will not engage in more active
identification and pursuit of potential acquisitions unless and
until the elimination of blank check company restrictions
proposal is approved at the annual meeting by holders of shares
of common stock issued prior to our IPO. Currently, it is
anticipated that the members of CHMs board of directors
will continue to serve as directors of CHM through the date of
the annual meeting and may continue thereafter.
Need
for Additional Capital
The board of directors anticipates that CHM will need to raise
capital to fund ongoing operations, including the compliance
costs of continuing to remain a public reporting company and to
fund the acquisition of an operating business. On
December 21, 2008, we had approximately $816,299 in cash
outside the Trust Account and unpaid accrued expenses of
$174,794. We expect to incur additional expenses through the
date of the annual meeting, including approximately $517,207 for
taxes, legal and accounting fees, and, if the Early Distribution
Proposal is approved, additional expenses related to the
distribution that will consume substantially all of any cash
remaining outside of the Trust Account, other than
approximately $200,000 that we do not intend to distribute if
the Early Distribution Proposal is approved but to apply to our
continuing costs of operations to secure an acquisition
candidate.
CHM does not currently have any specific capital-raising plans.
We may seek to issue equity securities, including the reduction
of the exercise price of the outstanding warrants or the
issuance of preferred securities for which we may determine the
rights and designations, common stock, warrants, equity rights,
convertibles notes and any combination of the foregoing. Any
such offering may take the form of a private placement, public
offering, rights offering, other offering or any combination of
the foregoing at fixed or variable market prices or discounts to
prevailing market prices. We cannot assure you that we will be
able to raise sufficient capital on favorable, or any, terms. We
believe that the issuance of equity securities in such a private
financing will not be subject to stockholder approval if CHM
common stock is not then listed on a national stock exchange.
Accordingly, you may not be entitled to vote on any future
financing by CHM.
If CHM is deemed to be a blank check company for the
purposes of the federal securities laws, regulatory restrictions
that are more restrictive than those currently set forth in
CHMs Amended and Restated Certificate of Incorporation may
apply to any future public offerings by CHM. For more
information, see the section below entitled
Potential Application of Rule 419 under
the Securities Act to Future Public Offerings.
Possible
Status as Shell Company under the Federal Securities
Laws
Following stockholder approval of the Early Distribution
Proposal and the elimination of blank check company restrictions
proposal, we may be deemed a shell company under the
federal securities laws. A shell company is a public
reporting company that has no or nominal assets (other than
cash), and no or nominal operations. Shell companies are subject
to certain special rules under the federal securities laws,
including:
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specific disclosure requirements on
Form 8-K
upon the consummation of a transaction that effects a change in
control or changes the shell company into a non-shell company;
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limitations in the use of certain short-form registration
statements under the Securities Act while a shell company,
including
Form S-8
registration statements used in connection with employee benefit
plans;
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ineligibility for certain streamlined procedures and publicity
rules in connection with public offerings while a shell company
and for a period of three years thereafter; and
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unavailability of the resale provisions of Rule 144 of the
Securities Act until one year following the
Form 8-K
disclosure described above.
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In addition, we may be deemed a blank check company
under the federal securities laws, which could result in
restrictions on any future public offerings of our securities,
as further described below.
11
Potential
Application of Rule 419 under the Securities Act to Future
Public Offerings
Depending on the timing and nature of our future capital-raising
activities, we could become subject to even more onerous
restrictions regarding the handling of any future public
offering proceeds than those set forth in our current Amended
and Restated Certificate of Incorporation regarding the proceeds
of our IPO. Following the amendment and restatement of our
Amended and Restated Certificate of Incorporation and the
distribution of the funds in the Trust Account, we may be
deemed a blank check company for the purposes of
Rule 419 promulgated under the Securities Act of 1933 (the
Securities Act). Rule 419 imposes strict
restrictions on the handling of the proceeds received, and
securities issued, in an offering registered under the
Securities Act by a blank check company as defined
in Rule 419, including a mandatory escrow of the offering
proceeds, a process of stockholder reconfirmation
when a business combination is announced and a ban on the
trading of the securities sold pending the consummation of a
business combination, which must occur within 18 months of
the offering.
Rule 419 defines a blank check company as:
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a development stage company that has no specific business plan
or purpose or has indicated that its business plan is to engage
in a merger or acquisition with an unidentified company or
companies, or other entity or person; and
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issuing penny stock, as defined in
Rule 3a51-1
under the Securities Exchange Act of 1934 (the Exchange
Act).
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There are several bases on which exemptions from the application
of Rule 419 exist, including raising capital through a
private offering exempt from registration under the Securities
Act, raising net proceeds in excess of $5 million in a
public offering that is a firm commitment underwritten offering
and raising capital in a public offering in connection with the
acquisition of an identified company. Although CHM intends to
conduct any future capital raising in a manner that is exempt
from Rule 419, there can be no assurances that any future
capital raising transactions will qualify for such an exemption.
Quotation
on NYSE ALTERNEXT
CHMs outstanding common stock is currently traded on NYSE
ALTERNEXT. Following stockholder approval of the elimination of
blank check company restrictions proposal and the distribution
of the funds in the Trust Account, in order to continue
trading on NYSE ALTERNEXT CHM must continue to timely file
public reports and satisfy NYSE ALTERNEXTs minimum
stockholder requirements. Concurrent with the IPO, CHM filed a
registration statement on
Form 8-A
with the SEC registering the units, the common stock, and the
warrants under Section 12(g) of the Exchange Act. While
such registration is in effect, CHM is a reporting company under
the federal securities laws. At this time, CHM has no intention
of seeking to deregister its common stock under the Exchange Act
and plans to continue to file public reports as long as such
registration is in effect. Nonetheless, we cannot assure you
that our common stock will remain eligible for quotation on NYSE
ALTERNEXT.
Status of
Outstanding Warrants Following the Annual Meeting of
Stockholders
If the Amendment and Restatement Proposal is not approved and a
qualifying business combination is not consummated by
April 19, 2009, CHM will cease to exist by operation of law
except for the purpose of winding up its affairs and the
officers of CHM will take all action necessary to dissolve and
liquidate as soon as reasonably practicable after April 19,
2009, and your CHM warrants will cease to be outstanding.
If the Amendment and Restatement Proposal is approved, CHM will
continue its corporate existence without any of the blank check
company restrictions previously applicable to it and the
warrants will remain outstanding in accordance with their terms.
It is CHMs position that the warrants will become
exercisable upon the consummation of any business combination
following stockholder approval of this proposal (subject to an
effective registration statement with respect to the shares of
common stock underlying the warrants being in effect at such
time). Outstanding warrants may adversely affect the ability of
CHM to attract new investors or otherwise obtain financing and
may make it more difficult to effect future acquisitions. For
information about the warrants, see the section entitled
Description of Securities.
12
Liquidation
if the Amendment and Restatement Proposal Is Not
Approved
If the Amendment and Restatement Proposal is not approved by the
stockholders and a qualifying business combination is not
consummated by April 19, 2009, CHM will cease to exist by
operation of law except for the purpose of winding up its
affairs and the officers of CHM will take all action necessary
to dissolve and liquidate as soon as reasonably practicable
after April 19, 2009.
Interests
of CHM Directors and Officers in the Proposals
When you consider the recommendations of CHMs board of
directors in favor of the proposals, you should keep in mind
that CHMs initial stockholders, directors and officers
(CHM Inside Stockholders) have interests in the
proposals that may be different from, or in addition to, your
interests as a stockholder.
Warrants
Held by CHM Inside Stockholders
If the Amendment and Restatement Proposal is not approved and a
qualifying business combination is not consummated by
April 19, 2009, CHM will cease to exist by operation of law
and will be required to commence proceedings to dissolve and
liquidate. In such event, the 2,126,300 shares of CHM
common stock and 3,015,800 warrants held by the CHM Inside
Stockholders that were acquired prior to the IPO will be
worthless because the CHM Inside Stockholders have waived any
rights to receive any trust liquidation proceeds. Our current
directors, officers and special advisors, either directly or
beneficially, own an aggregate of 2,122,050 shares of CHM
common stock and 3,015,800 warrants that they purchased for a
total consideration of approximately $1,546,433. The common
stock had an aggregate market value (without taking into account
any discount due to the restricted nature of such securities) of
$ based on a quotation of
$ , on NYSE ALTERNEXT
on ,
the record date. For more information about the outstanding
warrants, see the sections entitled Description of
Securities, Background Information
Status of Outstanding Warrants Following the Annual Meeting of
Stockholders, and Market Price Information for
CHM.
Compensatory
Arrangements for Board of Directors and Management
None of CHMs executive officers or directors has received
any cash compensation for services rendered to CHM. Commencing
on the effective date of our IPO, we have paid NCIL, an
affiliate of Alwin Tan, a fee of $5,000 per month for providing
us with certain limited administrative, technical and
secretarial services, as well as the use of certain limited
office space. The agreement with NCIL is for our benefit and was
not intended to provide Mr. Tan compensation in lieu of a
salary. We believe that this arrangement is at least as
favorable to CHM as we could have obtained from an unaffiliated
third party. Other than this $5,000 per-month fee, no
compensation of any kind, including finders and consulting
fees, will be paid to any of our officers or directors, or any
of their respective affiliates, for services rendered prior to
or in connection with a business combination. However, persons
who were stockholders prior to our IPO, including our officers
and directors, will receive reimbursement for any out-of-pocket
expenses incurred by them in connection with activities on our
behalf, such as identifying potential target businesses and
performing due diligence on suitable business combinations.
All of the current members of CHMs board of directors are
expected to continue to serve as directors at least through the
date of the annual meeting.
CHM currently has made no determinations regarding the
compensation it will pay its directors or officers following
stockholder approval of the elimination of blank check company
restrictions proposal and the Trust Account distribution.
Officer
and Director Liability
If CHM dissolves and liquidates prior to the consummation of a
business combination, each of our Chief Executive Officer Alwin
Tan and our Chairman of the Board Jack Kang has severally agreed
that he will be personally liable to ensure that the proceeds in
the Trust Account are not reduced by the claims, if any, of
target businesses or of vendors or other entities that are owed
money by us for services rendered or contracted for or products
sold to us, but only to the extent necessary to ensure that such
loss, claim or liability does not reduce the
13
amount in the Trust Account other than amounts attributable
to interest. However, we cannot assure you that these
individuals will be able to satisfy those obligations. As a
result, the indemnification described above may not effectively
mitigate the risk of creditors claims upon the amounts
distributed to the common stockholders from the
Trust Account.
Potential
Interests of the CHM Inside Stockholders in Future Financings
and Acquisitions
Following stockholder approval of the Trust Account
distribution and the elimination of the blank check company
restrictions, CHM will operate without the blank check company
restrictions that are currently set forth in our Amended and
Restated Certificate of Incorporation. The board of directors
anticipates that CHM will need to raise capital to fund ongoing
operations, including the compliance cost of continuing to
remain a public reporting company, and to fund the acquisition
of an operating business. Such a financing may involve existing
investors
and/or
new
investors, including officers and directors of CHM. Further, any
operating business which CHM may acquire following stockholder
approval of the elimination of blank check company restrictions
proposal, may be affiliated, or have some relationship with, one
of our existing officers and directors. In connection with our
IPO, each of our officers and directors signed an agreement with
Ferris, Baker Watts Incorporated, the underwriter of our IPO
(FBW), that we would not consummate a business
combination with an affiliated entity without an opinion from an
independent investment banking firm that the business
combination is fair to CHMs stockholders from a financial
perspective. The continued applicability of this provision
following the stockholder approval of the elimination of blank
check company restrictions proposal and the Trust Account
distribution is unclear. In such circumstances, we would
anticipate that the board of directors will take such action as
is consistent with its fiduciary duties to stockholders.
Certain
Other Interests in the Proposals
In addition to the interests of our directors and officers in
the proposals, you should keep in mind that certain individuals
promoting the proposals
and/or
soliciting proxies on behalf of CHM have interests in the
proposals that may be different from, or in addition to, your
interests as a stockholder.
We agreed to sell to the underwriters, for $100, an option to
purchase up to a total of 500,000 units. The units issuable
upon exercise of this option are identical to those offered in
the IPO except that the warrants included in the units have an
exercise price of $6.25 (125% of the exercise price of the
warrants included in the units sold in the IPO). This option is
exercisable at $7.50 per unit (125% of the price of the units
sold in the IPO) commencing on the later of the consummation of
a business combination and one year from the date of the IPO and
expiring five years from the date of the IPO.
14
MANAGEMENT
OF CHM
Our current directors, executive officers and special advisor
are as follows:
|
|
|
|
|
Name
|
|
Age
|
|
Position
|
|
Jack Kang(1)
|
|
52
|
|
Chairman of the Board
|
Alwin Tan(1)
|
|
70
|
|
Chief Executive Officer, President and Director
|
Steven Wang
|
|
62
|
|
Chief Financial Officer and Treasurer
|
Mark Tan
|
|
41
|
|
Vice President and Secretary
|
James Ma(2)
|
|
56
|
|
Director
|
Ron Harrod(2)
|
|
78
|
|
Director
|
Richard Prins(3)
|
|
51
|
|
Nominee
|
Stanley Chang
|
|
67
|
|
Special Advisor
|
|
|
|
(1)
|
|
Class III Term Expiring in 2011
|
|
(2)
|
|
Class II Term Expiring in 2010
|
|
(3)
|
|
Class I Term Expiring in 2012
|
The Board of Directors has determined that James Ma and Ron
Harrod are independent directors within the meaning set forth in
the listing standards of NYSE ALTERNEXT.
Current
Board of Directors
Jack Kang
has been our Chairman of the Board since our
inception on June 7, 2006. Mr. Kangs Chinese
name is Jian Kang. Mr. Kang has been the Chief Executive
Officer and Director of Searainbow Holding Corp. since 1997. It
is a China Listed company (Shenzhen Index) with a market value
of about $960 million (Stock code: 000503). Currently,
Searainbows businesses mainly involve medical
e-commerce
and digital entertainment. The medical
e-commerce
sector mainly focuses on (a) public bidding and procurement
of drugs and medical instruments determined and organized by
local governments and administrative departments;
(b) electronic pharmaceutical and medical instruments
exchange markets conducted by enterprises;
(c) e-government
service; and (d) medical service, data service and various
other value-added services including member services, online
advertising, search engines, sales promotions, and technology
services. He received a Bachelors Degree in Economics from
RENMIN University of China in 1982 and is a member of the
National Committee of the Chinese Peoples Political
Consultative Conference and a Visiting Professor of RENMIN
University of China.
Alwin Tan
has been our Chief Executive Officer, President
and a Director since our inception on June 7, 2006.
Mr. Tan has over 30 years experience in private
equity, mergers and acquisitions. He was a consultant to
Amphastar Pharmaceuticals, Inc.
(1998-2004),
a privately held specialty pharmaceutical company in Rancho
Cucamonga, California that develops, manufactures, markets, and
sells generic and proprietary injectable and inhalation
products. From 1998 to 2003, Mr. Tan was a Director and
Secretary of International Medication System Limited, a
specialty pharmaceutical company currently wholly owned by
Amphaster Pharmaceuticals that develops, manufactures, markets,
and sells generic and proprietary products in El Monte,
California. He was the President and Chief Executive Officer of
Ameribankers Corp. from 1995 to 2002, which was a privately
owned consulting firm that assisted clients in all areas of
strategic planning. From
1992-1994,
Mr. Tan was a consultant to the State Planning Commission
of the Peoples Republic of China. Tan received his LL.B.
in 1967 and his J.D. in 1969 from the University of Iowa. He
received a B.A. from Walla Walla College in 1963. Alwin Tan is
Mark Tans father.
James Ma
has been our Director since our inception on
June 7, 2006. Mr. Ma is presently the Chief Executive
Officer and President of SIUI America, Inc., his privately held
technology-driven medical ultrasound company located in the
Silicon Valley, California since 1999. His company has a
subsidiary, Sonic Systems Co., which does business in Hong Kong
and China. Mr. Ma holds an MBA and BBA from the University
of Iowa and has completed a number of engineering research and
training programs in Hong Kong and China.
Ron Harrod
has been our Director since his election and
appointment on January 24, 2008. He was also named to the
Audit Committee of the Board. He had been our Special Advisor
since our inception on June 7, 2006.
15
Mr. Harrod has over five decades of experience in all
phases of investment and financial management. He has been a
registered Principal of WBB Securities LLC since 2001. From 1989
through 2001, Mr. Harrod was a Principal of Securities of
America, Inc. Mr. Harrod attended the University of
Southern California and University of California Long Beach,
earning a BA degree.
Executive
Officers
Mark Tan
has been our Vice President for Strategic
Planning and Secretary since our inception on June 7, 2006.
Mr. Tan is an experienced business development and strategy
professional. He has extensive experience in the wireless and
telecom industry, has held leadership roles in both
start-up
and
larger corporate environments, and has significant experience
providing financial and management consulting advice to Fortune
500 companies. Mr. Tan was formerly the West Region
Director of the Strategy and Technology Group for inCode
Telecom. In this capacity, he provided strategic and technology
consulting advice to the wireless industry, and consulted for
technology clients in various parts of Asia, including
Singapore, China, and South Korea. Prior to inCode, Mr. Tan
worked at Epinions.com
(1999-2001),
where he managed strategic partnerships and led business
development activities. From 1997 to 1999, he was the Assistant
Vice President for Marketing and Business Development for
GoAmerica Communications. In this capacity, he negotiated
strategic partnerships and established relationships with
content providers, device manufacturers, channel partners,
application developers, and network carriers. From 1996 to 1997,
Mr. Tan was a Business Manager at Qualcomm where he managed
CDMA infrastructure business opportunities throughout Southeast
Asia. From 1990 to 1994, he worked in the Merger &
Acquisitions and Financial Advisory Group at Coopers &
Lybrand where he performed financial and strategic analyses of
companies involved in mergers and acquisitions and other
strategic transactions, divestitures, leveraged buyouts,
recapitalizations, and bankruptcies. Mark Tan holds a BS in
Economics from the University of California at Los Angeles and
an MBA with an emphasis in Marketing and Corporate Strategy from
the University of Michigan. Mark Tan is Alwin Tans son.
Steven Wang
has been our Chief Financial Officer and
Treasurer since our inception on June 7, 2006. He served as
our Director from our inception until his resignation on
January 24, 2008. Mr. Wangs Chinese name is
Shixian Wang. From 1993 to the present, he has been the
President of Cosmos Machinery Corp., a consulting firm, involved
in media planning, trading of machinery/equipment, and
environmental projects and internet
start-ups.
In addition, he was a sales consultant from January 2005 to
December 2005 at Allied Masonry and Construction, Inc. and from
January 2006 to May 2006 at Quality Pre-Cast Company, in each
case, on a part-time basis. From 1989 to 1992, he was the Chief
Financial Officer of Sher Corporation, a privately-held real
estate development company. He attended Shanghai Teachers
University, Graduate School of China Academy of Sciences and Cal
State LA, School of Business. He received his MSBA from Cal
State Northridge in 1986, with emphasis on Accountancy.
Executive officers are appointed by and serve at the pleasure of
the Board of Directors.
See also Management of CHM Current Board of
Directors.
Special
Advisor
Stanley Chang
has been our Special Advisor since our
inception on June 7, 2006. Dr. Chang has been the
President of Megaspace Corp. since 1994 which is a sales agent
for many petrochemical equipment manufacturers around the world
including Air Products and Chemicals, Coek Engineering N.V.,
Ellett Industries, FES,
Foster-Wheeler,
Fisher-Klosterman, JND, Nowata Fitration, Struthers-Wells,
Uraca, Vicarb. Dr. Chang was the Vice President and
Director of Ameribankers Corp. from 1995 to 2000. Dr. Chang
received a Ph.D. from Stony Brook University, MSME from Syracuse
University and BSME from National Cheng Kung University, Taiwan.
See also Proposal 3 Election of Director
For Term Expiring 2012 Richard Prins.
Involvement
in Certain Legal Proceedings
None.
16
GOVERNANCE
OF CHM
Board
Meetings and Committees
The Board met on two occasions during the year ended
December 31, 2007 and acted by written consent on one
occasion. Except for Larry Liou who resigned earlier this year,
each director attended at least 75% of the aggregate of
(i) the total number of meetings of the Board; and
(ii) the total number of meetings held by all committees of
the Board on which he served. There is one committee of the
Board: the Audit Committee.
Each director is expected to make reasonable efforts to attend
Board meetings, committee meetings of which such director is a
member and the annual meeting of Shareholders.
Director
Independence
Applicable NYSE ALTERNEXT rules require that at least 50% of our
Board of Directors be independent. Our Board of Directors
considers each of the directors to be independent as defined by
applicable NYSE ALTERNEXT rules, with the exceptions of
Messrs. Kang and Tan. In making this determination our
Board of Directors has concluded that none of the independent
directors has a relationship, that in the opinion of the Board,
would interfere with the exercise of independent judgment in
carrying out the responsibilities of a director. In addition,
the Board of Directors considers Mr. Prins to be
independent under the NYSE ALTERNEXT rules.
Audit
Committee
The current members of the Audit Committee are James Ma and Ron
Harrod. The Audit Committee is governed by a charter, which was
adopted on July 11, 2006. A copy of the charter was
previously filed with the Securities and Exchange Commission as
an exhibit to our registration statement (File
333-135705).
The Board has determined that Audit Committee member Ron Harrod
satisfies NYSE ALTERNEXTs definition of financial
sophistication and also qualifies as an audit committee
financial expert, as defined under rules and regulations
of the Securities and Exchange Commission.
Report of
the Audit Committee
The Audit Committee assists the Board of Directors in fulfilling
its responsibility for oversight of the Companys financial
and accounting operations. Each member of the Audit Committee
meets the criteria for being independent set forth
under NYSE ALTERNEXT US LLC Company Guide Sec. 803. During the
fiscal year ended December 31, 2007, the Committee met on
three occasions.
In discharging its responsibility for oversight of the audit
process, the Audit Committee obtained from the independent
auditors, Goldman Parks Kurland Mohidin, LLP, a formal written
statement describing any relationships between the auditors and
the Company that might bear on the auditors independence
consistent with the Independent Standards Board Standard
No. 1, Independence Discussions with Audit
Committees, and discussed with the auditors any
relationships that might impact the auditors objectivity
and independence and satisfied itself as to the auditors
independence.
The Committee discussed and reviewed with the independent
auditors the communications required by generally accepted
auditing standards, including those described in Statement on
Auditing Standards No. 61, as amended, Communication
with Audit Committees and discussed and reviewed the
results of the independent auditors examination of the
financial statements for the fiscal year ended December 31,
2007.
The Committee reviewed the audited financial statements of the
Company as of and for the fiscal year ended December 31,
2007, with management and the independent auditors. Management
has the responsibility for preparation of the Companys
financial statements and the independent auditors have the
responsibility for examination of those statements. Based upon
the above-mentioned review and discussions with management and
the independent auditors, the Committee recommended to the Board
that the Companys audited financial statements be included
in its Annual Report on
Form 10-K
for the fiscal year ended December 31, 2007, for filing
with the SEC.
17
Pre-Approval
of Services
All audit and non-audit services to be performed by the
Companys independent accountant must be approved in
advance by the Audit Committee. The Audit Committee may delegate
to one member of the committee the authority to grant
pre-approvals with respect to non-audit services. For audit
services, each year the independent accountant provides the
Audit Committee with an engagement letter outlining the scope of
proposed audit services to be performed during the year, which
must be formally accepted by the Committee before the audit
commences. The independent accountant also submits an audit
services fee proposal, which also must be approved by the
Committee before the audit commences.
Nominating
and Corporate Governance Committee
Prior to the formation of a nominating committee, a majority of
independent directors shall select, or recommend to the full
Board for selection, all nominees to the Board.
The Board of Directors will consider as potential nominees
persons recommended by shareholders. Recommendations should be
submitted to the Secretary, China Healthcare Acquisition Corp.,
1233 Encino Drive, Pasadena, CA 91108. Each recommendation
should include a personal biography of the suggested nominee, an
indication of the background or experience that qualifies the
person for consideration and a statement that the person has
agreed to serve if nominated and elected.
The Board of Directors does not have a nominating charter and
has used an informal process to identify potential candidates
for nomination as directors. Candidates for nomination have been
recommended by an executive officer or director. Our chief
executive officer recommended Mr. Prins for nomination. The
Board of Directors has not adopted specific minimum
qualifications that it believes must be met by a person if
recommended for nomination as a director. In evaluating
candidates for nomination, the Board of Directors will consider
the factors it believes to be appropriate. These factors would
generally include the candidates personal and professional
integrity, business judgment, relevant experience and skills and
the potential to be an effective director in conjunction with
the rest of the Board of Directors in collectively serving the
long-term interests of our shareholders. The Board of Directors
has not to date retained a third party search firm although it
has the authority to do so. The Board of Directors does not
evaluate potential nominees for director differently based on
whether they are recommended by a shareholder.
Compensation
Committee
Prior to the formation of a compensation committee, a majority
of independent directors shall determine, or recommend to the
full Board for determination, the compensation to be paid to our
executive officers, to the extent that our executive officers
are entitled to receive compensation.
Compensation
of Directors
We do not provide cash or other compensation to our directors
for their services as members of the Board or for attendance at
Board or committee meetings. However, our directors will be
reimbursed for out-of-pocket expenses incurred by them in
connection with activities on our behalf such as identifying
potential target businesses and performing due diligence on
suitable business combinations.
Communications
with Directors
Shareholders may send communications to members of our Board of
Directors who serve on the Audit Committee by sending a letter
addressed to Secretary, China Healthcare Acquisition Corp., 1233
Encino Drive, Pasadena, CA 91108.
Code of
Ethics
We have adopted a code of conduct and ethics applicable to our
directors, officers and employees in accordance with applicable
federal securities laws and the rules of NYSE ALTERNEXT. The
Code is available on
18
our corporate website at
www.chacq.com
and may also be
requested in print, without charge, by writing to: China
Healthcare Acquisition Corp., 1233 Encino Drive, Pasadena, CA
91108, Attn: Corporate Secretary.
Section 16(a)
Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act requires our
directors, executive officers and persons who own more than 10%
of our common stock to file reports of ownership and changes in
ownership of our common stock with the Securities and Exchange
Commission. Directors, executive officers and persons who own
more than 10% of our common stock are required by Securities and
Exchange Commission regulations to furnish to us copies of all
Section 16(a) forms they file. To our knowledge, based
solely upon review of the copies of such reports received or
written representations from the reporting persons, we believe
that during the year ended December 31, 2007, our
directors, executive officers and persons who own more than 10%
of our common stock complied with all Section 16(a) filing
requirements, other than James Ma who did not timely file a
Form 4 with respect to the acquisition of 3,000 units.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT OF CHM
STOCK
The following table sets forth, as
of ,
200 , certain information regarding beneficial
ownership of our common stock by each person who is known by us
to beneficially own more than 5% of our common stock. The table
also identifies the stock ownership of each of our directors,
each of our officers, and all directors and officers as a group.
Except as otherwise indicated, the stockholders listed in the
table have sole voting and investment powers with respect to the
shares indicated.
|
|
|
|
|
|
|
|
|
|
|
Amount and Nature
|
|
|
|
|
|
|
of Beneficial
|
|
|
Percentage of Outstanding
|
|
Name and Address of Beneficial Owner(1)
|
|
Ownership
|
|
|
Common Stock
|
|
|
Jack Kang(2)
|
|
|
1,035,300
|
|
|
|
8.7
|
%
|
Alwin Tan(3)
|
|
|
1,035,300
|
|
|
|
8.7
|
%
|
Steven Wang
|
|
|
21,250
|
|
|
|
0.2
|
%
|
Mark Tan
|
|
|
21,250
|
|
|
|
0.2
|
%
|
James Ma(4)
|
|
|
7,250
|
|
|
|
0.06
|
%
|
Ron Harrod
|
|
|
1,700
|
|
|
|
0.01
|
%
|
QVT Financial LP(5)
|
|
|
1,041,125
|
|
|
|
8.8
|
%
|
QVT Fund LP(5)
|
|
|
824,438
|
|
|
|
6.9
|
%
|
QVT Financial GP LLC(5)
|
|
|
1,041,125
|
|
|
|
8.8
|
%
|
QVT Associates GP LLC(5)
|
|
|
917,430
|
|
|
|
7.7
|
%
|
Deutsche Bank AG(6)
|
|
|
624,795
|
|
|
|
5.3
|
%
|
Polar Securities, Inc.(7)
|
|
|
692,100
|
|
|
|
5.8
|
%
|
HBK Investments L.P.(8)
|
|
|
1,187,604
|
|
|
|
9.9
|
%
|
HBK Services LLC(8)
|
|
|
1,187,604
|
|
|
|
9.9
|
%
|
HBK Partners II L.P.(8)
|
|
|
1,187,604
|
|
|
|
9.9
|
%
|
HBK Management LLC(8)
|
|
|
1,187,604
|
|
|
|
9.9
|
%
|
HBK Master Fund L.P.(8)
|
|
|
1,187,604
|
|
|
|
9.9
|
%
|
Bulldog Investors, Phillip Goldstein and Andrew Dakos(9)
|
|
|
720,843
|
|
|
|
6.07
|
%
|
All directors and executive officers as a group (7 individuals)
|
|
|
2,126,300
|
|
|
|
17.86
|
%
|
|
|
|
(1)
|
|
Unless otherwise indicated, the business address of each of the
individuals is 1233 Encino Drive, Pasadena, CA 91108.
|
|
(2)
|
|
Excludes 3,000,000 shares issuable upon exercise of
warrants issued in the Private Placement (See Certain
Relationships and Related Transactions).
|
19
|
|
|
(3)
|
|
Excludes 9,800 shares issuable upon exercise of warrants
that are not exercisable within 60 days.
|
|
(4)
|
|
Excludes 6,000 shares issuable upon exercise of warrants
that are not exercisable within 60 days.
|
|
(5)
|
|
Based upon a Schedule 13G (Amendment No. 1) filed
on January 31, 2008 by QVT Financial LP (QVT
Financial), QVT Fund LP (the Fund), QVT
Financial GP LLC, and QVT Associates GP, LLC. QVT Financial is
the investment manager for the Fund, which beneficially owns
824,438 shares of Common Stock, and for Quintessence
Fund L.P. (Quintessence), which beneficially
owns 92,992 shares of Common Stock. QVT Financial is also
the investment manager for a separate discretionary account
managed for Deutsche Bank AG (the Separate Account),
which holds 123,695 shares of Common Stock. QVT Financial
has the power to direct the vote and disposition of the Common
Stock held by the Fund, Quintessence and the Separate Account.
Accordingly, QVT Financial may be deemed to be the beneficial
owner of 1,041,125 shares of Common Stock.
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QVT Financial GP LLC, as General Partner of QVT Financial, may
be deemed to beneficially own the same number of shares of
Common Stock reported by QVT Financial. QVT Associates GP LLC,
as General Partner of the Fund and Quintessence, may be deemed
to beneficially own the same number of shares of Common Stock
reported by the Fund and Quintessence, and accordingly, QVT
Associates GP LLC may be deemed to be the beneficial owner of an
aggregate amount of 917,430 shares of Common Stock.
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Each of QVT Financial and QVT Financial GP LLC disclaim
beneficial ownership of the shares of Common Stock owned by the
Fund, Quintessence or the Separate Account. QVT Associates GP
LLC disclaims beneficial ownership of all shares of Common Stock
owned by the Fund and Quintessence, except to the extent of its
pecuniary interest therein. The principal business address of
QVT Financial, QVT Financial GP LLC, and QVT Associates GP LLC
is 1177 Avenue of the Americas, 9th Floor New York, New York
10036. The principal business address of the Fund is Walkers
SPV, Walkers House Mary Street George Town, Grand Cayman, KY1
9001 Cayman Islands.
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(6)
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Based upon a Schedule 13G filed on February 4, 2008 by
Deutsche Bank AG (Deutsche Bank) and Deutsche Bank
AG, London Branch (London Branch). The shares of
Common Stock were acquired by London Branch, a subsidiary of
Deutsche Bank. The principal business address of Deutsche Bank
is Theodor-Heuss-Allee 70 60468 Frankfurt am Main Federal
Republic of Germany.
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(7)
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Based upon a Schedule 13G (Amendment No. 1) filed
on February 14, 2008 by Polar Securities, Inc. (Polar
Securities) and North Pole Capital Master Fund
(North Pole). Polar Securities Inc. serves as the
investment manager to North Pole, which beneficially owns
564,134 shares of Common Stock, and a number of
discretionary accounts with respect to which it has voting and
dispositive authority over the shares of Common Stock. Each of
Polar Securities and North Pole disclaims any beneficial
ownership of any such shares. The principal business address of
each of Polar Securities and North Pole is 372 Bay Street, 21st
floor, Toronto, Ontario M5H 2W9, Canada.
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(8)
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Based upon a Schedule 13G filed on July 24, 2008 by
HBK Investments L.P., HBK Services LLC, HBK Partners II
L.P., HBK Management LLC, and HBK Master Fund L.P. HBK
Investments L.P. has delegated discretion to vote and dispose of
the Securities to HBK Services LLC (Services).
Services may, from time to time, delegate discretion to vote and
dispose of certain of the Securities to HBK New York LLC, a
Delaware limited liability company, HBK Virginia LLC, a Delaware
limited liability company, HBK Europe Management LLP, a limited
liability partnership organized under the laws of the United
Kingdom, and/or HBK Hong Kong Ltd., a corporation organized
under the laws of Hong Kong (collectively, the
Subadvisors). Each of Services and the Subadvisors
is under common control with HBK Investments L.P. The
Subadvisors expressly declare that the filing of a statement on
Schedule 13G shall not be construed as an admission that
they are, for the purpose of Section 13(d) or 13(g) of the
Securities Exchange Act of 1934, beneficial owners of such
shares. Jamiel A. Akhtar, Richard L. Booth, David C. Haley,
Lawrence H. Lebowitz, and William E. Rose are each managing
members (collectively, the Members) of HBK
Management LLC. The Members expressly declare that the filing of
a statement on Schedule 13G shall not be construed as an
admission that they are, for the purpose of Section 13(d)
or 13(g) of the Securities Exchange Act of 1934, beneficial
owners of such shares. The principal business address for each
of HBK Investments L.P., HBK Services LLC, HBK Partners II
L.P., HBK Management LLC, and HBK Master Fund L.P. is 2101
Cedar Springs Road, Suite 700, Dallas, Texas 75201.
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(9)
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Based upon a Schedule 13G filed on July 23, 2008 by
Bulldog Investors, Phillip Goldstein and Andrew Dakos. Phillip
Goldstein and Andrew Dakos are principals of Bulldog Investors.
The principal business address of Bulldog Investors, Phillip
Goldstein and Andrew Dakos is Park 80 West, Plaza Two,
Saddle Brook, NJ 07663.
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20
EXECUTIVE
COMPENSATION
None of our executive officers or directors has to date received
any cash compensation for services rendered. Since
April 19, 2007 (the effective date of the registration
statement for our initial public offering), we have paid NCIL,
an affiliate of Alwin Tan, a fee of $5,000 per month for
providing us with certain limited administrative, technical and
secretarial services, as well as the use of certain limited
office space. This arrangement is solely for our benefit and is
not intended to provide Mr. Alwin Tan compensation in lieu
of a salary. No other executive officer or director has a
relationship with or interest in NCIL.
Other than this $5,000 per month fee, no compensation of any
kind, including finders and consulting fees, has been or
will be paid to any of our initial stockholders, our officers or
directors, or any of their respective affiliates, for services
rendered prior to or in connection with a business combination.
However, our initial stockholders and their affiliates have been
and will be reimbursed for out-of-pocket expenses incurred in
connection with activities on our behalf such as identifying
potential target businesses and performing due diligence on
suitable business combinations. There is no limit on the amount
of these out-of-pocket expenses and there will be no review of
the reasonableness of the expenses by anyone other than our
board of directors, which includes persons who may seek
reimbursement, or a court of competent jurisdiction if such
reimbursement is challenged.
Other than the agreement with NCIL, there are no current
agreements or understandings with any of our existing
stockholders or any of their respective affiliates with respect
to the payment of compensation of any kind subsequent to a
business combination. However, there can be no assurance that
such agreements may not be negotiated in connection with, or
subsequent to, a business combination.
Equity
Compensation Plan Information
Currently, we do not maintain any compensation plans (including
individual compensation arrangements) under which our equity
securities are authorized for issuance.
Outstanding
Equity Awards At Fiscal Year-end
There were no outstanding equity awards at fiscal year-end.
Option
Exercises and Stock Vested
There have been no exercises of stock options, SARs or similar
instruments, or vesting of stock, including restricted stock,
restricted stock units or similar instruments, during fiscal
year 2008 by any named executive officer.
Pension
Benefits
We do not sponsor any qualified or non-qualified defined benefit
plans.
Nonqualified
Defined Contribution and Other Nonqualified Deferred
Compensation Plans
We do not maintain any non-qualified defined contribution or
deferred compensation plans.
21
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS
On June 7, 2006, we issued 2,500,000 shares for an
aggregate consideration of $25,000 in cash, at an average
purchase price of approximately $.01 per share. In January,
2007, 375,000 of the shares were surrendered. The following
chart shows the ownership resulting from these transactions:
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Number of
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Name
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Shares
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Relationship to Us
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Jack Kang
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1,035,300
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Chairman of the Board
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Alwin Tan
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1,035,300
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Chief Executive Officer, President and Director
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Steven Wang
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21,250
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Chief Financial Officer and Treasurer
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Mark Tan
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21,250
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Vice President and Secretary
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Larry Liou
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4,250
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Former Director (resigned May 28, 2008)
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James Ma
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4,250
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Director
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Stanley Chang
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|
1,700
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Special Advisor
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Ron Harrod
|
|
|
1,700
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|
|
Director (Special Advisor in 2007)
|
Since April 19, 2007 (the effective date of the
registration statement for our initial public offering), we have
paid NCIL, an affiliate of Alwin Tan, a fee of $5,000 per month
for providing us with certain limited administrative, technical
and secretarial services, as well as the use of certain limited
office space.
On April 25, 2007, our IPO of 8,500,000 units of the
Company was consummated. Immediately prior to the IPO, we
completed a private placement to our Chairman of 3,000,000
warrants, generating gross proceeds of $1,500,000.
At the closing of our IPO, our Chairman loaned $150,000 to us at
an interest rate of 4% per year. As of the fiscal year ended
December 31, 2007, $150,000 of principal was outstanding
and $6,000 in interest had accrued. On April 25, 2008, the
Company repaid all of the outstanding principal and accrued
interest ($156,000).
The existing stockholders have agreed to waive their respective
rights to participate in any liquidation distribution occurring
upon our failure to consummate a business combination, but only
with respect to those shares of common stock acquired by them
prior to the IPO. In addition, in connection with the vote
required for our initial business combination, all of our
existing stockholders, including all of our officers, directors
and special advisors, agreed to vote all of the shares of common
stock owned by them, during or after the IPO, in accordance with
the majority of the shares of common stock voted by the public
stockholders.
See also Executive Compensation.
PROPOSAL 1
THE EARLY
DISTRIBUTION PROPOSAL
We are proposing to amend CHMs Amended and Restated
Certificate of Incorporation to permit the early distribution of
the funds in CHMs IPO Trust Account to the holders of
CHM common stock issued in the IPO. Because our board of
directors has determined that a timely consummation of a
qualifying business combination is no longer possible, our board
of directors believes that it is in the best interests of its
stockholders to return this money to its common stockholders
rather than continue to hold the money in the
Trust Account. If the Early Distribution Proposal is
approved, CHM will file the amendment attached hereto as
Annex A
with the Secretary of State of Delaware on
the date of the annual meeting prior to the Amendment and
Restatement Proposal being presented to the stockholders for
approval. Immediately upon the filing of the early distribution
amendment, all of the outstanding shares of common stock issued
in the IPO will be automatically cancelled and converted into
the right to obtain a pro rata share of the funds in the
Trust Account. Once the distribution amendment is filed,
CHM will take all necessary action to distribute the funds in
the Trust Account as promptly as practicable after the
annual meeting. As of November 28, 2008, there was
approximately $57,511,268 (approximately $5.89 per share of
22
common stock) in the Trust Account. The approval of the
Early Distribution Proposal is a condition to the Amendment and
Restatement Proposal set forth below.
The adoption of the Early Distribution Proposal will require the
affirmative vote of a majority of the outstanding shares of CHM
common stock issued in the IPO and a majority of all outstanding
shares of CHM common stock.
Our Board of Directors Unanimously Recommends That The
Stockholders Vote FOR the Early Distribution
Proposal.
PROPOSAL 2
ELECTION
OF DIRECTOR FOR TERM EXPIRING IN 2012
Our board of directors is divided into three classes with only
one class of directors being elected in each year and each class
serving a three-year term. The term of office of the first class
originally filled by Larry Liou will expire at our first annual
meeting of stockholders. The term of office of the second class
of directors, consisting of Messrs. Ma and Harrod, will
expire at the second annual meeting of stockholders. The term of
office of the third class of directors, consisting of
Messrs. Kang and Tan, will expire at the third annual
meeting of stockholders. Mr. Liou resigned on May 28,
2008.
One (1) director nominee, Richard Prins is seeking to be
elected at the annual meeting, to hold office until the 2012
Annual Meeting of Stockholders and until his successor is
elected and qualified. Management expects that the nominee will
be available for election, but if he is not a candidate at the
time the election occurs, it is intended that such proxy will be
voted for the election of another nominee to be designated by
the Board of Directors to fill any such vacancy.
Richard Prins
was the Director of Investment Banking for
Ferris, Baker Watts, Inc. (FBW) from 1996 until June
of 2008 when FBW was acquired by Royal Bank of Canada. At FBW,
he managed all of the firms industry groups and product
offerings including public offerings, mergers and acquisitions,
private placements, restructurings, as well as other corporate
advisory services. He was also responsible for executing a
variety of transactions. Mr. Prins has 25 years of
experience in all aspects of corporate finance and has
participated directly in more than 150 transactions with both
private and public companies across a number of industries in
North America and Asia. Mr. Prins is currently a special
consultant to Royal Bank of Canada Capital Markets. Prior to
FBW, Mr. Prins was a Managing Director for 8 years at
Crestar Bank (now SunTrust Bank) in charge of Mergers and
Acquisitions. Mr. Prins began his career as the Assistant
to the Chairman of the leverage buyout company, Tuscarora
Corporation. He currently serves on the Board of Directors of
India Globalization Capital and Amphastar Pharmaceuticals. He
also serves on the Board of Advancing Native Missions and on the
Board of Hope Foundation, a non-profit organization.
Mr. Prins received a B.A. in liberal arts from Colgate
University and an M.B.A. from Oral Roberts University.
See also Management of CHM.
Unless otherwise specified in the form of proxy, the proxies
solicited by the management will be voted FOR the
election of the candidate. The election of director requires a
plurality of the shares of Common Stock present and voting at
the Meeting.
Our Board of Directors Unanimously Recommends That The
Stockholders Vote FOR The Election of The Nominated
Director.
23
PROPOSAL 3
RATIFICATION
OF THE SELECTION OF THE
INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS
Appointment
of Independent Registered Public Accounting Firm
On January 14, 2008, the Audit Committee dismissed
Goldstein Golub Kessler LLP (GGK), the
Companys independent registered public accounting firm,
and appointed Goldman Parks Kurland Mohidin, LLP
(GPKM), independent registered public accounting
firm, to audit the financial statements of the Company for the
fiscal years ending December 31, 2007 and December 31,
2008. The Audit Committee has further directed that management
submit the selection of independent accountants for ratification
by the stockholders at the annual meeting. GPKM has no financial
interest in the Company and neither it nor any member or
employee of the firm has had any connection with the Company in
the capacity of promoter, underwriter, voting trustee, director,
officer or employee. The Delaware General Corporate Law does not
require the ratification of the selection of independent
accountants by the Companys stockholders, but in view of
the importance of the financial statements to the stockholders,
the Board of Directors deems it advisable that the stockholders
pass upon such selection. A representative of GPKM is not
expected to be present at this years annual meeting of
stockholders.
In the event the stockholders fail to ratify the selection of
GPKM, the Audit Committee will reconsider whether or not to
retain the firm. Even if the selection is ratified, the Audit
Committee and the Board of Directors in their discretion may
direct the appointment of a different independent accounting
firm at any time during the year if they determine that such a
change would be in the best interests of the Company and its
stockholders.
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure
The audit report of GGK on the financial statements of the
Company at May 9, 2007, December 31, 2006 and
June 15, 2006 and for the period from January 1, 2007
to May 9, 2007, the cumulative period from June 7,
2006 (inception) to May 9, 2007, the period from
June 7, 2006 (inception) to December 31, 2006, and the
period from June 6, 2006 (inception) to June 15, 2006,
did not contain an adverse opinion or a disclaimer of opinion,
and were not qualified or modified as to uncertainty, audit
scope or accounting principles, except that the audit report on
the financial statements for the period ended December 31,
2006 included a going concern explanatory paragraph.
During the period from June 7, 2006 (inception) to
December 31, 2007 and through January 14, 2008, there
were: (i) no disagreements between the Company and GGK on
any matters of accounting principles or practices, financial
statement disclosure, or auditing scope or procedures, which
disagreements, if not resolved to the satisfaction of GGK, would
have caused GGK to make reference to the subject matter of the
disagreement in their reports on the Companys financial
statements for such years, and (ii) no reportable events
within the meaning set forth in Item 304(a)(1)(v) of
Regulation S-K.
During the Companys two most recent fiscal years ended
December 31, 2006 and 2007 and through the period prior to
the engagement of GPKM, the Company did not consult with GPKM on
(i) the application of accounting principles to a specified
transaction, either completed or proposed, or the type of audit
opinion that may be rendered on the Companys financial
statements, and GPKM did not provide either a written report or
oral advice to the Company that GPKM concluded was an important
factor considered by the Company in reaching a decision as to
any accounting, auditing, or financial reporting issue; or
(ii) any matter that was the subject of any disagreement,
as defined in Item 304(a)(1)(iv) of
Regulation S-K
and the related instructions, or a reportable event within the
meaning set forth in Item 304(a)(1)(v) of
Regulation S-K.
GPKM audited our financial statements for the year ended
December 31, 2007.
Audit
Fees
Fees for audit services provided by GGK totaled $98,556 since
June 7, 2006 (inception) through January 14, 2008,
including fees associated with the review of our Annual Report
on
Form 10-K
for the fiscal year ended December 31, 2007, the audit of
our annual financial statements for the fiscal year ended
December 31, 2006, the reviews of our quarterly reports on
Form 10-Q,
the audit of our balance sheet at May 9, 2007 included in
our current
24
report on
Form 8-K,
and for audit services performed in connection with our
registration statement on
Form S-1
initially filed in 2006.
Fees for audit services provided by GPKM
totaled
since their engagement through the date of this Proxy Statement,
including fees associated with the audit of our annual financial
statements for the fiscal year ended December 31, 2007 and
a retainer.
Audit
Related Fees
Other than the fees described under the caption Audit
Fees above, GGK did not bill any fees for services
rendered to us during fiscal years 2006 or 2007 for assurance
and related services in connection with the audit or review of
our financial statements.
Other than the fees described under the caption Audit
Fees above, GPKM did not bill any fees for services
rendered to us during the fiscal year ended December 31,
2007 for assurance and related services in connection with the
audit or review of our financial statements.
Tax
Fees
There were no tax fees billed by GGK for tax planning or related
services rendered to us during the fiscal years ended
December 31, 2007 or 2006.
There were no tax fees billed by GPKM for tax planning or
related services rendered to us during the fiscal year ended
December 31, 2007.
All Other
Fees
There were no other fees billed by GGK for other professional
services rendered during the fiscal years ended
December 31, 2007 or 2006.
There were no other fees billed by GPKM for other professional
services rendered during the fiscal year ended December 31,
2007.
Holders of proxies solicited by this Proxy Statement will vote
the proxies received by them as directed on the Proxy or, if no
direction is made, in favor of this proposal. In order to be
adopted, this proposal must be approved by the affirmative vote
of the holders of a majority of the shares of common stock
present in person or by proxy and entitled to vote at the
meeting.
Our Board of Directors Unanimously Recommends That The
Stockholders Vote FOR The Proposal to Ratify The
Selection of The Independent Accountants.
PROPOSAL 4
THE
ADJOURNMENT PROPOSAL
The Adjournment Proposal allows our board of directors to submit
a proposal to adjourn the annual meeting to a later date or
dates if necessary, to permit further solicitation of proxies in
the event there are not sufficient votes at the time of the
annual meeting to approve the proposals.
Approval of the Adjournment Proposal will require the
affirmative vote of a majority of the shares of our common stock
that are present in person or by proxy and entitled to vote at
the annual meeting. An abstention will have the same effect as a
vote against the Adjournment Proposal. A broker non-vote will
have no effect on the Adjournment Proposal.
Our Board of Directors Unanimously Recommends That The
Stockholders Vote FOR The Adjournment Proposal.
25
PROPOSAL 5
AMENDMENT
AND RESTATEMENT PROPOSAL
We are proposing to amend and restate our Amended and Restated
Certificate of Incorporation (i) to permit CHM to continue
as a corporation beyond the time currently specified in our
Amended and Restated Certificate of Incorporation without the
limitations related to our IPO and (ii) to remove
Article VI from our Amended and Restated Certificate of
Incorporation, which, among other blank check company-related
restrictions, requires us to dissolve in the event that CHM does
not consummate a qualifying business combination by the time
period currently specified in our Amended and Restated
Certificate of Incorporation. This Amendment and Restatement
Proposal will only be presented to the stockholders for approval
if the Early Distribution Proposal is approved.
Our Amended and Restated Certificate of Incorporation requires
us to dissolve and liquidate CHM as soon as reasonably
practicable after April 19, 2009 (the Termination
Date), in the event that CHM does not consummate a
qualifying business combination by such date. Our board of
directors determined that it is no longer possible for us to
consummate a qualifying business consummation prior to the
Termination Date. In the judgment of our board of directors, the
elimination of the blank check company restrictions proposal is
desirable because it removes the requirement to dissolve CHM and
allows CHM to continue as a corporate entity. Additionally,
Article VI relates to the operation of CHM as a blank check
company prior to the consummation of a qualifying business
combination. Among Article VIs sections, it provides
that the terms of a proposed business combination be submitted
for approval by CHMs shareholders. This provision would
restrict CHMs ability to pursue the acquisition of one or
more operating companies and related financings. The approval of
the Early Distribution Proposal is a condition to the Amendmend
and Restatement Proposal.
The adoption of the Amendment and Restatement Proposal will
require the affirmative vote of a majority of the outstanding
shares of CHM common stock issued prior to the IPO on the record
date.
Our Board of Directors Unanimously Recommends That The
Stockholders Vote FOR The Amendment and Restatement
Proposal.
MARKET
PRICE INFORMATION FOR CHM
CHMs common stock and units are each listed on the NYSE
Alternext US (NYSE ALTERNEXT) under the symbols, CHM and CHM.U,
respectively. CHMs units commenced public trading on
April 25, 2007, and its common stock and warrants commenced
public trading on May 29, 2007. CHMs warrants were
listed on NYSE ALTERNEXT under the symbol CHM.W; however, CHM
received notification from NYSE ALTERNEXT that, as of
December 1, 2008, trading of its warrants had been
suspended.
The table below sets forth, for the calendar quarters indicated,
the high and low sales prices of CHM common stock, warrants and
units as reported on the NYSE ALTERNEXT. The quotations reported
below reflect their inter-dealer prices, without markup,
markdown or commissions and may not represent actual
transactions.
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Common Stock
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|
Warrants
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Units
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|
High
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|
Low
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|
High
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|
|
Low
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High
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Low
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|
2007
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|
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Second Quarter
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$
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5.60
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|
|
$
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5.40
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|
|
$
|
0.79
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|
|
$
|
0.45
|
|
|
$
|
6.80
|
|
|
$
|
5.94
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|
Third Quarter
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|
$
|
5.83
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|
|
$
|
5.83
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|
|
$
|
0.63
|
|
|
$
|
0.27
|
|
|
$
|
6.65
|
|
|
$
|
6.00
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|
Fourth Quarter
|
|
$
|
5.95
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|
|
$
|
5.40
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|
|
$
|
0.66
|
|
|
$
|
0.30
|
|
|
$
|
6.60
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|
|
$
|
6.00
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|
2008
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|
First Quarter
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|
$
|
5.65
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|
|
$
|
5.45
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|
|
$
|
0.30
|
|
|
$
|
0.15
|
|
|
$
|
6.05
|
|
|
$
|
5.76
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|
Second Quarter
|
|
$
|
5.75
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|
|
$
|
5.57
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|
|
$
|
0.22
|
|
|
$
|
0.15
|
|
|
$
|
6.05
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|
|
$
|
5.60
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|
Third Quarter
|
|
$
|
5.80
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|
|
$
|
4.92
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|
|
$
|
0.30
|
|
|
$
|
0.13
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|
|
$
|
6.16
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|
|
$
|
5.50
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|
On ,
200 , the record date, the closing price of the
common stock and units of CHM were
$ and
$ , respectively.
As
of ,
200 there
were
holders of record of the
units, holders
of record of the common stock
and
holders of record of the of the warrants. CHM believes the
beneficial holders of the units, common stock and warrants to be
in excess
of
persons each.
26
DESCRIPTION
OF SECURITIES
General
We are currently authorized to issue 50,000,000 shares of
common stock, par value $.0001, and 1,000,000 shares of
preferred stock, par value $.0001. As of the record date,
[ ] shares
of common stock are outstanding, held by
[ ]
record holders and no shares of preferred stock are outstanding.
Units
Each unit consists of one share of common stock and two
warrants. Each warrant entitles the holder to purchase one share
of common stock. Each of the common stock and warrants began
trading separately on May 29, 2007.
Common
stock
Our stockholders are entitled to one vote for each share held of
record on all matters to be voted on by stockholders.
Because our board of directors does not foresee the consummation
of a qualifying business combination prior to the Termination
Date, holders of shares of common stock issued in our IPO are
entitled to share ratably in the Trust Account, inclusive
of any interest, and any net assets remaining available for
distribution to them after payment of liabilities. The existing
stockholders have agreed to waive their respective rights to
participate in any liquidation distribution occurring upon our
failure to consummate a business combination, but only with
respect to those shares of common stock acquired by them prior
to the IPO.
Our stockholders have no conversion, preemptive or other
subscription rights and there are no sinking fund or redemption
provisions applicable to the common stock, except that under our
current Amended and Restated Certificate of Incorporation,
holders of shares of common stock issued in our IPO have the
right to have their shares of common stock converted to cash
equal to their
pro rata
share of the Trust Account
if they vote against a business combination and a business
combination is approved and completed. Holders of shares of
common stock issued in the IPO who convert their stock into
their share of the Trust Account still have the right to
exercise the warrants that they received as part of the units.
Preferred
stock
Our Amended and Restated Certificate of Incorporation authorizes
the issuance of 1,000,000 shares of blank check preferred
stock with such designation, rights and preferences as may be
determined from time to time by our board of directors. No
shares of preferred stock were issued or registered in the IPO.
Accordingly, our board of directors is empowered, without
stockholder approval, to issue preferred stock with dividend,
liquidation, conversion, voting or other rights which could
adversely affect the voting power or other rights of the holders
of common stock, although the underwriting agreement prohibits
us, prior to a business combination, from issuing preferred
stock which participates in any manner in the proceeds of the
Trust Account, or which votes as a class with the common
stock on a business combination. We may issue some or all of the
preferred stock to effect a business combination. In addition,
the preferred stock could be utilized as a method of
discouraging, delaying or preventing a change in control of us.
Although we do not currently intend to issue any shares of
preferred stock, we cannot assure you that we will not do so in
the future.
Warrants
As of
[ ],
[ ]
warrants are currently outstanding. Each warrant entitles the
registered holder to purchase one share of our common stock at a
price of $5.00 per share, subject to adjustment as discussed
below, at any time commencing on the later of:
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the completion of a business combination; or
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April 19, 2008.
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If the Amendment and Restatement Proposal is not approved, the
warrants will expire worthless.
27
The warrants will expire on April 18, 2012 at
5:00 p.m., Washington, DC time. We may call the warrants
for redemption,
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in whole and not in part,
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at a price of $.01 per warrant at any time after the warrants
become exercisable,
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upon not less than 30 days prior written notice of
redemption to each warrant holder, and
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if, and only if, the reported last sale price of the common
stock equals or exceeds $8.50 per share, for any 20 trading days
within a 30 trading day period ending on the third business day
before we send notice of redemption to warrant holders.
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The redemption criteria for our warrants have been established
at a price which is intended to provide warrant holders with a
reasonable premium to the initial exercise price and provide
sufficient liquidity to cushion the market reaction to our
redemption call. We in our discretion may lower the exercise
price at any time prior to the expiration of the warrants;
provided, however, that any such change in the exercise price of
the warrants shall not take effect for at least ten
(10) business days from the date we publicly announce that
we will lower the exercise price. Any change in the exercise
price must apply equally to all of the warrants.
The warrants are issued in registered form under a warrant
agreement between American Stock Transfer &
Trust Company, as warrant agent, and us.
The exercise price and number of shares of common stock issuable
on exercise of the warrants may be adjusted in certain
circumstances including in the event of a stock dividend, or our
recapitalization, reorganization, merger or consolidation.
However, the warrants will not be adjusted for issuances of
common stock at a price below the exercise price.
The warrants may be exercised upon surrender of the warrant
certificate on or prior to the expiration date at the offices of
the warrant agent, with the exercise form on the reverse side of
the warrant certificate completed and executed as indicated,
accompanied by full payment of the exercise price, by certified
check payable to us, for the number of warrants being exercised.
The warrant holders do not have the rights or privileges of
holders of common stock or any voting rights until they exercise
their warrants and receive shares of common stock. After the
issuance of shares of common stock upon exercise of the
warrants, each holder will be entitled to one vote for each
share held of record on all matters to be voted on by
stockholders.
No warrants will be exercisable unless at the time of exercise a
prospectus relating to common stock issuable upon exercise of
the warrants is current and the common stock has been registered
or qualified or deemed to be exempt under the securities laws of
the state of residence of the holder of the warrants. Under the
terms of the warrant agreement, we have agreed to meet these
conditions and use our best efforts to maintain a current
prospectus relating to common stock issuable upon exercise of
the warrants until the expiration of the warrants. However, we
cannot assure you that we will be able to do so. The warrants
may be deprived of any value and the market for the warrants may
be limited if the prospectus relating to the common stock
issuable upon the exercise of the warrants is not current or if
the common stock is not qualified or exempt from qualification
in the jurisdictions in which the holders of the warrants
reside. In the event that a registration statement is not
effective at the time of exercise, the holder of such warrant
shall not be entitled to exercise such warrant and in no event
will we be required to net cash settle the warrant exercise.
Consequently, the warrants may expire unexercised.
No fractional shares will be issued upon exercise of the
warrants. If, upon exercise of the warrants, a holder would be
entitled to receive a fractional interest in a share, we will,
upon exercise, round up to the nearest whole number the number
of shares of common stock to be issued to the warrant holder.
Underwriters
Purchase Option
We agreed to sell to the underwriters an option to purchase up
to a total of 500,000 units at a
per-unit
price of $7.50 (125% of the price of the units sold in our IPO).
The units issuable upon exercise of this option are identical to
those offered in our IPO except that the warrants included in
the option have an exercise price of $6.25 (125% of the exercise
price of the warrants included in the units sold in our IPO). We
have no obligation to net cash settle the
28
exercise of the option or the warrants underlying the option.
The holder of the option will not be entitled to exercise the
option or the warrants underlying the option unless a
registration statement covering the securities underlying the
option is effective or an exemption from registration is
available. If the holder is unable to exercise the option or
underlying warrants, the option or warrants, as applicable, will
expire worthless.
Our
Transfer Agent and Warrant Agent
The transfer agent for our securities and warrant agent for our
warrants is American Stock Transfer &
Trust Company, 59 Maiden Lane, Plaza level, New York, New
York, 10038.
OTHER
BUSINESS
Management is not aware of any matters to be presented for
action at the annual meeting, except matters discussed in the
Proxy Statement. If any other matters properly come before the
meeting, it is intended that the shares represented by proxies
will be voted in accordance with the judgment of the persons
voting the proxies.
SOLICITATION
OF PROXIES
The Board of Directors of CHM is soliciting proxies in the
enclosed forms and paying the cost of the solicitation. In
addition to the use of the mails, we may solicit proxies
personally or by telephone or telegraph using the services of
our directors, officers and regular employees at nominal cost.
We may engage a paid proxy solicitor to assist in the
solicitation. We will pay any proxy solicitor a reasonable and
customary fee plus expenses for those services. We will
reimburse banks, brokerage firms and other custodians, nominees
and fiduciaries for expenses incurred in sending proxy material
to beneficial owners of our stock.
2010
STOCKHOLDER PROPOSALS
Rule 14a-4
of the SEC proxy rules allows the Company to use discretionary
voting authority to vote on matters coming before an annual
meeting of stockholders if the Company does not have notice of
the matter at least 45 days before the date corresponding
to the date on which the Company first mailed its proxy
materials for the prior years annual meeting of
stockholders or the date specified by an overriding advance
notice provision in the Companys By-Laws. Stockholders of
the Company wishing to include proposals in the proxy material
for the 2010 Annual Meeting of Stockholders must submit the same
in writing so as to be received by Alwin Tan, the Chief
Executive Officer of the Company on or
before ,
2010. Such proposals must also meet the other requirements of
the rules of the SEC relating to stockholder proposals.
MULTIPLE
STOCKHOLDERS SHARING ONE ADDRESS
In accordance with
Rule 14a-3(e)(1)
under the Exchange Act, one proxy statement will be delivered to
two or more stockholders who share an address, unless we have
received contrary instructions from one or more of the
shareholders. We will deliver promptly upon written or oral
request a separate copy of the proxy statement to a stockholder
at a shared address to which a single copy of the proxy
statement was delivered. Requests for additional copies of the
proxy statement and requests that in the future separate proxy
statements be sent to stockholders who share an address, should
be directed to China Healthcare Acquisition Corp, 1233 Encino
Drive, Pasadena, CA 91108, Attn: Alwin Tan, Telephone:
(626) 568-9924.
In addition, stockholders who share a single address but receive
multiple copies of the proxy statement may request that in the
future they receive a single copy by contacting us at the
address or telephone number set forth in the prior sentence.
AVAILABILITY
OF
FORM 10-K
We are providing without charge to each person solicited by this
Proxy Statement a copy of our Annual Report on
Form 10-K
for the Fiscal Year ended December 31, 2007, including our
financial statements but excluding the exhibits to
Form 10-K.
The
Form 10-K
includes a list of the exhibits that were filed with it, and we
will furnish a
29
copy of any such exhibit to any person who requests it upon the
payment of our reasonable expenses in providing the requested
exhibit. For further information, please contact Mr. Alwin
Tan, Chief Executive Officer, at 1233 Encino Drive, Pasadena,
California 91108, telephone
(626) 568-9924.
Our Annual Report on
Form 10-K
and our other filings with the SEC, including the exhibits, are
also available for free on the SECs Internet site
(http://www.sec.gov).
WHERE YOU
CAN FIND MORE INFORMATION
We file annual and quarterly reports, proxy statements and other
information with the SEC. Stockholders may read and copy any
reports, statements or other information that we file at the
SECs public reference rooms in Washington, D.C., New
York, New York, and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330
for further information about the public reference rooms. Our
public filings are also available from commercial document
retrieval services and at the Internet Web site maintained by
the SEC at
http://www.sec.gov.
The Companys annual report on
Form 10-K
was mailed along with this proxy statement.
STOCKHOLDERS SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROXY STATEMENT TO VOTE THEIR
SHARES AT THE ANNUAL MEETING. NO ONE HAS BEEN AUTHORIZED TO
PROVIDE ANY INFORMATION THAT IS DIFFERENT FROM WHAT IS CONTAINED
IN THIS PROXY STATEMENT. THIS PROXY STATEMENT IS DATED
[ ].
STOCKHOLDERS SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED IN
THIS PROXY STATEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THAT
DATE.
30
ANNEX A
CERTIFICATE
OF AMENDMENT
TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF CHINA HEALTHCARE ACQUISITION CORP.
It is hereby certified that:
1. The name of the corporation (hereinafter called, the
Corporation) is China Healthcare Acquisition Corp.
2. The Amended and Restated Certificate of Incorporation of
the Corporation, as filed with the Secretary of State of the
State of Delaware on April 19, 2007 (the
Certificate of Incorporation
), is hereby
amended by striking out Article VI, Sub-paragraph D
thereof and by substituting in lieu of said Sub-paragraph the
following new Sub-paragraph:
D. If, however, the Corporation does not consummate a
Business Combination by the earlier of (i) April 19,
2009 and (ii) the date on which the stockholders of the
Corporation approve the distribution of the Trust Fund prior to
April 19, 2009, then, in such event, all outstanding shares
of Common Stock issued in the Corporations IPO shall be
automatically cancelled and shall revert to the status of
authorized but unissued shares of Common Stock, and the
Corporation shall thereupon distribute, and shall cause its
officers to effect the distribution of, the Trust Fund,
inclusive of any remaining interest thereon, to the holders of
all outstanding shares of Common Stock issued in the
Corporations IPO as promptly as practicable after the
Termination Date. The Corporation shall pay no distributions out
of the Trust Fund to any other shares of capital stock of
the Corporation. From and after the Termination Date and until
surrendered to the trustee of the Trust Fund, any
certificate evidencing shares of Common Stock issued in the
Corporations IPO shall represent solely the right of the
holder to receive his ratable proportion of any distribution
from the Trust Fund.
3. The amendment of the Certificate of Incorporation herein
certified has been duly adopted in accordance with the
provisions of Sections 141, 228 and 242 of the General
Corporation Law of the State of Delaware.
In Witness Whereof, the Corporation has caused this Certificate
of Amendment to be signed by
its
this day
of ,
200 .
CHINA HEALTHCARE ACQUISITION CORP.
Name:
Title:
A-1
ANNEX B
SECOND
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF CHINA HEALTHCARE ACQUISITION CORP.
China Healthcare Acquisition Corp., a corporation existing under
the laws of the State of Delaware (the Corporation),
by its President and Chief Executive Officer, hereby certifies
as follows:
1. The name of the Corporation is China Healthcare
Acquisition Corp.
2. The Corporations Certificate of Incorporation was
filed in the office of the Secretary of State of the State of
Delaware on June 7, 2006;
3. An Amended and Restated Certificate of Incorporation was
filed in the office of the Secretary of the State of the State
of Delaware on April 19, 2007 (the Amended and
Restated Certificate of Incorporation);
4. A Certificate of Amendment to the Amended and Restated
Certificate of Incorporation was filed
on ,
2008 (together with the Amended and Restated Certificate of
Incorporation, the Charter);
5. This Amended and Restated Certificate of Incorporation
restates, integrates and amends the Charter;
6. This Amended and Restated Certificate of Incorporation
was duly adopted by the directors and stockholders of the
Corporation in accordance with the applicable provisions of
Sections 228, 242 and 245 of the General Corporation Law of
the State of Delaware (GCL); and
7. The text of the Charter is hereby amended and restated
to read, in full, as follows:
I.
The name of the Corporation is China Healthcare Acquisition
Corp. (the Corporation).
II.
The purpose of the Corporation is to engage in any lawful act or
activity for which a corporation may be organized under the GCL.
III.
The address, including street, number, city and county, of the
registered office of the Corporation in the State of Delaware is
1209 Orange Street, in the City of Wilmington, County of New
Castle, Delaware. The name of the registered agent of the
Corporation in the State of Delaware at such address is The
Corporation Trust Company.
IV.
A. The Corporation is authorized to issue two classes of
stock to be designated, respectively, Common Stock
and Preferred Stock. The total number of shares the
Corporation is authorized to issue is fifty-one million
(51,000,000) shares, fifty million (50,000,000) shares of which
shall be Common Stock (the Common Stock) and one
million (1,000,000) shares of which shall be Preferred Stock
(the Preferred Stock). The Preferred Stock shall
have a par value of $0.0001 per share and the Common Stock shall
have a par value of $0.0001 per share.
B. The rights, preferences, privileges, restrictions and
other matters relating to the Preferred Stock and the Common
Stock are as follows:
1.
Preferred Stock
.
The Board of
Directors is expressly granted authority to issue shares of the
Preferred Stock, in one or more series, and to fix for each such
series such voting powers, full or limited, and such
designations, preferences and relative, participating, optional
or other special rights and such qualifications, limitations or
restrictions thereof as shall be stated and expressed in the
resolution or resolutions
B-1
adopted by the Board of Directors providing for the issue of
such series (a Preferred Stock Designation) and as
may be permitted by the GCL. The number of authorized shares of
Preferred Stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the voting power of all of
the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of
directors, voting together as a single class, without a separate
vote of the holders of the Preferred Stock, or any series
thereof, unless a vote of any such holders is required pursuant
to any Preferred Stock Designation
2.
Common Stock
.
Except as
otherwise required by law or as otherwise provided in any
Preferred Stock Designation, the holders of the Common Stock
shall exclusively possess all voting power and each share of
Common Stock shall have one vote.
V.
The Corporation is to have perpetual existence.
VI.
The Corporation shall keep at its principal office a register
for the registration of the Preferred Stock and the Common
Stock. Upon the surrender of any certificate representing
Preferred Stock or Common Stock at such place, the Corporation
shall, at the request of the record holder of such certificate,
execute and deliver (at the Corporations expense) a new
certificate or certificates in exchange therefore representing
in the aggregate the number of shares represented by the
surrendered certificate. Each such new certificate shall be
registered in such name and shall represent such number of
shares as is requested by the holder of the surrendered
certificate and shall be substantially identical in form to the
surrendered certificate.
VII.
Upon receipt of evidence reasonably satisfactory to the
Corporation (an affidavit of the registered holder shall be
satisfactory) of the ownership and the loss, theft, destruction
or mutilation of any certificate evidencing shares of Preferred
Stock or Common Stock, and in the case of any such loss, theft
or destruction, upon receipt of indemnity reasonably
satisfactory to the Corporation (provided that if the holder is
a financial institution or other institutional investor its own
agreement shall be satisfactory), or in the case of any such
mutilation upon surrender of such certificate, the Corporation
shall (at its expense) execute and deliver in lieu of such
certificate a new certificate of like kind representing the
number of shares of such class represented by such lost, stolen,
destroyed or mutilated certificate and dated the date of such
lost, stolen, destroyed or mutilated certificate.
VIII.
The Corporation shall at all times reserve and keep available
out of its authorized but unissued shares of Common Stock,
solely for the purpose of effecting the conversion of the shares
of Preferred Stock, such number of shares as shall from time to
time be sufficient to effect the conversion of all outstanding
shares of Preferred Stock. If at any time the number of
authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then-outstanding
shares of Preferred Stock, the Corporation will take such
corporate action as may, in the opinion of its counsel, be
necessary to increase its authorized but unissued shares of
Common Stock to such number of shares as shall be sufficient for
such purpose.
IX.
Any notice required by the provisions of this Article IX
shall be in writing and shall be deemed effectively given:
(i) upon personal delivery to the party to be notified,
(ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on
the next business day, (iii) five (5) days after
having been sent by registered or certified mail, return receipt
requested, postage prepaid, or (iv) one (1) day after
deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of
receipt. All notices to stockholders shall be addressed to each
holder of record at the address of such holder appearing on the
books of the Corporation.
B-2
X.
The Corporation shall not amend this Amended and Restated
Certificate of Incorporation or participate in any
reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary
action, for the purpose of avoiding or seeking to avoid the
observance or performance of any of the terms to be observed or
performed hereunder by the Corporation.
XI.
A. In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly
authorized to make, repeal, alter, amend or rescind the Bylaws.
B. The directors in their discretion may submit any
contract or act for approval or ratification at any annual
meeting of the stockholders or at any meeting of the
stockholders called for the purpose of considering any such act
or contract, and any contract or act that shall be approved or
be ratified by the vote of the holders of a majority of the
stock of the Corporation which is represented in person or by
proxy at such meeting and entitled to vote thereat (provided
that a lawful quorum of stockholders be there represented in
person or by proxy) shall be as valid and binding upon the
Corporation and upon all the stockholders as though it had been
approved or ratified by every stockholder of the Corporation,
whether or not the contract or act would otherwise be open to
legal attack because of directors interests, or for any
other reason.
C. In addition to the powers and authorities hereinbefore
or by statute expressly conferred upon them, the directors are
hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation;
subject, nevertheless, to the provisions of the statutes of
Delaware, of this Amended and Restated Certificate of
Incorporation, and to any Bylaws from time to time made by the
stockholders; provided, however, that no Bylaw so made shall
invalidate any prior act of the directors which would have been
valid if such Bylaw had not been made.
XII.
The Board of Directors shall be divided into three classes:
Class A, Class B and Class C. The number of
directors in each class shall be as nearly equal as possible.
The directors in Class A shall be elected for a term
expiring at the first annual meeting of stockholders, the
directors in Class B shall be elected for a term expiring
at the second annual meeting of stockholders and the directors
in Class C shall be elected for a term expiring at the
third annual meeting of stockholders. Commencing at the first
annual meeting of stockholders, and at each annual meeting
thereafter, directors elected to succeed those directors whose
terms expire shall be elected for a term of office to expire at
the third succeeding annual meeting of stockholders after their
election. Except as the GCL may otherwise require, in the
interim between annual meetings of stockholders or special
meetings of stockholders called for the election of directors
and/or
the
removal of one or more directors and the filling of any vacancy
in that connection, newly created directorships and any
vacancies in the Board of Directors, including unfilled
vacancies resulting form the removal of directors for cause, may
be filled by the vote of a majority of the remaining directors
then in office, although less than a quorum (as defined in the
Corporations Bylaws), or by the sole remaining director.
All directors shall hold office until the expiration of their
respective terms of office and until their successors shall have
been elected and qualified. A director elected to fill a vacancy
resulting from the death, resignation or removal shall have
created such vacancy and until his successor shall have been
elected and qualified.
XIII.
A. Election of directors at an annual or special meeting of
stockholders need not be by written ballot unless the Bylaws
shall so provide.
B. At such time as a class of equity securities of the
Corporation is registered under Section 12 of the
Securities Exchange Act of 1934, no action of stockholders may
be taken without a meeting.
B-3
XIV.
No director shall be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty
as a director; provided that this Article XIV shall not
eliminate or limit the liability of a director (i) for a
breach of such directors duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of the law, (iii) under Section 174
of the GCL, or (iv) for any transaction from which such
director derived any improper personal benefit. If the GCL is
amended to authorize corporate action further eliminating or
limiting the personal liability of directors, then the liability
of a director of the Corporation shall be eliminated or limited
to the fullest extent permitted by the GCL as so amended. No
amendment to or repeal of this Article XIV shall adversely
affect any right or protection of any director of the
Corporation existing at the time of such amendment or repeal for
or with respect to acts or omissions of such director prior to
such amendment or repeal.
XV.
A. Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or
investigative, other than an action by or in the right of the
Corporation, by reason of the fact that he is or was a director,
officer, employee, trustee or agent of the Corporation, or is or
was serving at the request of the Corporation as a director,
officer, employee, trustee or agent of another corporation,
partnership, joint venture, trust or other enterprise, expressly
including service as a director, officer or in a similar
position with any exchange, board of trade, clearing corporation
or similar institution on which the Corporation or any other
corporation a majority of the stock of which is owned directly
or indirectly by the Corporation had membership privileges at
the relevant time during which any such position was held, shall
be indemnified by the Corporation against expenses including
attorneys fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful; provided that funds
paid or required to be paid to any person as a result of the
provisions of this Article XV shall be returned to the
Corporation or reduced, as the case may be, to the extent that
such person receives funds pursuant to an indemnification from
any other corporation or organization. Any such person who could
be indemnified pursuant to the preceding sentence except for the
fact that the subject action or suit is or was by or in the
right of the Corporation shall be indemnified by the Corporation
against expenses including attorneys fees actually or
reasonably incurred by him in connection with the defense or
settlement of such action or suit, except that no
indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be
liable for negligence or misconduct in the performance of his
duty to the Corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which
such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the
Court of Chancery or such other court shall deem proper.
B. To the extent that a director, officer, employee or
agent of the Corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred
to in paragraph A, above, or in defense of any claim, issue
or matter therein, he shall be indemnified by the Corporation
against expenses, including attorneys fees, actually and
reasonably incurred by him in connection therewith without the
necessity of any action being taken by the Corporation other
than the determination, in good faith, that such defense has
been successful. In all other cases wherein such indemnification
is provided by this Article XV, unless ordered by a court,
indemnification shall be made by the Corporation only as
authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is
proper in the circumstances because he has met the applicable
standard of conduct specified in this Article XV. Such
determination shall be made (1) by the Board of Directors
by a majority vote of a quorum consisting of directors who were
not parties to such action, suit or proceeding, even though less
than a quorum, or (2) by a committee of such directors
designated by a majority vote of such directors, even though
less than a quorum, or (3) if there are no such directors,
or if such directors so direct, by independent counsel in a
written opinion, or (4) by the holders of a majority of the
shares of capital stock of the Corporation entitled to vote
thereon.
B-4
C. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction or upon a plea of
nolo contendere
or its equivalent, shall not, of itself,
create a presumption that the person seeking indemnification did
not act in good faith and in a manner which he reasonably
believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that this conduct
was unlawful. Entry of a judgment by consent as part of a
settlement shall not be deemed a final adjudication of liability
for negligence or misconduct in the performance of duty, nor of
any other issue or matter.
D. Expenses, including attorneys fees, incurred in
defending a civil or criminal action, suit or proceeding may be
paid by the Corporation in advance of the final disposition of
such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of an undertaking by
the director, officer, employee or agent involved to repay such
amount unless it shall ultimately be determined that he is
entitled to be indemnified by the Corporation.
E. The indemnification hereby provided shall not be deemed
exclusive of any other rights to which those seeking
indemnification may be entitled under any Bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as
to action in an official capacity and as to action in another
capacity while holding office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and
administrators of such person.
F. By action of the Board of Directors, notwithstanding any
interest of the directors in the action, the Corporation may
purchase and maintain insurance, in such amounts as the Board of
Directors deems appropriate, on behalf of any person who is or
was a director, owner, employee, trustee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee trustee or of
another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation shall have the
power to indemnify him against such liability under the
provisions of this Article XV.
XVI.
The Corporation, to the full extent permitted by
Section 145 of the GCL, as amended from time to time, shall
indemnify all persons whom it may indemnify pursuant thereto.
Expenses (including attorneys fees) incurred by an officer
or director in defending any civil, criminal, administrative, or
investigative action, suit or proceeding for which such officer
or director may be entitled to indemnification hereunder shall
be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Corporation as authorized
hereby.
XVII.
Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them
and/or
between this Corporation and its stockholders or any class of
them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this
Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this
Corporation under Section 291 of Title 8 of the
Delaware Code or on the application of trustees in dissolution
or of any receiver or receivers appointed for this Corporation
under Section 279 of Title 8 of the Delaware Code
order a meeting of the creditors or class of creditors,
and/or
of
the stockholders or class of stockholders of this Corporation,
as the case may be, to be summoned in such manner as the said
court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors,
and/or
of
the stockholders or class of stockholders of this Corporation,
as the case may be, agree to any compromise or arrangement and
to any reorganization of this Corporation as a consequence of
such compromise or arrangement, the said compromise or
arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be
binding on all the creditors or class of creditors,
and/or
on
all the stockholders or class of stockholders, of this
Corporation, as the case may be, and also on the Corporation.
B-5
IN WITNESS WHEREOF, the undersigned has executed this Amended
and Restated Certificate of Incorporation on this
day
of ,
200 , pursuant to Sections 242 and 245 of the
GCL.
CHINA HEALTHCARE ACQUISITION CORP.
Name: Alwin Tan
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Title:
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President and Chief Executive Officer
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B-6
Common Stock issued in the Initial Public Offering Card
PROXY
CHINA HEALTHCARE ACQUISITION CORP.
SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
SHAREHOLDER NAME:
The undersigned hereby appoints Alwin Tan and Steven Wang, and each of them, with power to act
without the other and with full power of substitution, as proxies and attorneys-in-fact and hereby
authorizes them to represent and vote, as provided below, all the shares of China Healthcare
Acquisition Corp. Common Stock which the undersigned is entitled to vote, and, in their discretion,
to vote upon such other business as may properly come before the Annual Meeting of Shareholders of
the Company to be held on
, 200_, or any adjournment thereof, with all powers which the
undersigned would possess if present at the meeting.
To vote in accordance with the Board of Directors recommendations just sign and date this card; no
boxes need to be checked.
Where a vote is not specified, the proxies will vote the shares represented by the proxy FOR each
of the proposals specified below and will vote in accordance with their discretion on such other
matters as may properly come before the meeting.
Please
mark your votes as indicated in this
example
x
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1.
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EARLY DISTRIBUTION
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FOR
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AGAINST
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ABSTAIN
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o
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o
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o
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2.
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ELECTION OF DIRECTOR
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Richard Prins
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FOR
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WITHHOLD
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o
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o
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3.
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RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
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FOR
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AGAINST
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ABSTAIN
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o
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4.
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ADJOURNMENT
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FOR
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AGAINST
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ABSTAIN
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o
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o
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I/We plan to attend the meeting.
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o
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Signature
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Signature if held jointly
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Date:
, 200_
If signing as attorney, executor, administrator, trustee or guardian, please give full title as
such, and, if signing for a corporation, please give your title. When shares are in the name of
more than one person, each person should sign the proxy card. Please sign, date and return the
proxy card promptly using the enclosed envelope.
Mark, sign and date your proxy card and return it in the enclosed postage-paid envelope.
Common Stock issued prior to the Initial Public Offering Card
PROXY
CHINA HEALTHCARE ACQUISITION CORP.
SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
SHAREHOLDER NAME:
The undersigned hereby appoints Alwin Tan and Steven Wang, and each of them, with power to act
without the other and with full power of substitution, as proxies and attorneys-in-fact and hereby
authorizes them to represent and vote, as provided below, all the shares of China Healthcare
Acquisition Corp. Common Stock which the undersigned is entitled to vote, and, in their discretion,
to vote upon such other business as may properly come before the Annual Meeting of Shareholders of
the Company to be held on
, 200_, or any adjournment thereof, with all powers which the
undersigned would possess if present at the meeting.
To vote in accordance with the Board of Directors recommendations just sign and date this card; no
boxes need to be checked.
Where a vote is not specified, the proxies will vote the shares represented by the proxy FOR each
of the proposals specified below and will vote in accordance with their discretion on such other
matters as may properly come before the meeting.
Please
mark your votes as indicated in this
example
x
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1.
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EARLY DISTRIBUTION
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FOR
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AGAINST
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ABSTAIN
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o
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o
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o
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2.
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ELECTION OF DIRECTOR
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Richard Prins
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FOR
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WITHHOLD
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o
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o
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3.
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RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
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FOR
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AGAINST
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ABSTAIN
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o
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o
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o
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4.
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ADJOURNMENT
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FOR
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AGAINST
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ABSTAIN
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o
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o
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o
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5.
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AMENDMENT AND RESTATEMENT OF CHARTER
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FOR
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AGAINST
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ABSTAIN
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o
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o
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o
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I/We plan to attend the meeting.
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o
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Signature
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Signature if held jointly
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Date:
, 200_
If signing as attorney, executor, administrator, trustee or guardian, please give full title as
such, and, if signing for a corporation, please give your title. When shares are in the name of
more than one person, each person should sign the proxy card. Please sign, date and return the
proxy card promptly using the enclosed envelope.
Mark, sign and date your proxy card and return it in the enclosed postage-paid envelope.
China Healthcare Acquisition Corp (AMEX:CHM)
Graphique Historique de l'Action
De Nov 2024 à Déc 2024
China Healthcare Acquisition Corp (AMEX:CHM)
Graphique Historique de l'Action
De Déc 2023 à Déc 2024