DRAFT MAY [ ], 2007
LDK SOLAR CO., LTD.
ORDINARY SHARES, PAR VALUE US$0.10 PER SHARE,
IN THE FORM OF AMERICAN DEPOSITARY SHARES
UNDERWRITING AGREEMENT
[-], 2007
[-], 2007
Xxxxxx Xxxxxxx & Co. International plc
00 Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxx, X00 0XX, Xxxxxxx
and
UBS AG
52/F, Two International Finance Centre
0 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
As Representatives of the several Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
LDK Solar Co., Ltd., an exempted company with limited liability
incorporated under the laws of the Cayman Islands (the "COMPANY"), proposes to
issue and sell to the several Underwriters named in Schedule II hereto (the
"UNDERWRITERS"), and certain shareholders of the Company named in Schedule I
hereto (the "SELLING SHAREHOLDERS") severally propose to sell to the several
Underwriters, an aggregate of [-] American Depositary Shares (the "FIRM ADSs"),
representing [-] ordinary shares of the Company, par value US$0.10 per share, of
which [-] American Depositary Shares are to be issued and sold by the Company
and [-] American Depositary Shares are to be sold by the Selling Shareholders,
each Selling Shareholder selling the amount set forth opposite such Selling
Shareholder's name in Schedule I hereto.
The Company also proposes to issue and sell to the several
Underwriters, and the Selling Shareholders severally propose to sell to the
several Underwriters, not more than an additional [-] American Depositary Shares
in the aggregate (the "ADDITIONAL ADSs") if and to the extent that Xxxxxx
Xxxxxxx & Co. International plc and UBS AG, as representatives of the
Underwriters (the "REPRESENTATIVES"), shall have determined to exercise, on
behalf of the Underwriters, the right to purchase any such Additional ADSs
granted to the Underwriters in Section 2
hereof. The Firm ADSs and the Additional ADSs are hereinafter collectively
referred to as the "ADSs." The ordinary shares, par value US$0.10 per share, of
the Company are hereinafter referred to as the "ORDINARY SHARES." The Ordinary
Shares represented by the ADSs are hereinafter referred to as the "SHARES." The
Company and the Selling Shareholders are hereinafter sometimes collectively
referred to as the "SELLERS."
The Shares will be delivered in the form of ADSs. The ADSs are to be
issued pursuant to a Deposit Agreement dated as of [-], 2007 (the "DEPOSIT
AGREEMENT") among the Company, JPMorgan Chase Bank, N.A., as depositary (the
"DEPOSITARY"), and the holders from time to time of the American Depositary
Receipts (the "ADRs") issued by the Depositary and evidencing the ADSs. Each ADS
will initially represent the right to receive [-] Ordinary Shares deposited
pursuant to the Deposit Agreement.
The Company has filed with the Securities and Exchange Commission
(the "COMMISSION") a registration statement, including a prospectus, relating to
the Shares, and the Company and the Depositary have filed a registration
statement relating to the ADSs. The registration statement relating to the
Shares, as amended at the time it becomes effective, including the information
(if any) deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A under the Securities Act of 1933, as amended
(the "SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION
STATEMENT"; the prospectus in the form first used to confirm sales of ADSs (or
in the form first made available to the Underwriters by the Company to meet
requests of purchasers pursuant to Rule 173 under the Securities Act) is
hereinafter referred to as the "PROSPECTUS." The registration statement relating
to the ADSs, as amended at the time it becomes effective, is hereinafter
referred to as the "ADR REGISTRATION STATEMENT." If the Company has filed
abbreviated registration statements to register additional Ordinary Shares and
additional ADSs pursuant to Rule 462(b) under the Securities Act (the "RULE 462
REGISTRATION STATEMENTS"), then any reference herein to the terms "Registration
Statement" and the "ADR Registration Statement" shall be deemed to include the
corresponding Rule 462 Registration Statement. The Company has filed, in
accordance with Section 12 of the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT"), a registration statement on Form 8-A to register the
Shares and the ADSs (the "EXCHANGE ACT REGISTRATION STATEMENT").
For purposes of this Agreement, "FREE WRITING PROSPECTUS" has the
meaning set forth in Rule 405 under the Securities Act; "TIME OF SALE
PROSPECTUS" means (i) the preliminary prospectus and the free writing
prospectuses, if any, each identified in Schedule III hereto together with (ii)
each
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"road show" (as defined in Rule 433 under the Securities Act), if any, related
to the offering of the ADSs contemplated hereby that is a "written
communication" (as defined in Rule 405 under the Securities Act); and "BROADLY
AVAILABLE ROAD SHOW" means a "bona fide electronic road show" as defined in Rule
433(h)(5) under the Securities Act that has been made available without
restriction to any person. As used herein, the terms "Registration Statement,"
"ADR Registration Statement," "Exchange Act Registration Statement,"
"preliminary prospectus," "Time of Sale Prospectus" and "Prospectus" shall
include the documents, if any, incorporated by reference therein.
Xxxxxx Xxxxxxx & Co. International plc ("XXXXXX XXXXXXX") has agreed
to reserve a portion of the ADSs to be purchased by them under this Agreement
for sale to the Company's directors, officers, employees and business associates
and other parties related to the Company (collectively, "PARTICIPANTS"), as set
forth in the Prospectus under the heading "Underwriting" (the "DIRECTED SHARE
PROGRAM"). The ADSs to be sold by the Underwriters and their affiliates pursuant
to the Directed Share Program are referred to hereinafter as the "DIRECTED
SHARES". Any Directed Shares not orally confirmed for purchase by any
Participant by the end of the business day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in the
Prospectus.
As used in this Agreement, the "FOUNDER" shall mean LDK New Energy
Holding Limited and Xxxxxxxx Xxxx, the founder, chairman and chief executive
officer of the Company, who beneficially owns 82.8% of the issued and
outstanding Ordinary Shares as of the date hereof through LDK New Energy
Limited.
1. (I) Representations and Warranties of the Company and the
Founder. The Company and the Founder, jointly and severally, represent and
warrant to and agree with each of the Underwriters that:
(a) Each of the Registration Statement and the ADR Registration
Statement has become effective; no stop order suspending the effectiveness
of the Registration Statement or the ADR Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission. The Exchange Act Registration Statement has
become effective as provided in Section 12 of the Exchange Act.
(b) (i) Each of the Registration Statement and the ADR Registration
Statement, when it became effective, did not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
3
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
the Registration Statement, the ADR Registration Statement and the
Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, (iii) the Time of Sale
Prospectus does not, and at the time of each sale of the ADSs in
connection with the offering when the Prospectus is not yet available to
prospective purchasers and at the Closing Date (as defined in Section 4),
the Time of Sale Prospectus, as then amended or supplemented by the
Company, if applicable, will not, contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, and (iv) the Prospectus does not contain and,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement, the Time of Sale Prospectus or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
(c) The Company is not an "ineligible issuer" in connection with the
offering pursuant to Rules 164, 405 and 433 under the Securities Act;
neither the Company nor the Underwriters are disqualified, by reason of
subsection (f) or (g) of Rule 164 under the Securities Act, from using, in
connection with the offer and sale of the ADSs, free writing prospectuses
pursuant to Rules 164 and 433 under the Securities Act. Any free writing
prospectus that the Company is required to file pursuant to Rule 433(d)
under the Securities Act has been, or will be, filed with the Commission
in accordance with the requirements of the Securities Act and the
applicable rules and regulations of the Commission thereunder. Each free
writing prospectus that the Company has filed, or is required to file,
pursuant to Rule 433(d) under the Securities Act or that was prepared by
or on behalf of or used or referred to by the Company complies or will
comply in all material respects with the requirements of the Securities
Act and the applicable rules and regulations of the Commission thereunder.
Except for the free writing prospectuses, if any, identified in Schedule
III hereto, and electronic road shows, if any, furnished to the
Representatives before first use, the Company has not prepared, used or
referred to, and will not, without the Representatives' prior consent,
prepare, use or refer to, any free writing prospectus. The Company agrees
4
and understands that the content of all "road shows" (as defined in Rule
433 under the Securities Act) relating to the offering of the ADSs
contemplated by this Agreement is solely the property of the Company and
the Company has caused there to be made available at least one version of
a broadly available road show in a manner that, pursuant to Rule
433(d)(8)(ii) under the Securities Act, causes the Company not to be
required, pursuant to Rule 433(d) under the Securities Act, to file, with
the Commission, any electronic road show.
(d) Prior to the execution of this Agreement, the Company has not,
directly or indirectly, offered or sold any Shares or ADSs by means of any
"prospectus" (within the meaning of the Securities Act) or used any
"prospectus" (within the meaning of the Securities Act) in connection with
the offer or sale of the Shares or ADSs, in each case other than the Time
of Sale Prospectus.
(e) The Company has been duly incorporated, is validly existing as
an exempted company with limited liability in good standing under the laws
of the Cayman Islands, has the corporate power and authority to own, lease
and operate its property and to conduct its business as described in the
Time of Sale Prospectus and the Prospectus, and is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be
so qualified or be in good standing would not have a material adverse
effect on the condition, financial or otherwise, earnings, results of
operations, business or prospects of the Company and the Subsidiaries (as
defined below), taken as a whole ("MATERIAL ADVERSE EFFECT"). The third
amended and restated memorandum and articles of association of the Company
and all other constitutive or organizational documents of the Company
comply with the requirements of applicable Cayman Islands law and are in
full force and effect. Complete and correct copies of all constitutive or
organizational documents of the Company and all amendments thereto have
been delivered to the Representatives; except as set forth in the exhibits
to the Registration Statement, no change will be made to any such
constitutive or organizational documents on or after the date of this
Agreement through and including the Closing Date.
(f) The Company has no subsidiaries (as defined under the Securities
Act) other than Jiangxi LDK Solar Hi-Tech Co., Ltd. (the "PRC
SUBSIDIARY"), a wholly foreign owned enterprise incorporated under the
laws of the People's Republic of China (the "PRC"), and LDK International
Solar Co., Ltd., a limited liability company incorporated under the laws
of Hong
5
Kong (the "HONG KONG SUBSIDIARY"; the PRC Subsidiary and the Hong Kong
Subsidiary shall be referred to hereinafter each as a "SUBSIDIARY" and
collectively as the "SUBSIDIARIES"). The Company owns all of the issued
and outstanding share capital of each of the Subsidiaries; other than the
share capital of the Subsidiaries, the Company does not own, directly or
indirectly, any shares of stock or any other equity interests or long-term
debt securities of any corporation, firm, partnership, joint venture,
association or other entity.
(g) Each Subsidiary has been duly incorporated, is validly existing
as a company in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own, lease and
operate its property and to conduct its business as described in the
Registration Statement, the Time of Sale Prospectus and the Prospectus,
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that
the failure to be so qualified or be in good standing would not, singly or
in the aggregate, have a Material Adverse Effect. The constitutive or
organizational documents of each Subsidiary comply with the requirements
of applicable law in its jurisdiction of incorporation and are in full
force and effect. Complete and correct copies of all constitutive or
organizational documents of each Subsidiary and all amendments thereto
have been delivered to the Representatives; except as set forth in the
Registration Statement, no change will be made to such constitutive or
organizational documents on or after the date hereof through and including
the Closing Date.
(h) All of the issued shares of capital stock or equity interests,
as the case may be, of the Subsidiaries have been duly authorized and are
validly issued, have been issued in compliance with all applicable
securities laws, are fully paid and non-assessable and are owned directly
by the Company, free and clear of all liens, encumbrances, equities or
claims. None of the outstanding shares of capital stock or equity
interests in any Subsidiary was issued in violation of any preemptive
rights, resale rights, rights of first refusal or similar rights of any
securityholder of such Subsidiary. No options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to
convert any obligation into shares of capital stock or ownership interests
in the Subsidiaries are outstanding.
(i) The Registration Statement, the Time of Sale Prospectus, the
Prospectus, the ADR Registration Statement and the Exchange Act
Registration Statement, and the filing of the Registration Statement, the
Time
6
of Sale Prospectus, the Prospectus, the ADR Registration Statement and the
Exchange Act Registration Statement with the Commission, have each been
duly authorized by and on behalf of the Company, and each of the
Registration Statement, the ADR Registration Statement and the Exchange
Act Registration Statement has been duly executed pursuant to such
authorization by and on behalf of the Company.
(j) This Agreement has been duly authorized, executed and delivered
by the Company.
(k) The authorized capital stock of the Company conforms as to legal
matters to the description thereof contained in each of the Time of Sale
Prospectus and the Prospectus. As of the date hereof, the Company has
authorized and outstanding capitalization as set forth in the sections of
the Time of Sale Prospectus and the Prospectus entitled "Capitalization"
and "Description of Share Capital" and, as of the Closing Date, the
Company shall have authorized and outstanding capitalization as set forth
in the sections of the Time of Sale Prospectus and the Prospectus entitled
"Capitalization" and "Description of Share Capital" (subject, in each
case, to the issuance of Ordinary Shares upon exercise of share options
disclosed as outstanding in the Time of Sale Prospectus and the Prospectus
and the grant of options under the 2006 Stock Incentive Plan as described
in the Time of Sale Prospectus and the Prospectus).
(l) All of the issued and outstanding shares of capital stock
outstanding prior to the issuance of the Shares underlying the ADSs to be
sold by the Company have been duly authorized and are validly issued, have
been issued in compliance with all applicable securities laws, are fully
paid and non-assessable, and were not issued in violation of any
preemptive rights, resale rights, rights of first refusal or similar
rights. Immediately prior to the consummation of the offering on the
Closing Date, all outstanding Series A, Series B and Series C redeemable
convertible preferred shares, par value US$0.10 per share, of the Company
shall have been converted into Ordinary Shares in the manner described in
the Time of Sale Prospectus and the Prospectus.
(m) The Shares underlying the ADSs to be sold by the Company have
been duly authorized and, when issued and delivered against payment
therefor in accordance with the terms of this Agreement, will be validly
issued, will have been issued in compliance with all applicable securities
laws, will be fully paid and non-assessable, will be free of any
restriction upon the voting or transfer thereof pursuant to the Company's
constitutive or
7
organizational documents or any agreement or other instrument to which the
Company is a party, and the issuance of such Shares will not be subject to
any preemptive rights, resale rights, rights of first refusal or similar
rights.
(n) The Deposit Agreement has been duly authorized, executed and
delivered by the Company, and is a valid and binding agreement of the
Company.
(o) The ADRs, when issued by the Depositary against the deposit of
Shares in respect thereof in accordance with the provisions of the Deposit
Agreement, will be duly authorized and validly issued, will have been
issued in compliance with all applicable securities laws, and will be
fully paid and non-assessable, and the persons in whose names such ADRs
are registered will be entitled to the rights of registered holders of
ADRs specified therein and in the Deposit Agreement. Upon the sale and
delivery to the Underwriters of the ADRs corresponding to the Shares and
payment therefor pursuant to this Agreement, the Underwriters will acquire
good, marketable and valid title to such ADRs corresponding to the Shares,
free and clear of all liens, encumbrances, equities or claims.
(p) The Deposit Agreement, the ADSs and the ADRs conform as to legal
matters to the description thereof contained in the Time of Sale
Prospectus and the Prospectus.
(q) Neither the Company nor any of the Subsidiaries is in breach or
violation of any provision of applicable law or its respective
constitutive or organizational documents, or in default under (nor has any
event occurred which, with notice, lapse of time or both, would result in
any breach or violation of, constitute a default under or give the holder
of any indebtedness (or a person acting on such holder's behalf) the right
to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) any agreement or other instrument binding upon
the Company or any of its Subsidiaries that is material to the Company and
its Subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any Subsidiary.
(r) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement and
the Deposit Agreement will not contravene any provision of applicable law
or the constitutive or organizational documents of the Company or any
agreement or other instrument binding upon the Company or any of its
Subsidiaries that is material to the Company and its Subsidiaries, taken
as a
8
whole, or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company or any Subsidiary, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the Company
of its obligations under this Agreement and the Deposit Agreement, except
such as may be required by the securities or Blue Sky laws of the various
states of the United States in connection with the offer and sale of the
ADSs.
(s) Subsequent to the respective dates as of which information is
given in each of the Registration Statement, the Time of Sale Prospectus
and the Prospectus, there has not occurred any material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its Subsidiaries, taken as a whole, from
that set forth in the Registration Statement, Time of Sale Prospectus and
Prospectus, respectively.
(t) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its Subsidiaries is a party or
to which any of the properties of the Company or any of its Subsidiaries
is subject (i) other than proceedings accurately described in all material
respects in the Time of Sale Prospectus and the Prospectus, and
proceedings that would not have a Material Adverse Effect on the Company
and its Subsidiaries, or a material adverse effect on the power or ability
of the Company to perform its obligations under this Agreement and the
Deposit Agreement or to consummate the transactions contemplated by the
Time of Sale Prospectus or (ii) that are required to be described in the
Registration Statement or the Prospectus and are not so described; and
there are no statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement that are not
described or filed as required.
(u) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(v) The Company is not, and after giving effect to the offering and
sale of the ADSs and the application of the proceeds thereof as described
in the
9
Prospectus will not be, required to register as an "investment company" as
such term is defined in the Investment Company Act of 1940, as amended.
(w) The Company and its Subsidiaries (i) are in compliance with any
and all applicable foreign, United States federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), (ii) have received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental Laws, failure
to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or
approvals would not, singly or in the aggregate, have a Material Adverse
Effect.
(x) There are no costs or liabilities associated with Environmental
Laws (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties) that would, singly or in the aggregate, have a Material Adverse
Effect.
(y) Except as described in the Time of Sale Prospectus and the
Prospectus, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement.
(z) Except as described in the Time of Sale Prospectus and the
Prospectus, (i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any Ordinary Shares or shares of
any other capital stock or other equity interests of the Company, (ii) no
person has any preemptive rights, resale rights, rights of first refusal
or other rights to purchase or otherwise acquire any Ordinary Shares or
shares of any other capital stock of the Company and (iii) no person has
the right to act as an underwriter or as a financial advisor to the
Company in connection with the offer and sale of the ADSs.
(aa) Except pursuant to this Agreement, neither the Company nor any
of the Subsidiaries has incurred any liability for any finder's or
broker's fee
10
or agent's commission in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby
or by the Registration Statement.
(bb) Subsequent to the respective dates as of which information is
given in each of the Registration Statement, the Time of Sale Prospectus
and the Prospectus, (i) the Company and its Subsidiaries have not incurred
any material liability or obligation, direct or contingent, nor entered
into any material transaction, (ii) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends and (iii) there has not been any material
change in the capital stock, short-term debt or long-term debt of the
Company and its Subsidiaries, except in each case as described in each of
the Registration Statement, the Time of Sale Prospectus and the
Prospectus, respectively.
(cc) The Company and its Subsidiaries have good and marketable land
use rights to all real property and good and marketable title to all
personal property owned by them which is material to the business of the
Company and its Subsidiaries, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Time of Sale
Prospectus and the Prospectus, or such as do not materially affect the
value of such property and do not interfere with the use made and proposed
to be made of such property by the Company and its Subsidiaries; and any
real property and buildings held under lease by the Company and its
Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere with
the use made and proposed to be made of such property and buildings by the
Company and its Subsidiaries, in each case except as described in the Time
of Sale Prospectus and the Prospectus.
(dd) The Company and the Subsidiaries own or possess, or can acquire
on reasonable terms, all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names
currently employed by them in connection with the business now operated by
them, and neither the Company nor any of the Subsidiaries has received any
notice of infringement of or conflict with asserted rights of others with
respect to any of the foregoing which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
11
(ee) No material labor dispute with the employees of the Company or
any of its Subsidiaries exists, except as described in the Time of Sale
Prospectus and the Prospectus, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or
imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could have a Material Adverse
Effect.
(ff) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which they are engaged; neither the Company nor any of its Subsidiaries
has been refused any insurance coverage sought or applied for; and neither
the Company nor any of its Subsidiaries has any reason to believe that it
will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business at a cost that would not have a
Material Adverse Effect, except as described in the Time of Sale
Prospectus and the Prospectus.
(gg) The Company and its Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, and neither the Company nor any of its Subsidiaries is in
violation of, or in default under, or has received any notice of
proceedings relating to the revocation or modification of, any such
certificate, authorization or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect.
(hh) Each of the Company and its Subsidiaries has full power,
authority and legal right to enter into, execute, assume, deliver and
perform its obligations under each of the contracts and agreements
referred to or described in the Time of Sale Prospectus and the Prospectus
or filed as an exhibit to the Registration Statement to which it is a
party (the "DISCLOSED CONTRACTS"), and has authorized, executed and
delivered each of the Disclosed Contracts, and such obligations constitute
valid, legal and binding obligations enforceable against it in accordance
with the terms of each of the Disclosed Contracts. Neither the Company nor
any Subsidiary has sent or received any communication regarding
termination of, or intent not to renew, any of the Disclosed Contracts,
and no such termination or non-renewal has been threatened by the Company
or any Subsidiary or, to the Company's knowledge, any other party to any
such contract or agreement.
12
(ii) The ADSs have been approved for listing on the New York Stock
Exchange (the "NYSE"), subject to official notice of issuance.
(jj) KPMG, whose report on the consolidated financial statements of
the Company and the Subsidiaries is included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, are independent
registered public accountants as required by the Securities Act and by the
rules of the Public Company Accounting Oversight Board.
(kk) The financial statements included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus, together with
the related notes and schedules thereto, present fairly the consolidated
financial position of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations, cash flows and
changes in shareholders' equity of the Company for the periods specified
and have been prepared in compliance with the requirements of the
Securities Act and in conformity with United States generally accepted
accounting principles applied on a consistent basis during the periods
involved; the other financial and statistical data contained in the
Registration Statement, the Time of Sale Prospectus and the Prospectus are
accurately and fairly presented and prepared on a basis consistent with
the financial statements and books and records of the Company; there are
no financial statements (historical or pro forma) that are required to be
included in the Registration Statement, the Time of Sale Prospectus or the
Prospectus that are not included as required; the Company and the
Subsidiaries do not have any material liabilities or obligations, direct
or contingent (including any off-balance sheet obligations) not described
in the Registration Statement, the Time of Sale Prospectus and the
Prospectus; and all disclosures contained in the Registration Statement,
the Time of Sale Prospectus and the Prospectus regarding "non-GAAP
financial measures" (as such term is defined by the rules and regulations
of the Commission) comply with Item 10 of Regulation S-K under the
Securities Act, to the extent applicable.
(ll) The section entitled "Management's Discussion and Analysis of
Financial Condition and Results of Operations" in the Time of Sale
Prospectus and the Prospectus accurately and fully describes (i)
accounting policies that the Company believes are the most important in
the portrayal of the Company's financial condition and results of
operations and that require management's most difficult, subjective or
complex judgments, (ii) judgments and uncertainties affecting the
application of critical accounting policies and (iii) the likelihood that
materially different amounts would be
13
reported under different conditions or using different assumptions and an
explanation thereof.
(mm) The Company's directors and management have reviewed and agreed
with the selection, application and disclosure of the Company's critical
accounting policies as described in the Time of Sale Prospectus and the
Prospectus and have consulted with its independent accountants with regard
to such disclosure.
(nn) The Time of Sale Prospectus and the Prospectus fairly and
accurately describe (i) all material trends, demands, commitments and
events known to the Company, and uncertainties, and the potential effects
thereof, that the Company believes would materially affect its liquidity
and are reasonably likely to occur and (ii) neither the Company nor any
Subsidiary is engaged in any transactions with, or have any obligations
to, its unconsolidated entities (if any) that are contractually limited to
narrow activities that facilitate the transfer of or access to assets by
the Company or any Subsidiary, including, without limitation, structured
finance entities and special purpose entities, or otherwise engage in, or
have any obligations under, any off-balance sheet transactions or
arrangements.
(oo) The Company and each of its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(pp) The Company has established and maintains and evaluates
"disclosure controls and procedures" (as such term is defined in Rule
13a-15 and 15d-15 under the Exchange Act) and "internal control over
financial reporting" (as such term is defined in Rule 13a-15 and 15d-15
under the Exchange Act); such disclosure controls and procedures are
designed to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the Company's
chief executive officer and its chief financial officer by others within
those entities, and such disclosure controls and procedures are effective
to perform the functions for which they were established; the Company's
independent auditors and the
14
audit committee of the board of directors of the Company have been advised
of: (i) all significant deficiencies, if any, in the design or operation
of internal controls which could adversely affect the Company's ability to
record, process, summarize and report financial data; and (ii) all fraud,
if any, whether or not material, that involves management or other
employees who have a role in the Company's internal controls; all material
weaknesses, if any, in internal controls have been identified to the
Company's independent auditors; since the date of the most recent
evaluation of such disclosure controls and procedures and internal
controls, there have been no changes in internal controls or in other
factors that could materially affect internal controls, including any
corrective actions with regard to significant deficiencies and material
weaknesses.
(qq) The Company has taken all necessary actions to ensure that,
upon and at all times after the filing of the Registration Statement, the
Company and the Subsidiaries and their respective officers and directors,
in their capacities as such, will be in compliance in all material
respects with the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002
(the "XXXXXXXX-XXXXX ACT") and the rules and regulations promulgated
thereunder.
(rr) The statements set forth in the Time of Sale Prospectus and the
Prospectus under the captions "Description of Share Capital" and
"Description of American Depositary Shares," insofar as they purport to
constitute a summary of the terms of the Ordinary Shares and the ADSs,
respectively, and under the captions "Taxation," "Underwriting,"
"Enforceability of Civil Liabilities" and "PRC Government Regulations,"
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair in all
material respects.
(ss) Each "forward-looking statement" (within the meaning of Section
27A of the Securities Act or Section 21E of the Exchange Act) contained in
the Time of Sale Prospectus and the Prospectus has been made or reaffirmed
with a reasonable basis and in good faith.
(tt) All statistical or market-related data included in the Time of
Sale Prospectus and the Prospectus are based on or derived from sources
that the Company reasonably believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data from such
sources to the extent required.
(uu) Neither the Company nor any of the Subsidiaries, nor, to the
Company's knowledge after due inquiry, any director, officer, agent,
15
employee or affiliate of the Company or any of the Subsidiaries is aware
of or has taken any action, directly or indirectly, that would result in a
violation by such persons of the Foreign Corrupt Practices Act of 1977, as
amended, and the rules and regulations thereunder; and the Company, the
Subsidiaries and, to the knowledge of the Company after due inquiry, its
affiliates have instituted and maintain policies and procedures designed
to ensure continued compliance therewith;
(vv) The operations of the Company and the Subsidiaries are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the
"MONEY LAUNDERING LAWS"); and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator or
non-governmental authority involving the Company or any of the
Subsidiaries with respect to the Money Laundering Laws is pending or, to
the Company's knowledge, threatened;
(ww) Neither the Company nor any of the Subsidiaries, nor, to the
Company's knowledge after due inquiry, any director, officer, agent,
employee or affiliate of the Company or any of the Subsidiaries is
currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department ("OFAC"); and the
Company will not directly or indirectly use the proceeds of the offering
of the ADSs contemplated hereby, or lend, contribute or otherwise make
available such proceeds to any Subsidiary, joint venture partner or other
person or entity for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(xx) There are no material relationships or transactions between the
Company or any of its Subsidiaries on one hand and their respective 10% or
greater shareholders, affiliates, directors or officers or any affiliates
or members of the immediate families of such persons, on the other hand
that are not disclosed in the Time of Sale Prospectus and the Prospectus.
(yy) The entering into and performance or enforcement of this
Agreement in accordance with its terms will not subject the Underwriters
to a requirement to be licensed or otherwise qualified to do business in
the Cayman Islands or in the PRC, nor will the Underwriters be deemed to
be
16
resident, domiciled, carrying on business through an establishment or
place in the Cayman Islands or in the PRC or in breach of any laws or
regulations in the Cayman Islands or in the PRC by reason of the entering
into, performance or enforcement of this Agreement.
(zz) Except as described in the Time of Sale Prospectus and the
Prospectus, the Company has not sold, issued or distributed any Ordinary
Shares during the six-month period preceding the date hereof, including
any sales pursuant to Rule 144A under, or Regulation D or S of, the
Securities Act, other than Ordinary Shares issued pursuant to employee
benefit plans, qualified share option plans or other employee compensation
plans or pursuant to outstanding options, rights or warrants.
(aaa) The Company is a "foreign private issuer" within the meaning
of Rule 405 under the Securities Act.
(bbb) The Company is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1296 of the United States Internal
Revenue Code of 1986, as amended, and is not likely to become a PFIC.
(ccc) Neither the Company nor any of the Subsidiaries nor any of
their respective directors, officers, affiliates or controlling persons
has taken, directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares or the ADSs.
(ddd) To the Company's knowledge, there are no affiliations or
associations between (i) any member of the National Association of
Securities Dealers, Inc. ("NASD") and (ii) the Company or any of the
Company's officers, directors or 5% or greater security holders or any
beneficial owner of the Company's unregistered equity securities that were
acquired at any time on or after the 180th day immediately preceding the
date the Registration Statement was initially filed with the Commission,
except as disclosed in the Time of Sale Prospectus and the Prospectus.
(eee) All tax returns required to be filed by the Company or any of
the Subsidiaries have been timely filed, and all taxes and other
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities have been
timely paid, other than those being contested in good faith and for which
adequate reserves have been provided.
17
All local and national PRC governmental tax holidays, exemptions, waivers,
financial subsidies, and other local and national PRC tax relief,
concessions and preferential treatment enjoyed by the Company or any of
its Subsidiaries as described in the Time of Sale Prospectus and the
Prospectus are valid, binding and enforceable and do not violate any laws,
regulations, rules, orders, decrees, guidelines, judicial interpretations,
notices or other legislation of the PRC.
(fff) Except as described in the Time of Sale Prospectus and the
Prospectus, no Subsidiary is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other
distribution on such Subsidiary's capital stock, from repaying to the
Company any loans or advances to such Subsidiary from the Company or from
transferring any of such Subsidiary's property or assets to the Company or
any other Subsidiary of the Company.
(ggg) Under the current laws and regulations of the Cayman Islands,
all dividends and other distributions declared and payable on the Ordinary
Shares in cash may be freely transferred out of the Cayman Islands and may
be freely converted into United States dollars, in each case without there
being required any consent, approval, authorization or order of, or
qualification with, any court or governmental agency or body in the Cayman
Islands; and all such dividends and other distributions will not be
subject to withholding, value added or other taxes under the laws and
regulations of the Cayman Islands. Except as otherwise described in the
Time of Sale Prospectus and the Prospectus, under the current laws and
regulations of the PRC, all dividends and other distributions declared and
payable on the equity interests in the PRC Subsidiary in cash may be
freely transferred out of the PRC and may be freely converted into United
States dollars, in each case without there being required any consent,
approval, authorization or order of, or qualification with, any court or
governmental agency or body in the PRC; and all such dividends and other
distributions will not be subject to withholding, value added or other
taxes under the laws and regulations of the PRC.
(hhh) No stamp or other issuance or transfer taxes or duties are
payable by or on behalf of the Underwriters to the Cayman Islands, PRC or
any political subdivision or taxing authority thereof in connection with
(i) the issuance, sale or delivery of the Shares to the Underwriters in
the form of ADSs or (ii) the deposit with the Depositary of any Shares
against the issuance of the corresponding ADSs and related ADRs.
18
(iii) The choice of laws of the State of New York as the governing
law of this Agreement and the Deposit Agreement is a valid choice of law
under the laws of the Cayman Islands and the PRC and will be honored by
courts in the Cayman Islands and the PRC. The Company has the power to
submit, and pursuant to Section 11 of this Agreement, has legally,
validly, effectively and irrevocably submitted, to the non-exclusive
jurisdiction of any New York State or United States federal court sitting
in The City of New York, New York, U.S.A. (each, a "NEW YORK COURT"), and
the Company has the power to designate, appoint and authorize, and
pursuant to Section 11 of this Agreement, has legally, validly,
effectively and irrevocably designated, appointed and authorized, the
Authorized Agent (as defined in Section 11(b) hereof) for service of
process in any action arising out of or relating to this Agreement, the
Deposit Agreement, the Time of Sale Prospectus, the Prospectus, the
Registration Statement, the ADR Registration Statement, the Exchange Act
Registration Statement, the Shares or the ADSs in any New York Court, and
service of process effected on such Authorized Agent will be effective to
confer valid personal jurisdiction over the Company as provided in Section
11 hereof.
(jjj) None of the Company, any Subsidiary or any of their respective
properties, assets or revenues has any right of immunity, under the laws
of the Cayman Islands, the PRC or New York State, from any legal action,
suit or proceeding, the giving of any relief in any such legal action,
suit or proceeding, set-off or counterclaim, the jurisdiction of any
Cayman Islands, PRC, New York or United States federal court, service of
process, attachment upon or prior to judgment, or attachment in aid of
execution of judgment, or execution of a judgment, or other legal process
or proceeding for the giving of any relief or for the enforcement of a
judgment, in any such court, with respect to its obligations, liabilities
or any other matter under or arising out of or in connection with this
Agreement or the Deposit Agreement; and, to the extent that the Company,
any Subsidiary or any of their respective properties, assets or revenues
may have or may hereafter become entitled to any such right of immunity in
any such court in which proceedings may at any time be commenced, each of
the Company and the Subsidiaries waives or will waive such right to the
extent permitted by law and has consented to such relief and enforcement
as provided in Section 11 of this Agreement.
(kkk) Any final judgment for a fixed sum of money rendered by a New
York Court having jurisdiction under its own domestic laws in respect of
any suit, action or proceeding against the Company based upon this
Agreement and the Deposit Agreement would be recognized and enforced by
Cayman Islands courts without re-examining the merits of the case under
the common
19
law doctrine of obligation; provided that (i) adequate service of process
has been effected and the defendant has had a reasonable opportunity to be
heard, (ii) such judgments or the enforcement thereof are not contrary to
the law, public policy, security or sovereignty of the Cayman Islands,
(iii) such judgments were not obtained by fraudulent means and do not
conflict with any other valid judgment in the same matter between the same
parties and (iv) an action between the same parties in the same matter is
not pending in any Cayman Islands court at the time the lawsuit is
instituted in the foreign court; it is not necessary that this Agreement,
the Deposit Agreement, the Time of Sale Prospectus, Prospectus or any
other document be filed or recorded with any court or other authority in
the Cayman Islands or the PRC.
(lll) Each of the Company and its Subsidiaries has taken all
necessary steps to comply with, and to ensure compliance by all of the
Company's direct or indirect shareholders and option holders who are PRC
residents with any applicable rules and regulations of the State
Administration of Foreign Exchange of the PRC (the "SAFE RULES AND
REGULATIONS"), including, without limitation, requiring each shareholder
and option holder that is, or is directly or indirectly owned or
controlled by, a PRC resident to complete any registration and other
procedures required under applicable SAFE Rules and Regulations.
(mmm) (i) The Company is aware of, and has been advised as to, the
content of the Rules on Mergers and Acquisitions of Domestic Enterprises
by Foreign Investors jointly promulgated on August 8, 2006 by the Ministry
of Commerce, the State Assets Supervision and Administration Commission,
the State Administration of Taxation, the State Administration of Industry
and Commerce, the China Securities Regulatory Commission ("CSRC") and the
State Administration of Foreign Exchange of the PRC (the "M&A RULES"), in
particular the relevant provisions thereof that purport to require
offshore special purpose vehicles controlled directly or indirectly by
PRC-incorporated companies or PRC residents and established for the
purpose of obtaining a stock exchange listing outside of the PRC to obtain
the approval of the CSRC prior to the listing and trading of their
securities on any stock exchange located outside of the PRC. The Company
has received legal advice specifically with respect to the M&A Rules from
its PRC counsel and the Company understands such legal advice.
(ii) The issuance and sale of the Shares and the ADSs, the
listing and trading of the ADSs on the NYSE and the consummation of
the transactions contemplated by this Agreement, the Registration
Statement, the Time of Sale Prospectus, the Deposit Agreement, the
20
Power of Attorney (as defined below) and the Custody Agreement (as
defined below) are not and will not be, as of the date hereof and on
the Closing Date, affected by the M&A Rules or any official
clarifications, guidance, interpretations or implementation rules in
connection with or related to the M&A Rules, including the guidance
and notices issued by the CSRC on September 8 and September 21, 2006
(together with the M&A Rules, the "M&A RULES AND RELATED
CLARIFICATIONS").
(iii) The M&A Rules and Related Clarifications do not require
the Company to obtain the approval of the CSRC prior to the issuance
and sale of the Shares or the ADSs, the listing and trading of the
ADSs on the NYSE, or the consummation of the transactions
contemplated by this Agreement, the Registration Statement, the Time
of Sale Prospectus, the Deposit Agreement, the Power of Attorney or
the Custody Agreement.
(iv) The statements set forth in the Time of Sale Prospectus
and the Prospectus under the captions "Risk Factors -- Risks Related
to Business Operations in China -- Our failure to obtain the prior
approval of the China Securities Regulatory Commission, or CSRC, for
the listing and trading of our ADSs on the NYSE could significantly
delay this offering or adversely affect our business and reputation
and the trading price of our ADSs, and may also create uncertainties
for this offering," when taken together with the statements under
"PRC Government Regulations -- Regulation of Overseas Investments
and Listings," are fair and accurate summaries of the matters
described therein, and nothing has been omitted from such summaries
that would make them misleading in any material respect.
(nnn) The Company has obtained for the benefit of the Underwriters
the "lock-up" agreements relating to sales and certain other dispositions
of Ordinary Shares, ADSs or certain other securities between the
Representatives and (i) the Founder, substantially in the form of Exhibit
G-1 hereto; (ii) officers and directors of the Company (other than the
Founder) and certain optionholders of the Company listed on Schedule IV
hereto, each substantially in the form of Exhibit G-2 hereto; and (iii)
the existing shareholders of the Company (other than the Founder), each
substantially in the form of Exhibit G-3 hereto (collectively, the
"LOCK-UP AGREEMENTS").
(ooo) The Registration Statement, the Prospectus and any preliminary
prospectus comply, and any amendments or supplements thereto will comply,
with any applicable laws or regulations of foreign jurisdictions in which
the
21
Prospectus or any preliminary prospectus, as amended or supplemented, if
applicable, are distributed in connection with the Directed Share Program.
(ppp) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those
obtained, is required in connection with the offering of the Directed
Shares in any jurisdiction where the Directed Shares are being offered.
(qqq) The Company has not offered, or caused Xxxxxx Xxxxxxx to
offer, ADSs or Shares to any person pursuant to the Directed Share Program
with the specific intent to unlawfully influence (i) a customer or
supplier of the Company to alter the customer's or supplier's level or
type of business with the Company, or (ii) a trade journalist or
publication to write or publish favorable information about the Company or
its products.
(I) (II)Representations and Warranties of the Selling Shareholders.
Each of the Selling Shareholders, severally and not jointly, represents
and warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Selling Shareholder.
(b) The execution and delivery by such Selling Shareholder of, and
the performance by such Selling Shareholder of its obligations under,
this Agreement, the Custody Agreement signed by such Selling
Shareholder and the Company, as custodian (the "CUSTODIAN"), relating
to the deposit of the Shares to be sold by such Selling Shareholder
(the "CUSTODY AGREEMENT"), the Power of Attorney (as applicable)
appointing certain individuals as such Selling Shareholder's
attorneys-in-fact to the extent set forth therein relating to the
transactions contemplated hereby and by the Registration Statement (the
"POWER OF ATTORNEY"), the statement of election and questionnaire
relating to the number of Shares such Selling Shareholder wishes to
sell in the offering in the form of ADSs (the "STATEMENT OF ELECTION
AND QUESTIONNAIRE") and the stock transfer form relating to the
transfer of such Shares to be sold by such Selling Shareholder (the
"STOCK TRANSFER FORM") will not contravene any provision of applicable
law, or the constitutive or organizational documents of such Selling
Shareholder (if such Selling Shareholder is a corporation, partnership
or other entity), or any agreement or other instrument binding upon
such Selling Shareholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such
Selling Shareholder, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required
for the
22
performance by such Selling Shareholder of its obligations under this
Agreement, the Custody Agreement, Power of Attorney, Statement of
Election and Questionnaire or Stock Transfer Form of such Selling
Shareholder, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale of
the ADSs.
(c) Such Selling Shareholder has, and on the Closing Date will have,
valid title to, or a valid "security entitlement" within the meaning of
Section 8-501 of the New York Uniform Commercial Code in respect of,
the Shares underlying the ADSs to be sold by such Selling Shareholder
free and clear of all security interests, claims, liens, equities or
other encumbrances and the legal right and power.
(d) The Custody Agreement and the Power of Attorney (as applicable)
have been duly authorized, executed and delivered by such Selling
Shareholder and are valid and binding agreements of such Selling
Shareholder. Such Selling Shareholder has, and on the Closing Date will
have, all authorization and approval required by law, to sell, transfer
and deliver the Shares and the ADSs to be sold by such Selling
Shareholder and to deposit with the Depositary the Shares to be sold by
such Selling Shareholder.
(e) Upon deposit of the Shares to be sold by such Selling
Shareholder and payment therefor pursuant to this Agreement, valid
title to such Shares will be passed in accordance with the Deposit
Agreement to the Depositary who has received deposit of such Shares
without notice of an adverse claim, free and clear and any adverse
claim within the meaning of Section 8-102 of the New York Uniform
Commercial Code.
(f) (i) The information provided by such Selling Shareholder in
writing expressly for use in the section entitled "Principal and
Selling Shareholders" in the Registration Statement, when the
Registration Statement became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (ii) the information provided by such Selling Shareholder
in writing expressly for use in the section entitled "Principal and
Selling Shareholders" in the Registration Statement and the Prospectus
complies and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder, (iii) the information
provided by such Selling Shareholder in writing expressly for use in
the section entitled "Principal and Selling Shareholders" in the Time
of Sale Prospectus does not,
23
and at the time of each sale of the ADSs in connection with the
offering when the Prospectus is not yet available to prospective
purchasers and at the Closing Date (as defined in Section 4), the Time
of Sale Prospectus, as then amended or supplemented by the Company, if
applicable, will not, contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, and (iv) the information provided by such Selling
Shareholder in writing expressly for use in the section entitled
"Principal and Selling Shareholders" in the Prospectus does not contain
and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(g) Such Selling Shareholder is not prompted by any information
concerning the Company or the Subsidiaries which is not set forth in
the Time of Sale Prospectus to sell its Shares pursuant to this
Agreement.
(h) Such Selling Shareholder has not taken and will not take,
directly or indirectly, any action designed to, or which has
constituted, or which might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of
the Company and, other than as permitted by the Securities Act, such
Selling Shareholder will not distribute any prospectus or other
offering material in connection with the offering of the ADSs.
(i) Other than this Agreement, there are no contracts, agreements or
understandings between such Selling Shareholder and any person that
would give rise to a valid claim against such Selling Shareholder or
any Underwriter for a brokerage commission, finder's fee or other like
payment.
(j) Prior to the execution of this Agreement, such Selling
Shareholder has not, directly or indirectly, offered or sold any Shares
or ADSs by means of any "prospectus" (within the meaning of the
Securities Act) or used any "prospectus" (within the meaning of the
Securities Act) in connection with the offer or sale of the Shares or
ADSs, in each case other than the Time of Sale Prospectus.
(k) There are no affiliations or associations between any member of
the NASD and such Selling Shareholder, except as disclosed in the
Registration Statement (excluding the exhibits thereto), the Time of
Sale Prospectus and the Prospectus.
24
2. Agreements to Sell and Purchase. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller, at $[-] per ADS (the "PURCHASE
PRICE"), the number of Firm ADSs (subject to such adjustments to eliminate
fractional shares as the Representatives may determine) that bears the same
proportion to the number of Firm ADSs to be sold by such Seller as the number of
Firm ADSs set forth in Schedule II hereto opposite the name of such Underwriter
bears to the total number of Firm ADSs.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional ADSs, and the Underwriters shall have the
right to purchase, severally and not jointly, up to [o] Additional ADSs at the
Purchase Price. The Representatives may exercise this right on behalf of the
Underwriters in whole or from time to time in part by giving written notice not
later than 30 days after the date of this Agreement. Any exercise notice shall
specify the number of Additional ADSs to be purchased by the Underwriters and
the date on which such Additional ADSs are to be purchased. Each purchase date
must be at least one business day after the written notice is given and may not
be earlier than the closing date for the Firm ADSs nor later than ten business
days after the date of such notice. Additional ADSs may be purchased as provided
in Section 4 hereof solely for the purpose of covering over-allotments made in
connection with the offering of the Firm ADSs. On each day, if any, that
Additional ADSs are to be purchased (an "OPTION CLOSING DATE"), each Underwriter
agrees, severally and not jointly, to purchase the number of Additional ADSs
(subject to such adjustments to eliminate fractional shares as the
Representatives may determine) that bears the same proportion to the total
number of Additional ADSs to be purchased on such Option Closing Date as the
number of Firm ADSs set forth in Schedule II hereto opposite the name of such
Underwriter bears to the total number of Firm ADSs.
Each Seller, severally and not jointly, hereby agrees that, without the
prior written consent of the Representatives on behalf of the Underwriters, it
will not, during the period ending 180 days after the date of the Prospectus,
(1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any Ordinary Shares or ADSs or any securities convertible into or
exercisable or exchangeable for
25
Ordinary Shares or ADSs, (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Ordinary Shares or ADSs, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Ordinary Shares or
ADSs or such other securities, in cash or otherwise or (3) file any registration
statement with the Commission relating to the offering of any Ordinary Shares,
ADSs or any securities convertible into or exercisable or exchangeable for
Ordinary Shares or ADSs; provided that (3) shall not apply to the Selling
Shareholders.
The restrictions contained in the preceding paragraph shall not apply to
(a)the Shares underlying the ADSs to be sold hereunder, (b) the issuance by the
Company of Ordinary Shares upon the exercise of options pursuant to the 2006
Stock Incentive Plan, or (c) transactions by a Selling Shareholder relating to
Ordinary Shares, ADSs or other securities acquired in open market transactions
after the completion of the offering of the ADSs, provided that no filing under
Section 16(a) of the Exchange Act shall be required or shall be voluntarily made
in connection with subsequent sales of Ordinary Shares, ADSs or other securities
acquired in such open market transactions. Each Selling Shareholder, severally
and not jointly, consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of any Ordinary
Shares or ADSs held by such Selling Shareholder except in compliance with the
foregoing restrictions. Notwithstanding the foregoing, if during the last 17
days of the 180-day restricted period, the Company issues an earnings release or
material news or a material event relating to the Company occurs, the
restrictions imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event. The Company
shall promptly notify the Representatives and each Selling Shareholder of any
earnings release, news or event that may give rise to an extension of the
initial 180-day restricted period.
3. Terms of Public Offering. The Sellers are advised by the
Representatives that the Underwriters propose to make a public offering of their
respective portions of the ADSs as soon after the Registration Statement, the
ADR Registration Statement, the Exchange Act Registration Statement and this
Agreement have become effective as in the Representatives' judgment is
advisable. The Sellers are further advised by the Representatives that the ADSs
are to be offered to the public initially at $[o] per ADSs (the "PUBLIC OFFERING
PRICE") and to certain dealers selected by the Representatives at a price that
represents a concession not in excess of $[o] per ADSs under the Public Offering
Price, and that any Underwriter may allow, and such dealers may reallow, a
26
concession, not in excess of $[-] per ADSs, to any Underwriter or to certain
other dealers.
4. Payment and Delivery. Payment for the Firm ADSs to be sold by each
Seller shall be made to a bank account designated by such Seller in federal or
other funds immediately available in New York City against delivery of such Firm
ADSs for the respective accounts of the several Underwriters at 10:00 a.m., New
York City time, on [-], 2007 or at such other time on the same or such other
date, not later than [-], 2007, as shall be designated in writing by the
Representatives. The time and date of such payment are hereinafter referred to
as the "CLOSING DATE."
Payment for any Additional ADSs shall be made to the Sellers in federal or
other funds immediately available in New York City against delivery of such
Additional ADSs for the respective accounts of the several Underwriters at 10:00
a.m., New York City time, on the date specified in the corresponding notice
described in Section 2 or at such other time on the same or on such other date,
in any event not later than [-], 2007 as shall be designated in writing by the
Representatives.
The ADRs representing the Firm ADSs or Additional ADSs shall be registered
in such names and in such denominations as the Representatives shall request in
writing not later than one full business day prior to the Closing Date or the
applicable Option Closing Date, as the case may be. Such ADRs representing the
Firm ADSs or Additional ADSs shall be delivered to the Representatives on the
Closing Date or an Option Closing Date, as the case may be, for the respective
accounts of the several Underwriters, with any transfer taxes payable in
connection with the transfer of the ADSs to the Underwriters duly paid, against
payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of the
Sellers to sell the ADSs to the Underwriters and the several obligations of the
Underwriters to purchase and pay for the ADSs on the Closing Date are subject to
the condition that each of the Registration Statement, the ADR Registration
Statement and the Exchange Act Registration Statement shall have become
effective not later than [-] a.m. (New York City time) on the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior
to the Closing Date:
27
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and the
Subsidiaries, taken as a whole, from that set forth in the Time of Sale
Prospectus that, in the Representatives' judgment, is material and adverse
and that makes it, in the Representatives' judgment, impracticable or
inadvisable to market the ADSs on the terms and in the manner contemplated
in the Time of Sale Prospectus; and
(ii) No Prospectus or amendment or supplement to the Registration
Statement or the Prospectus shall have been filed to which the
Representatives shall have objected in writing.
(b) Prior to and on the Closing Date, (i) no stop order with respect to
the effectiveness of the Registration Statement or the ADR Registration
Statement shall have been issued under the Securities Act, or proceedings
initiated under Section 8(d) or 8(e) of the Securities Act, (ii) the
Registration Statement, and all amendments thereto, shall not contain any
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (iii) the Time of Sale Prospectus, and all amendments thereto,
shall not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and (iv) the
Prospectus, and all amendments thereto, shall not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(c) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date and
that the Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied hereunder on or
before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(d) The Underwriters shall have received on the Closing Date an opinion
and disclosure letter of Xxxxxx Xxxxxx LLP, United States counsel for
28
the Company, dated the Closing Date, substantially in the form of Exhibit A
hereto.
(e) The Underwriters shall have received on the Closing Date an opinion of
Xxxxxxx Xxxx & Xxxxxxx, Cayman Islands counsel for the Company, dated the
Closing Date, substantially in the form of Exhibit B hereto.
(f) On or prior to May 14, 2007 (the "LAUNCH DATE"), the Underwriters
shall have received an opinion of Grandall Legal Group, PRC counsel for the
Company, dated the Launch Date, substantially in the form of Exhibit C-1
hereto.
(g) The Underwriters shall have received on the Closing Date an opinion of
Grandall Legal Group, PRC counsel for the Company, dated the Closing Date,
substantially in the form of Exhibit C-2 hereto.
(h) The Underwriters shall have received on the Closing Date an opinion
and disclosure letter of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, United States
counsel for the Underwriters, dated the Closing Date, in form and substance
satisfactory to the Representatives.
(i) The Underwriters shall have received on the Closing Date an opinion of
Xxxx & Wood, PRC counsel for the Underwriters, dated the Closing Date, in
form and substance satisfactory to the Representatives.
(j) The Underwriters shall have received on the Closing Date an opinion of
Xxxxxxx, Xxxxxxx & Associates LLP, counsel for the Depositary, dated the
Closing Date, substantially in the form of Exhibit D hereto.
The opinions and disclosure letter(s) of Sidley Austin LLP, Xxxxxxx Xxxx &
Xxxxxxx and Xxxxxxxx Legal Group described in Sections 5(d), 5(e), 5(f) and 5(g)
above shall be rendered to the Underwriters at the request of the Company and
shall so state therein.
(k) The Underwriters shall have received on the Closing Date an opinion of
Clifford Chance, United States counsel for the Selling Shareholders, dated
the Closing Date, substantially in the form of Exhibit E hereto.
(l) The Underwriters shall have received on the Closing Date an opinion of
local counsel for each Selling Shareholder dated the Closing Date,
substantially in the form of Exhibit F hereto.
29
(m) The Underwriters shall have received on the Closing Date certificates,
each dated the Closing Date and signed by Financiere Natixis Singapore 4 Pte
Ltd, CDH SolarFuture Limited, the attorney-in-fact under the Power of
Attorney for the Selling Shareholders listed in Schedule I(b) hereto, and the
attorneys-in-fact under the Power of Attorney for the Selling Shareholders
listed in Schedule I(c) hereto, respectively, to the effect that, as of the
Closing Date, they have not been informed that: (i) the representations and
warranties made by each such Selling Shareholder herein are not true or
correct as of the Closing Date; or (ii) each such Selling Shareholder has not
complied with any obligation or satisfied any condition which is required to
be performed or satisfied on the part of such Selling Shareholder as of the
Closing Date.
(n) The Underwriters shall have received, on each of (i) the date hereof,
(ii) the date on which the first sale of ADSs is confirmed if such date is
not the same as the date hereof, and (iii) the Closing Date, a letter dated
the date hereof, the date on which the first sale of the ADSs is confirmed or
the Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from KPMG, independent public accountants, containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements
and certain financial information contained in the preliminary prospectus
identified in Schedule III.1 hereto, the Registration Statement, the Time of
Sale Prospectus and the Prospectus; provided that the letter delivered on the
Closing Date shall use a "cut-off date" not earlier than the date hereof.
(o) The Lock-up Agreements shall be in full force and effect on the
Closing Date.
(p) The Company and the Depositary shall have executed and delivered the
Deposit Agreement, and the Deposit Agreement shall be in full force and
effect. The Company and the Depositary shall have taken all action necessary
to permit the deposit of the Shares and the issuance of the ADSs
corresponding to such Shares in accordance with the Deposit Agreement.
(q) The Depositary shall have furnished or caused to be furnished to the
Underwriters a certificate satisfactory to the Representatives of one of its
authorized officers with respect to the deposit with it of the Shares
represented by the ADSs against issuance of the ADRs evidencing the ADSs, the
execution, issuance, countersignature and delivery of the ADRs evidencing the
ADSs pursuant to the Deposit Agreement and such other matters related hereto
as the Representatives may reasonably request.
30
(r) Each Selling Shareholder shall have delivered to the Underwriters a
Power of Attorney (as applicable), a Custody Agreement, a Statement of
Election and Questionnaire and a Stock Transfer Form, in each case duly
executed and in form and substance satisfactory to the Underwriters.
(s) The Company shall have furnished to the Representatives such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement, the Time of Sale Prospectus and the
Prospectus as of the Closing Date, as the Representatives may reasonably
request.
(t) The ADSs shall have been approved for listing on the NYSE, subject
only to notice of issuance and evidence of satisfactory distribution on or
prior to the Closing Date.
(u) The NASD shall not have raised any objection with respect to the
fairness or reasonableness of the underwriting, or other arrangements of the
transactions, contemplated hereby.
(v) The Underwriters shall have received, on each of (i) the date hereof,
(ii) the date on which the first sale of ADSs is confirmed if such date is not
the same as the date hereof, and (iii) the Closing Date, a letter dated the date
hereof, the date on which the first sale of the ADSs is confirmed or the Closing
Date, as the case may be, in form and substance satisfactory to the
Underwriters, from Sallmanns (Far East) Limited, independent valuation firm,
containing statements and information with respect to fair value of Ordinary
Shares and options and share-based compensation expenses contained in the
preliminary prospectus identified in Schedule III.1 hereto, the Registration
Statement, the Time of Sale Prospectus and the Prospectus; provided that the
letter delivered on the Closing Date shall use a "cut-off date" not earlier than
the date hereof
The several obligations of the Underwriters to purchase Additional ADSs
hereunder are subject to the delivery to the Representatives on the applicable
Option Closing Date of such documents as the Representatives may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of the Shares underlying the Additional ADSs to be sold on such
Option Closing Date and other matters related to the issuance of such Shares
underlying the Additional ADSs.
6. Covenants of the Company, the Founder and the Selling Shareholders.
(I) The Company and the Founder, jointly and severally, covenant with each
Underwriter as follows:
31
(a) To furnish to the Representatives, without charge, five signed copies
of each of the Registration Statement, the ADR Registration Statement and the
Exchange Act Registration Statement (including in each case the exhibits
thereto) and for delivery to each other Underwriter a conformed copy of each
of the Registration Statement, the ADR Registration Statement and the
Exchange Act Registration Statement (without exhibits thereto) and to furnish
to the Representatives in New York City, without charge, prior to 10:00 a.m.
New York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Sections 6(f) or 6(g) below, as
many copies of the Time of Sale Prospectus, the Prospectus and any
supplements and amendments thereto or to the Registration Statement as the
Representatives may reasonably request.
(b) Before amending or supplementing the Registration Statement, the ADR
Registration Statement, the Exchange Act Registration Statement, the Time of
Sale Prospectus or the Prospectus, to furnish to the Representatives a copy
of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Representatives reasonably
object, and to file with the Commission within the applicable period
specified in Rule 424(b) under the Securities Act any prospectus required to
be filed pursuant to such Rule.
(c) To furnish to the Representatives a copy of each proposed free writing
prospectus to be prepared by or on behalf of, used by, or referred to by the
Company and not to use or refer to any proposed free writing prospectus to
which the Representatives reasonably object.
(d) Not to take any action that would result in an Underwriter or the
Company being required to file with the Commission pursuant to Rule 433(d)
under the Securities Act a free writing prospectus prepared by or on behalf
of the Underwriter that the Underwriter otherwise would not have been
required to file thereunder.
(e) To advise the Representatives promptly and confirming such advice in
writing, of any request by the Commission for amendments or supplements to
the Registration Statement, the ADR Registration Statement, the Exchange Act
Registration Statement, any Prospectus or free writing prospectus or for
additional information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order, suspending the effectiveness
of the Registration Statement or the ADR Registration
32
Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement or the ADR Registration
Statement, to use its best efforts to obtain the lifting or removal of such
order as soon as possible.
(f) If the Time of Sale Prospectus is being used to solicit offers to buy
the ADSs at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur or condition exist as a result of which
it is necessary to amend or supplement the Time of Sale Prospectus in order
to make the statements therein, in the light of the circumstances, not
misleading, or if any event shall occur or condition exist as a result of
which the Time of Sale Prospectus conflicts with the information contained in
the Registration Statement then on file, or if, in the opinion of counsel for
the Underwriters, it is necessary to amend or supplement the Time of Sale
Prospectus to comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to any
dealer upon request, either amendments or supplements to the Time of Sale
Prospectus so that the statements in the Time of Sale Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Time of Sale Prospectus is delivered to a prospective purchaser, be
misleading or so that the Time of Sale Prospectus, as amended or
supplemented, will no longer conflict with the Registration Statement, or so
that the Time of Sale Prospectus, as amended or supplemented, will comply
with applicable law.
(g) If, during such period after the first date of the public offering of
the ADSs as in the opinion of counsel for the Underwriters the Prospectus (or
in lieu thereof the notice referred to in Rule 173(a) of the Securities Act)
is required by law to be delivered in connection with sales by an Underwriter
or dealer, any event shall occur or condition exist as a result of which it
is necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances when the Prospectus (or
in lieu thereof the notice referred to in Rule 173(a) of the Securities Act)
is delivered to a purchaser, not misleading, or if, in the opinion of counsel
for the Underwriters, it is necessary to amend or supplement the Prospectus
to comply with applicable law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters and to the dealers
(whose names and addresses the Representatives will furnish to the Company)
to which ADSs may have been sold by the Representatives on behalf of the
Underwriters and to any other dealers upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances when the
Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the
Securities Act) is delivered to a purchaser, be misleading or so that the
Prospectus, as amended or supplemented, will comply with applicable law.
33
(h) To endeavor to qualify the Shares and the corresponding ADSs for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request.
(i) To make generally available to the Company's security holders and to
the Representatives as soon as practicable an earning statement covering a
period of at least twelve months beginning with the first fiscal quarter of
the Company occurring after the date of this Agreement which shall satisfy
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(j) To furnish to the Representatives as early as practicable prior to the
Closing Date, but not later than two business days prior thereto, a copy of
the latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been read
by the Company's independent registered public accountants, as stated in
their letter to be furnished pursuant to Section 5(n) hereof.
(k) To apply the net proceeds to the Company from the sale of the ADSs in
the manner set forth under the caption "Use of Proceeds" in the Time of Sale
Prospectus and to file such reports with the Commission with respect to the
sale of the ADSs and the application of the proceeds therefrom as may be
required by Rule 463 under the Securities Act; not to use, and to cause the
Subsidiaries not to use, the proceeds from the sale of the ADSs, directly or
indirectly, for any purpose or activity that would cause the Underwriters or
any purchaser of the ADSs, by virtue of their purchasing or holding the ADSs,
to be in violation of the Trading with the Enemy Act, as amended, the
International Emergency Economic Powers Act, as amended, or any of the
foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or
executive order relating thereto, or in connection with business, operations
or contracts with the governments or with any person or entity of the
Balkans, Burma (Myanmar), Cuba, Iraq, Iran, Libya, Liberia, North Korea,
Sudan, Zimbabwe or any person or entity that is subject to sanctions under
any program administered by OFAC.
(l) Prior to the Closing Date, to issue no press release or other
communication directly or indirectly and hold no press conferences with
respect to the Company or any Subsidiary, the financial condition, results of
operations, business, properties, assets, or liabilities of the Company or
any Subsidiary, or the offering of the ADSs, without the Representatives'
prior consent.
34
\
(m) Not to, at any time at or after the execution of this Agreement,
directly or indirectly, offer or sell any Shares or ADSs by means of any
"prospectus" (within the meaning of the Securities Act), or use any
"prospectus" (within the meaning of the Securities Act) in connection with
the offer or sale of the ADSs, in each case other than the Prospectus.
(n) Not to, and to cause the Subsidiaries not to, take, directly or
indirectly, any action designed, or which will constitute, or has
constituted, or might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares or the ADSs.
(o) To cause the ADSs to be listed on the NYSE and to maintain such
listing.
(p) To maintain a transfer agent and, if necessary under the jurisdiction
of incorporation of the Company, a registrar for the Ordinary Shares.
(q) To use its best efforts to comply with the Xxxxxxxx-Xxxxx Act and to
cause its directors and officers to comply with the Xxxxxxxx-Xxxxx Act.
(r) To comply with all applicable securities and other laws, rules and
regulations in each jurisdiction in which the Directed Shares are offered in
connection with the Directed Share Program.
(II) Each Selling Shareholder, in addition to its other agreements and
obligations hereunder, severally and not jointly, covenants with each
Underwriter as follows:
(a) Such Selling Shareholder agrees that (i) it will not prepare, or have
prepared on its behalf, or use or refer to, any "free writing prospectus" (as
defined in Rule 405 under the Securities Act), and (ii) it will not
distribute any written materials in connection with the offer or sale of the
ADSs.
(b) Such Selling Shareholder will not take any action that would result in
an Underwriter or the Company being required to file with the Commission
pursuant to Rule 433(d) under the Securities Act a free writing prospectus
prepared by or on behalf of the Underwriter that the Underwriter otherwise
would not have been required to file thereunder.
(c) During the period when delivery of a Prospectus (or, in lieu thereof,
the notice referred to under Rule 173(a) under the Securities Act) is
35
required under the Securities Act, such Selling Shareholder will advise
the Underwriters in writing promptly of any change in the information
relating to such Selling Shareholder in the "Principal and Selling
Shareholders" section in the Registration Statement, the Time of Sale
Prospectus or the Prospectus.
(d) Such Selling Shareholder will not take, directly or indirectly,
any action designed to cause or result in, or that has constituted or
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any securities of the Company.
(e) Such Selling Shareholder agrees to deliver to the
Representatives prior to or at the Closing Date a properly completed and
executed United States Treasury Department Form W-8 or Form W-9, as
applicable (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
(f) Such Selling Shareholder will not use any of the proceeds
received by it from the sale of the ADSs to fund any operations in, to
finance any investments, projects or activities in, or to make any
payments to, any country, or to make any payments to, or finance any
activities with, any person, targeted by any of the economic sanctions
promulgated by any executive order issued by the President of the United
States or administered by the OFAC.
(g) Such Selling Shareholder shall, on or prior to the Closing Date,
deposit, or cause to be deposited on its behalf, Ordinary Shares to be
represented by the ADSs to be sold by such Selling Shareholder pursuant
hereto, with the Depositary or its nominee in accordance with the
provisions of the Deposit Agreement, and otherwise cause such ADSs to be
issued by the Depositary and delivered to the Underwriters on the Closing
Date.
7. Expenses. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, (A) the Selling
Shareholders agree to pay or cause to be paid all expenses incident to the
performance of their obligations incurred by them under this Agreement,
including the fees, disbursements and expenses of counsel(s) for the Selling
Shareholders; and (B) the Company agrees to pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including:
(i) the fees, disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the registration and delivery of the
Shares and the ADSs under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration Statement, the
ADR
36
Registration Statement, the Exchange Act Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies thereof to
the Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the ADSs to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky or legal investment memorandum in
connection with the offer and sale of the ADSs under state or foreign securities
laws and all expenses in connection with the qualification of the Shares and the
ADSs for offer and sale under state or foreign securities laws as provided in
Section 6(h) hereof, including filing fees and the reasonable fees and
disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky or legal investment
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the ADSs by the NASD, (v) all costs and
expenses incident to listing the ADSs on the NYSE and any registration thereof
under the Exchange Act, (vi) the costs and expenses of qualifying the ADSs for
inclusion in the book-entry settlement system of the Depository Trust Company,
(vii) the cost of printing ADRs corresponding to the ADSs, (viii) the costs and
charges of any transfer agent, registrar or depositary, (ix) the costs and
expenses of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the ADSs,
including, without limitation, expenses associated with the preparation or
dissemination of any electronic roadshow, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants, and the
cost of any aircraft chartered in connection with the road show, (x) the
document production charges and expenses associated with printing this
Agreement, any Powers of Attorney, any Custody Agreements and any closing
documents (including compilations thereof) and the reproduction and/or printing
and furnishing of copies of each thereof to the Underwriters and (except closing
documents) to dealers (including costs of mailing and shipment), (xi) all fees
and disbursements of counsel incurred by the Underwriters in connection with the
Directed Share Program and stamp duties, similar taxes or duties or other taxes,
if any, incurred by the Underwriters in connection with the Directed Share
Program and (xii) all other costs and expenses incident to the performance of
the obligations of the Company and the Selling Shareholders hereunder for which
provision is not otherwise made in this Section. The Company hereby agrees with
the Underwriters that it will pay any such
37
amounts not so paid by any Selling Shareholder. It is understood that except as
provided in this Section, Section 9 entitled "Indemnity and Contribution",
Section 10 entitled "Directed Share Program Indemnification" and the last
paragraph of Section 11 below, the Underwriters will pay all of their costs and
expenses, including fees and disbursements of their counsel, stock transfer
taxes payable on resale of any of the ADSs by them and any advertising expenses
connected with any offers they may make; provided, however, if this Agreement is
terminated other than as the result of a breach by the Underwriters of material
terms of this Agreement, the Company shall reimburse the Underwriters for all of
their reasonable costs and expenses incurred as of such termination in
connection with the transactions contemplated hereunder.
The provisions of this Section shall not supersede or otherwise affect any
agreement that the Sellers may otherwise have for the allocation of such
expenses among themselves.
8. Indemnity and Contribution. (a) The Company and the Founder, jointly
and severally, agree to indemnify and hold harmless each Underwriter, each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and each
affiliate of any Underwriter within the meaning of Rule 405 under the Securities
Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement, the ADR Registration Statement or any amendment
thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus as defined in Rule 433(h) under the Securities Act, any
Company information that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act, or the Prospectus or any amendment or
supplement thereto, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use therein.
(b) Each Selling Shareholder agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter, each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Underwriter within the
38
meaning of Rule 405 under the Securities Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus, the Time of Sale
Prospectus, any issuer free writing prospectus as defined in Rule 433(h) under
the Securities Act, or the Prospectus or any amendment or supplement thereto, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to such Selling
Shareholder furnished in writing by or on behalf of such Selling Shareholder
expressly for use in the Registration Statement, any preliminary prospectus, the
Time of Sale Prospectus, any issuer free writing prospectus as defined in Rule
433(h) under the Securities Act, or the Prospectus or any amendment or
supplement thereto; it being understood and agreed that the only written
information furnished to the Company by each such Selling Shareholder expressly
for use in the Registration Statement, the Time of Sale Prospectus, any issuer
free writing prospectus as defined in Rule 433(h) under the Securities Act, the
Prospectus, or any amendments or supplements thereto is the information relating
to such Selling Shareholder set forth in the section "Principal and Selling
Shareholders" (except for the percentages set forth therein).
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company and its affiliates, the Selling Shareholders, the
directors of the Company, the officers of the Company who sign the Registration
Statement and each person, if any, who controls the Company or any Selling
Shareholder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus, the Time of Sale Prospectus, any issuer
free writing prospectus as defined in Rule 433(h) under the Securities Act, any
Company information that the Company has filed, or is required to file, pursuant
to Rule 433(d) under the Securities Act, or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, any preliminary
39
prospectus, the Time of Sale Prospectus, any issuer free writing prospectus or
the Prospectus or any amendment or supplement thereto.
(d) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 8(a), 8(b) or 8(c), such person (the "INDEMNIFIED
PARTY") shall promptly notify the person against whom such indemnity may be
sought (the "INDEMNIFYING PARTY") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (i) the fees and expenses of more than one separate firm (in
addition to any local counsel) for all Underwriters and all persons, if any, who
control any Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act or who are affiliates of any
Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section and (iii) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Selling Shareholders and all
persons, if any, who control any Selling Shareholder within the meaning of
either such section, and that all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Underwriters
and such control persons and affiliates of any Underwriters, such firm shall be
designated in writing by the Representatives. In the case of any such separate
firm for the Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In the case of
any such separate firm for the Selling Shareholders and such control persons of
any Selling Shareholders, such firm shall be designated in writing jointly by
the persons named as attorneys-in-fact for the Selling Shareholders under the
Powers of Attorney (as applicable) and such other Selling Shareholders
40
who have not entered into a Power of Attorney. The indemnifying party shall not
be liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(e) To the extent the indemnification provided for in Section 8(a), 8(b)
or 8(c) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the ADSs or
(ii) if the allocation provided by clause 8(e)(i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause 8(e)(i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Sellers on the one hand and the Underwriters on the other hand
in connection with the offering of the ADSs shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the ADSs (net of
underwriting discount and commissions but before deducting expenses) received by
each Seller and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the
Prospectus, bear to the aggregate Public Offering Price of the ADSs. The
41
relative fault of the Sellers on the one hand and the Underwriters on the other
hand shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Sellers
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this Section
8 are several in proportion to the respective number of ADSs they have purchased
hereunder, and not joint.
(f) The Sellers and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 8(e). The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in Section 8(e) shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the ADSs underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in this
Section 8 are not exclusive and shall not limit any rights or remedies which may
otherwise be available to any indemnified party at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 8
and the representations, warranties and other statements of the Company and the
Selling Shareholders contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Underwriter, any person
controlling any Underwriter or any affiliate of any Underwriter, any Selling
Shareholder or any person controlling any Selling Shareholder, or the Company,
its officers or directors or any person controlling the Company and (iii)
acceptance of and payment for any of the ADSs.
42
9. Directed Share Program Indemnification. (a) The Company agrees to
indemnify and hold harmless the Representatives, each person, if any, who
controls the Representatives within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act and each affiliate of the
Representatives within the meaning of Rule 405 of the Securities Act
("REPRESENTATIVE ENTITIES") from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) (i) caused by any untrue statement or alleged untrue statement
of a material fact contained in any material prepared by or with the consent of
the Company for distribution to Participants in connection with the Directed
Share Program or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; (ii) caused by the failure of any Participant to pay for
and accept delivery of Directed Shares that the Participant agreed to purchase;
or (iii) related to, arising out of, or in connection with the Directed Share
Program, other than losses, claims, damages or liabilities (or expenses relating
thereto) that are finally judicially determined to have resulted from the bad
faith or gross negligence of Representative Entities.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any Representative Entity in respect of which
indemnity may be sought pursuant to Section 9(a), the Representative Entity
seeking indemnity, shall promptly notify the Company in writing and the Company,
upon request of the Representative Entity, shall retain counsel reasonably
satisfactory to Xxxxxx Xxxxxxx to represent the Representative Entity and any
others the Company may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any Representative Entity shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Representative Entity unless (i) the Company shall have agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the Company and the
Representative Entity and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. The Company shall not, in respect of the legal expenses of the
Representative Entities in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all Representative
Entities. Any such separate firm for the Representative Entities shall be
designated in writing by Xxxxxx Xxxxxxx. The Company shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
43
Company agrees to indemnify the Representative Entities from and against any
loss or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time a Representative Entity shall have requested
the Company to reimburse it for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph, the Company agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by the Company of the aforesaid request and (ii) the Company shall not
have reimbursed the Representative Entity in accordance with such request prior
to the date of such settlement. The Company shall not, without the prior written
consent of Xxxxxx Xxxxxxx, effect any settlement of any pending or threatened
proceeding in respect of which any Representative Entity is or could have been a
party and indemnity could have been sought hereunder by such Representative
Entity, unless such settlement includes an unconditional release of the
Representative Entities from all liability on claims that are the subject matter
of such proceeding.
(c) To the extent the indemnification provided for in Section 9(a) is
unavailable to a Representative Entity or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then the Company in lieu of
indemnifying the Representative Entity thereunder, shall contribute to the
amount paid or payable by the Representative Entity as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Representative Entities on the other hand from the offering of the Directed
Shares or (ii) if the allocation provided by clause 9(c)(i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause 9(c)(i) above but also the
relative fault of the Company on the one hand and of the Representative Entities
on the other hand in connection with any statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Representative Entities on the other hand in connection with
the offering of the Directed Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Directed Shares (before
deducting expenses) and the total underwriting discounts and commissions
received by the Representative Entities for the Directed Shares, bear to the
aggregate Public Offering Price of the Directed Shares. If the loss, claim,
damage or liability is caused by an untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact, the
relative fault of the Company on the one hand and the Representative Entities on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement or the omission or alleged omission
relates to information supplied by the Company or
44
by the Representative Entities and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
(d) The Company and the Representative Entities agree that it would not be
just or equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Representative Entities were treated as one
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 9(c). The amount
paid or payable by the Representative Entities as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by the Representative
Entities in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, no Representative Entity shall
be required to contribute any amount in excess of the amount by which the total
price at which the Directed Shares distributed to the public were offered to the
public exceeds the amount of any damages that such Representative Entity has
otherwise been required to pay. The remedies provided for in this Section 9 are
not exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 9
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Representative Entity or the Company, its officers or directors or any
person controlling the Company and (iii) acceptance of and payment for any of
the Directed Shares.
10. Termination. The Underwriters may terminate this Agreement by notice
given by the Representatives to the Company, if after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on, or by, as the case may be, any of the
NYSE, the American Stock Exchange, the Nasdaq Global Market or the London Stock
Exchange, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a material
disruption in securities settlement, payment or clearance services in the United
States, the United Kingdom, the Cayman Islands or the PRC shall have occurred,
(iv) any moratorium on commercial banking activities shall have been declared by
U.S. federal, New York State, the United Kingdom, Cayman Islands or PRC
authorities or (v) there shall have occurred any outbreak or escalation of
hostilities, or any change in financial markets, currency exchange rates or
controls or any calamity or crisis that, in the Representatives' judgment, is
material and
45
adverse and which, singly or together with any other event specified in this
clause (v), makes it, in the Representatives' judgment, impracticable or
inadvisable to proceed with the offer, sale or delivery of the ADSs on the terms
and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.
11. Effectiveness; Defaulting Underwriters. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or an Option Closing Date, as the case may be, any
one or more of the Underwriters shall fail or refuse to purchase ADSs that it
has or they have agreed to purchase hereunder on such date, and the aggregate
number of ADSs which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the ADSs to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm ADSs set forth
opposite their respective names in Schedule II bears to the aggregate number of
Firm ADSs set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Representatives may specify, to purchase the
ADSs which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
ADSs that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of ADSs without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm ADSs and the aggregate number of Firm ADSs with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm ADSs to be
purchased on such date, and arrangements satisfactory to the Representatives,
the Company and the Selling Shareholders for the purchase of such Firm ADSs are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Shareholders. In any such case either the Representatives or the
relevant Sellers shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any, in
the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or
in any other documents or arrangements may be effected. If, on an Option Closing
Date, any Underwriter or Underwriters shall fail or refuse to purchase
Additional ADSs and the aggregate number of Additional ADSs with respect to
which such default occurs is more than one-tenth of the aggregate number of
Additional ADSs to be purchased on such Option Closing Date, the non-defaulting
Underwriters shall have the option to (vi) terminate their obligation hereunder
to purchase the Additional ADSs to be sold on such Option Closing Date or (vii)
purchase not less than the number of Additional ADSs that such non-defaulting
46
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of any Seller to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason any Seller shall be unable to perform its obligations under this
Agreement, the Sellers will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
of their costs and expenses (including the fees and disbursements of their
counsel) reasonably incurred as of such termination by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
12. Submission to Jurisdiction; Appointment of Agent for Service. (a) Each
of the Company and the Selling Shareholders irrevocably submits to the
non-exclusive jurisdiction of any New York State or United States federal court
sitting in The City of New York, New York, U.S.A. over any suit, action or
proceeding arising out of or relating to this Agreement, the Deposit Agreement,
the Time of Sale Prospectus, the Prospectus, the Registration Statement, the ADR
Registration Statement or the offering of the ADSs. Each of the Company and the
Selling Shareholders irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding brought in such a court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. To the extent that the Company or any of the Selling
Shareholders has or hereafter may acquire any immunity (on the grounds of
sovereignty or otherwise) from the jurisdiction of any court or from any legal
process with respect to itself or its property, the Company irrevocably waives,
to the fullest extent permitted by law, such immunity in respect of any such
suit, action or proceeding.
(b) Each of the Company and the Selling Shareholders hereby irrevocably
appoints Law Debenture Corporate Services Inc., with offices at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, as its agent for service of process in any
suit, action or proceeding described in the preceding paragraph and agrees that
service of process in any such suit, action or proceeding may be made upon it at
the office of such agent. Each of the Company and the Selling Shareholders
waives, to the fullest extent permitted by law, any other requirements of or
objections to personal jurisdiction with respect thereto. Each of the Company
and the Selling Shareholders represents and warrants that such agent has agreed
to act
47
as its agent for service of process, and each of the Company and the Selling
Shareholders agrees to take any and all action, including the filing of any and
all documents and instruments, that may be necessary to continue such
appointment in full force and effect.
13. Foreign Taxes. All payments made by the Company and the Selling
Shareholders under this Agreement, if any, will be made without withholding or
deduction for or on account of any present or future taxes, duties, assessments
or governmental charges of whatever nature imposed or levied by or on behalf of
the Cayman Islands or any political subdivision or any taxing authority thereof
or therein unless the Company or any Selling Shareholder is or becomes required
by law to withhold or deduct such taxes, duties, assessments or other
governmental charges. In such event, the Company or such Selling Shareholder, as
the case may be, will pay such additional amounts as will result, after such
withholding or deduction, in the receipt by each Underwriter and each person
controlling any Underwriter, as the case may be, of the amounts that would
otherwise have been receivable in respect thereof, except to the extent such
taxes, duties, assessments or other governmental charges are imposed or levied
by reason of such Underwriter's or controlling person's being connected with the
Cayman Islands other than by reason of its being an Underwriter or a person
controlling any Underwriter under this Agreement.
14. Entire Agreement. (a) This Agreement, together with any
contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement) that relate to the offering of the
ADSs, represents the entire agreement between the Company and the Selling
Shareholders, on the one hand, and the Underwriters, on the other hand, with
respect to the preparation of any preliminary prospectus, the Time of Sale
Prospectus, the Prospectus, the conduct of the offering, and the purchase and
sale of the ADSs.
(b) The Company acknowledges that in connection with the offering of the
ADSs: (i) the Underwriters have acted at arms length, are not agents of, and owe
no fiduciary duties to, the Company or any other person, (ii) the Underwriters
owe the Company only those duties and obligations set forth in this Agreement
and prior written agreements (to the extent not superseded by this Agreement),
if any, and (iii) the Underwriters may have interests that differ from those of
the Company. The Company waives to the full extent permitted by applicable law
any claims it may have against the Underwriters arising from an alleged breach
of fiduciary duty in connection with the offering of the ADSs.
48
15. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
16. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York, United States of
America.
17. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
18. Notices. All communications hereunder shall be in writing and
effective only upon receipt and if to the Underwriters shall be delivered,
mailed or sent to the Representatives to Xxxxxx Xxxxxxx & Co. International plc,
00 Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx, X00 0XX, England to the attention of Head
of Capital Markets, and to UBS AG at 52/F, Two International Finance Centre, 0
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx to the attention of Syndicate Department; if
to the Company shall be delivered, mailed or sent to LDK Solar Co., Ltd.,
Hi-Tech Industrial Park, Xinyu city, Jiangxi province, 338032, PRC; and if to
the Selling Shareholders shall be delivered, mailed or sent to [address].
Very truly yours,
LDK Solar Co., Ltd.
By:
-----------------------------------
Name:
Title:
LDK New Energy Holding Limited
Xxxxxxxx Xxxx
---------------------------------------
49
Financiere Natixis Singapore 4 Pte Ltd
By:
-----------------------------------
Name:
Title:
CDH SolarFuture Limited
By:
-----------------------------------
Name:
Title:
50
The Selling Shareholders named in
Schedule I(b) hereto, acting severally
By:
-----------------------------------
Attorney-in-Fact
The Selling Shareholders named in
Schedule I(c) hereto, acting severally
By:
-----------------------------------
Attorney-in-Fact
51
Accepted as of the date hereof
Xxxxxx Xxxxxxx &Co. International plc
UBS AG
Acting severally on behalf of themselves and
the several Underwriters named in Schedule II hereto
Xxxxxx Xxxxxxx & Co. International plc
By:
------------------------------------
Name:
Title:
UBS AG
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
52
SCHEDULE I
NUMBER OF FIRM SHARES
SELLING SHAREHOLDERS TO BE SOLD
------------------------------------------------ ----------------------------
(a):
Financiere Natexis Singapore 4 Pte Ltd.........
CDH SolarFuture Limited........................
(b):
Shine Field Investment Limited.................
CHF Wafer Company Limited......................
China Environment Fund 2004, LP................
JAFCO Asia Technology Fund III................
Decatur Overseas Corporation ..................
Silverpointe Investments Ltd...................
(c):
BOFA Capital Company Limited ..................
MUS Roosevelt China Pacific Fund L.P...........
Total: ........................................
===========================
I-1
SCHEDULE II
NUMBER OF FIRM ADSs
UNDERWRITER TO BE PURCHASED
------------------------------------------------ ----------------------------
Xxxxxx Xxxxxxx & Co. International plc.........
UBS AG.........................................
Xxxxx Xxxxxxx & Co. ...........................
CLSA Limited...................................
CIBC World Markets Corp. ......................
Total:.........................................
===========================
II-1
SCHEDULE III
TIME OF SALE PROSPECTUS
1. Preliminary prospectus issued May 14, 2007.
2. Free writing prospectuses:
[List free writing prospectuses]
3. [Final pricing term sheet]
III-1
SCHEDULE IV
LIST OF OPTIONHOLDERS
IV-1
EXHIBIT A
FORM OF OPINION AND DISCLOSURE LETTER OF XXXXXX XXXXXX LLP
TO BE DELIVERED PURSUANT TO SECTION 5(d)
Terms used but not otherwise defined in this exhibit shall have the same
meanings assigned to them in the Underwriting Agreement.
(i) Assuming the Underwriting Agreement has been duly authorized, executed
and delivered by the Company in accordance with the laws of the Cayman Islands,
the Underwriting Agreement has been duly executed and delivered by the Company
under the laws of the State of New York.
(ii) Assuming the Deposit Agreement has been duly authorized, executed and
delivered by the Company in accordance with the laws of the Cayman Islands, the
Deposit Agreement has been duly executed and delivered by the Company under the
laws of the State of New York and, assuming the Deposit Agreement has been duly
authorized, executed and delivered by the Depositary and that the Depositary has
full power, authority and legal right to enter into and perform its obligations
thereunder, the Deposit Agreement constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms, except that
the enforcement thereof may be subject to (a) bankruptcy, insolvency,
reorganization and other laws of general applicability now or hereinafter in
effect relating to or affecting creditors' rights generally, (b) general equity
principles and the discretion of the court before which any proceeding therefor
may be brought (regardless of whether such enforceability is considered in a
proceeding in equity or at law), and (c) an implied covenant of good faith and
fair dealing.
(iii) Upon the due execution, issuance and delivery by the Depositary of
ADSs evidenced by ADRs against the deposit of Ordinary Shares in accordance with
the Deposit Agreement, such ADSs will be validly issued and persons in whose
names such ADRs are duly registered will be entitled to the rights specified
therein and in the Deposit Agreement.
(iv) The execution and delivery of the Underwriting Agreement and the
Deposit Agreement by the Company do not, and the deposit of the Ordinary Shares
with the Depositary by the Company against issuance of the ADRs evidencing the
ADSs and the sale of ADSs by the Company to the Underwriters pursuant to the
Underwriting Agreement do not (i) violate any U.S. federal or State of New York
statute, rule or regulation applicable to the Company, (ii) result in the breach
of or a default under any Disclosed Contract governed by the U.S. federal laws
or the law of the State of New York and to which the Company or any of its
consolidated subsidiaries is a party, or (iii) require any consents, approvals
or authorizations to be obtained by the Company from, or any registrations,
declarations or filings to be made by the Company with, any
A-1
governmental authority under any U.S. federal or State of New York statute, rule
or regulation applicable to the Company that have not been obtained or made.
(v) Based on a telephone conversation with a member of the staff of the
Commission on [-], 2007, each of the Registration Statement, including any Rule
462 Registration Statement, and the ADR Registration Statement is effective
under the Securities Act; any required filing of the Prospectus pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b) (without reference to Rule 424(b)(8)); any required filing of free
writing prospectus pursuant to Rule 433 has been made in the manner and within
the time period required by Rule 433(d); and, to the best of the knowledge of
such counsel, no stop order suspending the effectiveness of the Registration
Statement or the ADR Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or threatened under the
Securities Act. The Registration Statement (including any Rule 462 Registration
Statement), the ADR Registration Statement, the Prospectus and each amendment or
supplement to the Registration Statement, the ADR Registration Statement and the
Prospectus, as of their respective effective or issue dates (other than the
financial statements and supporting schedules thereto and other financial data
included or omitted therein, as to which such counsel needs express no opinion)
complied as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder. The Ordinary Shares and the ADSs have become registered under
Section 12(b) of the Exchange Act.
(vi) The statements set forth in the Time of Sale Prospectus and the
Prospectus under the headings "Description of American Depositary Shares,"
insofar as they purport to describe or summarize provisions of the Deposit
Agreement and the ADSs, and under "Shares Eligible for Future Sale," insofar as
they purport to describe or summarize certain provisions of the documents or
U.S. federal laws referred to therein, are accurate descriptions or summaries in
all material respects.
(vii) Although the statements set forth in the Time of Sale Prospectus and
the Prospectus under the heading "Taxation -- United States Federal Income
Taxation" do not purport to discuss all possible United States federal income
tax consequences of the purchase, ownership and disposition of Ordinary Shares
or ADSs, such statements, to the extent that they constitute matters of law or
legal considerations with respect thereto, fairly and accurately summarize in
all material respects the United States federal income tax consequences of the
purchase, ownership and disposition of Ordinary Shares or ADSs under present
law.
(viii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any governmental authority or
agency or
A-2
any U.S. federal or New York court under any U.S. federal or State of New York
statute, rule or regulation applicable to the Company (other than as may be
required under the securities or Blue Sky laws of the various states or foreign
jurisdictions, as to which such counsel need express no opinion) is required in
connection with the due authorization, execution and delivery by the Company of
the Underwriting Agreement or for the offering, issuance, sale or delivery of
the ADSs, except for (a) such as have been obtained under the Securities Act and
the Exchange Act and (b) such as are required by the NASD.
(ix) The Company is not required to register as an "investment company"
under the Investment Company Act of 1940, as amended, in connection with the
issuance, offer and sale by the Company of the Shares in the form of ADSs in the
manner contemplated by the Registration Statement, the Time of Sale Prospectus,
the Prospectus, the Deposit Agreement and the Underwriting Agreement and the
application of the proceeds thereof as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus.
(x) Under the laws of the State of New York relating to personal
jurisdiction, (a) the Company has validly chosen New York law to govern its
rights and duties under the Underwriting Agreement and the Deposit Agreement,
(b) the Company has, under the Underwriting Agreement and the Deposit Agreement,
validly submitted to the non-exclusive jurisdiction of any state or federal
court located in the State of New York, United States of America, in any action
arising out of or relating to the Underwriting Agreement and the Deposit
Agreement and the transactions contemplated herein and therein and, to the
extent permitted by law, has validly and effectively waived any objection to the
venue of a proceeding in any such court as provided in Section 11 of the
Underwriting Agreement and Section 19 of the Deposit Agreement, (c) its
appointment hereunder and thereunder of Law Debenture Corporate Services Inc. as
its authorized agent for service of process for the purpose described in Section
11(b) of the Underwriting Agreement and Section 19 of the Deposit Agreement is
valid, and (d) service of process in the matter set forth in Section 11(b) of
the Underwriting Agreement and Section 19 of the Deposit Agreement is effective
to confer valid personal jurisdiction over the Company.
(xi) To the best of such counsel's knowledge, there are no contracts,
instruments or other documents of a nature required to be described in the
Registration Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed.
(xii) To the best of such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened before any U.S. federal or New
York State court or governmental agency, authority or body which are required to
be described in the Registration Statement, the Time of Sale Prospectus and the
Prospectus that are not described as required.
A-3
In addition, although such counsel does not make any representation as to,
and is not passing upon or assuming responsibility for, the accuracy,
completeness or fairness of the statements included in the Registration
Statement, the Time of Sale Prospectus or the Prospectus, except for those made
under (vi) and (vii) above, such counsel shall state that, in the course of
acting as counsel to the Company in connection with the preparation by the
Company of the Registration Statement, the ADR Registration Statement, the Time
of Sale Prospectus, the Pricing Information Annex (as defined in such counsel's
opinion) and the Prospectus, such counsel reviewed the Registration Statement,
the ADR Registration Statement, the Time of Sale Prospectus, the Pricing
Information Annex and the Prospectus, and participated in conferences and
telephone conversations with officers and other representatives of the Company,
the independent public accountants for the Company, the Underwriters, and the
Underwriters' and the Selling Shareholders' counsels, during which conferences
and conversations the contents of the Registration Statement, the ADR
Registration Statement, the Time of Sale Prospectus, the Pricing Information
Annex and the Prospectus, and related matters were discussed. Such counsel also
reviewed and relied upon certain corporate records and documents, letters from
counsel and accountants and oral and written statements of officers and other
representatives of the Company and others as to the existence and consequence of
certain factual and other matters. Based on such counsel's participation, review
and reliance as described above, such counsel advised that nothing has come to
its attention that has caused it to believe that (A) the Registration Statement
or any prospectus included therein (except for financial statements and
financial schedules and other financial and statistical data included therein,
as to which such counsel makes no statement) or the ADR Registration Statement
at the time they became effective under the Securities Act contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, (B)
the Time of Sale Prospectus (except for financial statements and financial
schedules and other financial and statistical data included therein, as to which
such counsel makes no statement) as of the time of sale (as such term is used in
Rule 159 under the Securities Act) and as of the Closing Date, when taken
together with the Pricing Information Annex, contained or contains any untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (C) the Prospectus
(except for financial statements and financial schedules and other financial and
statistical data included therein, as to which such counsel makes no statement)
as of its date or as amended or supplemented, if applicable, as of the Closing
Date contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel expresses no belief with
respect to the financial statements, schedules, or other financial data
A-4
included in, or omitted from, the Registration Statement, the ADR Registration
Statement, the Time of Sale Prospectus, the Pricing Information Annex or the
Prospectus.
A-5
EXHIBIT B
FORM OF OPINION OF XXXXXXX XXXX & XXXXXXX
TO BE DELIVERED PURSUANT TO SECTION 5(e)
Terms used but not otherwise defined in this exhibit shall have the same
meanings assigned to them in the Underwriting Agreement.
1. As at the Certificate Date, the Company is duly incorporated and existing
under the laws of the Cayman Islands as an exempted company with limited
liability and in good standing (meaning solely that it has not failed to
make any filing with any Cayman Islands government authority or to pay any
Cayman Islands government fee which would make it liable to be struck off
the Register of Companies and thereby cease to exist under the laws of the
Cayman Islands) and has the corporate power and authority required to
carry on its business and to own, lease and operate its properties in
accordance with its memorandum of association and as described in the
Registration Statement, the Preliminary Prospectus and the Prospectus.
2. The Shares to be issued and sold by the Company under the Underwriting
Agreement have been duly authorised, and when issued and delivered by the
Company to the Underwriters pursuant to the Underwriting Agreement against
payment in full of the consideration set forth in the Underwriting
Agreement, will have been validly issued, fully paid and non-assessable
(meaning that no further sums are payable to the Company on such Shares),
such Shares will have attached thereto the rights set out in the Listing
Memorandum and Articles and such Shares will not be subject to any
pre-emptive rights, rights of first refusal or similar rights under Cayman
Islands law, the Amended and Restated Memorandum and Articles or the
Listing Memorandum and Articles.
3. The Company has the necessary corporate power and authority to enter into
and perform its obligations under the Transaction Documents. The issue,
sale and delivery of the Shares in the form of ADSs, the ADSs being
delivered at such time of delivery, the deposit of the Shares with the
Depositary against the issuance of the ADRs evidencing the ADSs to be
delivered at such time of delivery, the filing of the Registration
Statement, the ADR Registration Statement, the Exchange Act Registration
Statement [and the Free Writing Prospectus], the execution and delivery of
the Transaction Documents by the Company and the performance by the
Company thereunder will not violate the Amended and Restated Memorandum
and Articles nor any applicable law, regulation, order or decree in the
Cayman Islands.
B-1
4. The Company has taken all corporate action required to authorise its
execution, delivery and performance of the Transaction Documents. The
Transaction Documents [have] been duly executed and delivered by or on
behalf of the Company, and constitute valid and binding obligations of the
Company enforceable in accordance with the terms thereof. The Company has
taken all corporate action required to authorise the filing of each of the
Registration Statement, the ADR Registration Statement, the Exchange Act
Registration Statement [and the Free Writing Prospectus].
5. The Company has the authorized and issued share capital set forth in the
Registration Statement, the ADR Registration Statement, the Exchange Act
Registration Statement [and the Free Writing Prospectus]. All issued
shares of the Company have been duly authorized and validly issued and are
fully paid and non-assessable (meaning that no further sums are payable to
the Company on such shares).
6. No order, consent, approval, licence, authorisation or validation of or
exemption by any government or public body or authority of the Cayman
Islands or any sub-division thereof is required to authorise or is
required in connection with the issue, sale and delivery of the Shares in
the form of ADSs, the deposit of the Shares with the Depositary against
issuance of the ADRs, the filing of the Registration Statement, the ADR
Registration Statement and the Exchange Act Registration Statement with
the SEC and the payment of dividends to shareholders of the Company in any
currency, and the execution, delivery, performance and enforcement of the
Transaction Documents and the payment of any amount under the Underwriting
Agreement and the Deposit Agreement (other than court filings if legal
proceedings are brought in the Cayman Islands).
7. It is not necessary or desirable to ensure the enforceability in the
Cayman Islands of the Transaction Documents that they be registered in any
register kept by, or filed with, any governmental authority or regulatory
body in the Cayman Islands. However, to the extent that any of the
Transaction Documents creates a charge over assets of the Company, the
Company and its directors are under an obligation to enter such charge in
the Register of Mortgages and Charges of the Company in accordance with
section 54 of the Companies Law. While there is no exhaustive definition
of a charge under Cayman Islands law, a charge normally has the following
characteristics:
(i) it is a proprietary interest granted by way of security which
entitles the chargee to resort to the charged property only for the
B-2
purposes of satisfying some liability due to the chargee (whether
from the chargor or a third party); and
(ii) the chargor retains an equity of redemption to have the property
restored to him when the liability has been discharged.
However, as the Transaction Documents are governed by the Foreign Laws,
the question of whether they would possess these particular
characteristics would be determined under the Foreign Laws.
8. There is no stamp, registration or similar tax or duty to be paid on or in
relation to any of the Transaction Documents provided that they are
executed and remain outside the Cayman Islands. If it becomes necessary to
bring any of the Transaction Documents into the Cayman Islands for
enforcement or otherwise, nominal stamp duty will be payable on such
Transaction Documents. In the case of any Transaction Document creating
security over movable property granted by an exempted company, an ordinary
non-resident company or a foreign company, stamp duty will be payable on
an ad valorem basis to a maximum of CI$500.00 (US$600.00). Apart from the
payment of stamp duty, there are no acts, conditions or things required by
the laws and regulations of the Cayman Islands to be done, fulfilled or
performed in order to make any of the Transaction Documents admissible in
evidence in the Cayman Islands.
9. The statements in the Registration Statement, the Preliminary Prospectus
and the Prospectus under the captions "Risk factors - Our articles of
association contain anti-takeover provisions that could prevent a change
in control even if such takeover is beneficial to our shareholders", "Risk
factors - You may face difficulties in protecting your interests because
we are incorporated under Cayman Islands law", "Management - Board of
Directors", "Management - Indemnification", "Description of Share
Capital", "Taxation - Cayman Islands Taxation", "Enforceability of Civil
Liabilities" and in the Registration Statement under the caption "Part
II--Item 6. Indemnification of directors and officers," insofar and to the
extent that they constitute a summary or description of the laws and
regulations of the Cayman Islands, fairly and accurately present the
information and summarise the matters referred to therein.
10. Subject to paragraph 8 above, there is no income or other tax of the
Cayman Islands imposed by withholding or otherwise by virtue of the
execution, delivery, performance and enforcement of any of the Transaction
Documents or the issuance and sale of the Shares by the Company or on any
payment to be made to or by the Company pursuant to the Transaction
Documents. Subject to paragraph 8 above, the Cayman
B-3
Islands currently has no income, corporate or capital gains tax and no
estate duty, inheritance tax or gift tax.
11. There are no reporting obligations under the laws of the Cayman Islands on
the holders of Shares as a result of being the holders of such Shares.
12. The Company is free to acquire, hold and sell foreign currency and
securities without restriction.
13. Based solely upon a search of the Register of Writs and other Originating
Process of the Grand Court of the Cayman Islands conducted at [-]
a.m./p.m. on [-] 2007 (which would not reveal details of proceedings which
have been filed but not actually entered in the Register of Writs and
other Originating Process of the Grand Court of the Cayman Islands at the
time of our search), there are no judgements against the Company, nor any
legal or governmental proceedings, nor any petitions to wind up the
Company pending in the Grand Court of the Cayman Islands to which the
Company is subject.
14. The choice of the Foreign Laws as the governing law of the Transaction
Documents is a valid choice of law and would be recognised and given
effect to in any action brought before a court of competent jurisdiction
in the Cayman Islands, except for those laws (i) which such court
considers to be procedural in nature, (ii) which are revenue or penal laws
or (iii) the application of which would be inconsistent with public
policy, as such term is interpreted under the laws of the Cayman Islands.
The irrevocable submission in the Transaction Documents to the
non-exclusive jurisdiction of the Foreign Courts is valid and binding upon
the Company.
15. The Company has the legal capacity to sue and be sued in its own name
under the laws of the Cayman Islands.
16. The courts of the Cayman Islands would recognise as a valid judgment,
without retrial on the merits, a final and conclusive judgment in personam
obtained in the Foreign Courts against the Company based upon the
Transaction Documents under which a sum of money is payable (other than a
sum of money payable in respect of multiple damages, taxes or other
charges of a like nature or in respect of a fine or other penalty) and
would give a judgment based thereon provided that (a) such courts had
proper jurisdiction over the parties subject to such judgment; (b) such
courts did not contravene the rules of natural justice of the Cayman
Islands; (c) such judgment was not obtained by fraud; (d) the enforcement
of the judgment would not be contrary to the public policy of the Cayman
Islands; (e) no new admissible evidence relevant to the action is
submitted
B-4
prior to the rendering of the judgment by the courts of the Cayman
Islands; and (f) there is due compliance with the correct procedures under
the laws of the Cayman Islands.
17. The Company is not entitled to any immunity under the laws of the Cayman
Islands, whether characterised as sovereign immunity or otherwise, from
any legal proceedings to enforce the Transaction Documents in respect of
itself or its property.
18. Neither the Underwriters nor the Depositary will be deemed to be resident,
domiciled or carrying on business or subject to taxation in the Cayman
Islands or in violation of any law thereof by reason only of the
execution, performance and/or enforcement of the Transaction Documents by
the Underwriters or the Depositary, as the case may be.
19. The Underwriters have standing to bring an action or proceedings before
the appropriate courts in the Cayman Islands for the enforcement of the
Transaction Documents. It is not necessary or advisable in order for the
Underwriters to enforce their rights under the Transaction Documents,
including the exercise of remedies thereunder, that any of them be
licensed, qualified or otherwise entitled to carry on business in the
Cayman Islands.
20. The appointment of an agent to accept service of process in the Foreign
Courts pursuant to the Transaction Documents is legal, valid and binding
on the Company.
21. Based solely on our review of the Register of Members, no statement has
been entered in the Register of Members to indicate that any of the shares
of the Selling Shareholders are subject to any charge, mortgage or other
security interest or encumbrance (the "SECURITY INTEREST"); however the
entering of a statement referring to the Security Interest is not
mandatory and failure to do so does not operate to invalidate the Security
Interest and is not conclusive evidence that the shares of the Selling
Shareholders are free from any Security Interest.
22. There are no governmental laws, decrees, regulations or other legislation
in the Cayman Islands which affect the payment or remittance of dividends,
interest or other payments otherwise properly and lawfully authorised by
the Company to non-resident holders of the Shares.
B-5
EXHIBIT C-1
FORM OF OPINION OF XXXXXXXX LEGAL GROUP
TO BE DELIVERED PURSUANT TO SECTION 5(f)
(Dated the Launch Date)
Terms used but not otherwise defined in this exhibit shall have the same
meanings assigned to them in the Underwriting Agreement.
(i) PRC Subsidiary, a wholly foreign owned enterprise with limited
liability, has been duly incorporated and is validly existing and in good
standing under the laws of PRC. 100% of the equity interest of PRC Subsidiary is
owned by the Company. To the best of our knowledge after due inquiry, such
equity interests are free and clear of all liens, encumbrances, equities or
claims.
(ii) The Founder has registered his overseas investment in LDK New Energy
Holding Limited and the Company with the competent Governmental Agenc(ies) in
accordance with SAFE Rules and Regulations. The establishment of the Company and
the Company's subsequent purchase of 100% equity interests of PRC Subsidiary
from the former shareholders, namely Suzhou Liouxin Industry Co., Ltd and
Liouxin Industrial Limited, at a consideration of US$8,000,001 (the
"Restructuring") complied with all PRC laws, rules and regulations that are
applicable to the Company and PRC Subsidiary, including the M&A Rules and
Related Clarifications.
(iii) All Governmental Authorizations required under the laws of the PRC
in connection with the Restructuring have been unconditionally obtained in
writing and are in full force and effect, and no such Governmental Authorization
has been withdrawn or is subject to any condition precedent or subsequent which
has not been fulfilled or performed;
(iv) According to the M&A Rules and Related Clarifications, a special
purpose vehicle controlled directly or in directly by PRC incorporated companies
or PRC residents and established for the purpose of obtaining a stock exchange
listing outside of the PRC (an "SPV") shall be listed overseas subject to prior
approval by CSRC. As of the date hereof, the CSRC has not issued any definitive
rule or interpretation concerning whether the transactions contemplated by the
Underwriting Agreement and the Deposit Agreement shall be subject to the new
procedures under the M&A Rules and Related Clarifications requiring the prior
approval of the CSRC for the listing and trading of the securities of an SPV on
any stock exchange located outside of the PRC. To the best of our understanding
of the M&A Rules and Related Clarifications, such counsel is of the opinion that
the M&A Rules and Related Clarifications did not and does not apply to the
Restructuring, unless otherwise the competent Governmental Agency such as the
C1-1
CSRC implements different explanations of the M&A Rules and Related
Clarifications in the future.
(v) As of the date hereof, the issuance and sale of the ADSs and the
Ordinary Shares underlying the ADSs, the listing and trading of the ADSs on the
NYSE or the consummation of the transactions contemplated by the Underwriting
Agreement and the Deposit Agreement does not and will not conflict with or
result in a breach or violation of any law or statute or any order, rule or
regulation of any Governmental Authorization of the PRC (including, without
limitation, the M&A Rules and Related Clarifications);
(vi) As of the date hereof, no Governmental Authorization of the PRC
(including, without limitation, the approvals of the CSRC and the Ministry of
Commerce under the M&A Rules and Related Clarifications) is required for the
issuance and sale of the ADSs and the Ordinary Shares underlying the ADSs, the
listing and trading of the ADSs on the NYSE, or consummation of the transactions
contemplated by the Underwriting Agreement and the Deposit Agreement;
(vii) Given that the Company has completed its Restructuring before
September 8, 2006, the effective date of the M&A Rules, the M&A Rules and
Related Clarifications do not require an application to be submitted to the CSRC
for the approval of the listing and trading of the ADSs on the NYSE or the
consummation of the transactions contemplated by the Underwriting Agreement and
the Deposit Agreement.
(viii) The statements set forth in the preliminary prospectus dated [-],
2007 included in the Registration Statement under the captions "Risk Factors -
Risks Related to Business Operations in China--Our failure to obtain the prior
approval of the China Securities Regulatory Commission, or the CSRC, for the
listing and trading of our ADSs on the New York Stock Exchange could
significantly delay this offering or adversely affect our business and
reputation and the trading price of our ADSs, and may also create uncertainties
for this offering," when taken together with the statements under "PRC
Government Regulations--Regulation of Overseas Investments and Listings," are
fair and accurate summaries of the matters described therein, and nothing has
been omitted from such summaries that would make them misleading in any material
respect.
C1-2
EXHIBIT C-2
FORM OF OPINION OF XXXXXXXX LEGAL GROUP
TO BE DELIVERED PURSUANT TO SECTION 5(g)
(Dated the Closing Date)
Terms used but not otherwise defined in this exhibit shall have the same
meanings assigned to them in the Underwriting Agreement.
(i) The PRC Subsidiary, a wholly foreign owned enterprise with limited
liability, has been duly incorporated and is validly existing and in good
standing under the laws of PRC. As a limited liability company with independent
legal person status, the PRC Subsidiary is capable of suing, being sued and
entering into any contractual relationship binding on itself with any party. The
PRC Subsidiary has the lawful power and authority to assume civil liability with
respect to its assets. The registered capital of the PRC Subsidiary has been
fully paid in and is free and clear of any security interest, mortgage, pledge,
lien, claim or any other encumbrances. The PRC Subsidiary currently acts and has
been, since its formation, acting within the scope of business prescribed in its
business license and in compliance with the requirements of the applicable PRC
laws and regulations. The business license, articles of association and other
constitutive documents of the PRC Subsidiary comply with the requirements of
applicable PRC laws and are in full force and effect.
(ii) The PRC Subsidiary has full legal right, power and authority
(corporate and other) to own, use, lease and operate its assets and to conduct
its business as presently conducted and as described in the Time of Sale
Prospectus and the Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification. The PRC
Subsidiary has all necessary licenses, consents, authorizations, approvals,
orders, certificates and permits of and from, and has made all declarations and
filings (collectively, the "Governmental Authorizations") with, all governmental
or regulatory agencies or courts in the PRC (the "Governmental Agencies") to
own, lease, license and use its properties and assets and conduct its business
in the manner described in the Time of Sale Prospectus and the Prospectus and
such licenses, consents, authorizations, approvals, orders, certificates or
permits contain no materially burdensome restrictions or conditions not
described in the Time of Sale Prospectus and the Prospectus. Such Governmental
Authorizations are in full force and effect and the PRC Subsidiary is in
compliance with the provisions of all such licenses, consents, authorizations,
approvals, orders, certificates or permits. After due inquiry, such counsel has
no reason to believe that any Governmental Agency is considering modifying,
suspending or revoking any such Governmental Authorizations, or that any such
Governmental Authorizations will not be renewed by the relevant Governmental
Agency.
C2-1
(iii) The restructuring documents described in the Time of Sale Prospectus
and the Prospectus under Note 1 to the consolidated financial statements
constitute the legal, valid and binding obligations of all parties thereto,
enforceable against all such parties in accordance with their terms; all
necessary corporation action for the consummation of the transactions
contemplated under such restructuring documents have been duly taken by the
Company and the PRC Subsidiary and all consents required from third parties have
been obtained and are in full force and effect; all governmental approvals,
consents, registrations and filings required in the PRC for the consummation of
the transactions contemplated under the restructuring documents have been
obtained or made and are in full force and effect.
(iv) All of the equity interests in the PRC Subsidiary have been duly
authorized and validly issued, are fully paid and non-assessable and are legally
owned by the Company directly, free and clear of all liens, charges,
restrictions upon voting or transfer or any other encumbrances, equities or
claims. The PRC Subsidiary has obtained all approvals, authorizations, consents
and orders, and has made all filings that are required under PRC law, rules and
regulations for the ownership by the Company of its equity interest in the PRC
Subsidiary. There are no outstanding rights, warrants or options to acquire, or
instruments convertible into or exchangeable for, nor any agreements or other
obligations to issue or other rights to convert any obligation into, any equity
interest in the PRC Subsidiary.
(v) The application of the net proceeds to be received by the Company from
the offering as contemplated by the Time of Sale Prospectus and the Prospectus,
will not contravene (A) any provision of applicable PRC laws, rules or
regulations, or (B) the articles of association or other constitutive or
organizational documents or business license of the PRC Subsidiary, or (C) the
terms or provisions of, or constitute a default under, any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which the PRC
Subsidiary is a party or by which it or any of its properties is bound, or (D)
any judgment, order or decree of any PRC Governmental Agency.
(vi) The PRC Subsidiary has valid title to all of its properties and
assets, in each case free and clear of all liens, charges, encumbrances,
equities, claims, defects, options or restrictions, except as described in the
Time of Sale Prospectus and the Prospectus; each lease agreement to which the
PRC Subsidiary is a party is legally executed; the leasehold interests of the
PRC Subsidiary are fully protected by the terms of the lease agreements, which
are valid, binding and enforceable in accordance with their respective terms
under PRC law; and neither the Company within the PRC nor the PRC Subsidiary
owns, operates, manages or
C2-2
has any other right or interest in any other material real property of any kind,
except as described in the Time of Sale Prospectus and the Prospectus.
(vii) There are no outstanding guarantees or contingent payment
obligations of the PRC Subsidiary in respect of indebtedness of third parties
except as disclosed in the Time of Sale Prospectus and the Prospectus.
(viii) To the best of such counsel's knowledge, neither the Company nor
the PRC Subsidiary is in breach or violation of or in default under or with
respect to (nor has any event occurred which with notice, lapse of time, or
both, would result in any breach of, or constitute a default under or give the
holder of any indebtedness (or a person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a part of
such indebtedness under) (A) its articles of association or any other
constitutive or organizational documents, (B) any approval, consent, waiver,
authorization, exemption, permission or license granted by any Governmental
Agency in the PRC, (C) the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound, or (D) any law,
regulation or rule of the PRC, or any decree, judgment or order of any court in
the PRC, applicable to the Company or the PRC Subsidiary.
(ix) There are no legal, governmental, administrative or arbitrative
proceedings before or by any Governmental Agency pending or, to the best of such
counsel's knowledge after due inquiry, threatened against, or involving the
properties or business of, the Company or the PRC Subsidiary or to which any of
the properties of the Company or the PRC Subsidiary is subject.
(x) Except as disclosed in the Time of Sale Prospectus and the Prospectus,
All dividends and other distributions declared and payable on the Company's
equity interest in the PRC Subsidiary may be payable in Renminbi which may be
converted into foreign currency under the current laws and regulations of the
PRC and may be freely transferred out of the PRC, and such dividends will not be
subject to withholding or other taxes under the laws and regulations of the PRC
and are otherwise free and clear of any other tax, withholding or deduction in
the PRC and may be paid without the necessity of obtaining any Government
Authorization from any Governmental Agency in the PRC.
(xi) Each of the Disclosed Contracts that are governed by PRC law (the
"Material Contracts") has been duly authorized, executed and delivered by the
PRC Subsidiary, and the PRC Subsidiary has, to the extent applicable, taken all
C2-3
necessary corporate actions to authorize the performance thereof; the PRC
Subsidiary had the corporate power and capacity to enter into and to perform its
obligations under such Material Contract; each of the Material Contracts to
which the Company or the PRC Subsidiary is a party constitutes the legal, valid
and binding obligation of the Company or the PRC Subsidiary, as the case may be,
enforceable against the Company or the PRC Subsidiary, as the case may be, in
accordance with its terms.
(xii) The PRC Subsidiary does not possess any registered intellectual
property except as described in the Time of Sale Prospectus and the Prospectus,
and the PRC Subsidiary possesses valid licenses in full force and effect or
otherwise has the legal right to use, or can acquire on reasonable terms, all
material patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks and
trade names currently employed by it in the ordinary course of business in the
PRC, and to the best of such counsel's knowledge after due inquiry, the PRC
Subsidiary has not received any notice of infringement of or conflict with
asserted rights of others with respect to any of the foregoing.
(xiii) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, the Underwriting Agreement and the
Deposit Agreement and the consummation by the Company of the transactions
contemplated herein and therein, and the conduct of the business and operations
of the Company and the PRC Subsidiary as described in the Registration Statement
and in the Time of Sale Prospectus and the Prospectus, including the issue and
sale of the ADSs and the Ordinary Shares underlying the ADSs under the
Underwriting Agreement and the Deposit Agreement, and the compliance by the
Company with all of the provisions of the Underwriting Agreement and the Deposit
Agreement (A) do not and will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the PRC Subsidiary is a party or by which the PRC Subsidiary
is bound or to which any of the properties or assets of the PRC Subsidiary is
bound or to which any of the properties or assets of the PRC Subsidiary is
subject, (B) do not and will not result in any violation of the provisions of
the articles of association, business licenses or any other constitutive
documents of the PRC Subsidiary, (C) do not and will not result in any violation
of any PRC law, statute or regulation, and (D) do not and will not result in any
violation of any order, rule or regulation of any Governmental Agency.
(xiv) No Governmental Authorization from any PRC Governmental Agency is
required for (A) the issue and sale of the ADSs and the Ordinary
C2-4
Xxxxxx represented thereof at the Closing Date to be sold by the Company under
the Underwriting Agreement and the Deposit Agreement, (B) the deposit of the
Ordinary Shares represented by the ADSs with the Depositary or its nominee, and
(C) the consummation by the Company and the Depositary of the transactions
contemplated by the Underwriting Agreement and the Deposit Agreement, as
applicable.
(xv) Under PRC law, there are no reporting obligations on non-Chinese
holders of the ADSs or the Ordinary Shares.
(xvi) As a matter of PRC law, no holder of the ADSs or Ordinary Shares who
is not a PRC resident will be subject to any personal liability, or be subject
to a requirement to be licensed or otherwise qualified to do business or be
deemed domiciled or resident in the PRC, by virtue only of holding such ADSs or
Ordinary Shares. There are no limitations under PRC law on the rights of holders
of the ADSs or Ordinary Shares who are not PRC residents to hold, vote or
transfer their securities nor any statutory preemptive rights or transfer
restrictions applicable to the ADSs or Ordinary Shares.
(xvii) The statements set forth in the Time of Sale Prospectus and the
Prospectus under the headings "Prospectus Summary--Our Corporate Structure,"
"Risk Factors," "Dividend Policy," "Management's Discussion and Analysis of
Financial Condition and Results of Operations," "Business," "PRC Government
Regulations," "Management," "Related Party Transactions," "Description of Share
Capital," "Enforcement of Civil Liabilities" and "Taxation," insofar as such
statements describe or summarize PRC legal or regulatory matters, or documents,
agreements or proceedings governed by PRC law, are true and accurate, and fairly
present or fairly summarize the PRC legal and regulatory matters, documents,
agreements or proceedings referred to therein; and such statements did not
contain and will not contain an untrue statement of a material fact, and did not
omit and will not omit to state any material fact necessary to make the
statements, in light of the circumstances under which they were made, not
misleading.
(xviii) (a) The Founder has registered his overseas investment in LDK New
Energy Holding Limited and the Company with Governmental Agency in accordance
with SAFE Rules and Regulations. Then the Company purchase 100% equity interests
of PRC Subsidiary from the former shareholders, namely Suzhou Liouxin Industry
Co., Ltd and Liouxin Industrial Limited at a consideration of US$8,000,001 (the
"RESTRUCTURING"). The establishment and the Restructuring of the Company and PRC
Subsidiary complied with all PRC laws, rules and regulations that are applicable
to the Company and the PRC Subsidiary, including the M&A Rules and Related
Clarifications.
C2-5
(b) All Governmental Authorizations required under the laws of the PRC in
connection with the Restructuring have been unconditionally obtained in
writing and are in full force and effect, and no such Governmental
Authorization has been withdrawn or is subject to any condition precedent
or subsequent which has not been fulfilled or performed;
(c) According to the M&A Rules and Related Clarifications, an special
purpose vehicle controlled directly or in directly by PRC incorporated
companies or PRC residents and established for the purpose of obtaining a
stock exchange listing outside of the PRC (the "SPV") shall be listed
overseas subject to prior approval by CSRC. But as of the date hereof, the
CSRC has not issued any definitive rule or interpretation concerning
whether the transactions contemplated by the Underwriting Agreement and
the Deposit Agreement shall be subject to the new procedures under the M&A
Rules and Related Clarifications requiring the prior approval of the CSRC
for the listing and trading of the securities of SPV on any stock exchange
located outside of the PRC or not. To the best of such counsel's
understanding of the M&A Rules and Related Clarifications, such counsel is
of the opinion that the M&A Rules and Related Clarifications does not
apply to the Restructuring, unless otherwise the competent Governmental
Agency such as the CSRC implements different explanations to the M&A Rules
and Related Clarifications in the future.
(d) The issuance and sale of the ADSs and the Ordinary Shares underlying
the ADSs, the listing and trading of the ADSs on the NYSE or the
consummation of the transactions contemplated by the Underwriting
Agreement and the Deposit Agreement does not and will not conflict with or
result in a breach or violation of any law or statute or any order, rule
or regulation of any Governmental Authorization of the PRC (including,
without limitation, the M&A Rules and Related Clarifications);
(e) As of the date of the Time of Sale Prospectus and the date hereof, no
Governmental Authorization of the PRC (including, without limitation, the
approvals of the CSRC and the Ministry of Commerce under the M&A Rules and
Related Clarifications) is required for the issuance and sale of the ADSs
and the Ordinary Shares underlying the ADSs, the listing and trading of
the ADSs on the NYSE, or consummation of the transactions contemplated by
the Underwriting Agreement and the Deposit Agreement;
(f) Given that the Company has completed its Restructuring before
September 8, 2006, the effective date of the M&A Rules, the M&A Rules and
Related Clarifications do not require an application to be submitted to
the CSRC for the approval of the listing and trading of the ADSs on the
C2-6
NYSE or the consummation of the transactions contemplated by the
Underwriting Agreement and the Deposit Agreement.
(xix) The submission of the Company to the non-exclusive jurisdiction of
any New York State or United States federal court sitting in The City of New
York, U.S.A., the waiver by the Company of any objection to the venue of a
proceeding in a New York Court, the waiver and agreement of the Company not to
plead an inconvenient forum, and the agreement of the Company that the
Underwriting Agreement and the Deposit Agreement be construed in accordance with
and governed by the laws of the State of New York will be recognized by PRC
courts; jurisdiction over the Company conferred by service of process effected
in the manner set forth in the Underwriting Agreement and the Deposit Agreement
will be recognized by PRC courts, subject to compliance with relevant civil
procedural requirements (which do not involve a re-examination of the merits of
the claim) in the PRC; and any judgment obtained in a New York Court arising out
of or in relation to the obligations of the Company under the Underwriting
Agreement and the Deposit Agreement will be recognized by PRC courts, subject to
compliance with relevant civil procedural requirements (which do not involve a
re-examination of the merits of the claim) in the PRC.
(xx) The indemnification and contribution provisions set forth in the
Underwriting Agreement and the Deposit Agreement do not contravene the public
policy or laws, rules and regulations of the PRC, and insofar as matters of PRC
law are concerned, constitute the legal, valid and binding obligations of the
Company, enforceable in accordance with the terms therein, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights. Each of the
Underwriting Agreement and the Deposit Agreement is in proper legal form under
PRC law for the enforcement thereof against the Company, subject to compliance
with relevant civil procedural requirements; and to ensure the legality,
validity, enforceability or admissibility in evidence of the Underwriting
Agreement and the Deposit Agreement in the PRC, it is not necessary that any
such document be filed or recorded with any court or other authority in PRC or
that any stamp or similar tax be paid on or in respect of any such document.
(xxi) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on behalf of
the Company, the PRC Subsidiary, any Underwriter or the Depositary to the PRC
government or any political subdivision or taxing authority thereof or therein
in connection with (A) the creation, issuance, sale and delivery of the ADSs and
Ordinary Shares, (B) the deposit with the Depositary of Ordinary Shares by the
Company pursuant to the Deposit Agreement against issuances of the ADSs, (C) the
sale and delivery by the Company of the ADSs to or for the accounts of the
Underwriters in the manner contemplated in the Underwriting Agreement and the
C2-7
Deposit Agreement, (D) the execution, delivery and performance of the
Underwriting Agreement and the Deposit Agreement by the Company, or (E) the sale
and delivery by the Underwriters of the ADSs to the initial purchasers thereof
in the manner contemplated in the Time of Sale Prospectus and the Prospectus.
(xxii) The entry into, and performance or enforcement of the Underwriting
Agreement and the Deposit Agreement in accordance with its respective terms will
not subject any of the Underwriters or the Depositary to any requirement to be
licensed or otherwise qualified to do business in the PRC, nor will any
Underwriter or the Depositary be deemed to be resident, domiciled, carrying on
business through an establishment or place in the PRC or in breach of any laws
or regulations in the PRC by reason of entry into, performance or enforcement of
the Underwriting Agreement and the Deposit Agreement.
(xxiii) Under the laws of the PRC, neither the Company nor the PRC
Subsidiary, or any of their respective properties, assets or revenues, is
entitled to any right of immunity on the grounds of sovereignty or otherwise
from any legal action, suit or proceeding, set-off or counterclaim, the
jurisdiction of any court in the PRC, service of process, attachment prior to or
in aid of execution of judgment, or other legal process or proceeding for the
granting of any relief or the enforcement of any judgment.
Nothing has come to such counsel's attention that would cause such counsel
to believe that (A) the Registration Statement or the prospectus included
therein (except for the financial statements and financial schedules and other
financial and statistical data included therein, as to which such counsel makes
no statement) at the time the Registration Statement became effective contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (B) the Time of Sale Prospectus (except for the financial statements
and financial schedules and other financial and statistical data included
therein, as to which such counsel makes no statement) as of the time of sale and
as of the Closing Date contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading or (C) the Prospectus (except for the financial statements
and financial schedules and other financial and statistical data included
therein, as to which such counsel makes no statement) as of its date or as
amended or supplemented, if applicable, as of the Closing Date contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
C2-8
EXHIBIT D
FORM OF OPINION OF XXXXXXX, XXXXXXX & ASSOCIATES LLP
TO BE DELIVERED PURSUANT TO SECTION 5(j)
Terms used but not otherwise defined in this exhibit shall have the same
meanings assigned to them in the Underwriting Agreement.
(i) The Deposit Agreement has been duly authorized, executed and delivered
by the Depositary and constitutes a valid and binding agreement of the
Depositary enforceable against the Depositary in accordance with its terms,
except as enforcement of it may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws of general application
relating to or affecting creditors' rights and by general principles of equity.
(ii) Upon execution and delivery by the Depositary of ADRs evidencing the
ADSs against the deposit of Ordinary Shares in accordance with the provisions of
the Deposit Agreement, the ADSs will be validly issued and will entitle the
holders of the ADSs to the rights specified in those ADRs and in the Deposit
Agreement.
(iii) The Depositary filed the ADR Registration Statement on Form F-6
under the Securities Act, and the staff of the Commission has informed such
counsel that the Commission declared the ADR Registration Statement effective
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the ADR Registration Statement or any part thereof or any
amendment thereto has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Securities Act, and the ADR
Registration Statement, and any amendments thereto as of their respective
effective dates, complied as to form in all material respects with the
requirements of the Securities Act and the rules and regulations thereunder.
D1-1
EXHIBIT E
FORM OF OPINION OF U.S. COUNSEL FOR SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(k)
Terms used but not defined in this exhibit shall have the same meanings as
specified under the Underwriting Agreement.
(i) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental authority or
agency under any United States federal or State of New York statute or
regulation applicable to such Selling Shareholder (other than the issuance of
the order of the Commission declaring the Registration Statement effective and
such authorizations, approvals or consents as may be necessary under state
securities laws, as to which such counsel need express no opinion) is necessary
or required to be obtained by such Selling Shareholder for the performance by
each Selling Shareholder of its obligations under the Underwriting Agreement,
the Power of Attorney or the Custody Agreement, or in connection with the offer,
sale or delivery of the ADSs and the Ordinary Shares underlying the ADSs.
(ii) Each of the Powers of Attorney and Custody Agreements has been duly
executed and delivered by the Selling Shareholder named therein and constitutes
the valid and binding agreement of such Selling Shareholder.
(iii) The Underwriting Agreement has been duly executed and delivered by
or on behalf of each Selling Shareholder.
(iv) The execution, delivery and performance of the Underwriting
Agreement, the Power of Attorney and the Custody Agreement, the deposit of the
Ordinary Shares with the Depositary by each Selling Shareholder against issuance
of the ADRs evidencing the ADSs, the sale of the ADSs by such Selling
Shareholder to the Representatives and the other Underwriters, the consummation
of the transactions contemplated in the Underwriting Agreement and in the
Registration Statement and compliance by such Selling Shareholder with its
obligations under the Underwriting Agreement do not and will not result in a
violation of any United States federal or State of New York statute, rule or
regulation applicable to such Selling Shareholder, or any agreement or
instrument governed by the laws of State of New York to which such Selling
Shareholder is a party or by which such Selling Shareholder is bound and which
has been filed as an exhibit to the Registration Statement.
(v) Upon payment of the purchase price for the ADSs to be sold by such
Selling Shareholder pursuant to the Underwriting Agreement and the crediting of
such ADSs on the books of the Custodian to securities accounts of the
Underwriters (assuming that neither the Custodian nor any such Underwriter has
E-1
notice of any "adverse claim," within the meaning of Section 8-105 of the UCC,
to such ADSs), (A) under Section 8-501 of the UCC, the Underwriters will acquire
a valid security entitlement in respect of such ADSs and (B) no action (whether
framed in conversion, replevin, constructive trust, equitable lien, or other
theory) based on any "adverse claim," within the meaning of Section 8-102 of the
UCC, to such ADSs may be asserted against the Underwriters with respect to such
security entitlement.
(vi) Under the laws of the State of New York relating to personal
jurisdiction, (a) each Selling Shareholder has validly chosen New York law to
govern its rights and duties under the Underwriting Agreement, the Power of
Attorney and the Custody Agreement, (b) each Selling Shareholder has, under the
Underwriting Agreement, validly submitted to the non-exclusive jurisdiction of
any New York State or United States federal court sitting in The City of New
York, U.S.A., over any suit, action or proceeding arising out of or relating to
the Underwriting Agreement, and the transactions contemplated therein and, to
the extent permitted by law, has validly and effectively waived any objection to
the venue of a proceeding in any such court as provided in Section 11 of the
Underwriting Agreement, (c) its appointment under the Underwriting Agreement of
Law Debenture Corporate Services Inc. as its authorized agent for service of
process for the purpose described in Section 11(b) of the Underwriting Agreement
is valid, and (d) service of process in the matter set forth in Section 11(b) of
the Underwriting Agreement is effective to confer valid personal jurisdiction
over such Selling Shareholder.
(vii) Under the laws of the State of New York relating to choice of law,
each Selling Shareholder has validly chosen New York law to govern its rights
and duties under the Underwriting Agreement, to the fullest extent permitted by
law.
E-2
EXHIBIT F
FORM OF OPINION OF LOCAL COUNSEL FOR SELLING SHAREHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(l)
Terms used but not defined in this exhibit shall have the same meanings as
specified under the Underwriting Agreement.
(i) Such Selling Shareholder is a company duly incorporated, in good
standing and validly existing under the laws of its jurisdiction of
incorporation.
(ii) No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court in such Selling Shareholder's
jurisdiction of incorporation is required to be obtained or made by such Selling
Shareholder for the consummation of the transactions contemplated by the
Underwriting Agreement and the relevant Power of Attorney and Custody Agreement
in connection with the sale of the ADSs.
(iii) The execution, delivery and performance of the Underwriting
Agreement, the Power of Attorney and the Custody Agreement, the consummation of
the transactions contemplated therein by such Selling Shareholder do not and
will not, whether with the giving of notice or passage of time or both, conflict
with or constitute a breach of, or default under or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the ADSs or the Shares
underlying such ADSs or any property or assets of such Selling Shareholder
pursuant to, any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other instrument or agreement to which such
Selling Shareholder is a party or by which it may be bound, or to which any of
the property or assets of such Selling Shareholder may be subject nor will such
action result in any violation of the provisions of the organizational documents
of such Selling Shareholder, or any law, administrative regulation, judgment or
order of any governmental agency or body or any administrative or court decree
having jurisdiction over such Selling Shareholder or any of its properties.
(iv) The Power of Attorney and the Custody Agreement with respect to such
Selling Shareholder have been duly authorized, executed and delivered by such
Selling Shareholder and constitutes the valid, legal and binding obligations of
such Selling Shareholder enforceable in accordance with their terms.
(v) The Underwriting Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder under the laws of its
jurisdiction of incorporation and, assuming the due execution and delivery of
the Underwriting Agreement by Xxxxxxxx Xxxx, Xxxx Xxx or Xxxxxxxx Xxxx as an
attorney-in-fact on behalf of such Selling Shareholder, it has been duly
executed and delivered under the laws of the jurisdiction of incorporation of
such Selling Shareholder by an attorney-in-fact on behalf of such Selling
Shareholder.
F-1
(vi) The submission by such Selling Shareholder to the non-exclusive
jurisdiction of any New York State or United States federal court sitting in The
City of New York, U.S.A., under Section 11 of the Underwriting Agreement and the
appointment by such Selling Shareholder of Law Debentures Corporate Services
Inc. as its Authorized Agent for the purpose described in Section 11 of the
Underwriting Agreement are valid and binding on such Selling Shareholder under
the laws of its jurisdiction of incorporation. Under the laws of such Selling
Shareholder's jurisdiction of incorporation, the courts in such jurisdiction
would recognize as a valid judgment any final judgment obtained in a New York
Court against such Selling Shareholder in any legal suit, action or proceeding
brought in the manner contemplated by Section 11 of the Underwriting Agreement
and would give effect thereto
F-2
EXHIBIT G-1
FORM OF LOCK-UP LETTER
____________, 2007
Xxxxxx Xxxxxxx & Co. International plc
00 Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxx, X00 0XX, Xxxxxxx
UBS AG
52/F, Two International Finance Centre
0 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
As Representatives of
the several Underwriters named in Schedule II
attached to the Underwriting Agreement
Dear Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. International plc
("XXXXXX XXXXXXX") and UBS AG ("UBS", together with Xxxxxx Xxxxxxx, the
"REPRESENTATIVES") propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with LDK Solar Co., Ltd., an exempted company with
limited liability incorporated under the laws of the Cayman Islands (the
"COMPANY"), providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters, including the Representatives (the "UNDERWRITERS"), of
American depositary shares (the "ADSS"), each representing one ordinary share,
par value US$0.10 per share, of the Company (the "ORDINARY SHARES").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of the Representatives on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 12 months after the date of the final prospectus relating
to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any Ordinary Shares, ADSs or any
securities convertible into or exercisable or exchangeable for Ordinary Shares
or ADSs, (2) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of the
Ordinary Shares or ADSs, or (3) publicly disclose the intention to make any such
offer, pledge, sale, transfer or disposition as described in (1) or enter into
any such swap or other arrangement as
G-1-1
described in(2), whether any such transaction described in clause (1), (2) or
(3) above is to be settled by delivery of Ordinary Shares or ADSs or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
the sale of Ordinary Shares in the form of ADSs to the Underwriters under the
Underwriting Agreement, and (b) transactions relating to Ordinary Shares, ADSs
or other securities acquired in open market transactions after the completion of
the Public Offering, provided that no filing under Section 16(a) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") shall be
required or shall be voluntarily made in connection with subsequent sales of
Ordinary Shares, ADSs or other securities acquired in such open market
transactions. In addition, the undersigned agrees that, without the prior
written consent of the Representatives on behalf of the Underwriters, it will
not, during the period commencing on the date hereof and ending 12 months after
the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of Ordinary Shares or ADSs or any security
convertible into or exercisable or exchangeable for Ordinary Shares or ADSs. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
undersigned's Ordinary Shares or ADSs except in compliance with the foregoing
restrictions.
If during the last 17 days of the restricted period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs, the restrictions imposed by this agreement shall continue to apply until
the expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
The undersigned understands that the Company and the Underwriters are
relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives,
successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Notwithstanding anything herein to the contrary, this agreement shall
automatically terminate if (i) the engagement letter between the Company and the
Representatives dated May 14, 2007 in respect of the Public Offering is
terminated in accordance with the terms thereof or (ii) the Underwriting
Agreement is terminated in accordance with the terms thereof, if an Underwriting
Agreement has been entered into between the Company and the Underwriters in
respect of the Public Offering.
G-1-2
Very truly yours,
LDK New Energy Holding Limited
________________________________________
By: Xxxxxxxx Xxxx
------------------------------------
G-1-3
EXHIBIT G-2
FORM OF LOCK-UP LETTER
____________, 2007
Xxxxxx Xxxxxxx & Co. International plc
00 Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxx, X00 0XX, Xxxxxxx
UBS AG
52/F, Two International Finance Centre
0 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
As Representatives of
the several Underwriters named in Schedule II
attached to the Underwriting Agreement
Dear Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. International plc
("XXXXXX XXXXXXX") and UBS AG ("UBS", together with Xxxxxx Xxxxxxx, the
"REPRESENTATIVES") propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with LDK Solar Co., Ltd., an exempted company with
limited liability incorporated under the laws of the Cayman Islands (the
"COMPANY"), providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters, including the Representatives (the "UNDERWRITERS"), of [-]
American depositary shares (the "ADSs"), each representing one ordinary share,
par value US$0.10 per share, of the Company (the "ORDINARY SHARES").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of the Representatives on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the final prospectus relating
to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any Ordinary Shares, ADSs or any
securities convertible into or exercisable or exchangeable for Ordinary Shares
or ADSs, (2) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of the
Ordinary Shares or ADSs, or (3) publicly disclose the intention to make any such
offer, pledge, sale, transfer or disposition as described in (1) or enter into
any such swap or other arrangement as
G-2-1
described in(2), whether any such transaction described in clause (1), (2) or
(3) above is to be settled by delivery of Ordinary Shares or ADSs or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
the sale of Ordinary Shares in the form of ADSs to the Underwriters under the
Underwriting Agreement, and (b) transactions relating to Ordinary Shares, ADSs
or other securities acquired in open market transactions after the completion of
the Public Offering, provided that no filing under Section 16(a) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") shall be
required or shall be voluntarily made in connection with subsequent sales of
Ordinary Shares, ADSs or other securities acquired in such open market
transactions. In addition, the undersigned agrees that, without the prior
written consent of the Representatives on behalf of the Underwriters, it will
not, during the period commencing on the date hereof and ending 180 days after
the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of Ordinary Shares or ADSs or any security
convertible into or exercisable or exchangeable for Ordinary Shares or ADSs. The
undersigned also agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of the
undersigned's Ordinary Shares or ADSs except in compliance with the foregoing
restrictions.
If during the last 17 days of the restricted period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs, the restrictions imposed by this agreement shall continue to apply until
the expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
The undersigned understands that the Company and the Underwriters are
relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives,
successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Notwithstanding anything herein to the contrary, this agreement shall
automatically terminate if (i) the engagement letter between the Company and the
Representatives dated May 14, 2007 in respect of the Public Offering is
terminated in accordance with the terms thereof or (ii) the Underwriting
Agreement is terminated in accordance with the terms thereof, if an Underwriting
Agreement has been entered into between the Company and the Underwriters in
respect of the Public Offering.
G-2-2
Very truly yours,
________________________________________
(Name)
________________________________________
(Address)
G2-3
EXHIBIT G-3
FORM OF LOCK-UP LETTER
____________, 2007
Xxxxxx Xxxxxxx & Co. International plc
00 Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxxxxx, X00 0XX, Xxxxxxx
UBS AG
52/F, Two International Finance Centre
0 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxx Xxxx
As Representatives of
the several Underwriters named in Schedule II
attached to the Underwriting Agreement
Dear Ladies and Gentlemen:
The undersigned understands that Xxxxxx Xxxxxxx & Co. International plc
("XXXXXX XXXXXXX") and UBS AG ("UBS", together with Xxxxxx Xxxxxxx, the
"REPRESENTATIVES") propose to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with LDK Solar Co., Ltd., an exempted company with
limited liability incorporated under the laws of the Cayman Islands (the
"COMPANY"), providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters, including the Representatives (the "UNDERWRITERS"), of
American depositary shares (the "ADSs"), each representing one ordinary share,
par value US$0.10 per share, of the Company (the "ORDINARY SHARES").
To induce the Underwriters that may participate in the Public Offering to
continue their efforts in connection with the Public Offering, the undersigned
hereby agrees that, without the prior written consent of the Representatives on
behalf of the Underwriters, it will not, during the period commencing on the
date hereof and ending 180 days after the date of the final prospectus relating
to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any Ordinary Shares, ADSs or any
securities convertible into or exercisable or exchangeable for Ordinary Shares
or ADSs, (2) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of the
Ordinary Shares or ADSs, or (3) publicly disclose the intention to make any such
offer, pledge, sale, transfer or
G-3-1
disposition as described in (1) or enter into any such swap or other arrangement
as described in(2), whether any such transaction described in clause (1), (2) or
(3) above is to be settled by delivery of Ordinary Shares or ADSs or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (a)
the sale of Ordinary Shares in the form of ADSs to the Underwriters under the
Underwriting Agreement, and (b) transactions relating to Ordinary Shares, ADSs
or other securities acquired in open market transactions after the completion of
the Public Offering, provided that no filing under Section 16(a) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") shall be
required or shall be voluntarily made in connection with subsequent sales of
Ordinary Shares, ADSs or other securities acquired in such open market
transactions. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent and registrar against
the transfer of the undersigned's Ordinary Shares or ADSs except in compliance
with the foregoing restrictions.
If during the last 17 days of the restricted period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs, the restrictions imposed by this agreement shall continue to apply until
the expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
The undersigned agrees with the Representatives that, (i) if the
Representatives waive the restrictions under any lock-up letter agreement in
connection with the Public Offering (each, a "LOCK-UP LETTER") executed by any
Principal Shareholder (as defined below) with respect to any of the Ordinary
Shares owned by such Principal Shareholder, the Representatives will
concurrently waive the restrictions hereunder with respect to all of the
Ordinary Shares owned by the undersigned; and (ii) if the Representatives waive
the restrictions under any Lock-up Letter executed by any Other Shareholder (as
defined below) with respect to more than 1,000 Ordinary Shares, the
Representatives will concurrently waive the restrictions hereunder with respect
to the same number of Ordinary Shares owned by the undersigned. If the
Representatives waive the restrictions under any Lock-up Letter executed by any
Other Shareholder with respect to 1,000 or fewer Ordinary Shares, the
undersigned understands and agrees that the Representatives will not waive the
restrictions hereunder with respect to any of the Ordinary Shares owned by the
undersigned.
The undersigned understands and agrees that any waiver the Representatives
may grant the undersigned pursuant to (i) or (ii) in the preceding paragraph
will be on the same terms and conditions as the waiver for the released
Principal Shareholder or Other Shareholder, as the case may be. For example, if
a waiver is granted to a Principal Shareholder for an underwritten follow-on
G-3-2
offering, the restrictions hereunder will be waived with respect to the
undersigned only for purposes of such underwritten offering. Any Ordinary Shares
owned by the undersigned that are not sold in the underwritten offering or other
transaction that is the subject of the waiver will remain subject to the
restrictions hereunder.
"Financial Investor" means each of the existing shareholders of the
Company (other than LDK New Energy Holding Limited) who has signed a Lock-up
Letter. "Principal Shareholder" means Xx. Xxxxxxxx Xxxx, any director or officer
of the Company listed in the "Management" section of the Prospectus (including
investment vehicles through which such persons hold their shares or options
issued by the Company) or any Financial Investor, in each case who has signed a
Lock-up Letter. "Other Shareholder" means any of the existing shareholders or
optionholders of the Company who has signed a Lock-up Letter, other than a
Principal Shareholder.
The undersigned understands that the Company and the Underwriters are
relying upon this agreement in proceeding toward consummation of the Public
Offering. The undersigned further understands that this agreement is irrevocable
and shall be binding upon the undersigned's heirs, legal representatives,
successors and assigns.
Whether or not the Public Offering actually occurs depends on a number of
factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Notwithstanding anything herein to the contrary, this agreement shall
automatically terminate if (i) the engagement letter between the Company and the
Representatives dated May 14, 2007 in respect of the Public Offering is
terminated in accordance with the terms thereof prior to the execution of an
Underwriting Agreement, or (ii) the Underwriting Agreement is terminated in
accordance with the terms thereof, if an Underwriting Agreement has been entered
into between the Company and the Underwriters in respect of the Public Offering.
Very truly yours,
________________________________________
(Name)
________________________________________
(Address)
G-3-3
