RENESOLA LIMITED - and - HANSON WESTHOUSE LLP - and - WU YUN CAI - and - YUNCAI HOLDINGS LIMITED
Exhibit 4.7
DATED 2 August 2006
RENESOLA LIMITED
- and -
XXXXXX XXXXXXXXX LLP
- and -
WU XXX XXX
- and -
YUNCAI HOLDINGS LIMITED
STEPTOE & XXXXXXX
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: x00 00 0000 0000
Fax: x00 00 0000 0000
THIS DEED is made the 2nd day of August 2006
BETWEEN:
| (1) | RENESOLA LIMITED (a company incorporated in the British Virgin Islands under the BVI Act with registered number 1016246) whose registered office is at Xxxxxxxxx Xxxxxxxx, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx (“Company”); |
| (2) | XXXXXX XXXXXXXXX LLP (a limited liability partnership registered in England under number OC305445) whose registered office is at Xxx Xxxxx Xxxxx, Xxxxxx XX0X 0XX (“Xxxxxxxxx”); |
| (3) | WU XXX XXX (PRC Identity No 332627671104001) of Suite 201, Xx. 00 Xxxxxxxx Xxxx, Xxxxx Xxxx Xxxxx Xxxxxxxx, Xxxxxxxx Xxxxxxxx, PRC (“Xx Xx”); and |
| (4) | YUNCAI HOLDINGS LIMITED (a company incorporated in the British Virgin Islands under the BVI Act with registered number 1035692) whose registered office is at Xxxxxxxxx Xxxxxxxx, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx (“Yuncai”). |
WHEREAS:
| (A) | The Company has authorised Xxxxxxxxx to make application to the London Stock Exchange for the Existing Shares and the Placing Shares to be admitted to trading on AIM and in that connection the parties have entered into the Placing Agreement (as defined below). |
| (B) | The parties now wish to enter into this Deed in order to regulate the manner in which Yuncai may deal with any Shares (as defined below) held by it. |
| (C) | Xx. Xx now wishes to enter into this Deed in order to guarantee the obligations of Yuncai arising under this Deed. |
NOW THIS DEED WITNESSES as follows:
| 1. | DEFINITIONS AND INTERPRETATION |
| 1.1 | Save as set out in clause 1.2 in this Deed words and expressions shall have the same meaning as set out in the Placing Agreement (as defined below). |
| 1.2 | In this Deed (except where the context otherwise requires): |
| “BVI Act” | means the BVI Business Companies Act 2004 (as amended) of the British Virgin Islands; |
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| “Connected Person” | means a person who shall be deemed to be connected with another if that person is connected with such other person within the meaning of section 839 of the Income and Corporation Taxes Xxx 0000 or section 346 of the Companies Xxx 0000; | |
| “Dealing Day” | means any day on which the London Stock Exchange is open for business for the trading of securities on AIM; | |
| “Deposit Letter” | means the letter in the agreed form governing the operation of the deposit arrangement referred to in clause 3 in respect of the deposit of the share certificate representing Yuncai's holding of Shares; | |
| “Disposal” | includes any sale, grant of options over, transfer, charge, pledge, or other disposal or agreement to dispose of any Shares and “dispose” shall be construed accordingly; | |
| “Locked-In Shares” | has that meaning set out in clauses 2.1.2 and 2.3.2; | |
| “Placing Agreement” | means the placing agreement entered into on the same date as this Deed between the Company (1) Xxxxxxxxx (2) and the Directors (3); | |
| “Restricted Period” | means the period from the date of Admission up to and including the date falling twelve (12) months from that date; | |
| “Semi-Restricted Period” | means the period from the expiry of the Restricted Period up to and including the first anniversary of that date; | |
| “Share Purchase Agreement” | means the share purchase agreement dated June 2006 between Bai Xxxx Xxx (1) Diverso Management Limited (2) Li Xian Shou (3) and Xx Xx (4); | |
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| “Shares” | means any shares in the capital of the Company; and | |
| “Specified Price” | has that meaning set out in clauses 2.1.2 and 2.3.2. | |
| 1.3 | In this Deed (except where the context otherwise requires): |
| (a) | any reference to a clause or Schedule is to the relevant clause or Schedule of or to this Deed and any reference to a paragraph is to the relevant paragraph of the clause or Schedule in which it appears; |
| (b) | the clause headings are included for convenience only and shall not affect the interpretation of this Deed; |
| (c) | use of the singular includes the plural and vice versa; |
| (d) | use of any gender includes the other genders; |
| (e) | any reference to “persons” includes natural persons, firms, partnerships, companies, corporations, associations, organisations, governments, states, foundations and trusts (in each case whether or not having separate legal personality); |
| (f) | the word “subsidiary” has the meaning given to it by section 736 of the Companies Xxx 0000; |
| (g) | any reference to a statute, statutory provision or subordinate legislation shall (except where the context otherwise requires) be construed as referring to: |
| (i) | such legislation as amended and in force from time to time and to any legislation which (either with or without modification) re-enacts, consolidates or enacts in rewritten form any such legislation; and |
| (ii) | any former legislation which it re-enacts, consolidates or enacts in rewritten form; |
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| (h) | any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates in that jurisdiction to the English legal term; |
| (i) | any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; |
| (j) | any reference to a “company” shall be construed so as to include any company, corporation or other body corporate, wherever and however incorporated or established; and |
| (k) | any reference to any other document is a reference to that other document as amended, varied, supplemented, or novated (in each case, other than in breach of the provisions of this Deed) at any time. |
| 2. | LOCK-IN AND ORDERLY MARKET ARRANGEMENTS |
| 2.1 | Yuncai hereby undertakes with the Company and Xxxxxxxxx that, except as provided in clauses 2.2 and 2.3 it will not (and will procure so far as it is able that any Connected Person will not): |
| 2.1.1 | during the Restricted Period effect any Disposal of its interest in: |
| (i) | all or any Shares which are beneficially owned by it or any Connected Person or which it or any Connected Person will otherwise hold or control (otherwise than as a trustee) on or immediately following Admission; and |
| (ii) | all or any Shares which are allotted or issued to it pursuant to any capital reorganisation (including, for the avoidance of doubt, by way of capitalisation of profits, share premium account or any capital or reserve account of the Company or by way of any consolidation or sub-division of share capital) or by way of rights or otherwise on or after Admission and before the end of the Restricted Period in respect of any Shares beneficially owned, held or controlled by it or any Connected Person; and |
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| 2.1.2 | without the consent of Xxxxxxxxx (such consent not to be unreasonably withheld or delayed) during the Semi-Restricted Period effect any Disposal of its interest in: |
| (i) | all or any Shares which are beneficially owned by it or any Connected Person or which it or any Connected Person will otherwise hold or control (otherwise than as a trustee) on or immediately following the Restricted Period; and |
| (ii) | all or any Shares which are allotted or issued to it or any Connected Person pursuant to the exercise of any share option, any capital reorganisation (including, for the avoidance of doubt, by way of capitalisation of profits, share premium account or any capital or reserve account of the Company or by way of any consolidation or sub-division of share capital) or by way of rights or otherwise after the Restricted Period and before the end of the Semi-Restricted Period in respect of any Shares beneficially owned, held or controlled by it or any Connected Person; |
and unless such Disposal is made through Xxxxxxxxx (or the broker for the time being of the Company) or unless Xxxxxxxxx (or such other broker as there may be for the time being of the Company) notifies Yuncai in writing that such Disposal is approved through another broker. Xxxxxxxxx acknowledges that its fees and commissions for brokering a Disposal under this clause 2.1.2 shall be reasonably competitive in the circumstances and it will use its reasonable endeavours to obtain a competitive sale price in respect of any such Disposal. If Yuncai wishes to effect any such Disposal then, in the case of a sale or transfer of Shares, it shall instruct Xxxxxxxxx to arrange for the sale or transfer of such Shares (the “Locked-In Shares”) at not less than the minimum price which it requests for the Locked-In Shares (the “Specified Price”). If Xxxxxxxxx fails to arrange for the sale or transfer of the Locked-In Shares at a price not less than the Specified Price within five Dealing Days of being instructed to do so and otherwise in accordance with usual market procedures and terms of sale (including commission) then Yuncai shall be entitled to sell all or any of the Locked-In Shares otherwise than through Xxxxxxxxx within a further five Dealing Days thereafter provided that the Locked-In Shares are not sold at a price less than the Specified Price.
| 2.2 | The parties agree that: |
| 2.2.1 | the restrictions contained in clause 2.1.1 shall not apply to any of the following: |
| (i) | any Disposal pursuant to a court order made by a court of competent jurisdiction; |
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| (ii) | an acceptance of a general offer for the ordinary share capital of the Company or the provision of an irrevocable undertaking to accept such an offer; |
| 2.2.2 | the restrictions contained in clause 2.1.2 shall not apply in respect of any Disposal made by Yuncai (i) in order to satisfy a claim made against Xx Xx under or in connection with the Placing Agreement or (ii) to Bai Xxxx Xxx in accordance with the terms of the Share Purchase Agreement. |
| 2.3 | Any Disposal permitted pursuant to the provisions of clause 2.2 shall be subject to the following provisions: |
| 2.3.1 | any Disposal shall be notified in advance to the Company and Xxxxxxxxx in writing at least five Business Days prior to the entry into of any agreement or undertaking relating to the same; and |
| 2.3.2 | if Yuncai wishes or is required (as the case may be) to make a Disposal pursuant to clause 2.2.1(i) or clause 2.2.1(ii) it shall (i) notify the Company and Xxxxxxxxx in advance (in accordance with clause 2.3.1) of the intention to effect such a Disposal and (ii) in the case of a sale or transfer of Shares, instruct Xxxxxxxxx to arrange for the sale or transfer of such Shares (the “Locked-In Shares”) at not less than the minimum price which it requests for the Locked-In Shares (the “Specified Price”) and if Xxxxxxxxx fails to arrange for the sale or transfer of the Locked-In Shares at a price not less than the Specified Price within five Dealing Days of being instructed to do so and otherwise in accordance with usual market procedures and terms of sale (including commission) then Yuncai shall be entitled to sell all or any of the Locked-In Shares otherwise than through Xxxxxxxxx within a further five Dealing Days thereafter provided that the Locked-In Shares are not sold at a price less than the Specified Price; |
subject always to the Company and Xxxxxxxxx having the right, at their reasonable discretion, to waive the notice period under clause 2.3.1.
| 3. | DEPOSIT OF SHARE CERTIFICATE |
In addition and without prejudice to the provisions of clause 2 and by way of security in respect of the performance of Yuncai's obligations under clause 2 Yuncai shall within 5 Business Days of the date of this Deed and in any event no later than 2 Business Days prior to the date of Admission deposit the share certificate representing the Shares held by it in the Company with the Company's Solicitors to be dealt with in accordance with the terms of the Deposit Letter.
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| 4. | GUARANTEE |
Xx Xx hereby unconditionally and irrevocably undertakes to procure and guarantees (as primary obligor and not as surety only) to Xxxxxxxxx and the Company the due and proper performance by Yuncai of all its obligations under this Deed. This guarantee shall be a continuing security and shall not be discharged or released or varied by any arrangement whatsoever between Xx Xx and Yuncai or otherwise without the prior written consent of Xxxxxxxxx (such consent not to be unreasonably withheld or delayed) and the Company. Nothing in this clause shall remove or mitigate the liability of Yuncai under or in connection with this Deed for any default in the performance of its obligations under this Deed.
| 5. | CONFIDENTIALITY |
Each party undertakes to each other party that it will not at any time hereafter use, divulge or communicate to any person, except to its professional representatives or advisers or as may be required by law or any legal or regulatory authority, any confidential information concerning the business or affairs of each other party or of any member of the group of companies to which the other party belongs which may have or may in future come to its knowledge and each of the parties shall use its reasonable endeavours to prevent the publication or disclosure of any confidential information concerning such matters.
| 6. | WAIVER AND REMEDIES |
The failure to exercise or delay in exercising a right or remedy provided by this Deed or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies. A waiver of a breach of any of the terms of this Deed or of a default under this Deed does not constitute a waiver of any other breach or default and shall not affect the other terms of this Deed. A waiver of a breach of any of the terms of this Deed or of a default under this Deed will not prevent a party from subsequently requiring compliance with the waived obligation. The rights and remedies provided by this Deed are cumulative and (subject as otherwise provided in this Deed) are not exclusive of any rights or remedies provided by law.
| 7. | LANGUAGE |
This Deed is drawn up in the English language. If this Deed is translated into another language, the English language text shall in any event prevail.
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| 8. | TIME OF THE ESSENCE |
Any time, date or period mentioned in this Deed may be extended by mutual agreement between the parties hereto but as regards any time, date or period originally fixed or any time, date or period so extended time shall be of the essence.
| 9. | ASSIGNMENT |
The benefit of this Deed may not be assigned by any party without the prior written consent of each of the other parties (provided that Xxxxxxxxx may assign its rights under this Deed to a subsidiary or parent company of Xxxxxxxxx or to any other entity, whether new or existing, carrying on all or substantially all of the business of Xxxxxxxxx following the reorganisation or transfer of the business and assets of Xxxxxxxxx, without such consent), but subject thereto this Deed shall be binding upon and ensure for the benefit of the respective executors, administrators, heirs, successors and assignees of the parties
| 10. | COSTS AND EXPENSES |
Save as provided in the Placing Agreement, each party shall pay its own costs relating to the negotiation, preparation, execution and implementation by it of this Deed and of each document referred to in it.
| 11. | VARIATION |
No variation of this Deed shall be valid unless it is in writing and signed by or on behalf of each of the parties.
| 12. | SEVERANCE |
| 12.1 | If any provision of this Deed shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions of this Deed which shall remain in full force and effect. |
| 12.2 | If any provision of this Deed is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid and enforceable. |
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| 13. | NOTICES |
| 13.1 | Any notices or other communication requiring to be given or served under or in connection with this Deed shall be in writing and shall be sufficiently given or served if delivered: |
| in the case of the Company, Xx Xx or Yuncai to: | ||
| Address: | Xx. 0 Xxxxxx Xxxx, XxxXxxxxx, Xxxxxxx, Xxxxxxxx 000000, PRC | |
| Fax: | 0000-000-0000000 | |
| Attention: | Wu Xxx Xxx | |
| with a copy to: | ||
| Address: | Pinsent Masons, Dashwood House, 00 Xxx Xxxxx Xxxxxx, Xxxxxx XX0X 0XX | |
| Fax: | x00(0) 00 0000 0000 | |
| Attention: | Xxx Xxxxxx or Xxxx Xxxx | |
| if to Xxxxxxxxx: | ||
| Address: | 00xx Xxxxx, 0 Xxxxx Xxxxx, Xxxxxx XX0X 0XX | |
| Fax: | x00(0) 00 0000 0000 | |
| Attention: | Xxx Xxxxxxx | |
or to the parties’ respective registered offices (if different) or as otherwise notified by them from time to time (in accordance with the provisions of this clause 13).
| 13.2 | Any such notice shall be delivered by hand or sent by fax transmission or pre-paid first class post and, in the absence of evidence of earlier receipt, if delivered by fax shall conclusively be deemed to have been given or served at the time of printout of a transmission report showing that the correct number of pages has been sent without error and if sent by post shall conclusively be deemed to have been received 48 hours after the time of posting if posted in the United Kingdom to a United Kingdom address or, if posted in the United Kingdom to an non United Kingdom address (or outside the United Kingdom to a United Kingdom address), it shall conclusively be deemed to have been received 7 days after the date of posting. |
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| 14. | COUNTERPARTS |
This Deed may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed and delivered shall be an original, but all of the counterparts shall together constitute one and the same instrument.
| 15. | RIGHTS OF THIRD PARTIES (EXCLUSION) |
No term of this Deed shall be enforceable under the Contracts (Rights of Third Parties) Xxx 0000 by a third party, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.
| 16. | GOVERNING LAW AND JURISDICTION |
| 16.1 | The construction, validity and performance of this Deed shall be governed by English Law and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of England. |
| 16.2 | Each of Xx Xx, Yuncai and the Company hereby agrees that process by which any proceedings are commenced in England and Wales may be served on them by being delivered to the Company’s Solicitors and each of Xx Xx, Yuncai and the Company hereby appoints the Company’s Solicitors as his or its agent for this purpose. |
| 16.3 | Nothing in this clause 16 affects the right of Xxxxxxxxx to serve process in any other manner permitted by law. |
This document has been executed as a deed on the date stated at the beginning of it.
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| EXECUTED as a DEED by | ) | |||
| RENESOLA LIMITED | ) | |||
| acting by one of its directors | ) |
| Director: |
/s/ Xianshou Li |
| EXECUTED as a DEED by | ) | |||||||||||
| XXXXXX XXXXXXXXX LLP | ) | |||||||||||
| acting by /s/ , a member and | ) | |||||||||||
| /s/ Xxx Xxxxxxx, a member | ) | |||||||||||
| /s/ |
| Member |
| /s/ Xxx Xxxxxxx |
| Member |
| SIGNED as a DEED by | ) | |||||||
| WU XXX XXX | ) | /s/ Yuncai Wu | ||||||
| in the presence of: | ) |
| Witness Name: Xxx Xx | ||
| Witness Signature: /s/ Xxx Xx | ||
| Address: Xx. 0 Xxxxxx Xx, Xxxxxxxxx | ||
| Xxxxxxxx, Xxxxxxxx, Xxxxx | ||
| Occupation: Employee | ||
| EXECUTED as a DEED by | ) | |||||
| YUNCAI HOLDINGS LIMITED | ) | |||||
| acting by one of its directors | ) | |||||
| Director: /s/ Yuncai Wu | ||||||
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