UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10−Q

(Mark One)

 

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the quarterly period ended: September 30, 2016

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

 

For the transition period from ____________ to _____________

 

Commission File Number: 001-34566

 

CHINA BIOLOGIC PRODUCTS, INC.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware 75-2308816
(State or other jurisdiction of incorporation or organization) (I.R.S. Employer Identification No.)

 

18th Floor, Jialong International Building

19 Chaoyang Park Road
Chaoyang District, Beijing 100125
People’s Republic of China

(Address of principal executive offices, Zip Code)

 

(+86) 10-6598-3111

(Registrant’s telephone number, including area code)

 

 

 

(Former name, former address and former fiscal year, if changed since last report)

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes       No

 

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes      No

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer    Accelerated filer          
Non-accelerated filer       (Do not check if a smaller reporting company) Smaller reporting company   

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).  Yes       No

 

The number of shares outstanding of each of the issuer’s classes of common stock, as of November 02, 2016 is as follows:

 

Class of Securities   Shares Outstanding
Common Stock, $0.0001 par value   27,137,825

 

 

 

 

 

 

Quarterly Report on Form 10-Q
Three and Nine Months Ended September 30, 2016

 

 

 

 

TABLE OF CONTENTS

 

 

 

PART I

FINANCIAL INFORMATION

 

 

Item 1.         Financial Statements 1
Item 2.         Management’s Discussion and Analysis of Financial Condition and Results of Operations 13
Item 3.         Quantitative and Qualitative Disclosures About Market Risk 23
Item 4.         Controls and Procedures 24

 

 

PART II

OTHER INFORMATION

 

Item 1.         Legal Proceedings 24
Item 1A.      Risk Factors 26
Item 2.         Unregistered Sales of Equity Securities and Use of Proceeds 26
Item 3.         Defaults Upon Senior Securities 26
Item 4.         Mine Safety Disclosures 26
Item 5.         Other Information 26
Item 6.         Exhibits 27

 

 

 

 

 

PART I

FINANCIAL INFORMATION

 

ITEM 1. FINANCIAL STATEMENTS

 

CHINA BIOLOGIC PRODUCTS, INC. AND SUBSIDIARIES

INDEX TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

 

Contents Page
Unaudited Condensed Consolidated Balance Sheets 1
Unaudited Condensed Consolidated Statements of Comprehensive Income 2
Unaudited Condensed Consolidated Statements of Cash Flows 3
Notes to the Unaudited Condensed Consolidated Financial Statements 5

 

 

 

 

CHINA BIOLOGIC PRODUCTS, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEETS

 

 

 

    Note   September 30, 2016     December 31, 2015  
        USD     USD  
ASSETS                
Current Assets                    
Cash and cash equivalents         203,203,969       144,937,893  
Time deposits         -       38,032,593  
Accounts receivable, net of allowance for doubtful accounts   2     40,188,813       25,144,969  
Inventories   3     146,936,115       126,395,312  
Prepayments and other current assets, net of allowance for doubtful accounts   11     37,516,102       24,545,597  
Loan receivable-current   6     5,990,000       -  
Deposits related to land use rights, current portion   5     1,038,403       10,056,200  
Total Current Assets         434,873,402       369,112,564  
                     
Property, plant and equipment, net   4     134,424,469       105,364,251  
Land use rights, net         24,196,851       23,576,300  
Equity method investment         9,615,421       8,718,133  
Loan receivable-non current   6     44,925,000       39,834,173  
Other non-current assets         2,210,485       4,861,075  
Total Assets         650,245,628       551,466,496  
                     
LIABILITIES AND STOCKHOLDERS’ EQUITY                    
Current Liabilities                    
Accounts payable         7,154,609       9,681,835  
Other payables and accrued expenses   11     54,753,124       57,462,563  
Income tax payable         10,489,807       4,510,986  
Total Current Liabilities         72,397,540       71,655,384  
                     
Deferred income         4,026,403       4,525,867  
Other liabilities         6,859,244       8,323,446  
Total Liabilities         83,283,187       84,504,697  
                     
Stockholders’ Equity                    
Common stock:                    
par value $0.0001;                    
100,000,000 shares authorized;   1                
29,392,529 and 28,835,053 shares issued at September 30, 2016 and December 31, 2015, respectively;                    
27,137,825 and 26,580,349 shares outstanding at September 30, 2016 and December 31, 2015, respectively       2,939       2,884  
Additional paid-in capital         125,123,106       105,079,845  
Treasury stock: 2,254,704 shares at September 30, 2016 and December 31, 2015, at cost         (56,425,094 )     (56,425,094 )
Retained earnings         419,045,745       333,704,094  
Accumulated other comprehensive income         (11,801,219 )     (18,605 )
Total equity attributable to China Biologic Products, Inc.         475,945,477       382,343,124  
                     
Noncontrolling interest         91,016,964       84,618,675  
                     
Total Stockholders’ Equity         566,962,441       466,961,799  
                     
Commitments and contingencies   11     -       -  
                     
Total Liabilities and Stockholders’ Equity         650,245,628       551,466,496  

 

 

See accompanying notes to Unaudited Condensed Consolidated Financial Statements.

 

1  

 

 

CHINA BIOLOGIC PRODUCTS, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME

 

 

        For the Three Months Ended     For the Nine Months Ended  
    Note   September 30,
2016
    September 30,
2015
    September 30,
2016
    September 30,
2015
 
        USD     USD     USD     USD  
Sales   10     86,525,885       78,750,577       263,534,751       228,173,360  
Cost of sales         27,647,338       27,944,878       93,172,919       79,461,079  
Gross profit         58,878,547       50,805,699       170,361,832       148,712,281  
                                     
Operating expenses                                    
   Selling expenses         3,017,184       2,674,434       7,271,311       7,229,782  
   General and administrative expenses         15,095,872       11,510,981       38,997,568       27,485,566  
   Research and development expenses         1,042,806       1,595,140       3,441,344       3,984,447  
 Income from operations         39,722,685       35,025,144       120,651,609       110,012,486  
                                     
 Other income (expenses)                                    
Equity in income (loss) of an equity method investee         1,097,338       (376,260 )     1,140,873       (1,137,560 )
Interest expense         (57,661 )     (101,290 )     (234,739 )     (1,533,971 )
Interest income         1,865,805       1,383,142       4,909,014       4,227,124  
Loss from disposal of a subsidiary         (75,891 )     -       (75,891 )     -  
Total other income, net         2,829,591       905,592       5,739,257       1,555,593  
                                     
Earnings before income tax expense         42,552,276       35,930,736       126,390,866       111,568,079  
                                     
Income tax expense   7     7,163,708       6,052,353       20,777,575       17,792,164  
                                     
Net income         35,388,568       29,878,383       105,613,291       93,775,915  
                                     
Less: Net income attributable to noncontrolling interest         6,997,207       7,001,833       20,271,640       21,012,934  
                                     
Net income attributable to China Biologic Products, Inc.         28,391,361       22,876,550       85,341,651       72,762,981  
                                     
Net income per share of common stock:   12                                
      Basic         1.02       0.86       3.10       2.81  
      Diluted         1.01       0.82       3.05       2.68  
Weighted average shares used in computation:   12                                
      Basic         26,957,205       25,992,776       26,748,141       25,280,538  
      Diluted         27,297,118       27,056,215       27,193,108       26,488,730  
                                     
Net income         35,388,568       29,878,383       105,613,291       93,775,915  
                                     
Other comprehensive income:                                    
Foreign currency translation adjustment, net of nil income taxes         (3,543,648 )     (15,704,961 )     (14,241,256 )     (15,095,718 )
                                     
Comprehensive income         31,844,920       14,173,422       91,372,035       78,680,197  
                                     
Less: Comprehensive income attributable to noncontrolling interest         6,365,548       4,015,428       17,812,998       18,302,111  
                                     
Comprehensive income attributable to China Biologic Products, Inc.         25,479,372       10,157,994       73,559,037       60,378,086  

  


See accompanying notes to Unaudited Condensed Consolidated Financial Statements.

 

 

2  

 

 

CHINA BIOLOGIC PRODUCTS, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS

 

 

    For the Nine Months Ended  
    September 30,     September 30,  
    2016     2015  
    USD     USD  
CASH FLOWS FROM OPERATING ACTIVITIES:                
Net income     105,613,291       93,775,915  
Adjustments to reconcile net income to net cash provided by operating activities:                
Depreciation     6,946,084       6,103,812  
Amortization     678,981       637,301  
Loss on sale of property, plant and equipment and land use rights     215,778       363,857  
Allowance for doubtful accounts - accounts receivable, net     120,535       35,162  
Allowance for doubtful accounts - other receivables and prepayments     45,537       793  

Impairment for other non-current assets

    1,225,200       -  
Write-down of obsolete inventories     90,202       16,650  
Deferred tax benefit     (1,710,855 )     (55,232 )
Share-based compensation     16,315,667       7,640,894  
Equity in (income) loss of an equity method investee     (1,140,873 )     1,137,560  
Loss from disposal of a subsidiary     75,891       -  
Excess tax benefits from share-based compensation arrangements     -       (288,681 )
Change in operating assets and liabilities:                
Accounts receivable     (16,104,694 )     (16,229,405 )
Prepayment and other current assets     (497,812 )     742,586  
Inventories     (24,493,697 )     (26,058,886 )
Accounts payable     (2,295,197 )     659,077  
Other payables and accrued expenses     (3,553,823 )     4,240,643  
Deferred income     (411,765 )     (284,053 )
Income tax payable     6,198,276       (170,407 )
Net cash provided by operating activities     87,316,726       72,267,586  
                 
CASH FLOWS FROM INVESTING ACTIVITIES:                
Payment for property, plant and equipment     (40,955,964 )     (26,310,114 )
Payment for intangible assets and land use rights     (1,572,919 )     (4,199,308 )
Refund of deposits related to land use right     10,297,893       -  
Proceeds from sale of property, plant and equipment and land use rights     351,524       741,980  
Loans lent to a third party     (12,332,718 )     (28,450,202 )
Proceeds from disposal of a subsidiary     128,654       -  
Receipt of government grants related to property and equipment     -       2,452,864  
Net cash used in investing activities     (44,083,530 )     (55,764,780 )

  

See accompanying notes to Unaudited Condensed Consolidated Financial Statements.

 

3  

 

  

CHINA BIOLOGIC PRODUCTS, INC. AND SUBSIDIARIES
UNAUDITED CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (CONTINUED) 

  

 

    For the Nine Months Ended  
    September 30,     September 30,  
    2016     2015  
    USD     USD  
CASH FLOWS FROM FINANCING ACTIVITIES:                
Proceeds from stock option exercised     3,214,253       7,220,483  
Repayment of bank loans     -       (97,910,360 )
Maturity of deposit as security for bank loans     37,756,405       63,152,258  
Excess tax benefits from share-based compensation arrangements     -       288,681  
Dividend paid by subsidiaries to noncontrolling interest shareholders     (7,921,952 )     -  

P ayment to noncontrolling interest shareholders in connection with their capital withdrawal

    (13,502,700 )     -  
Net proceeds from reissuance of treasury stock     -       80,583,959  
Dividend to the trial court to be held in escrow as to dispute with Jie’an     -       (3,690,814 )
Net cash provided by financing activities     19,546,006       49,644,207  
                 
EFFECT OF FOREIGN EXCHANGE RATE CHANGES ON CASH     (4,513,126 )     (4,306,828 )
                 
NET INCREASE  IN CASH AND CASH EQUIVALENTS     58,266,076       61,840,185  
                 
Cash and cash equivalents at beginning of period     144,937,893       80,820,224  
                 
Cash and cash equivalents at end of period     203,203,969       142,660,409  
                 
Supplemental cash flow information                
Cash paid for income taxes     16,305,759       18,073,863  
Cash paid for interest expense     -       1,426,883  
Noncash investing and financing activities:                
Acquisition of property, plant and equipment included in payables     5,512,453       1,990,043  

 

  

See accompanying notes to Unaudited Condensed Consolidated Financial Statements.

 

4  

 

  

CHINA BIOLOGIC PRODUCTS INC. AND SUBSIDIARIES
NOTES TO THE UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
September 30, 2016 AND 2015

 

NOTE 1 – BASIS OF PRESENTATION, SIGNIFICANT CONCENTRATION AND RISKS

 

(a)    Basis of Presentation

 

The accompanying unaudited condensed consolidated financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America (“U.S. GAAP”). Certain information and footnote disclosures normally included in financial statements prepared in accordance with U.S. GAAP have been condensed or omitted as permitted by rules and regulations of the U.S. Securities and Exchange Commission (“SEC”). The December 31, 2015 consolidated balance sheet was derived from the audited consolidated financial statements of China Biologic Products, Inc. (the “Company”). The accompanying unaudited consolidated financial statements should be read in conjunction with the December 31, 2015 audited consolidated financial statements of the Company included in the Company’s annual report on Form 10-K for the year ended December 31, 2015.

 

In the opinion of management, all adjustments (which include normal recurring adjustments) necessary to present a fair statement of the financial position as of September 30, 2016, the results of operations for the three and nine months ended September 30, 2016 and 2015, and cash flows for the nine months ended September 30, 2016 and 2015, have been made. All significant intercompany transactions and balances are eliminated on consolidation.

 

The preparation of the unaudited condensed consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the unaudited condensed consolidated financial statements and the reported amounts of revenue and expenses during the reporting period. Actual results could differ from those estimates. Significant items subject to such estimates and assumptions include the useful lives of property, plant and equipment and intangibles with definite lives, the allowances for doubtful accounts, the fair value determinations of stock compensation awards, the realizability of deferred tax assets and inventories, the recoverability of intangible assets, land use rights, property, plant and equipment, equity method investment and loan receivable, and accruals for income tax uncertainties and other contingencies.

 

(b) Explanatory Note

 

For the reasons discussed below, the Company has corrected the number of the authorized shares of common stock from 1,000,000,000, as disclosed in the unaudited condensed consolidated balance sheets for the quarterly period ended June 30, 2016, to 100,000,000.

 

In connection with the 2016 annual meeting of stockholders (the “Annual Meeting”), the Company filed a definitive proxy statement on Schedule 14A on April 29, 2016 that included a proposal to amend the Company’s certificate of incorporation to increase the number of authorized shares of common stock from 100,000,000 to 1,000,000,000. Such definitive proxy statement indicated that the approval of a majority of the quorum of stockholders present in person or by proxy at the Annual Meeting was necessary to approve the proposal to amend the Company’s certificate of incorporation. However, under Section 242 of the Delaware General Corporation Law, the approval of a majority of outstanding shares is required to amend the Company’s certificate of incorporation. At the Annual Meeting, the Company received the vote of a majority of the quorum in favor of the proposal, but not the required majority of outstanding shares. The Company did not receive the approval required under the Delaware General Corporation Law and therefore the number of authorized shares of common stock remains at 100,000,000.

 

The Company considers such revision to be immaterial and the revision had no impact on the unaudited condensed consolidated financial statements other than disclosure of the number of shares authorized on the face of the balance sheets.

 

(c)    Significant Concentration and Risks

 

The Company’s operations are carried out in the People’s Republic of China (the “PRC”) and are subject to specific considerations and significant risks not typically associated with companies in North America and Western Europe. Accordingly, the Company’s business, financial condition and results of operations may be influenced by the political, economic and legal environment in the PRC, and by the general state of the PRC economy. The Company’s results may be adversely affected by changes in governmental policies with respect to laws and regulations, anti-inflationary measures, currency conversion and remittance abroad, and rates and methods of taxation, among other matters.

 

The Company maintains cash and deposit balances at financial institutions which, from time to time, may exceed Federal Deposit Insurance Corporation insured limits for its bank accounts located in the United States or may exceed Hong Kong Deposit Protection Board insured limits for its bank accounts located in Hong Kong or may exceed the insured limits for its bank accounts in China established by China Deposit Insurance Fund Management Institution.

 

Total cash at banks and deposits as of September 30, 2016 and December 31, 2015 amounted to $202,109,273 and $182,291,723, respectively, of which $2,461,610 and $3,020,569 are insured, respectively. The Company has not experienced any losses in uninsured bank deposits and does not believe that it is exposed to any significant risks on cash held in bank accounts.

 

The Company’s two major products are human albumin and human immunoglobulin for intravenous injection (“IVIG”). Human albumin accounted for 37.0% and 38.7% of the total sales for the three months ended September 30, 2016 and 2015, respectively, and 38.9% and 37.5% of the total sales for the nine months ended September 30, 2016 and 2015, respectively. IVIG accounted for 33.1% and 41.4% of the total sales for the three months ended September 30, 2016 and 2015, respectively, and 35.5% and 43.6% of the total sales for the nine months ended September 30, 2016 and 2015, respectively. If the market demands for human albumin and IVIG cannot be sustained in the future or the price of human albumin and IVIG decreases, the Company’s operating results could be adversely affected.

 

Substantially all of the Company’s customers are located in the PRC. There were no customers that individually comprised 10% or more of the total sales during the three months and nine months ended September 30, 2016 and September 30, 2015. There was no customer represented more than 10% of accounts receivables as at September 30, 2016 and December 31, 2015, respectively. The Company performs ongoing credit evaluations of its customers’ financial condition and, generally, requires no collateral from its customers.

 

5  

 

 

There was one supplier, namely, Xinjiang Deyuan Bioengineering Co., Ltd. (“Xinjiang Deyuan”), that comprised 10% or more of the total purchases for the three months and nine months ended September 30, 2016 and September 30, 2015, respectively. There was no supplier that represented more than 10% of accounts payables as at September 30, 2016. There was one supplier that represented more than 10% of accounts payables as at December 31, 2015.

 

NOTE 2 – ACCOUNTS RECEIVABLE

 

Accounts receivable at September 30, 2016 and December 31, 2015 consisted of the following:

 

    September 30,
2016
    December 31,
2015
 
    USD     USD  
Accounts receivable     40,740,371       25,588,593  
Less: Allowance for doubtful accounts     (551,558 )     (443,624 )
Total     40,188,813       25,144,969  

 

The activity in the allowance for doubtful accounts-accounts receivable for the nine months ended September 30, 2016 and 2015 are as follows:

 

    For the Nine Months Ended  
    September 30,
2016
    September 30,
2015
 
    USD     USD  
Beginning balance     443,624       433,948  
Provisions     120,535       35,162  
Recoveries     -       -  
Write-offs     -       -  
Foreign currency translation adjustment     (12,601 )     (16,268 )
Ending balance     551,558       452,842  

 

NOTE 3 – INVENTORIES

 

Inventories at September 30, 2016 and December 31, 2015 consisted of the following:

 

    September 30,
2016
    December 31,
2015
 
    USD     USD  
Raw materials     76,193,306       57,418,230  
Work-in-process     31,160,904       27,401,062  
Finished goods     39,581,905       41,576,020  
Total     146,936,115       126,395,312  

 

An inventory write-down of $28,705 was recorded during the three months ended September 30, 2016. No inventory write-down was recorded during the three months ended September 30, 2015. An inventory write-down of $90,202 and $16,650 was recorded during the nine months ended September 30, 2016 and 2015, respectively.

 

NOTE 4 – PROPERTY, PLANT AND EQUIPMENT

 

Property, plant and equipment at September 30, 2016 and December 31, 2015 consisted of the following:

 

    September 30,
2016
    December 31,
2015
 
    USD     USD  
Buildings     35,370,056       31,505,133  
Machinery and equipment     54,051,332       54,640,502  
Furniture, fixtures, office equipment and vehicles     7,880,888       7,859,951  
Total property, plant and equipment, gross     97,302,276       94,005,586  
Accumulated depreciation     (36,235,207 )     (31,521,859 )
Total property, plant and equipment, net     61,067,069       62,483,727  
Construction in progress     58,324,131       26,115,927  
Prepayment for property, plant and equipment     15,033,269       16,764,597  
Property, plant and equipment, net     134,424,469       105,364,251  

 

6  

 

 

Depreciation expense for the three months ended September 30, 2016 and 2015 was $2,356,056 and $1,980,213, respectively. Depreciation expense for the nine months ended September 30, 2016 and 2015 was $6,946,084 and $6,103,812, respectively.

 

NOTE 5 – DEPOSITS RELATED TO LAND USE RIGHTS

 

In 2012, Guizhou Taibang made a refundable payment of RMB83,400,000 (approximately $12,489,150) to the local government in connection with the public bidding for a land use right in Guizhou Province. Given the decrease of the land area to be provided by the local government, RMB13,000,000 (approximately $1,946,750) and RMB10,000,000 (approximately $1,497,500) was refunded by the local government in December 2013 and January 2014, respectively. Guizhou Taibang completed the bidding and purchased the land use right in December 2015. For the nine months ended September 30, 2016, RMB59,665,759 (approximately $8,934,947) was refunded by the local government. The remaining deposit is expected to be refunded in 2017.

 

NOTE 6 – LOAN RECEIVABLE

 

(a) Current

 

In June 2016, the Company entered into a RMB40,000,000 (approximately $5,990,000) loan agreement with Xinjiang Deyuan. Pursuant to the agreement, Guizhou Taibang agreed to provide Xinjiang Deyuan with interest-bearing loans at an interest rate of 6% per annum. The loan is unsecured and due on the earlier of 1) within five days after Xinjiang Deyuan obtaining other loans from financial institutions, or 2) September 20, 2016. Interest will be paid on the last day of each month. On July 1, 2016, RMB40,000,000 (approximately $5,990,000) was lent to Xinjiang Deyuan.

 

On October 18, 2016, the Company entered into a supplemental agreement to the loan agreement with Xinjiang Deyuan, pursuant to which the principal of the loan was agreed to offset purchase payment of plasma from Xinjiang Deyuan in two installments, with the remaining principal of the loan, if any, being repaid by Xinjiang Deyuan no later than December 20, 2016. The Company has the right to charge an interest rate of 9% per annum for any overdue loan since September 21, 2016 according to loan agreement.

 

Interest income of $79,906 was accrued by Guizhou Taibang for the three months and nine months period ended September 30, 2016 and $60,012 was received by Guizhou Taibang for the three months and nine months period ended September 30, 2016. 

 

(b) Non-current

 

In August 2015, the Company entered into a cooperation agreement with Xinjiang Deyuan and the controlling shareholder of Xinjiang Deyuan. Pursuant to the agreement, Guizhou Taibang agreed to provide Xinjiang Deyuan with interest-bearing loans at an interest rate of 6% per annum with an aggregate principal amount of RMB300,000,000 (approximately $44,925,000). The loans are due July 31, 2018 and secured by a pledge of Deyuan Shareholder’s 58.02% equity interest in Xinjiang Deyuan. Interest will be paid on the 20th day of the last month of each quarter. For the year ended December 31, 2015, RMB258,663,461 (approximately $38,734,853) was lent to Xinjiang Deyuan. The remaining RMB41,336,539 (approximately $6,190,147) was lent during the three months period ended March 31, 2016.

 

Interest income of $638,622 and $1,985,767 was accrued and received by Guizhou Taibang for the three months and nine months period ended September 30, 2016.

 

NOTE 7 – INCOME TAX

 

In October 2014, Shandong provincial government granted Shandong Taibang the High and New Technology Enterprise certificate. This certificate entitled Shandong Taibang to enjoy a preferential income tax rate of 15% for a period of three years from 2014 to 2016.

 

According to Cai Shui [2011] No. 58 dated July 27, 2011, Guizhou Taibang, being a qualified enterprise located in the western region of PRC, enjoys a preferential income tax rate of 15% effective retroactively from January 1, 2011 to December 31, 2020.

 

The Company’s effective income tax rates were 17% and 17% for the three months ended September 30, 2016 and 2015. The Company’s effective income tax rates were 16% and 16% for the nine months ended September 30, 2016 and 2015, respectively.

 

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As of and for the three months ended September 30, 2016, the Company did not have any unrecognized tax benefits and thus no interest and penalties related to unrecognized tax benefits were recorded. In addition, the Company does not expect that the amount of unrecognized tax benefits to change significantly within the next 12 months.

 

NOTE 8 – OPTIONS AND NONVESTED SHARES

 

Options

 

A summary of stock options activity for the nine months ended September 30, 2016 is as follow:

 

    Number of Options     Weighted
Average Exercise
Price
    Weighted Average
Remaining
Contractual Term
in Years
    Aggregate
Intrinsic
Value
 
          USD           USD  
Outstanding at December 31, 2015     651,897       10.44       5.24       86,064,461  
Granted     -                          
Exercised     (304,826 )     10.54               (31,741,472 )
Forfeited and expired     -                          
Outstanding at September 30, 2016     347,071       10.35       4.23       39,612,865  
                                 
Vested     347,071       10.35       4.23       39,612,865  
Exercisable at September 30, 2016     347,071       10.35       4.23       39,612,865  

 

For the three months ended September 30, 2016 and 2015, the Company recorded stock compensation expense of $162,047 and $243,578, respectively, in general and administrative expenses. For the nine months ended September 30, 2016 and 2015, the Company recorded stock compensation expense of $649,203 and $874,413, respectively, in general and administrative expenses.

 

Nonvested shares

 

A summary of nonvested shares activity for the nine months ended September 30, 2016 is as follows:

 

    Number of
nonvested shares
    Grant date weighted
average fair value
 
          USD  
Outstanding at December 31, 2015     669,100       77.49  
Granted     511,200       119.75  
Vested     (252,650 )     66.10  
Forfeited     (12,500 )     66.74  
Outstanding at September 30, 2016     915,150       104.39  

 

For the three months ended September 30, 2016 and 2015, the Company recorded stock compensation expense of $6,846,521 and $3,363,835 respectively in general and administrative expenses. For the nine months ended September 30, 2016 and 2015, the Company recorded stock compensation expense of $15,666,464 and $6,766,481 respectively in general and administrative expenses.

 

At September 30, 2016, approximately $89,756,842 of stock compensation expense with respect to nonvested shares is expected to be recognized over approximately 2.98 years.

 

NOTE 9 – FAIR VALUE MEASUREMENTS

 

Management used the following methods and assumptions to estimate the fair value of financial instruments at the relevant balance sheet dates:

 

• Short-term financial instruments (including cash and cash equivalents, time deposits, accounts receivable, other receivables, loan receivable-current, accounts payable, and other payables and accrued expenses) – The carrying amounts of the short-term financial instruments approximate their fair values because of the short maturity of these instruments.

 

 

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• Loan receivable-non current – The carrying amounts of loan receivable-non current approximate their fair value. The fair value is estimated using discounted cash flow analysis based on the Company’s incremental borrowing rates for similar borrowing. 

 

NOTE 10 – SALES

 

The Company’s sales are primarily derived from the manufacture and sale of Human Albumin and Immunoglobulin products. The Company’s sales by significant types of product for the three months ended September 30, 2016 and 2015 are as follows:

 

    For the Three Months Ended  
    September 30,
2016
    September 30,
2015
 
    USD     USD  
Human Albumin     32,050,728       30,442,931  
Immunoglobulin products:                
Human Immunoglobulin for Intravenous Injection     28,608,129       32,610,967  
Other Immunoglobulin products     13,449,552       4,951,787  
Placenta Polypeptide     8,124,774       7,594,093  
Others     4,292,702       3,150,799  
Total     86,525,885       78,750,577  

 

The Company’s sales by significant types of product for the nine months ended September 30, 2016 and 2015 are as follows:

 

    For the Nine Months Ended  
    September 30,
2016
    September 30,
2015
 
    USD     USD  
Human Albumin     102,387,387       85,538,413  
Immunoglobulin products:                
Human Immunoglobulin for Intravenous Injection     93,439,551       99,552,008  
Other Immunoglobulin products     30,555,619       15,936,561  
Placenta Polypeptide     24,723,672       19,882,127  
Others     12,428,522       7,264,251  
Total     263,534,751       228,173,360  

 

NOTE 11 – COMMITMENTS AND CONTINGENCIES

 

Commitments

 

As of September 30, 2016, commitments outstanding for the purchase of property, plant and equipment approximated $27.8 million.

 

As of September 30, 2016, commitments outstanding for the purchase of plasma from 2016 to 2018 approximated $57.2 million.

 

Legal proceedings

 

Dispute with Jie’an over Certain Capital Injection into Guizhou Taibang

 

In May 2007, a 91% majority of Guizhou Taibang’s shareholders approved a plan to raise additional capital from qualified strategic investors through the issuance of an additional 20,000,000 shares of Guizhou Taibang. The plan required all existing Guizhou Taibang shareholders to waive their rights of first refusal to subscribe for the additional shares. The remaining 9% minority shareholder of Guizhou Taibang’s shares, Guizhou Jie’an Company, or Jie’an, did not support the plan and did not waive its right of first refusal. In May 2007, Guizhou Taibang signed an Equity Purchase Agreement with certain alleged strategic investors (who concealed their background), pursuant to which such investors agreed to invest an aggregate of RMB50,960,000 (approximately $7,631,260) in exchange for 21.4% of Guizhou Taibang’s equity interests. Such Equity Purchase Agreement was not approved or ratified by over two-thirds supermajority of Guizhou Taibang’s shareholders, which approval or ratification is required under the PRC Company Law. At the same time, as an existing shareholder, Jie’an also subscribed for 1,800,000 shares, representing its pro rata share of the 20,000,000 shares being offered. In total, Guizhou Taibang received RMB50,960,000 (approximately $7,631,260) from the investors and RMB6,480,000 (approximately $970,380) from Jie’an.

 

9  

 

 

In June 2007, Jie’an brought a lawsuit against Guizhou Taibang, alleging that it had a right to acquire the 18,200,000 shares offered to the investors under the Equity Purchase Agreement. The trial court denied Jie’an’s request, and the PRC Supreme Court ultimately sustained the original ruling in May 2009 and denied the rights of first refusal of Jie’an over the 18,200,000 shares.

 

During the second quarter of 2010, Jie’an requested that Guizhou Taibang register its 1.8 million shares of additional capital injection with the local administration of industry and commerce, or AIC. Guizhou Taibang’s board of directors withheld its required ratification of Jie’an’s request, pending the outcome of the ongoing litigation. In March 2012, Jie’an brought another lawsuit against Guizhou Taibang for refusing to register the shares. In July 2013, the trial court dismissed the lawsuit for lack of jurisdiction. Jie’an did not appeal the dismissal.

 

In December 2013, Jie’an brought a third lawsuit against Guizhou Taibang, requesting Guizhou Taibang to register 1.8 million shares under its name with the local AIC. In July 2014, the trial court denied Jie’an’s request to register such shares. Despite the denial of Jie’an’s share registration request, the trial court, however, in its ruling, ordered Guizhou Taibang to pay accumulated dividends of RMB13,809,197 (approximately $2,067,927) associated with these shares and the related interest expenses to Jie’an. Guizhou Taibang and Jie’an subsequently filed a cross-appeal. In December 2014, the appellate court ruled in favor of Jie’an supporting its request to register 1.8 million shares and ordered Guizhou Taibang to pay Jie’an its share of accumulated dividends of RMB18,339,227 (approximately $2,746,299) associated with these shares plus the related interest expenses to Jie’an. In the first half of 2015, Guizhou Taibang paid an aggregate of RMB22,639,227 (approximately $3,390,224) to the trial court held in escrow pending further appeal of this case. In June 2015, Guizhou Taibang appealed to the High Court of Guizhou, which overruled the decision of the appellate court and remanded the case to the trial court for retrial in September 2015. In August 2016, the trial court granted Jie’an’s petition to withdraw the lawsuit as Jie’an sought to withdraw its capital contribution in Guizhou Taibang pursuant to an agreement dated July 31, 2016. The funds held in escrow will be credited to the consideration payable to Jie’an for the capital withdrawal. 

 

In November 2013, Guizhou Taibang held a shareholders meeting and the shareholders passed resolutions, or the November 2013 Resolutions, that, inter alia, (i) determined that it was no longer necessary for Guizhou Taibang to obtain additional capital from investors; (ii) rejected Jie’an’s request that Jie’an subscribe for additional shares of Guizhou Taibang alone and one or more other shareholders reduce their shareholding in Guizhou Taibang; and (iii) approved the issuance of a total of 20,000,000 new shares to all existing shareholders on a pro rata basis. Jie’an subsequently filed a fourth lawsuit against Guizhou Taibang in December 2013, requesting that the court declare the November 2013 Resolutions void. Both the trial court and the appellate court denied Jie’an’s request. 

 

In March 2014, Guizhou Taibang held another shareholders meeting and the shareholders passed resolutions, or the March 2014 Resolutions, that, inter alia, re-calculated the ownership percentage in Guizhou Taibang based on the November 2013 Resolutions and the additional capital injections from existing shareholders. Guizhou Taibang subsequently updated the registration with the local AIC regarding the additional capital injections in August 2014. In September 2014, Jie’an and Shenzhen Yigong Shengda Technology Co., Ltd., or Yigong Shengda, another minority shareholder of Guizhou Taibang filed a lawsuit against Guizhou Taibang, requesting that the court declare both the November 2013 Resolutions and the March 2014 Resolutions void and instruct Guizhou Taibang to withdraw the AIC registration. In November 2014, the trial court suspended this case pending the final outcome of the third lawsuit filed by Jie’an. In October 2015, the trial court denied their request. In May 2016, the appellate court vacated the trial court’s decision to uphold Guizhou Taibang’s shareholders resolution, and remanded the case for retrial. In August 2016, the trial court granted the petitions by Jie’an and Yigong Shengda to withdraw the lawsuit as Jie’an and Yigong Shengda sought to withdraw their respective capital contributions in Guizhou Taibang pursuant to an agreement dated July 31, 2016.

 

On July 31, 2016, Guiyang Dalin Biologic Technologies Co., Ltd., or Guiyang Dalin, Guizhou Taibang, Jie’an and Yigong Shengda entered into an agreement, pursuant to which Jie’an and Yigong Shengda agreed to withdraw their respective capital contributions in Guizhou Taibang for an aggregate consideration of RMB415,000,000 (approximately $62,146,250). In August 2016, Guizhou Taibang paid the first installment of RMB90,000,000 (approximately $13,502,700) of the consideration to Jie’an and Yigong Shengda. Guizhou Taibang completed the AIC registration for the foregoing capital withdrawal in October 2016 and will pay the balance of the consideration to Jie’an and Yigong Shengda in accordance with the agreement. As a result of the capital withdrawal, Guiyang Dalin has become the sole shareholder of Guizhou Taibang.

 

As of September 30, 2016, Guizhou Taibang had maintained, on its balance sheet, payables to Jie’an in the amounts of RMB5,040,000 (approximately $754,740) as received funds in respect of the 1.8 million shares in dispute, RMB1,440,000 (approximately $215,640) for the over-paid subscription price paid by Jie’an and RMB3,913,734 (approximately $586,082) for the accrued interest.

 

10  

 

 

Dispute with Certain Individual Investor over Certain Capital Injection into Guizhou Taibang

 

In part due to the invalidity of the Equity Purchase Agreement with certain alleged strategic investors in May 2007, which was never approved or ratified by Guizhou Taibang’s shareholders, such investors’ equity ownership in Guizhou Taibang and the related increase in registered capital of Guizhou Taibang have never been registered with the local AIC. In January 2010, one individual among such investors brought a lawsuit against Guizhou Taibang requesting to register his 14.35% ownership interest in Guizhou Taibang with the local AIC and seeking the distribution of his share of Guizhou Taibang’s dividends declared since 2007.

 

In October 2010, the trial court denied such individual investor’s right as shareholder of Guizhou Taibang and his entitlement to share the dividends, which ruling was reaffirmed after a re-trial by the same trial court in December 2012. After such ruling, Guizhou Taibang attempted to return the originally received fund of RMB34,160,000 (approximately $5,115,460) to such investor by wiring the fund back to his bank account but was unable to do so due to the closure of his bank account. Another investor, however, accepted the returned fund of RMB11,200,000 (approximately $1,677,200) from Guizhou Taibang in November 2010. In 2013, the same individual investor appealed the case to the PRC Supreme Court, which also denied his claims for shareholder status in Guizhou Taibang and the related dividend distribution and accrued interest in September 2013. Such investor subsequently attempted to seek a re-trial by the PRC Supreme Court, which request was denied by the PRC Supreme Court in January 2014. He then applied to the PRC Supreme Procuratorate to request for a review of the PRC Supreme Court’s decision and seek an appeal by the PRC Supreme Procuratorate to the PRC Supreme Court for an ultimate re-trial on his behalf. In July 2015, the PRC Supreme Procuratorate rejected his request for review.

 

As of September 30, 2016, Guizhou Taibang had maintained, on its balance sheet, payables to the investors of RMB34,160,000 (approximately $5,115,460) as originally received funds from such individual investor in respect of the shares in dispute, RMB18,895,852 (approximately $2,829,654) for the interest expenses, and RMB341,600 (approximately $51,155) for the 1% penalty imposed by the Equity Purchase Agreement for any breach in the event that Guizhou Taibang is required to return the original investment amount to such investor.

 

NOTE 12 - NET INCOME PER SHARE

 

The following table sets forth the computation of basic and diluted net income per share for the periods indicated:

 

    For the Three Months Ended  
    September 30, 2016     September 30, 2015  
    USD     USD  
                 
Net income attributable to China Biologic Products, Inc.     28,391,361       22,876,550  
Earnings allocated to participating nonvested shares     (888,528 )     (572,297 )
Net income used in basic/diluted net income per common stock     27,502,833       22,304,253  
                 
Weighted average shares used in computing basic net income per common stock     26,957,205       25,992,776  
Diluted effect of stock options     339,913       1,063,439  
Weighted average shares used in computing diluted net income per common stock     27,297,118       27,056,215  
                 
Net income per common stock – basic     1.02       0.86  
Net income per common stock – diluted     1.01       0.82  

 

During the three months ended September 30, 2016 and 2015, no option was antidilutive or excluded from the calculation of diluted net income per common stock.

 

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The following table sets forth the computation of basic and diluted net income per share for the periods indicated: 

 

    For the Nine Months Ended  
    September 30, 2016     September 30, 2015  
    USD     USD  
             
Net income attributable to China Biologic Products, Inc.     85,341,651       72,762,981  
Earnings allocated to participating nonvested shares     (2,314,921 )     (1,656,974 )
Net income used in basic/diluted net income per common stock     83,026,730       71,106,007  
                 
Weighted average shares used in computing basic net income per common stock     26,748,141       25,280,538  
Diluted effect of stock options     444,967       1,208,192  
Weighted average shares used in computing diluted net income per common stock     27,193,108       26,488,730  
                 
Net income per common stock – basic     3.10       2.81  
Net income per common stock – diluted     3.05       2.68  

 

During the nine months ended September 30, 2016 and 2015, no option was antidilutive or excluded from the calculation of diluted net income per common stock.

 

NOTE 13 – RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS

 

In February 2016, the Financial Accounting Standards Board (“FASB”) issued Accounting Standards Update (“ASU”) No. 2016-02, Leases (Topic 842) (“ASU 2016-02”), which modified lease accounting for both lessees and lessors to increase transparency and comparability by recognizing lease assets and lease liabilities by lessees for those leases classified as operating leases under previous accounting standards and disclosing key information about leasing arrangements. ASU 2016-02 is effective for public companies for annual reporting periods, and interim periods within those years, beginning after December 15, 2018. Early adoption is permitted. The Company is currently evaluating the impact of adopting ASU 2016-02 on its consolidated financial statements.

 

In March 2016, the FASB issued ASU No. 2016-09, Compensation – Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting (“ASU 2016-09”), which simplified certain aspects of the accounting for share-based payment transactions, including income taxes, classification of awards and classification in the statement of cash flows. This standard will be effective for public companies for fiscal years beginning after December 15, 2016, including interim periods within those fiscal years. The Company is currently evaluating the impact of adopting ASU 2016-09 on its consolidated financial statements.

 

In August 2016, the FASB issued ASU No. 2016-15, Classification of Certain Cash Receipts and Cash Payments, which addressed and provided guidance for each of eight specific cash flow issues with the objective of reducing the existing diversity in practice. This standard will be effective for public companies for fiscal years beginning after December 15, 2017, and interim periods within those fiscal years. The Company is currently evaluating the impact of adopting ASU 2016-15 on its consolidated financial statements.

 

In October 2016, the FASB issued ASU No. 2016-16, Income Taxes (Topic 740): Intra-Entity Transfers of Assets Other Than Inventory.  This standard required that companies recognize the income tax consequences of an intra-entity transfer of an asset (other than inventory) when the transfer occurs.  Current guidance prohibits companies from recognizing current and deferred income taxes for an intra-entity asset transfer until the asset has been sold to an outside party.  This standard will be effective for public companies for annual periods beginning after December 15, 2017, including interim periods within that reporting period.  The Company is currently evaluating the impact this guidance may have on its consolidated financial statements.

 

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ITEM 2. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS.

 

Special Note Regarding Forward Looking Statements

 

In addition to historical information, this report contains forward-looking statements within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act. We use words such as “believe,” “expect,” “anticipate,” “project,” “target,” “plan,” “optimistic,” “intend,” “aim,” “will” or similar expressions which are intended to identify forward-looking statements. Such statements include, among others, those concerning market and industry growth and demand and acceptance of new and existing products; expectations regarding governmental approvals of our new products; any projections of sales, earnings, revenue, margins or other financial items; any statements of the plans, strategies and objectives of management for future operations; any statements regarding future economic conditions or performance; as well as all assumptions, expectations, predictions, intentions or beliefs about future events. You are cautioned that any such forward-looking statements are not guarantees of future performance and involve risks and uncertainties, including those identified in Item 1A “Risk Factors” described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2015, as well as assumptions, which, if they were to ever materialize or prove incorrect, could cause the results of the Company to differ materially from those expressed or implied by such forward-looking statements.

 

Readers are urged to carefully review and consider the various disclosures made by us in this report and our other filings with the SEC. These reports attempt to advise interested parties of the risks and factors that may affect our business, financial condition and results of operations and prospects. The forward-looking statements made in this report speak only as of the date hereof and we disclaim any obligation, except as required by law, to provide updates, revisions or amendments to any forward-looking statements to reflect changes in our expectations or future events.

 

Use of Terms

 

Except as otherwise indicated by the context and for the purposes of this report only, references in this report to:

 

· “China Biologic,” “we,” “us,” the “Company” or “our” are to the combined business of China Biologic Products, Inc., a Delaware corporation, and its direct and indirect subsidiaries;
· “China” or “PRC” are to the People’s Republic of China, excluding, for the purposes of this report only, Taiwan and the special administrative regions of Hong Kong and Macau;
· “Exchange Act” are to the Securities Exchange Act of 1934, as amended;
· “Guizhou Taibang” are to our majority owned subsidiary Guizhou Taibang Biological Products Co., Ltd., a PRC company, which became our wholly owned subsidiary in October 2016;
· “Huitian” are to Xi’an Huitian Blood Products Co., Ltd., a PRC company in which we hold a minority equity interest;
· “RMB” are to the legal currency of China;
· “SEC” are to the Securities and Exchange Commission;
· “Securities Act” are to the Securities Act of 1933, as amended;
· “Shandong Taibang” are to our majority owned subsidiary Shandong Taibang Biological Products Co. Ltd., a PRC company; and
· “U.S. dollars,” “USD” and “$” are to the legal currency of the United States of America.

 

Overview of Our Business

 

We are a biopharmaceutical company principally engaged in the research, development, manufacturing and sales of human plasma-based biopharmaceutical products, or plasma products, in China. We operate our business through two majority owned subsidiaries, Shandong Taibang, a company based in Tai’an, Shandong Province and Guizhou Taibang, a company based in Guiyang, Guizhou Province. We also hold a minority equity interest in Huitian, a plasma products company based in Xi’an, Shaanxi Province.

 

We have a strong product portfolio with over 20 different dosage forms of plasma products and other biopharmaceutical products across nine categories. Our principal products are human albumin and immunoglobulin for intravenous injection, or IVIG. Albumin has been used for almost 50 years to treat critically ill patients by assisting the maintenance of adequate blood volume and pressure. IVIG is used for certain disease prevention and treatment by enhancing specific immunity. These products use human plasma as their principal raw material. Sales of human albumin products represented approximately 37.0% and 38.7% of our total sales for the three months ended September 30, 2016 and 2015, respectively, and 38.9% and 37.5% of our total sales for the nine months ended September 30, 2016 and 2015, respectively. Sales of IVIG products represented approximately 33.1% and 41.4% of our total sales for the three months ended September 30, 2016 and 2015, respectively, and 35.5% and 43.6% of our total sales for the nine months ended September 30, 2016 and 2015, respectively. All of our products are prescription medicines administered in the form of injections.

 

Our sales model focuses on direct sales to hospitals and inoculation centers and is complemented by distributor sales. For the three months ended September 30, 2016 and 2015, our top five customers accounted for approximately 15.6% and 13.9%, respectively, of our total sales. For the nine months ended September 30, 2016 and 2015, our top five customers accounted for approximately 16.1% and 12.7%, respectively, of our total sales.

 

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We operate and manage our business as a single segment. We do not account for the results of our operations on a geographic or other basis.

 

Our principal executive offices are located at 18 th Floor, Jialong International Building, 19 Chaoyang Park Road, Chaoyang District, Beijing 100125, People’s Republic of China. Our corporate telephone number is (8610) 6598-3111 and our fax number is (8610) 6598-3222. We maintain a website at http://www.chinabiologic.com that contains information about the Company, but that information is not part of this report or incorporated by reference herein.

 

Recent Developments

 

In October 2016, Guizhou Taibang completed the registration with the local administration of industry and commerce in connection with the capital withdrawal by two former minority shareholders of Guizhou Taibang for an aggregate consideration of RMB415.0 million (approximately $62.1 million) pursuant to an agreement dated July 31, 2016. As part of the capital withdrawal plan, such minority shareholders also withdrew their existing lawsuits involving Guizhou Taibang. Guizhou Taibang paid the first installment of RMB90 million (approximately US$13.5 million) of the consideration to such former minority shareholders in August 2016 and will pay the balance of the consideration in accordance with the agreement. As a result of the capital withdrawal, Guizhou Taibang has become a wholly owned subsidiary of the Company.

 

Third Quarter Financial Performance Highlights

 

The following are some financial highlights for the three months ended September 30, 2016:

 

· Sales : Sales increased by $7.7 million, or 9.8%, to $86.5 million for the three months ended September 30, 2016, from $78.8 million for the same period in 2015.

 

· Gross profit : Gross profit increased by $8.1 million, or 15.9%, to $58.9 million for the three months ended September 30, 2016, from $50.8 million for the same period in 2015.

 

· Income from operations : Income from operations increased by $4.7million, or 13.4%, to $39.7 million for the three months ended September 30, 2016, from $35.0 million for the same period in 2015.

 

· Net income attributable to the Company : Net income increased by $5.5 million, or 24.0%, to $28.4 million for the three months ended September 30, 2016, from $22.9 million for the same period in 2015.

 

· Diluted net income per share : Diluted net income per share was $1.01 for the three months ended September 30, 2016, as compared to $0.82 for the same period in 2015.

 

Results of Operations

 

Comparison of Three Months Ended September 30, 2016 and September 30, 2015

 

The following table sets forth key components of our results of operations in thousands of U.S. dollars for the periods indicated.

 

    For the Three Months Ended September 30,  
    2016     2015  
    Amount     % of Total Sales     Amount     % of Total Sales  
    (U.S. dollars in thousands, except percentage and per share data)  
Sales     86,526       100.0       78,751       100.0  
Cost of sales     27,647       31.9       27,945       35.5  
Gross margin     58,879       68.1       50,806       64.5  
Operating expenses:                                
Selling expenses     3,017       3.5       2,675       3.4  
General and administrative expenses     15,096       17.5       11,511       14.6  
Research and development expenses     1,043       1.2       1,595       2.0  
Total operating expenses     19,156       22.2       15,781       20.2  
Income from operations     39,723       45.9       35,025       44.5  
Other income (expenses):                                
Equity in income (loss) of an equity method investee     1,097       1.3       (376 )     (0.5 )
Interest expense     (58 )     (0.1 )     (101 )     (0.1 )
Interest income     1,866       2.2       1,383       1.8  
Loss from disposal of a subsidiary     (76 )     (0.1 )     -       0.0  
Total other income, net     2,829       3.3       906       1.2  
Earnings before income tax expense     42,552       49.2       35,931       45.6  
Income tax expense     7,164       8.3       6,052       7.7  
Net income     35,388       40.9       29,879       37.9  
Less: Net income attributable to noncontrolling interest     6,997       8.1       7,002       8.9  
Net income attributable to the Company     28,391       32.8       22,877       29.0  
Net income per share of common stock                                
Basic     1.02               0.86          
Diluted     1.01               0.82          

 

14  

 

 

Sales

 

Our sales increased by $7.7 million, or 9.8%, to $86.5 million for the three months ended September 30, 2016, compared to $78.8 million for the same period in 2015. In RMB terms, our sales would have increased by 17.3% for the three months ended September 30, 2016 as compared to the same period in 2015. The increase in sales for the three months ended September 30, 2016 was primarily attributable to the price increase in human tetanus immunoglobulin products and sales volume increases in human albumin products, and human tetanus immunoglobulin products, partially offset by the decrease in sales volume of IVIG products.

 

The following table summarizes the breakdown of sales by significant types of product: 

 

    For the Three Months Ended September 30,     Change  
    2016     2015              
    Amount     %     Amount     %     Amount     %  
    (U.S. dollars in millions, except percentage)  
Human albumin     32.1       37.0       30.4       38.7       1.7       5.6  
Immunoglobulin products:                                                
  IVIG     28.6       33.1       32.6       41.4       (4.0 )     (12.3 )
  Other immunoglobulin products     13.4       15.5       5.0       6.3       8.4       168.0  
Placenta polypeptide     8.1       9.4       7.6       9.6       0.5       6.6  
Others     4.3       5.0       3.2       4.0       1.1       34.4  
Totals     86.5       100.0       78.8       100.0       7.7       9.8  

 

During the three months ended September 30, 2016 as compared to the three months ended September 30, 2015:

 

· the average price for our approved human albumin products, which accounted for 37.0% of our total sales for the three months ended September 30, 2016, increased by 0.9% in RMB terms and decreased by 5.5% in USD terms; and

 

· the average price for our approved IVIG products, which accounted for 33.1% of our total sales for the three months ended September 30, 2016, increased by 4.8% in RMB terms and decreased by 1.8% in USD terms.

 

The average sales price of our human albumin products and IVIG products increased in RMB terms for the three months ended September 30, 2016 as compared to the same period in 2015 following the removal of the retail price ceiling for drug products effective on June 1, 2015, backed by the market demand.

 

The sales volume of our products depends on market demand and our production volume. The production volume of our human albumin products and IVIG products depends primarily on the general plasma supply. The production volume of our hyper-immune products, which include human rabies immunoglobulin, human hepatitis B immunoglobulin and human tetanus immunoglobulin products, is subject to the availabilities of specific vaccinated plasma and our production capacity. The supply of specific vaccinated plasma requires several months of lead time. Our production facilities currently can only accommodate the production of one type of hyper-immune products at any given time and we rotate the production of different types of hyper-immune products from time to time in response to market demand. As such, the sales volume of any given type of hyper-immune products may vary significantly from quarter to quarter.

 

15  

 

 

The sales volume of our human albumin products and IVIG products increased by 11.4% and decreased by 10.6%, respectively, for the three months ended September 30, 2016 as compared to the same period in 2015. The sales growth of human albumin products was primarily attributable to the increased production volume at Shandong Taibang and Guizhou Taibang as a result of increased plasma supply volume. The decrease in the sales of IVIG products for the three months ended September 30, 2016 as compared to the same period in 2015 was primarily due to the depletion of IVIG pastes we reserved from prior years that were processed and sold in 2015 and the allocation of more production facilities to human tetanus immunoglobulin products, which had higher margin, in the three months ended September 30, 2016.

 

The sales of other immunoglobulin products increased significantly for the three months ended September 30, 2016 as compared to the same period in 2015. Other immunoglobulin products accounted for 15.5% and 6.3% of our total sales for the three months ended September 30, 2016 and September 30, 2015, respectively. The increase was mainly attributable to the increase in both sales volume and sales price of human tetanus immunoglobulin products. The sales volume of our human tetanus immunoglobulin increased by 49.3% for the three months ended September 30, 2016 as compared to the same period in 2015. The average sales price of human tetanus immunoglobulin products increased significantly for the three months ended September 30, 2016 as compared to the same period in 2015 due to the significant market supply shortage following the removal of the retail price ceiling for drug products effective on June 1, 2015.

 

The sales increase of placenta polypeptide for the three months ended September 30, 2016 as compared to the same period in 2015 was mainly in line with the sales volume of placenta polypeptide, which increased by 9.8% for the three months ended September 30, 2016.

 

The sales increase of other products for the three months ended September 30, 2016 as compared to the same period in 2015 was mainly due to the increase in sales volume of human prothrombin complex concentrate, or PCC and factor VIII. Both our PCC and factor VIII experienced the sales ramp-up for the three months ended September 30, 2016.

 

Cost of sales and gross profit

 

    For the Three Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
Cost of sales     27.6       28.0       (0.4 )     (1.4 )
as a percentage of total sales     31.9 %     35.5 %             (3.6 )
Gross Profit     58.9       50.8       8.1       15.9  
Gross Margin     68.1 %     64.5 %             3.6  

 

Our cost of sales was $27.6 million, or 31.9% of our sales for the three months ended September 30, 2016, as compared to $28.0 million, or 35.5% of our sales for the same period in 2015. Our gross profit was $58.9 million and $50.8 million for the three months ended September 30, 2016 and 2015, respectively, representing gross margins of 68.1% and 64.5%, respectively. 

 

Our cost of sales and gross margin are affected by the product pricing, raw material costs, product mix, yields and manufactory efficiency. In an effort to increase plasma collection volume and expand our donor base, we increased the nutrition fees paid to donors consistent with the industry practice. We expected the nutrition fees to be paid to donors continue to increase as a result of improving living standards in China. Consequently, future improvements on margins will need to be derived from increases in product pricing, product mix, yields and manufacturing efficiency.

 

The cost of sales for the three months ended September 30, 2016 decreased by 1.4% in USD terms, or increased by 5.7% in RMB terms, as compared to the same period in 2015. The increase of cost of sales in RMB terms was mainly due to the increases in the sales volume of human albumin products and human tetanus immunoglobulin products, which was partially offset by the decrease in the sales volume of IVIG products. The increase of gross margin for the three months ended September 30, 2016 as compared to the same period in 2015 was mainly due to the increase of average sales price of certain plasma products, a more profitable product mix and a lower sales contribution from products made from raw materials purchased from Xinjiang Deyuan Bioengineering Co., Ltd., or Xinjiang Deyuan, whose cost is moderately higher than plasma from our own collection stations.

 

16  

 

 

Operating expenses

 

    For the Three Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
Operating expenses     19.1       15.8       3.3       20.9  
as a percentage of total sales     22.2 %     20.0 %             2.2  
                                 

 

Our total operating expenses increased by $3.3 million, or 20.9%, to $19.1 million for the three months ended September 30, 2016, from $15.8 million for the same period in 2015. As a percentage of sales, total expenses increased by 2.2% to 22.2% for the three months ended September 30, 2016, from 20.0% for the same period in 2015. The increase of the total operating expenses was mainly due to the increase of general and administrative expenses as discussed below.

 

Selling expenses

 

    For the Three Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
Selling expenses     3.0       2.7       0.3       11.1  
as a percentage of total sales     3.5 %     3.4 %             0.1  

 

Our selling expenses increased by $0.3 million, or 11.1%, to $3.0 million for the three months ended September 30, 2016, from $2.7 million for the same period in 2015. As a percentage of sales, our selling expenses remained stable for the three months ended September 30, 2016 as compared to the same period in 2015. The increase of the selling expenses was mainly in line with the sales growth in the three months ended September 30, 2016 as compared to the same period in 2015.

 

General and administrative expenses

 

    For the Three Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
General and administrative expenses     15.1       11.5       3.6       31.3  
as a percentage of total sales     17.5 %     14.6 %             2.9  

 

Our general and administrative expenses increased by $3.6 million, or 31.3%, to $15.1 million for the three months ended September 30, 2016, from $11.5 million for the same period in 2015. General and administrative expenses as a percentage of sales increased by 2.9% to 17.5% for the three months ended September 30, 2016, from 14.6% for the same period in 2015. The increase in general and administrative expenses was mainly due to the increase of share-based compensation expenses of $3.4 million.

 

Research and development expenses

 

    For the Three Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
Research and development expenses     1.0       1.6       (0.6 )     (37.5 )
as a percentage of total sales     1.2 %     2.0 %             (0.8 )

 

Our research and development expenses decreased by $0.6 million, or 37.5%, to $1.0 million for the three months ended September 30, 2016, from $1.6 million for the same period in 2015. The decrease in research and development expenses was mainly due to the completion of certain research and development programs and approximately $0.5 million in government grant which was recorded as deduction of research and development expenses in the three months period ended September 30, 2016.

 

 

Income tax

    For the Three Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
Income tax     7.2       6.0       1.2       20.0  
as a percentage of total sales     8.3 %     7.7 %             0.6  

 

17  

 

Our income tax expenses increased by $1.2 million, or 20.0%, to $7.2 million for the three months ended September 30, 2016, from $6.0 million for the same period in 2015. Our effective income tax rate remained at 16.8% for the three months ended September 30, 2016 and 2015. The statutory tax rate applicable to our major operating subsidiaries in the PRC for 2016 and 2015 is 15.0%.

 

Comparison of Nine months Ended September 30, 2016 and September 30, 2015

 

The following table sets forth key components of our results of operations in thousands of U.S. dollars for the periods indicated.

 

    For the Nine Months Ended September 30,  
    2016     2015  
    Amount     % of Total Sales     Amount     % of Total Sales  
    (U.S. dollars in thousands, except percentage and per share data)  
Sales     263,535       100.0       228,173       100.0  
Cost of sales     93,173       35.4       79,461       34.8  
Gross margin     170,362       64.6       148,712       65.2  
Operating expenses:                                
Selling expenses     7,271       2.8       7,230       3.2  
General and administrative expenses     38,998       14.8       27,486       12.0  
Research and development expenses     3,441       1.3       3,984       1.7  
Total operating expenses     49,710       18.9       38,700       17.0  
Income from operations     120,652       45.7       110,012       48.2  
Other income (expenses):                                
Equity in income (loss) of an equity method investee     1,141       0.4       (1,138 )     (0.5 )
Interest expense     (235 )     (0.1 )     (1,534 )     (0.7 )
Interest income     4,910       1.9       4,228       1.9  
Loss from disposal of a subsidiary     (76 )     0.0       -       0.0  
Total other income, net     5,740       2.2       1,556       0.7  
Earnings before income tax expense     126,392       47.9       111,568       48.9  
Income tax expense     20,778       7.9       17,792       7.8  
Net income     105,614       40.0       93,776       41.1  
Less: Net income attributable to noncontrolling interest     20,272       7.6       21,013       9.2  
Net income attributable to the Company     85,342       32.4       72,763       31.9  
Net income per share of common stock                                
Basic     3.10               2.81          
Diluted     3.05               2.68          

 

Sales

 

Our sales increased by $35.3 million, or 15.5%, to $263.5 million for the nine months ended September 30, 2016, compared to $228.2 million for the same period in 2015. In RMB terms, our sales would have increased by 23.1% for the nine months ended September 30, 2016 as compared to the same period in 2015. Such increase of sales was mainly due to the price increase in human tetanus immunoglobulin products and sales volume increases in human albumin products, human tetanus immunoglobulin products and placenta polypeptide products.

 

The following table summarizes the breakdown of sales by significant types of product:

 

    For the Nine Months Ended September 30,     Change  
    2016     2015              
    Amount     %     Amount     %     Amount     %  
    (U.S. dollars in millions, except percentage)  
Human albumin     102.4       38.9       85.5       37.5       16.9       19.8  
Immunoglobulin products:                                                
  IVIG     93.4       35.5       99.6       43.6       (6.2 )     (6.2 )
  Other immunoglobulin products     30.6       11.6       15.9       7.0       14.7       92.5  
Placenta polypeptide     24.7       9.4       19.9       8.7       4.8       24.1  
Others     12.4       4.6       7.3       3.2       5.1       69.9  
Totals     263.5       100.0       228.2       100.0       35.3       15.5  

 

18  

 

 

During the nine months ended September 30, 2016 as compared to the nine months ended September 30, 2015:

 

· the average price for our approved human albumin products, which accounted for 38.9% of our total sales for the nine months ended September 30, 2016, increased by 2.0% in RMB terms and decreased by 4.3% in USD terms , respectively; and

 

· the average price for our approved IVIG products, which accounted for 35.5% of our total sales for the nine months ended September 30, 2016, increased by 3.9% in RMB terms and decreased by 2.5% in USD terms, respectively.

 

The average sales price of our human albumin products and IVIG products increased in RMB terms for the nine months ended September 30, 2016 as compared to the same period in 2015 following the removal of the retail price ceiling for drug products effective on June 1, 2015, backed by the market demand.

 

The sales volume of our human albumin products and IVIG products increased by 25.0% and decreased by 3.7%, respectively, for the nine months ended September 30, 2016 as compared to the same period in 2015. The sales growth of human albumin products was primarily attributable to the increased production volume at Shandong Taibang and Guizhou Taibang as a result of increased plasma supply volume. The decrease in the sales of IVIG products for the nine months ended September 30, 2016 as compared to the same period in 2015 was primarily due to the depletion of IVIG pastes we reserved from prior years that were processed and sold in 2015 and the allocation of more production facilities to human tetanus immunoglobulin products, which had higher margin, in the nine months ended September 30, 2016.

 

The sales of other immunoglobulin products increased by 92.5% for the nine months ended September 30, 2016 as compared to the same period in 2015. Other immunoglobulin products accounted for 11.6% and 7.0% of our total sales for the nine months ended September 30, 2016 and September 30, 2015, respectively. The increase was mainly attributable to the increase in both sales volume and sales price of human tetanus immunoglobulin products. The sales volume of our human tetanus immunoglobulin increased by 64.7% for the nine months ended September 30, 2016 as compared to the same period in 2015. The average sales price of human tetanus immunoglobulin products increased significantly for the nine months ended September 30, 2016 as compared to the same period in 2015 due to the significant market supply shortage following the removal of the retail price ceiling for drug products effective on June 1, 2015.

 

The sales increase of placenta polypeptide for the nine months ended September 30, 2016 as compared to the same period in 2015 was mainly in line with the sales volume of placenta polypeptide. The sales volume of placenta polypeptide increased by 28.2% for the nine months ended September 30, 2016 primarily because we increased our market penetration into more hospitals through our improved sales capabilities.

 

The sales increase of other products for the nine months ended September 30, 2016 as compared to the same period in 2015 was mainly due to the increase in sales volume of PCC and factor VIII. Both our PCC and factor VIII experienced the sales ramp-up for the nine months ended September 30, 2016.

 

Cost of sales and gross profit

 

    For the Nine Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
Cost of sales     93.2       79.5       13.7       17.2  
as a percentage of total sales     35.4 %     34.8 %             0.6  
Gross Profit     170.3       148.7       21.6       14.5  
Gross Margin     64.6 %     65.2 %             (0.6 )

 

Our cost of sales was $93.2 million, or 35.4% of our sales for the nine months ended September 30, 2016, as compared to $79.5 million, or 34.8% of our sales for the same period in 2015. Our gross profit was $170.3 million and $148.7 million for the nine months ended September 30, 2016 and 2015, respectively, representing gross margins of 64.6% and 65.2%, respectively. 

 

The increase in cost of sales for the nine months ended September 30, 2016 as compared to the same period in 2015 was mainly due to the increases in sales volume of human albumin products, human tetanus immunoglobulin products and placenta polypeptide products. The increase in cost of sales as a percentage of sales increased for the nine months ended September 30, 2016 as compared to the same period in 2015 was mainly due to the higher cost of plasma purchased from Xinjiang Deyuan, which was partially offset by the increase in the average sales price of certain plasma products and a more profitable product mix.

 

For the nine months ended September 30, 2016 and 2015, the sales derived from the raw material purchased from Xinjiang Deyuan, whose cost is moderately higher than plasma from our own collection stations, accounted for 10.8% and 1.3% of total plasma product sales, respectively. Excluding the sales of products made from outsourced raw plasma, our gross margin would have been moderately higher for the nine months ended September 30, 2016 as compared to the same period in 2015, which was mainly attributable to the increase of sales price and a more profitable product mix.

 

19  

 

 

Operating expenses

 

    For the Nine Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
Operating expenses     49.7       38.7       11.0       28.4  
as a percentage of total sales     18.9 %     17.0 %             1.9  

 

Our total operating expenses increased by $11.0 million, or 28.4%, to $49.7 million for the nine months ended September 30, 2016, from $38.7 million for the same period in 2015. As a percentage of sales, total expenses increased by 1.9% to 18.9% for the nine months ended September 30, 2016, from 17.0% for the same period in 2015. The increase of the total operating expenses was mainly in line with the increase of the general and administrative expenses as discussed below.

 

Selling expenses

 

    For the Nine Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
Selling expenses     7.3       7.2       0.1       1.4  
as a percentage of total sales     2.8 %     3.2 %             (0.4 )

 

Our selling expenses increased by $0.1 million, or 1.4%, to $7.3 million for the nine months ended September 30, 2016, from $7.2 million for the same period in 2015. As a percentage of sales, our selling expenses decreased by 0.4% to 2.8% for the nine months ended September 30, 2016, from 3.2% for the same period in 2015, primarily due to the promotion activities on human rabies immunoglobulin products we carried out in the nine months ended September 30, 2015.

 

General and administrative expenses

 

    For the Nine Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
General and administrative expenses     39.0       27.5       11.5       41.8  
as a percentage of total sales     14.8 %     12.0 %             2.8  

 

Our general and administrative expenses increased by $11.5 million, or 41.8%, to $39.0 million for the nine months ended September 30, 2016, from $27.5 million for the same period in 2015. General and administrative expenses as a percentage of sales increased by 2.8% to 14.8% for the nine months ended September 30, 2016, from 12.0% for the same period in 2015. The increase in general and administrative expenses was mainly due to the increase of share-based compensation expenses of $8.7 million and a prepayment impairment of $1.2 million.

 

Research and development expenses

 

    For the Nine Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
Research and development expenses     3.4       4.0       (0.6 )     (15.0 )
as a percentage of total sales     1.3 %     1.7 %             (0.4 )

 

Our research and development expenses decreased by $0.6 million, or 15.0%, to $3.4 million for the nine months ended September 30, 2016, from $4.0 million for the same period in 2015. In the nine months ended September 30, 2016 and 2015, we received government grants of $0.7 million and $0.9 million, respectively, and recognized the grants as a reduction of research and development expenses for each relevant period.

 

Income tax

 

    For the Nine Months Ended September 30,     Change  
    2016     2015     Amount     %  
    (U.S. dollars in millions, except percentage)  
Income tax     20.8       17.8       3.0       16.9  
as a percentage of total sales     7.9 %     7.8 %             0.1  

 

20  

 

 

Our income tax expenses increased by $3.0 million, or 16.9%, to $20.8 million for the nine months ended September 30, 2016, from $17.8 million for the same period in 2015. Our effective income tax rates were 16.4% and 15.9% for the nine months ended September 30, 2016 and 2015, respectively. The statutory tax rate applicable to our major operating subsidiaries in the PRC for 2016 and 2015 is 15.0%.

 

Foreign Currency Exchange Impact

 

As all of our consolidated revenues and consolidated costs of sales and majority of expenses are denominated in RMB, and all of our assets are denominated in RMB, except certain cash balances, we are exposed to foreign exchange risk as our revenues and results of operations may be affected by fluctuations in the exchange rate between U.S. dollars, which is our reporting currency, and RMB. For details, see “Item 3. Quantitative and Qualitative Disclosures about Market Risk—Foreign Exchange Risk.”

 

Given our operations primarily in China, we evaluate certain key items of our financial results on a local currency basis (i.e., in RMB) in addition to the reporting currency (i.e., in USD). The local currency presentation, which is a non-GAAP measure, excludes the impact of fluctuations in foreign currency exchange rates. We believe providing local currency information on such key items enhances the understanding of our financial results and evaluation of performance in comparison to prior periods. We calculate changes in local currency percentages by comparing financial results denominated in RMB from period to period.

 

Liquidity and Capital Resources

 

To date, we have financed our operations primarily through cash flows from operations, augmented by bank borrowings and equity contributions by our stockholders. As of September 30, 2016, we had $203.2 million in cash and cash equivalents, primarily consisting of cash on hand and demand deposits.

 

The following table provides the summary of our cash flows for the periods indicated:

    For the Nine Months Ended September 30,  
    2016     2015  
    (U.S. dollars in millions)  
Net cash provided by operating activities     87.3       72.3  
Net cash used in investing activities     (44.1 )     (55.8 )
Net cash provided by financing activities     19.6       49.7  
Effects of exchange rate change on cash     (4.5 )     (4.3 )
Net increase in cash and cash equivalents     58.3       61.9  
Cash and cash equivalents at beginning of the period     144.9       80.8  
Cash and cash equivalents at end of the period     203.2       142.7  

 

Operating Activities

 

Net cash provided by operating activities for the nine months ended September 30, 2016 was $87.3 million, as compared to $72.3 million for the same period in 2015. The increase in net cash provided by operating activities was largely consistent with the improvements in our results of operations and the increase of net non-cash operating expenses for the nine months ended September 30, 2016 as compared to the same period in 2015. Our cash inflows from operating activities are negatively affected by increases in accounts receivable and inventory.

 

Accounts receivable

 

Our accounts receivable increased by $16.1 million and $16.2 million as of September 30, 2016 and 2015, respectively, as compared with the balance as of December 31, 2015 and 2014, respectively. The accounts receivable turnover days for plasma products were 45 days for the nine months periods ended September 30, 2016 and 2015. To enhance our business relationship with certain key customers, we granted longer credit terms to certain qualified hospitals during the nine months ended September 30, 2016 and granted special credit term extensions to certain distributors of rabies immunoglobulin products in the same period of 2015.

 

Inventories

 

Our inventory cycle slowed down for the nine months ended September 30, 2016 as compared to the same period in 2015. The inventory turnover days increased to 398 days for the nine months ended September 30, 2016 from 387 days for the same period in 2015, which was mainly due to an increase in our inventory of raw materials purchased from Xinjiang Deyuan as of September 30, 2016 as compared to that balance as of September 30, 2015.

 

21  

 

 

Net non-cash operating expenses

 

Net non-cash operating expenses increased by $7.3 million during the nine months ended September 30, 2016, as compared to the same period in 2015, primarily due to the increase of share-based compensation expenses totaling $8.7 million.

 

Investing Activities

 

Our use of cash for investing activities is primarily for the acquisition of property, plant and equipment, and intangibles.

 

Net cash used in investing activities for the nine months ended September 30, 2016 was $44.1 million, as compared to $55.8 million for the same period in 2015. During the nine months ended September 30, 2016 and 2015, we paid $42.5 million and $30.5 million, respectively, for the acquisition of property, plant and equipment, intangible assets and land use rights for Shandong Taibang and Guizhou Taibang. During the nine months ended September 30, 2016 and 2015, we granted loans of $12.3 million and $28.5 million, respectively, to Xinjiang Deyuan. During the nine months ended September 30, 2016, we received a refund of $10.3 million from the local government of Guiyang with respect to deposits of land use rights. During the nine months ended September 30, 2015, we received $2.5 million government grants related to property, plant and equipment.

 

Financing Activities

 

Net cash provided by financing activities for the nine months ended September 30, 2016 was $19.6 million, as compared to $49.7 million for the same period in 2015. The net cash provided by financing activities for the nine months ended September 30, 2016 mainly consisted of the proceeds of $3.2 million from stock option exercised and the maturity of a $37.8 million time deposit as a security for a bank loan that was fully repaid in June 2015, partially offset by a dividend of $7.9 million paid to the minority shareholder by Shandong Taibang and payment of $13.5 million to the former minority shareholders of Guizhou Taibang in connection with their capital withdrawal from Guizhou Taibang. The net cash provided by financing activities for the nine months ended September 30, 2015 mainly consisted of net proceeds of $80.6 million from a follow-on offering of our stock in June 2015, proceeds of $63.2 million from the maturity of deposits used as security for bank loans and proceeds of $7.2 million from stock options exercised, partially offset by repayments of bank loans of $97.9 million and a dividend of $3.7 million held in escrow by a trial court in connection with disputes with a former minority shareholder of Guizhou Taibang.

 

The remaining balance of the consideration payable to former minority shareholders of Guizhou Taibang in connection with their capital withdrawal in Guizhou Taibang, will be paid in accordance with the relevant agreement.

 

Our management believes that we have sufficient cash on hand and will continue to have positive cash inflow for our operations from the sale of our products in the PRC market.

 

Obligations under Material Contracts

 

The following table sets forth our material contractual obligations as of September 30, 2016:

 

    Payments Due by Period  
Contractual Obligations   Total    

Less than

one year

    One to
three years
    Three to
five years
   

More than

five years

 
    (U.S. dollars in millions)  
Operating lease commitment     1.2       0.4       0.6       -       0.2  
Purchase commitment     57.2       28.6       28.6       -       -  
Capital commitment     27.8       25.0       2.8       -       -  
Total     86.2       54.0       32.0       -       0.2  

  

The remaining balance of the consideration payable to former minority shareholders of Guizhou Taibang in connection with their capital withdrawal in Guizhou Taibang, will be paid in accordance with the relevant agreement.

 

Seasonality of Our Sales

 

Our results of operations and operating cash flows historically have not been subject to seasonal variations. This pattern may change, however, as a result of new market opportunities or new product introductions.

 

Inflation

 

Inflation does not materially affect our business or the results of our operations.

 

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Off-Balance Sheet Arrangements

 

We do not have any off-balance sheet arrangements that have or are reasonably likely to have a current or future effect on our financial condition, changes in financial condition, revenues or expenses, results of operations, liquidity, capital expenditures or capital resources that are material to our investors.

 

Critical Accounting Policies

 

Critical accounting policies are those we believe are most important to portraying our financial conditions and results of operations and also require the greatest amount of subjective or complex judgments by management. Judgments and uncertainties regarding the application of these policies may result in materially different amounts being reported under various conditions or using different assumptions. There have been no material changes to the critical accounting policies previously disclosed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2015.

 

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.

 

Our operations are carried out in the PRC and we are subject to specific considerations and significant risks not typically associated with companies in North America and Western Europe. Accordingly, our business, financial condition and results of operations may be influenced by the political, economic and legal environment in the PRC, and by the general state of the PRC economy. Our results may be adversely affected by changes in governmental policies with respect to laws and regulations, anti-inflationary measures, currency conversion and remittance abroad, and rates and methods of taxation, among other things.

 

Interest Rate Risk

 

We are exposed to interest rate risk primarily with respect to our bank loans. We have not used any derivative financial instruments to manage our interest rate risk exposure. We have not been exposed nor do we anticipate being exposed to material risks due to changes in interest rates. However, our future interest expenses may increase due to changes in market interest rates.

 

Management monitors the banks’ prime rates in conjunction with our cash requirements to determine the appropriate level of debt balances relative to other sources of funds. We have not entered into any hedging transactions in an effort to reduce our exposure to interest rate risk.

 

Foreign Exchange Risk

 

All of our consolidated revenues and consolidated costs of sales and majority of expenses are denominated in RMB. All of our assets are denominated in RMB, except certain cash balances. However, our reporting currency is U.S. dollars. As a result, we are exposed to foreign exchange risk as our revenues and results of operations may be affected by fluctuations in the exchange rate between U.S. dollars and RMB. If RMB depreciates against the U.S. dollars, the value of our RMB revenues, earnings and assets as expressed in our U.S. dollar financial statements will decline. Assets and liabilities are translated at exchange rates at the balance sheet dates and revenue and expenses are translated at the average exchange rates and shareholders’ equity is translated at historical exchange rates. Any resulting translation adjustments are not included in determining net income but are included in determining other comprehensive income, a component of stockholders’ equity. We have not entered into any hedging transactions in an effort to reduce our exposure to foreign exchange risk.

 

RMB is currently freely convertible under the “current account,” which includes dividends, trade and service-related foreign exchange transactions, but not under the “capital account,” which includes foreign direct investment. In addition, beginning in July 2005, China reformed its exchange rate regime by changing to a managed floating exchange rate regime based on market supply and demand with reference to a basket of major foreign currencies. Under the managed floating exchange rate regime, RMB is no longer pegged to U.S. dollars. The People’s Bank of China announces the closing prices of foreign currencies such as U.S. dollars traded against RMB in the inter-bank foreign exchange market after the closing of the market on each business day, and makes such prices the central parity for trading against RMB on the following business day. On March 17, 2014, the People’s Bank of China announced a policy to further expand the maximum daily floating range of RMB trading prices against U.S. dollars in the inter-bank spot foreign exchange market to 2.0%. In the long term, RMB may appreciate or depreciate more significantly in value against U.S. dollars or other foreign currencies, depending on the market supply and demand with reference to a basket of major foreign currencies. On August 10, 2015, the People’s Bank of China announced that it had changed the calculation method for RMB’s daily central parity exchange rate against U.S. dollars, which resulted in an approximately 2.0% depreciation of RMB on that day. RMB continued to experience an approximately 8% depreciation against U.S. dollars throughout the remainder of 2015 and up to the date of this report.

 

Account Balances

 

We maintain balances at financial institutions which, from time to time, may exceed Federal Deposit Insurance Corporation insured limits for the banks located in the United States, Hong Kong Deposit Protection Board insured limits for the banks located in Hong Kong, or China Deposit Insurance Scheme insured limits for the banks located in the PRC. Total cash at banks and restricted cash deposits as of September 30, 2016 and December 31, 2015 amounted to $203.2 million and $182.3 million, respectively, $2.5 million and $3.0 million of which are covered by insurance, respectively. We have not experienced any losses in such accounts and we do not believe that we are exposed to any significant risks on our cash at banks and deposits.

 

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Inflation

 

Inflationary factors such as increases in the cost of our sales and overhead costs may adversely affect our results of operations. Although we do not believe that inflation has had a material impact on our financial position or results of operations to date, a high rate of inflation in the future may have an adverse effect on our ability to maintain current levels of gross margin and selling, general and administrative expenses as a percentage of net sales if the selling prices of our products do not increase with these increased costs.

 

Market for Human Albumin and IVIG

 

Our two major products, human albumin and IVIG, accounted for 38.9% and 35.5% of the total sales for the nine months ended September 30, 2016, respectively. If the market demands for human albumin or IVIG cannot be sustained in the future or if there is substantial price decrease in either or both products, our results of operations could be materially and adversely affected.

 

ITEM 4. CONTROLS AND PROCEDURES.

 

Evaluation of Disclosure Controls and Procedures

 

We maintain disclosure controls and procedures (as defined in Rule 13a-15(e) under the Exchange Act). Disclosure controls and procedures refer to controls and other procedures designed to ensure that information required to be disclosed in the reports we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC and that such information is accumulated and communicated to our management, including our Chief Executive Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required disclosure.

 

As required by Rule 13a-15(e), our management has carried out an evaluation, with the participation and under the supervision of our Chief Executive Officer, Mr. David (Xiaoying) Gao and our Chief Financial Officer, Mr. Ming Yang, of the effectiveness of the design and operation of our disclosure controls and procedures, as of September 30, 2016. Based on that evaluation, Mr. Gao and Mr. Yang concluded that our disclosure controls and procedures were effective as of September 30, 2016.

 

Changes in Internal Control over Financial Reporting

 

There were no changes in our internal control over financial reporting during the nine months ended September 30, 2016 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.

 

PART II

OTHER INFORMATION

 

ITEM 1. LEGAL PROCEEDINGS.

 

From time to time, we may become involved in various lawsuits and legal proceedings arising in the ordinary course of business. However, litigation is subject to inherent uncertainties, and an adverse result in these, or other matters, may arise from time to time that may harm our business. Other than the legal proceedings set forth below, we are currently not aware of any such legal proceedings or claims that we believe will have a material adverse effect on our business, financial condition or results of operations.

 

Dispute with Jie’an over Certain Capital Injection into Guizhou Taibang

 

In May 2007, a 91% majority of Guizhou Taibang’s shareholders approved a plan to raise additional capital from qualified strategic investors through the issuance of an additional 20,000,000 shares of Guizhou Taibang. The plan required all existing Guizhou Taibang shareholders to waive their rights of first refusal to subscribe for the additional shares. The remaining 9% minority shareholder of Guizhou Taibang’s shares, Guizhou Jie’an Company, or Jie’an, did not support the plan and did not waive its right of first refusal. In May 2007, Guizhou Taibang signed an Equity Purchase Agreement with certain alleged strategic investors (who concealed their background), pursuant to which such investors agreed to invest an aggregate of RMB51.0 million (approximately $7.6 million) in exchange for 21.4% of Guizhou Taibang’s equity interests. Such Equity Purchase Agreement was not approved or ratified by over two-thirds supermajority of Guizhou Taibang’s shareholders, which approval or ratification is required under the PRC Company Law. At the same time, as an existing shareholder, Jie’an also subscribed for 1,800,000 shares, representing its pro rata share of the 20,000,000 shares being offered. In total, Guizhou Taibang received RMB51.0 million (approximately $7.6 million) from the investors and RMB6.5 million (approximately $1.0 million) from Jie’an.

 

24  

 

 

In June 2007, Jie’an brought a lawsuit against Guizhou Taibang, alleging that it had a right to acquire the 18,200,000 shares offered to the investors under the Equity Purchase Agreement. The trial court denied Jie’an’s request, and the PRC Supreme Court ultimately sustained the original ruling in May 2009 and denied the rights of first refusal of Jie’an over the 18,200,000 shares.

 

During the second quarter of 2010, Jie’an requested that Guizhou Taibang register its 1.8 million shares of additional capital injection with the local administration of industry and commerce, or AIC. Guizhou Taibang’s board of directors withheld its required ratification of Jie’an’s request, pending the outcome of the ongoing litigation. In March 2012, Jie’an brought another lawsuit against Guizhou Taibang for refusing to register the shares. In July 2013, the trial court dismissed the lawsuit for lack of jurisdiction. Jie’an did not appeal the dismissal.

 

In December 2013, Jie’an brought a third lawsuit against Guizhou Taibang, requesting Guizhou Taibang to register 1.8 million shares under its name with the local AIC. In July 2014, the trial court denied Jie’an’s request to register such shares. Despite the denial of Jie’an’s share registration request, the trial court, however, in its ruling, ordered Guizhou Taibang to pay accumulated dividends of RMB13.8 million (approximately $2.1 million) associated with these shares and the related interest expenses to Jie’an. Guizhou Taibang and Jie’an subsequently filed a cross-appeal. In December 2014, the appellate court ruled in favor of Jie’an supporting its request to register 1.8 million shares and ordered Guizhou Taibang to pay Jie’an its share of accumulated dividends of RMB18.3 million (approximately $2.7 million) associated with these shares plus the related interest expenses to Jie’an. In the first half of 2015, Guizhou Taibang paid an aggregate of RMB22.6 million (approximately $3.4 million) to the trial court held in escrow pending further appeal of this case. In June 2015, Guizhou Taibang appealed to the High Court of Guizhou, which overruled the decision of the appellate court and remanded the case to the trial court for retrial in September 2015. In August 2016, the trial court granted Jie’an’s petition to withdraw the lawsuit as Jie’an sought to withdraw its capital contribution in Guizhou Taibang pursuant to an agreement dated July 31, 2016. The funds held in escrow will be credited to the consideration payable to Jie’an for the capital withdrawal.

 

In November 2013, Guizhou Taibang held a shareholders meeting and the shareholders passed resolutions, or the November 2013 Resolutions, that, inter alia, (i) determined that it was no longer necessary for Guizhou Taibang to obtain additional capital from investors; (ii) rejected Jie’an’s request that Jie’an subscribe for additional shares of Guizhou Taibang alone and one or more other shareholders reduce their shareholding in Guizhou Taibang; and (iii) approved the issuance of a total of 20,000,000 new shares to all existing shareholders on a pro rata basis. Jie’an subsequently filed a fourth lawsuit against Guizhou Taibang in December 2013, requesting that the court declare the November 2013 Resolutions void. Both the trial court and the appellate court denied Jie’an’s request.

 

In March 2014, Guizhou Taibang held another shareholders meeting and the shareholders passed resolutions, or the March 2014 Resolutions, that, inter alia, re-calculated the ownership percentage in Guizhou Taibang based on the November 2013 Resolutions and the additional capital injections from existing shareholders. Guizhou Taibang subsequently updated the registration with the local AIC regarding the additional capital injections in August 2014. In September 2014, Jie’an and Shenzhen Yigong Shengda Technology Co., Ltd., or Yigong Shengda, another minority shareholder of Guizhou Taibang, filed a lawsuit against Guizhou Taibang, requesting that the court declare both the November 2013 Resolutions and the March 2014 Resolutions void and instruct Guizhou Taibang to withdraw the AIC registration. In November 2014, the trial court suspended this case pending the final outcome of the third lawsuit filed by Jie’an. In October 2015, the trial court denied their request. In May 2016, the appellate court vacated the trial court’s decision to uphold Guizhou Taibang’s shareholders resolution, and remanded the case for retrial. In August 2016, the trial court granted the petitions by Jie’an and Yigong Shengda to withdraw the lawsuit as Jie’an and Yigong Shengda sought to withdraw their respective capital contributions in Guizhou Taibang pursuant to an agreement dated July 31, 2016.

 

On July 31, 2016, Guiyang Dalin Biologic Technologies Co., Ltd., or Guiyang Dalin, Guizhou Taibang, Jie’an and Yigong Shengda entered into an agreement, pursuant to which Jie’an and Yigong Shengda agreed to withdraw their respective capital contributions in Guizhou Taibang for an aggregate consideration of RMB415.0 million (approximately $62.1 million). In August 2016, Guizhou Taibang paid the first installment of RMB90.0 million (approximately $13.5 million) of the consideration to Jie’an and Yigong Shengda. Guizhou Taibang completed the AIC registration for the foregoing capital withdrawal in October 2016 and will pay the balance of the consideration to Jie’an and Yigong Shengda in accordance with the agreement. As a result of the capital withdrawal, Guiyang Dalin has become the sole shareholder of Guizhou Taibang.

 

As of September 30, 2016, Guizhou Taibang had maintained, on its balance sheet, payables to Jie’an in the amounts of RMB5.0 million (approximately $0.8 million) as received funds in respect of the 1.8 million shares in dispute, RMB1.4 million (approximately $0.2 million) for the over-paid subscription price paid by Jie’an and RMB3.9 million (approximately $0.6 million) for the accrued interest.

 

Dispute with Certain Individual Investor over Certain Capital Injection into Guizhou Taibang

 

In part due to the invalidity of the Equity Purchase Agreement with certain alleged strategic investors in May 2007, which was never approved or ratified by Guizhou Taibang’s shareholders, such investors’ equity ownership in Guizhou Taibang and the related increase in registered capital of Guizhou Taibang have never been registered with the local AIC. In January 2010, one individual among such investors brought a lawsuit against Guizhou Taibang requesting to register his 14.35% ownership interest in Guizhou Taibang with the local AIC and seeking the distribution of his share of Guizhou Taibang’s dividends declared since 2007.

 

25  

 

 

In October 2010, the trial court denied such individual investor’s right as shareholder of Guizhou Taibang and his entitlement to share the dividends, which ruling was reaffirmed after a re-trial by the same trial court in December 2012. After such ruling, Guizhou Taibang attempted to return the originally received fund of RMB34.2 million (approximately $5.1 million) to such investor by wiring the fund back to his bank account but was unable to do so due to the closure of his bank account. Another investor, however, accepted the returned fund of RMB11.2 million (approximately $1.7 million) from Guizhou Taibang in November 2010. In 2013, the same individual investor appealed the case to the PRC Supreme Court, which also denied his claims for shareholder status in Guizhou Taibang and the related dividend distribution and accrued interest in September 2013. Such investor subsequently attempted to seek a re-trial by the PRC Supreme Court, which request was denied by the PRC Supreme Court in January 2014. He then applied to the PRC Supreme Procuratorate to request for a review of the PRC Supreme Court’s decision and seek an appeal by the PRC Supreme Procuratorate to the PRC Supreme Court for an ultimate re-trial on his behalf. In July 2015, the PRC Supreme Procuratorate rejected his request for review.

 

As of September 30, 2016, Guizhou Taibang had maintained, on its balance sheet, payables to the investors of RMB34.2 million (approximately $5.1 million) as originally received funds from such individual investor in respect of the shares in dispute, RMB18.9 million (approximately $2.8 million) for the interest expenses, and RMB0.3 million (approximately $51,155) for the 1% penalty imposed by the Equity Purchase Agreement for any breach in the event that Guizhou Taibang is required to return the original investment amount to such investor.

 

ITEM 1A. RISK FACTORS.

 

As of the date of this filing, there have been no material changes from the risk factors disclosed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2015. We operate in a changing environment that involves numerous known and unknown risks and uncertainties that could materially affect our operations. The risks, uncertainties and other factors set forth in the above-referenced Annual Report on Form 10-K may cause our actual results, performances and achievements to be materially different from those expressed or implied by our forward-looking statements. If any of these risks or events occurs, our business, financial condition or results of operations may be adversely affected.

 

ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS.

 

We have not sold any equity securities during the three months ended September 30, 2016 that were not previously disclosed in a quarterly report on Form 10-Q or a current report on Form 8-K that was filed during this period. No repurchases of our common stock were made during the three months ended September 30, 2016.

 

ITEM 3. DEFAULTS UPON SENIOR SECURITIES.

 

None.

 

ITEM 4. MINE SAFETY DISCLOSURES.

 

Not applicable.

 

ITEM 5. OTHER INFORMATION.

 

Disclosure pursuant to Section 13(r) of the Exchange Act

 

Pursuant to Section 13(r) of the Exchange Act, we may be required to disclose in our annual and quarterly reports to the SEC whether we or any of our “affiliates” knowingly engaged in certain activities, transactions or dealings relating to Iran or with certain individuals or entities targeted by U.S. economic sanctions. Disclosure is generally required even where the activities, transactions or dealings were conducted in compliance with applicable law. Because the SEC defines the term “affiliate” broadly, it includes any entity under common “control” with us (and the term “control” is also construed broadly by the SEC).

 

The description of the activities below has been provided to us by Warburg Pincus LLC, or WP, affiliates of which (i) designated a member of our board of directors, who resigned in August 2016, and (ii) beneficially own more than 10.0% of the equity interests of, and have the right to designate members of the board of directors of Santander Asset Management Investment Holdings Limited, or SAMIH. SAMIH may therefore be deemed to be under common “control” with us; however, this statement is not meant to be an admission that common control exists.

 

26  

 

 

The disclosure below relates solely to activities conducted by SAMIH and its affiliates. The disclosure does not relate to any activities conducted by us or by WP and does not involve our or WP’s management. Neither we nor WP has had any involvement in or control over the disclosed activities, and neither we nor WP has independently verified or participated in the preparation of the disclosure. Neither we nor WP is representing as to the accuracy or completeness of the disclosure nor do we or WP undertake any obligation to correct or update it.

 

We understand that one or more SEC-reporting affiliates of SAMIH intends to disclose in its next annual or quarterly SEC report that:

 

(a) Santander UK plc (“Santander UK”) holds two savings accounts and one current account for two customers resident in the United Kingdom (“UK”) who are currently designated by the United States (“US”) under the Specially Designated Global Terrorist (“SDGT”) sanctions program. Revenues and profits generated by Santander UK on these accounts in the nine months ended September 30, 2016 were negligible relative to the overall revenues and profits of Banco Santander SA.

 

(b) Santander UK held a savings account for a customer resident in the UK who is currently designated by the US under the SDGT sanctions program. The savings account was closed on July 26, 2016. Revenue generated by Santander UK on this account in the nine months ended September 30, 2016 was negligible relative to the overall revenues of Banco Santander SA.

 

(c) Santander UK holds two frozen current accounts for two UK nationals who are designated by the US under the SDGT sanctions program. The accounts held by each customer have been frozen since their designation and have remained frozen through the nine months ended September 30, 2016. The accounts are in arrears (£1,844.73 in debit combined) and are currently being managed by Santander UK Collections & Recoveries department. Revenues and profits generated by Santander UK on these accounts in the nine months ended September 30, 2016 were negligible relative to the overall revenues and profits of Banco Santander SA.

 

(d) Santander UK holds three current accounts and a savings account for two customers resident in the UK who are currently designated by the US under the Transnational Criminal Organizations (“TCO”) sanctions program. Revenues and profits generated by Santander UK on these accounts in the nine months ended September 30, 2016 were negligible relative to the overall revenues and profits of Banco Santander SA.

 

(e) In addition, during the nine months ended September 30, 2016, Santander UK had an OFAC match on a power of attorney account. A party listed on the account is currently designated by the US under the SDGT sanctions program and the Iranian Financial Sanctions Regulations. The power of attorney was removed from the account on July 29, 2016. During the nine months ended September 30, 2016, related revenues and profits generated by Santander UK were negligible relative to the overall revenues and profits of Banco Santander SA.

 

Renewed Executive Employment Agreements

 

Effective retrospectively August 31, 2016, the Company entered into a second amended and restated employment agreement dated November 1, 2016 with each of Mr. Ming Yang, the Company’s Chief Financial Officer, and Mr. Ming Yin, the Company’s Senior Vice President, to renew their employment agreements with the Company, which expired on August 31, 2016. The renewed employment agreements have terms substantially identical to the expired agreements except for the increased base salaries as authorized by our board of directors in August 2015. Each of the renewed agreements has a term of one year and allows for an automatic renewal of another year if the parties do not notify each other of their intention to terminate the agreement by August 1, 2017, in which case the agreement will expire on August 31, 2018.

 

ITEM 6. EXHIBITS.

 

The list of exhibits in the Exhibit Index to this report is incorporated herein by reference.

 

27  

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

 

 

Date: November 2, 2016 CHINA BIOLOGIC PRODUCTS, INC.
     
     
  By:  /s/ David (Xiaoying) Gao
  David (Xiaoying) Gao, Chief Executive Officer
  (Principal Executive Officer)

 

  By:  /s/ Ming Yang
  Ming Yang, Chief Financial Officer
 

(Principal Financial Officer and Principal

Accounting Officer)

 

28  

 

 

EXHIBIT INDEX

 

Exhibit No.   Description
3.1   Second Amended and Restated Certificate of Incorporation of China Biologic Products, Inc. as filed with the Secretary of State of the State of Delaware on June 23, 2014 (incorporated by reference to Amendment No. 1 as filed with the SEC on November 2, 2016 to Form 8-K as filed with the SEC on June 20, 2016).
3.1.1   Certificate of Correction to Certificate of Incorporation of China Biologic Products, Inc. as filed with the Secretary of State of the State of Delaware on October 31, 2016 (incorporated by reference to Amendment No. 1 as filed with the SEC on November 2, 2016 to Form 8-K as filed with the SEC on June 20, 2016).
3.1.2   Certificate of Change of Registered Office of China Biologic Products, Inc. as filed with the Secretary of State of the State of Delaware on November 1, 2016.
10.1   Summary English translation of settlement agreement dated July 31, 2016 (incorporated by reference to Exhibit 10.1 of the Quarterly Report on Form 10-Q filed by the Company on August 4, 2016).
10.2   Summary English translation of guarantee agreement dated July 31, 2016 (incorporated by reference to Exhibit 10.2 of the Quarterly Report on Form 10-Q filed by the Company on August 4, 2016).
10.3   Consulting agreement between the Company and David Li dated July 1, 2016 (incorporated by reference to Exhibit 10.3 of the Quarterly Report on Form 10-Q filed by the Company on August 4, 2016).
10.4   Second amended and restated employment agreement between the Company and David (Xiaoying) Gao dated August 4, 2016 (incorporated by reference to Exhibit 10.4 of the Quarterly Report on Form 10-Q filed by the Company on August 4, 2016).
10.5   Second Amended and Restated Employment Agreement between the Company and Ming Yang dated November 1, 2016.
10.6   Second Amended and Restated Employment Agreement between the Company and Ming Yin dated November 1, 2016.
31.1   Certifications of Principal Executive Officer filed pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2   Certifications of Principal Financial Officer filed pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1   Certifications of Principal Executive Officer furnished pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
32.2   Certifications of Principal Financial Officer furnished pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
101   Interactive data filed pursuant to Rule 405 of Regulation S-T.

 

 

29  

 

 

Exhibit 3.1.2

 

CERTIFICATE OF CHANGE OF REGISTERED OFFICE OF

CHINA BIOLOGIC PRODUCTS, INC.

 

China Biologic Products, Inc., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:

 

1. The name of the corporation is China Biologic Products, Inc.

 

2. The registered office of the corporation in the State of Delaware is changed to 850 New Burton Road, Suite 201, Dover, County of Kent, DE 19904. The name of the registered agent at such address upon whom process against this corporation may be served is National Corporate Research, Ltd.

 

3. The foregoing change to the registered office was adopted by a resolution of the board of directors of the corporation.

 

 

IN WITNESS WHEREOF, China Biologic Products, Inc. has caused this Certificate of Change of Registered Office to be signed by a duly authorized officer of the corporation, as of November 1, 2016.

 

  By: /s/ Xiaoying Gao
  Name: Xiaoying Gao
  Title: Chief Executive Officer

 

 

 

 

Exhibit 10.5

 

Second Amended and Restated Employment Agreement

 

This Second Amended and Restated Employment Agreement (this “ Agreement ”), dated as of November 1, 2016, is entered into between China Biologic Products, Inc., a company established in the United States with its principal office located at 18th Floor, Jialong Int’l Tower, 19 Chaoyang Park Road, Beijing 100125, PRC (the “ Company ”), and Ming Yang (the “ Executive ”).

 

WHEREAS, the Company and the Executive entered into an employment agreement dated as of August 31, 2012 (the “ 2012 Agreement ”), pursuant to which the Company engaged the Executive as, and the Executive agreed to serve as, Chief Financial Officer of the Company, upon the terms and conditions contained therein;

 

WHEREAS, the Company and the Executive entered into a renewal employment agreement dated as of August 31, 2014 (the “ 2014 Agreement ”) with terms and conditions substantially similar with those under the 2012 Agreement;

 

WHEREAS, the term of the 2014 Agreement expired on August 31, 2016; and

 

WHEREAS, the Company and the Executive desire to extend the term of the 2014 Agreement upon the terms and conditions contained herein.

 

NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged by the parties, the parties hereby agree as follows:

 

1. EFFECTIVENESS OF AGREEMENT AND EFFECTIVE DATE

This Agreement shall become effective retrospectively as of August 31, 2016. For the purpose of this Agreement, the term “ Effective Date ” means August 31, 2016.

 

2. EMPLOYMENT AND DUTIES

 

2.1 General . The Executive will perform such duties and services for the Company as may be designated from time to time by the Board of Directors (the “Board”) and the Chief Executive Officer of the Company. The Executive agrees to serve the Company faithfully and to the best of his ability under the direction of the Board and to carry out the functions typically performed by a Chief Financial Officer. The Executive further agrees to perform such duties in accordance with the general fiduciary duties of officers and directors arising under the Delaware General Corporation Law. The Executive is expected and required to devote substantially all of his time and attention during normal business hours to the affairs of the Company and/or its subsidiaries.

 

2.2 Term of Employment . The Executive’s employment under this Agreement will commence as of the Effective Date and will terminate on the first year of the Effective Date; provided, however, that the term of the Executive’s employment will be automatically extended without further action of either party for additional one (1) year periods unless written notice of either party’s intention not to extend has been given to the other party hereto at least thirty (30) days prior to the expiration of the then effective term (the initial term and any extensions thereof, the “ Term of Employment ”). Notwithstanding the foregoing, the Executive’s employment may be terminated during the Term of Employment as provided in Section 5 below.

 

2.3 Reimbursement of Expenses . Unless otherwise agreed to by the Executive and the Company, the Company will reimburse the Executive for reasonable travel and other business expenses incurred by him to fulfill his duties hereunder upon presentation by the Executive of an itemized account of such expenditures, in accordance with Company practices consistently applied.

 

 

 

 

3. COMPENSATION

 

3.1 Base Salary . From the Effective Date, the Executive will be entitled to receive a base salary (“ Base Salary” ) at a rate of US$250,000 per annum, payable in accordance with the Company’s payroll practices and applicable law. If the rate of Base Salary per annum paid to Executive is increased during the Term of Employment, such increased rate will thereafter constitute the Base Salary for all purposes of this Agreement. Base Salary will not be decreased during the Term of Employment without the mutual consent of Executive and the Company.

 

3.2 Annual Review . The Executive’s Base Salary will be reviewed by the Board, based upon the Executive’s performance not less than annually.

 

3.3 Bonus Compensation . In addition to his Base Salary, the Executive would be eligible to receive additional bonus compensation as may be awarded to the Executive from time to time by the Board in the sole and absolute discretion of the Board.

 

3.4 Additional Compensation . The Company may, in its sole discretion, award the Executive additional equity-based compensation. The Executive further will be eligible to participate in any employment compensation plan established by the Company under the same terms as other Company executives and approved by the Board.

 

4. EMPLOYEE BENEFITS

 

4.1 Leave . The Executive will be entitled to accrue 15 working days paid annual leave each calendar year (which will not be carried over in the event that they are not used by the Executive). All annual leave days will be taken at times mutually agreed by the Executive and the Company and will be subject to the business needs of the Company. If, however, in any calendar year during the Term of Employment, the Executive is unable to take any annual leave due to the business needs of the Company, the Company, in its discretion, shall either pay the Executive the equivalent of 15 working days, or permit the Executive to carry such leave over into the following calendar year.

 

4.2 Other Programs . The Executive will, during his employment under this Agreement, be included to the extent eligible thereunder in all employee benefit plans, programs or arrangements (including, without limitation, any plans, programs or arrangements providing for retirement benefits, incentive compensation, profit sharing, bonuses, disability benefits, health and life insurance, or vacation and paid holiday) which may be established by the Company for, or made available to, its executives generally.

 

5. TERMINATION OF EMPLOYMENT

 

5.1 Termination Events .

 

5.1.1 By the Company . The Company may terminate the Executive’s employment immediately with Cause, without Cause upon ninety (90) days notice to the Executive, or upon the Executive’s death or Permanent Disability (as hereinafter defined).

 

5.1.2 By the Executive . The Executive may terminate his employment at any time for any reason upon ninety (90) days written notice to the Company.

 

5.2 Termination by Company With Cause . If the Executive’s employment is terminated by the Company with Cause, the Company shall pay to the Executive all compensation to which the Executive is entitled through the date of termination, and thereafter, all of the Company’s obligations under this Agreement shall cease.

 

5.3 Termination by Company Without Cause . Except in situations where the Executive’s employment is terminated under Section 5.2 or Section 5.4, by death or by Permanent Disability, in the event that the Company terminates Executive’s employment at any time without Cause, the Executive shall be entitled to receive an amount equal to twelve (12) months of the Executive’s then current Base Salary paid in twelve (12) equal monthly installments, subject to Sections 5.7 and 5.8 .

 

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5.4 Change of Control. In the event of a Change of Control, the Company shall (i) assign this Agreement and all rights and obligations under it to any business entity that succeeds to all or substantially all of the Company’s business through that merger or combination or sale of assets, or (ii) on at least thirty (30) days’ prior written notice to the Executive, terminate this Agreement upon the effective date of such Change of Control. In the event that the Company terminates Executive’s employment pursuant to this Section 5.4, the Executive shall be entitled to receive, upon termination an amount equal to eighteen (18) months of the Executive’s then current Base Salary paid in eighteen (18) equal monthly installments, subject to Sections 5.7 and 5.8 .

 

For the purpose of this Agreement, “ Change of Control ” means the occurrence of any of the following events:

 

(a) The consummation of the sale or disposition by the Company of all or substantially all of the Company's assets;

 

(b) The consummation of a merger or consolidation of the Company with any other entity, unless the voting securities of the Company immediately prior to the merger or consolidation remain outstanding or are converted into voting securities of the surviving entity or parent so that they continue to represent at least fifty percent (50%) of the total voting power represented by the voting securities of the surviving entity (or parent) outstanding immediately after such merger or consolidation; or

 

(c) A change in the composition of the Board, which results in fewer than a majority of the directors being “Incumbent Directors.” For purpose of this provision, “ Incumbent Directors ” shall mean directors who either (i) are directors as of the Effective Date, or (ii) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of those directors whose election or nomination was not in connection with any transactions described above or in connection with an actual or threatened proxy contest relating to election.

 

5.5 Voluntary Resignation . If the Executive terminates his employment voluntarily, then the Executive shall not be entitled to receive payment of any severance benefits. The Company further shall have the option, in its sole discretion, to make the Executive’s termination effective at any time prior to the end of notice period required under Section 5.1.2 as long as the Company provides Executive with all compensation to which he would be entitled for continuing employment through the last day of the notice period. Thereafter, all obligations of the Company under this Agreement shall cease.

 

5.6 Cause . Termination for “ Cause ” means termination of the Executive’s employment by the Company because of:

 

(i) any act or omission that constitutes a breach by the Executive of any of his obligations under this Agreement or any Company policy or procedure and failure to cure such breach after notice of, and a reasonable opportunity to cure, such breach;

 

(ii) the continued willful failure or refusal of the Executive to substantially perform the duties reasonably required of him as an employee of the Company;

 

(iii) an alleged act (with credible substantiated evidence) of moral turpitude, dishonesty, fraud or violation of law (whether or not connected to the Company or its Affiliates (as defined in Section 8.1 )) by, or criminal conviction of, the Executive which in the determination of the Board (in its sole discretion) would render his continued employment by the Company damaging or detrimental to the Company or its Affiliates in any way; or

 

(iv) any misappropriation of Company property by the Executive.

 

5.7 Release of Claims . The receipt of any severance payments pursuant to Sections 5.3 or 5.4 of this Agreement is subject to the Executive signing and not revoking a separation agreement and release of claims in a form reasonably acceptable to the Company (the “ Release ”), which must become effective and irrevocable no later than the 60 th day following the date of Executive’s termination of employment (the “ Release Deadline ”), and if not, the Executive will forfeit any right to severance payments or benefits under this Agreement. In addition, no severance payments or benefits will be paid or provided until the Release actually becomes effective. To the extent that any severance payments or benefits constitute Deferred Payments (as defined below), severance payments shall commence on the 61 st day following Executive’s termination of employment, subject to Section 5.8.

 

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5.8 Section 409A . The Company intends that all severance payments made under this Agreement comply with, or be exempt from, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and any guidance promulgated thereunder (“ Section 409A ”) so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities or ambiguous terms herein will be interpreted to so comply or be exempt. Specifically, the severance benefits are intended to be exempt from the requirements of Section 409A under the separation pay plan exception set forth under Section 409A. If, at the time of the Executive’s separation from service, the Executive is a “specified employee” within the meaning of Section 409A and the severance benefits payable under this Agreement, when considered together with any other severance payments or separation benefits, are considered deferred compensation under Section 409A (together, the “ Deferred Payments ”), payment of such Deferred Payments will be delayed to the extent necessary to avoid the imposition of the additional tax imposed under Section 409A, which generally means that Executive will begin to receive payments on the date 6 months and 1 day following the Executive’s separation from service. The Company and the Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to you under Section 409A. In no event will the Company reimburse the Executive for any taxes that may be imposed on Executive as a result of Section 409A.

 

6. DEATH OR DISABILITY

 

In the event of termination of employment by reason of non-work-related death or Permanent Disability, the Executive (or his estate, as applicable) will be entitled to the Base Salary and benefits determined under Sections 3 and 4 through the date of termination. In the event of termination of employment by reason of work related death or Permanent Disability, the Executive (or his estate, as applicable) will be entitled to the greater of (i) Base Salary and benefits determined under Sections 3 and 4 through the date of termination, or (ii) the minimum compensation permitted by applicable law. Other benefits will be determined in accordance with the benefit plans maintained by the Company, and the Company will have no further obligation hereunder. For purposes of this Agreement, “ Permanent Disability ” means a physical or mental disability or infirmity of the Executive that prevents the normal performance of substantially all his duties as an employee of the Company, which disability or infirmity exists for any continuous period of 180 days.

 

7. CONFIDENTIALITY

 

7.1 Confidentiality . The Executive covenants and agrees with the Company that he will not at any time during the Term of Employment and thereafter, except in performance of his obligations to the Company hereunder or with the prior written consent of the Company, directly or indirectly, disclose any secret or confidential information that he may learn or has learned by reason of his association with the Company or any of its subsidiaries and Affiliates. The term “confidential information” includes information not previously made generally available to the public or to the trade by the Company’s management, with respect to the Company’s or any of its subsidiaries’ or Affiliates’ products, facilities, applications and methods, trade secrets and other intellectual property, systems, procedures, manuals, confidential reports, product price lists, customer lists, technical information, financial information (including the revenues, costs or profits associated with any of the Company’s products), business plans, prospects or opportunities, but will exclude any information which is or becomes generally available to the public or is generally known in the industry or industries in which the Company operates other than as a result of disclosure by the Executive in violation of his agreements under Section 7.1 . The Executive will be released of his obligations under this Section 7.1 to the extent the Executive is required to disclose under any applicable laws, regulations or directives of any government agency, tribunal or authority having jurisdiction in the matter or under subpoena or other process of law provided that the Executive provides the Company with prompt written notice of such requirement. For the purposes of this Agreement, “ Affiliate ” means, with respect to any person or entity, any other person or entity that is directly or indirectly through one or more intermediaries, controlled by, controlling or under common control with such person or entity.

 

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7.2 Acknowledgment of Company Assets . The Executive acknowledges that the Company, at the Company’s expense, has acquired, created and maintains, and will continue to acquire, create and maintain, significant goodwill with its current and prospective customers, vendors and employees, and that such goodwill is valuable property of the Company. The Executive further acknowledges that to the extent such goodwill will be generated through the Executive’s efforts, such efforts will be funded by the Company and the Executive will be fairly compensated for such efforts. The Executive acknowledges that all goodwill developed by the Executive relative to the Company’s customers, vendors and employees will be the sole and exclusive property of the Company and will not be personal to the Executive.

 

7.3 Exclusive Property . The Executive confirms that all confidential information is and will remain the exclusive property of the Company. All business records, papers and documents kept or made by Executive relating to the business of the Company will be and remain the property of the Company, except for such papers customarily deemed to be the personal copies of the Executive. Upon termination of the Executive’s employment with the Company for any reason, the Executive will promptly deliver to the Company all of the following that are in the Executive’s possession or under his control: (i) all computers, telecommunication devices and other tangible property of the Company and its Affiliates, and (ii) all documents and other materials, in whatever form, which include confidential information or which otherwise relate in whole or in part to the present or prospective business of the Company or its Affiliates, including but not limited to, drawings, graphs, charts, specifications, notes, reports, memoranda, and computer disks and tapes, and all copies thereof.

 

7.4 Communication to Third Parties . The Executive agrees that Company will have the right to communicate the terms of this Section 7 to any third parties, including but not limited to, any prospective employer of the Executive. The Company waives any right to assert any claim for damages against Company or any officer, employee or agent of Company arising from such disclosure of the terms of this Section 7 .

 

7.5 Independent Obligations . The provisions of this Section 7 will be independent of any other provision of this Agreement. The existence of any claim or cause of action by the Executive against the Company, whether predicated on this Agreement or otherwise, will not constitute a defense of the enforcement of this Section 7 by the Company.

 

7.6 Non-Exclusivity . The Company’s rights and the Executive’s obligations set forth in this Section 7 are in addition to, and not in lieu of, all rights and obligations provided by applicable statutory or common law.

 

8. INDEMNIFICATION

 

8.1 Indemnification of the Executive . The Company agrees to indemnify Executive (and his heirs, executors, and administrators), and to advance expenses related to this indemnification, to the fullest extent permitted under applicable law and regulations, against any and all expenses and liabilities that Executive reasonably incurs in connection with or arising out of any action, suit, or proceeding in which he may be involved by reason of his service as an Executive of the Company or any of its subsidiaries or Affiliates (whether or not he continues to be an Executive at the time of incurring any such expenses or liabilities). Covered expenses and liabilities include, but are not limited to, judgments, court costs, and attorneys’ fees and the costs of reasonable settlements, subject to Board approval, if the action is brought against Executive in his capacity as an Executive of the Company or any of its subsidiaries or Affiliates. Indemnification for expenses will not extend to matters related to Executive’s termination for Cause. Notwithstanding anything in this Section 8.1 to the contrary, the Company will not be required to provide indemnification prohibited by applicable law or regulation. The obligations of this Section 8.1 will survive the term of this Agreement by a period of six (6) years.

 

8.2 Indemnification of the Company .

 

The Executive will indemnify and keep the Company fully indemnified at all times from and against all claims, suits, proceedings, fines, punishment, loss, damage, costs and liabilities whatsoever incurred or sustained by the Company in connection with or arising out of or as a consequence of any breach by the Executive of the confidentiality obligations set forth above.

 

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9. FOREIGN CORRUPT PRACTICES ACT

 

The Company and the Executive each represent and warrant that it is aware of and familiar with the provisions of the Foreign Corrupt Practices Act of 1977, as amended by the Omnibus Trade and Competitiveness Act of 1988 (“ FCPA ”), and the rules and regulations thereunder, and its purpose. Each party agrees that it will take no action and make no payment in violation of, or which might cause the Company or the Executive to be in violation of, the FCPA, including, but not limited to, the making of unlawful payments to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds.

 

10. MISCELLANEOUS

 

10.1 Severability . The parties intend this Agreement to be enforced as written. However, (i) if any portion or provision of this Agreement is to any extent be declared illegal or unenforceable by a duly authorized court having jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, will not be affected thereby, and each portion and provision of this Agreement will be valid and enforceable to the fullest extent permitted by law and (ii) if any provision, or part thereof, is held to be unenforceable because of the duration of such provision, the geographic area covered thereby, or other aspect of the scope of such provision, the court making such determination will have the power to reduce the duration, geographic area of such provision, or other aspect of the scope of such provision, and/or to delete specific words and phrases (“ blue-penciling ”), and in its reduced or blue-penciled form, such provision will then be enforceable and will be enforced.

 

10.2 Assignment . The rights and obligations of this Agreement will bind and inure to the benefit of any successor of the Company by reorganization, merger or consolidation, or any assignee of all or substantially all of the Company’s business and properties. Neither this Agreement nor any rights hereunder will be assignable or otherwise subject to hypothecation by the Executive.

 

10.3 Entire Agreement . This Agreement represents the entire agreement of the Company and the Executive and will supersede any and all previous contracts, arrangements or understandings.

 

10.4 Governing Law . This Agreement will be construed and interpreted in accordance with and governed by the law of the State of Delaware, USA, without regard to the choice-of-law provisions thereof that might direct the application of the law of another jurisdiction.

 

10.5 Dispute Resolution . Any legal action or proceeding with respect to this Agreement shall be brought in the courts of Delaware, or the United States District Court for the District of Delaware. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts.

 

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the Executive and the authorized representative of China Biologic Products, Inc., execute and enter into this Agreement as of the date first written above.

 

 

  EXECUTIVE
     
  /s/ Ming Yang  
  Mr. Ming Yang
     
     

 

  CHINA BIOLOGIC PRODUCTS, INC.
     
  By: /s/ David (Xiaoying) Gao
  Name: David (Xiaoying) Gao
  Title: Chairman and Chief Executive Officer
  Date: November 1, 2016

 

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Exhibit 10.6

 

Second Amended and Restated Employment Agreement

 

This Second Amended and Restated Employment Agreement (this “ Agreement ”), dated as of November 1, 2016, is entered into between China Biologic Products, Inc., a company established in the United States with its principal office located at 18th Floor, Jialong Int’l Tower, 19 Chaoyang Park Road, Beijing 100125, PRC (the “ Company ”), and Ming Yin (the “ Executive ”).

 

WHEREAS, the Company and the Executive entered into an employment agreement dated as of August 31, 2012 (the “ 2012 Agreement ”), pursuant to which the Company engaged the Executive as, and the Executive agreed to serve as, Senior Vice President of the Company, upon the terms and conditions contained therein;

 

WHEREAS, the Company and the Executive entered into a renewal employment agreement dated as of August 31, 2014 (the “ 2014 Agreement ”) with terms and conditions substantially similar with those under the 2012 Agreement;

 

WHEREAS, the term of the 2014 Agreement expired on August 31, 2016; and

 

WHEREAS, the Company and the Executive desire to extend the term of the 2014 Agreement upon the terms and conditions contained herein.

 

NOW THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged by the parties, the parties hereby agree as follows:

 

1. EFFECTIVENESS OF AGREEMENT AND EFFECTIVE DATE

 

This Agreement shall become effective retrospectively as of August 31, 2016. For the purpose of this Agreement, the term “ Effective Date ” means August 31, 2016.

 

2. EMPLOYMENT AND DUTIES

 

2.1 General . The Executive will perform such duties and services for the Company as may be designated from time to time by the Chief Executive Officer (the “CEO”) of the Company. The Executive is expected and required to devote substantially all of his time and attention during normal business hours to the affairs of the Company and/or its subsidiaries. The Executive further agrees to perform such duties in accordance with the general fiduciary duties of officers and directors arising under the Delaware General Corporation Law. The Executive is expected and required to devote substantially all of his time and attention during normal business hours to the affairs of the Company and/or its subsidiaries.

 

2.2 Term of Employment . The Executive’s employment under this Agreement will commence as of the Effective Date and will terminate on the first year of the Effective Date; provided, however, that the term of the Executive’s employment will be automatically extended without further action of either party for additional one (1) year periods unless written notice of either party’s intention not to extend has been given to the other party hereto at least thirty (30) days prior to the expiration of the then effective term (the initial term and any extensions thereof, the “ Term of Employment ”). Notwithstanding the foregoing, the Executive’s employment may be terminated during the Term of Employment as provided in Section 5 below.

 

2.3 Reimbursement of Expenses . Unless otherwise agreed to by the Executive and the Company, the Company will reimburse the Executive for reasonable travel and other business expenses incurred by him to fulfill his duties hereunder upon presentation by the Executive of an itemized account of such expenditures, in accordance with Company practices consistently applied.

 

3. COMPENSATION

 

3.1 Base Salary . From the Effective Date, the Executive will be entitled to receive a base salary (“ Base Salary” ) at a rate of US$200,000 per annum, payable in accordance with the Company’s payroll practices and applicable law. If the rate of Base Salary per annum paid to Executive is increased during the Term of Employment, such increased rate will thereafter constitute the Base Salary for all purposes of this Agreement. Base Salary will not be decreased during the Term of Employment without the mutual consent of Executive and the Company.

 

 

 

 

3.2 Annual Review . The Executive’s Base Salary will be reviewed by the CEO, based upon the Executive’s performance not less than annually.

 

3.3 Bonus Compensation . In addition to his Base Salary, the Executive would be eligible to receive additional bonus compensation as may be awarded to the Executive from time to time by the CEO in the sole and absolute discretion of the CEO.

 

3.4 Additional Compensation . The Company may, in its sole discretion, award the Executive additional equity-based compensation. The Executive further will be eligible to participate in any employment compensation plan established by the Company under the same terms as other Company executives and approved by the Board.

 

4. EMPLOYEE BENEFITS

 

4.1 Leave . The Executive will be entitled to accrue 15 working days paid annual leave each calendar year (which will not be carried over in the event that they are not used by the Executive). All annual leave days will be taken at times mutually agreed by the Executive and the Company and will be subject to the business needs of the Company. If, however, in any calendar year during the Term of Employment, the Executive is unable to take any annual leave due to the business needs of the Company, the Company, in its discretion, shall either pay the Executive the equivalent of 15 working days, or permit the Executive to carry such leave over into the following calendar year.

 

4.2 Other Programs . The Executive will, during his employment under this Agreement, be included to the extent eligible thereunder in all employee benefit plans, programs or arrangements (including, without limitation, any plans, programs or arrangements providing for retirement benefits, incentive compensation, profit sharing, bonuses, disability benefits, health and life insurance, or vacation and paid holiday) which may be established by the Company for, or made available to, its executives generally.

 

5. TERMINATION OF EMPLOYMENT

 

5.1 Termination Events .

 

5.1.1 By the Company . The Company may terminate the Executive’s employment immediately with Cause, without Cause upon ninety (90) days notice to the Executive, or upon the Executive’s death or Permanent Disability (as hereinafter defined).

 

5.1.2 By the Executive . The Executive may terminate his employment at any time for any reason upon ninety (90) days written notice to the Company.

 

5.2 Termination by Company With Cause . If the Executive’s employment is terminated by the Company with Cause, the Company shall pay to the Executive all compensation to which the Executive is entitled through the date of termination, and thereafter, all of the Company’s obligations under this Agreement shall cease.

 

5.3 Termination by Company Without Cause . Except in situations where the Executive’s employment is terminated under Section 5.2 or Section 5.4, by death or by Permanent Disability, in the event that the Company terminates Executive’s employment at any time without Cause, the Executive shall be entitled to receive an amount equal to twelve (12) months of the Executive’s then current Base Salary paid in twelve (12) equal monthly installments, subject to Sections 5.7 and 5.8 .

 

5.4 Change of Control. In the event of a Change of Control, the Company shall (i) assign this Agreement and all rights and obligations under it to any business entity that succeeds to all or substantially all of the Company’s business through that merger or combination or sale of assets, or (ii) on at least thirty (30) days’ prior written notice to the Executive, terminate this Agreement upon the effective date of such Change of Control. In the event that the Company terminates Executive’s employment pursuant to this Section 5.4, the Executive shall be entitled to receive, upon termination an amount equal to eighteen (18) months of the Executive’s then current Base Salary paid in eighteen (18) equal monthly installments, subject to Sections 5.7 and 5.8 .

 

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For the purpose of this Agreement, “ Change of Control ” means the occurrence of any of the following events:

 

(a) The consummation of the sale or disposition by the Company of all or substantially all of the Company's assets;

 

(b) The consummation of a merger or consolidation of the Company with any other entity, unless the voting securities of the Company immediately prior to the merger or consolidation remain outstanding or are converted into voting securities of the surviving entity or parent so that they continue to represent at least fifty percent (50%) of the total voting power represented by the voting securities of the surviving entity (or parent) outstanding immediately after such merger or consolidation; or

 

(c) A change in the composition of the Board, which results in fewer than a majority of the directors being “Incumbent Directors.” For purpose of this provision, “ Incumbent Directors ” shall mean directors who either (i) are directors as of the Effective Date, or (ii) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of those directors whose election or nomination was not in connection with any transactions described above or in connection with an actual or threatened proxy contest relating to election.

 

5.5 Voluntary Resignation . If the Executive terminates his employment voluntarily, then the Executive shall not be entitled to receive payment of any severance benefits. The Company further shall have the option, in its sole discretion, to make the Executive’s termination effective at any time prior to the end of notice period required under Section 5.1.2 as long as the Company provides Executive with all compensation to which he would be entitled for continuing employment through the last day of the notice period. Thereafter, all obligations of the Company under this Agreement shall cease.

 

5.6 Cause . Termination for “ Cause ” means termination of the Executive’s employment by the Company because of:

 

(i) any act or omission that constitutes a breach by the Executive of any of his obligations under this Agreement or any Company policy or procedure and failure to cure such breach after notice of, and a reasonable opportunity to cure, such breach;

 

(ii) the continued willful failure or refusal of the Executive to substantially perform the duties reasonably required of him as an employee of the Company;

 

(iii) an alleged act (with credible substantiated evidence) of moral turpitude, dishonesty, fraud or violation of law (whether or not connected to the Company or its Affiliates (as defined in Section 8.1 )) by, or criminal conviction of, the Executive which in the determination of the Board (in its sole discretion) would render his continued employment by the Company damaging or detrimental to the Company or its Affiliates in any way; or

 

(iv) any misappropriation of Company property by the Executive.

 

5.7 Release of Claims . The receipt of any severance payments pursuant to Sections 5.3 or 5.4 of this Agreement is subject to the Executive signing and not revoking a separation agreement and release of claims in a form reasonably acceptable to the Company (the “ Release ”), which must become effective and irrevocable no later than the 60 th day following the date of Executive’s termination of employment (the “ Release Deadline ”), and if not, the Executive will forfeit any right to severance payments or benefits under this Agreement. In addition, no severance payments or benefits will be paid or provided until the Release actually becomes effective. To the extent that any severance payments or benefits constitute Deferred Payments (as defined below), severance payments shall commence on the 61 st day following Executive’s termination of employment, subject to Section 5.8.

 

5.8 Section 409A . The Company intends that all severance payments made under this Agreement comply with, or be exempt from, the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, and any guidance promulgated thereunder (“ Section 409A ”) so that none of the payments or benefits will be subject to the additional tax imposed under Section 409A, and any ambiguities or ambiguous terms herein will be interpreted to so comply or be exempt. Specifically, the severance benefits are intended to be exempt from the requirements of Section 409A under the separation pay plan exception set forth under Section 409A. If, at the time of the Executive’s separation from service, the Executive is a “specified employee” within the meaning of Section 409A and the severance benefits payable under this Agreement, when considered together with any other severance payments or separation benefits, are considered deferred compensation under Section 409A (together, the “ Deferred Payments ”), payment of such Deferred Payments will be delayed to the extent necessary to avoid the imposition of the additional tax imposed under Section 409A, which generally means that Executive will begin to receive payments on the date 6 months and 1 day following the Executive’s separation from service. The Company and the Executive agree to work together in good faith to consider amendments to this Agreement and to take such reasonable actions which are necessary, appropriate or desirable to avoid imposition of any additional tax or income recognition prior to actual payment to you under Section 409A. In no event will the Company reimburse the Executive for any taxes that may be imposed on Executive as a result of Section 409A.

 

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6. DEATH OR DISABILITY

 

In the event of termination of employment by reason of non-work-related death or Permanent Disability, the Executive (or his estate, as applicable) will be entitled to the Base Salary and benefits determined under Sections 3 and 4 through the date of termination. In the event of termination of employment by reason of work related death or Permanent Disability, the Executive (or his estate, as applicable) will be entitled to the greater of (i) Base Salary and benefits determined under Sections 3 and 4 through the date of termination, or (ii) the minimum compensation permitted by applicable law. Other benefits will be determined in accordance with the benefit plans maintained by the Company, and the Company will have no further obligation hereunder. For purposes of this Agreement, “ Permanent Disability ” means a physical or mental disability or infirmity of the Executive that prevents the normal performance of substantially all his duties as an employee of the Company, which disability or infirmity exists for any continuous period of 180 days.

 

7. CONFIDENTIALITY

 

7.1 Confidentiality . The Executive covenants and agrees with the Company that he will not at any time during the Term of Employment and thereafter, except in performance of his obligations to the Company hereunder or with the prior written consent of the Company, directly or indirectly, disclose any secret or confidential information that he may learn or has learned by reason of his association with the Company or any of its subsidiaries and Affiliates. The term “confidential information” includes information not previously made generally available to the public or to the trade by the Company’s management, with respect to the Company’s or any of its subsidiaries’ or Affiliates’ products, facilities, applications and methods, trade secrets and other intellectual property, systems, procedures, manuals, confidential reports, product price lists, customer lists, technical information, financial information (including the revenues, costs or profits associated with any of the Company’s products), business plans, prospects or opportunities, but will exclude any information which is or becomes generally available to the public or is generally known in the industry or industries in which the Company operates other than as a result of disclosure by the Executive in violation of his agreements under Section 7.1 . The Executive will be released of his obligations under this Section 7.1 to the extent the Executive is required to disclose under any applicable laws, regulations or directives of any government agency, tribunal or authority having jurisdiction in the matter or under subpoena or other process of law provided that the Executive provides the Company with prompt written notice of such requirement. For the purposes of this Agreement, “ Affiliate ” means, with respect to any person or entity, any other person or entity that is directly or indirectly through one or more intermediaries, controlled by, controlling or under common control with such person or entity.

 

7.2 Acknowledgment of Company Assets . The Executive acknowledges that the Company, at the Company’s expense, has acquired, created and maintains, and will continue to acquire, create and maintain, significant goodwill with its current and prospective customers, vendors and employees, and that such goodwill is valuable property of the Company. The Executive further acknowledges that to the extent such goodwill will be generated through the Executive’s efforts, such efforts will be funded by the Company and the Executive will be fairly compensated for such efforts. The Executive acknowledges that all goodwill developed by the Executive relative to the Company’s customers, vendors and employees will be the sole and exclusive property of the Company and will not be personal to the Executive.

 

7.3 Exclusive Property . The Executive confirms that all confidential information is and will remain the exclusive property of the Company. All business records, papers and documents kept or made by Executive relating to the business of the Company will be and remain the property of the Company, except for such papers customarily deemed to be the personal copies of the Executive. Upon termination of the Executive’s employment with the Company for any reason, the Executive will promptly deliver to the Company all of the following that are in the Executive’s possession or under his control: (i) all computers, telecommunication devices and other tangible property of the Company and its Affiliates, and (ii) all documents and other materials, in whatever form, which include confidential information or which otherwise relate in whole or in part to the present or prospective business of the Company or its Affiliates, including but not limited to, drawings, graphs, charts, specifications, notes, reports, memoranda, and computer disks and tapes, and all copies thereof.

 

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7.4 Communication to Third Parties . The Executive agrees that Company will have the right to communicate the terms of this Section 7 to any third parties, including but not limited to, any prospective employer of the Executive. The Company waives any right to assert any claim for damages against Company or any officer, employee or agent of Company arising from such disclosure of the terms of this Section 7 .

 

7.5 Independent Obligations . The provisions of this Section 7 will be independent of any other provision of this Agreement. The existence of any claim or cause of action by the Executive against the Company, whether predicated on this Agreement or otherwise, will not constitute a defense of the enforcement of this Section 7 by the Company.

 

7.6 Non-Exclusivity . The Company’s rights and the Executive’s obligations set forth in this Section 7 are in addition to, and not in lieu of, all rights and obligations provided by applicable statutory or common law.

 

8. INDEMNIFICATION

 

8.1 Indemnification of the Executive . The Company agrees to indemnify Executive (and his heirs, executors, and administrators), and to advance expenses related to this indemnification, to the fullest extent permitted under applicable law and regulations, against any and all expenses and liabilities that Executive reasonably incurs in connection with or arising out of any action, suit, or proceeding in which he may be involved by reason of his service as an Executive of the Company or any of its subsidiaries or Affiliates (whether or not he continues to be an Executive at the time of incurring any such expenses or liabilities). Covered expenses and liabilities include, but are not limited to, judgments, court costs, and attorneys’ fees and the costs of reasonable settlements, subject to Board approval, if the action is brought against Executive in his capacity as an Executive of the Company or any of its subsidiaries or Affiliates. Indemnification for expenses will not extend to matters related to Executive’s termination for Cause. Notwithstanding anything in this Section 8.1 to the contrary, the Company will not be required to provide indemnification prohibited by applicable law or regulation. The obligations of this Section 8.1 will survive the term of this Agreement by a period of six (6) years.

 

8.2 Indemnification of the Company .

 

The Executive will indemnify and keep the Company fully indemnified at all times from and against all claims, suits, proceedings, fines, punishment, loss, damage, costs and liabilities whatsoever incurred or sustained by the Company in connection with or arising out of or as a consequence of any breach by the Executive of the confidentiality obligations set forth above.

 

9.

 FOREIGN CORRUPT PRACTICES ACT

 

The Company and the Executive each represent and warrant that it is aware of and familiar with the provisions of the Foreign Corrupt Practices Act of 1977, as amended by the Omnibus Trade and Competitiveness Act of 1988 (“ FCPA ”), and the rules and regulations thereunder, and its purpose. Each party agrees that it will take no action and make no payment in violation of, or which might cause the Company or the Executive to be in violation of, the FCPA, including, but not limited to, the making of unlawful payments to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds.

 

10. MISCELLANEOUS

 

10.1 Severability . The parties intend this Agreement to be enforced as written. However, (i) if any portion or provision of this Agreement is to any extent be declared illegal or unenforceable by a duly authorized court having jurisdiction, then the remainder of this Agreement, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, will not be affected thereby, and each portion and provision of this Agreement will be valid and enforceable to the fullest extent permitted by law and (ii) if any provision, or part thereof, is held to be unenforceable because of the duration of such provision, the geographic area covered thereby, or other aspect of the scope of such provision, the court making such determination will have the power to reduce the duration, geographic area of such provision, or other aspect of the scope of such provision, and/or to delete specific words and phrases (“ blue-penciling ”), and in its reduced or blue-penciled form, such provision will then be enforceable and will be enforced.

 

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10.2 Assignment . The rights and obligations of this Agreement will bind and inure to the benefit of any successor of the Company by reorganization, merger or consolidation, or any assignee of all or substantially all of the Company’s business and properties. Neither this Agreement nor any rights hereunder will be assignable or otherwise subject to hypothecation by the Executive.

 

10.3 Entire Agreement . This Agreement represents the entire agreement of the Company and the Executive and will supersede any and all previous contracts, arrangements or understandings.

 

10.4 Governing Law . This Agreement will be construed and interpreted in accordance with and governed by the law of the State of Delaware, USA, without regard to the choice-of-law provisions thereof that might direct the application of the law of another jurisdiction.

 

10.5 Dispute Resolution . Any legal action or proceeding with respect to this Agreement shall be brought in the courts of Delaware, or the United States District Court for the District of Delaware. By execution and delivery of this Agreement, each of the parties hereto accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts.

 

 

 

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, the Executive and the authorized representative of China Biologic Products, Inc., execute and enter into this Agreement as of the date first written above.

 

 

  EXECUTIVE  
     
  /s/ Ming Yin  
  Mr. Ming Yin  

 

 

  CHINA BIOLOGIC PRODUCTS, INC.
     
  By: /s/ David (Xiaoying) Gao
  Name: David (Xiaoying) Gao
  Title: Chairman and Chief Executive Officer
  Date: November 1, 2016

 

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Exhibit 31.1

CERTIFICATIONS

 

I, David (Xiaoying) Gao, certify that:

 

  1.   I have reviewed this quarterly report on Form 10-Q of China Biologic Products, Inc.;

 

  2.   Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

  3.   Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

  4.   The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a)   Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b)   Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
 
  c)   Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d)   Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

  5.   The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a)   All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b)   Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.  

 

Date: November 2, 2016

 

/s/ David (Xiaoying) Gao

David (Xiaoying) Gao

Chief Executive Officer

(Principal Executive Officer)

 

Exhibit 31.2

CERTIFICATIONS

 

I, Ming Yang, certify that:

 

  1.   I have reviewed this quarterly report on Form 10-Q of China Biologic Products, Inc.;

 

  2.   Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

  3.   Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

  4.   The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

  a)   Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

  b)   Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
 
  c)   Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

  d)   Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

  5.   The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

  a)   All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

  b)   Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.  

 

Date: November 2, 2016

 

/s/ Ming Yang

Ming Yang

Chief Financial Officer

(Principal Financial and Accounting Officer)

 

 

 

Exhibit 32.1

 

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906
OF THE SARBANES-OXLEY ACT OF 2002

 

 

The undersigned, David (Xiaoying) Gao, the Chief Executive Officer of CHINA BIOLOGIC PRODUCTS, INC. (the “Company”), DOES HEREBY CERTIFY that:

 

1.       The Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2016 (the “Report”), fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

2.       Information contained in the Report fairly presents, in all material respects, the financial condition and results of operation of the Company.

 

IN WITNESS WHEREOF, each of the undersigned has executed this statement this 2 th day of November, 2016.

 

  /s/ David (Xiaoying) Gao  
  David (Xiaoying) Gao
  Chief Executive Officer
  (Principal Executive Officer)

 

A signed original of this written statement required by Section 906 has been provided to China Biologic Products, Inc. and will be retained by China Biologic Products, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.

 

The foregoing certification is being furnished to the Securities and Exchange Commission pursuant to § 18 U.S.C. Section 1350. It is not being filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.

 

 

 

 

Exhibit 32.2

 

CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO SECTION 906
OF THE SARBANES-OXLEY ACT OF 2002

 

 

The undersigned, Ming Yang, the Chief Financial Officer of CHINA BIOLOGIC PRODUCTS, INC. (the “Company”), DOES HEREBY CERTIFY that:

 

1.       The Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2016 (the “Report”), fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

2.       Information contained in the Report fairly presents, in all material respects, the financial condition and results of operation of the Company.

 

IN WITNESS WHEREOF, each of the undersigned has executed this statement this 2 th day of November, 2016.

 

 

  /s/ Ming Yang  
  Ming Yang
  Chief Financial Officer
  (Principal Financial Officer)

  

A signed original of this written statement required by Section 906 has been provided to China Biologic Products, Inc. and will be retained by China Biologic Products, Inc. and furnished to the Securities and Exchange Commission or its staff upon request.

 

The foregoing certification is being furnished to the Securities and Exchange Commission pursuant to § 18 U.S.C. Section 1350. It is not being filed for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and is not to be incorporated by reference into any filing of the Company, whether made before or after the date hereof, regardless of any general incorporation language in such filing.