Exhibit 4.9
English Translation
SOLARFUN POWER HOLDINGS CO., LTD.
THE FIRST AMENDMENT TO LOCKUP AGREEMENT
This First Amendment to Lockup Agreement (this "AMENDMENT"), dated as of
2007, is made to the Lockup Agreement dated as of June 20, 2006 by and among
Solarfun Power Holdings Co., Ltd., Xx. Xx Yonghua, Xx. Xxxx Hanfei, Xx. Xxx
Rongqiang, Mr. Gu Yongliang, Xx. Xx Haijuan, Xx. Xxxx Yuting, Xx. Xxx Min and
Xx. Xxxx Xingxue (the "AGREEMENT"). Capitalized terms used and not defined in
this Amendment shall have the same meanings assigned to them in the Agreement.
RECITALS
Whereas, pursuant to Section D.(7) of the Agreement, the parties desire to amend
the Agreement as set forth in this Amendment.
Now, Therefore, in consideration of the rights and obligations of the parties
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
the parties to the Agreement agree as follows:
1. Section B.(1) of the Agreement is hereby amended and restated in its
entirety to read as follows:
"(1) Within one (1) year, in case of Xx. Xx Yonghua, and two (2) years, in
case of Xx. Xxxx Hanfei (in each case, including Lockup Period), as from
the date of the IPO, neither Xx. Xx nor Xx. Xxxx may transfer any of his
shares in the Company by any of the arrangements described in Section A
above, whether through Yonghua Solar Power Investment Holding Ltd. or WHF
Investment Co., Ltd.. After the expiry of such three (3) years, each of Xx.
Xxxx and Xx. Xx may transfer his shares in the Company under the rules and
regulations of the US Securities and Exchange Commission (the "SEC")
subject to his performance of the information disclosure obligations
relating thereto."
2. The first paragraph of Section B.(2) of the Agreement is hereby amended and
restated in its entirety to read as follows:
"(2) After the expiry of the Lockup Period, each of Mr. Gu Yongliang, Xx.
Xxx Rongqiang, Xx. Xxxx Yuting and Xx. Xxxx Xingxue may transfer his shares
in the Company by any of the arrangements described in Section A above,
through Yongliang Solar Power Investment Holding Ltd., Yongqiang Solar
Power Investment Holding Ltd., YongGuan Solar Power Investment Holding Ltd.
and YongXing Solar Power Investment Holding Ltd., respectively; provided,
however, that the aggregate of the shares so transferred during any year
after expiry of the Lockup Period may not exceed 1/3 of his total number of
record shares at the date of the IPO subject to any share split or
combination of the Company ("QUOTA"), or in other words, the total number
of the shares held by any such Shareholder may not be completely
transferred at least after three (3) years after the IPO. Any portion of
any Quota not used in previous years may be added to the Quota for the
current year."
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English Translation
3. The first paragraph of Section B.(3) of the Agreement is hereby amended and
restated in its entirety to read as follows:
"(3) After the expiry of the Lockup Period, Xx. Xxx Min and Xx. Xx Haijuan
may transfer his/her shares in the Company by any of the arrangements
described in Section A above through Forever-brightness Investments Limited
and Yongfa Solar Power Investment Holding Ltd., respectively; provided,
however, that during the first year after the expiry of the Lockup Period
he/she can only transfer 50% of his/her shares in the Company and the
remaining 50% of the shares may not be transferred until after the first
anniversary of the expiry date of the Lockup Period."
4. This Amendment constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements
and undertakings, both written and oral, among the parties with respect to
the subject matter hereof. Except as amended by this Amendment, the
Agreement shall remain in full force and effect.
5. If any term or other provision in this Amendment shall be held invalid,
illegal or unenforceable under any applicable law or public policy, all
other terms and provisions of this Amendment shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transaction contemplated hereby is not affected in any manner materially
adverse to either party hereto. Upon such determination that any term or
other provision in this Amendment is invalid, illegal or unenforceable, the
parties shall negotiate in good faith to amend this Amendment so as to
effect the original intent of the parties as closely as possible in an
acceptable manner in order that the transaction contemplated hereby is
consummated as originally contemplated to the greatest extent possible.
6. This Amendment shall be interpreted in Chinese.
7. This Amendment is made under the laws of the State of New York, the United
States of America. Anything set forth herein shall be governed by and
construed in accordance with the laws of the State of New York, the United
States.
8. This Amendment may be executed in counterparts. Each such counterpart shall
be deemed an original, but all of which taken together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
on the date first above written by their respective authorized representatives.
[Signature Page Follows]
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English Translation
LETTER OF CONSENT
This Letter of Consent is prepared in connection with the Lockup Agreement dated
as of June 20, 2006 by and among Solarfun Power Holdings Co., Ltd., Xx. Xx
Yonghua, Xx. Xxxx Hanfei, Xx. Xxx Rongqiang, Mr. Gu Yongliang, Xx. Xx Haijuan,
Xx. Xxxx Yuting, Xx. Xxx Min and Xx. Xxxx Xingxue (the "AGREEMENT").
Pursuant to Section D.(7) of the Agreement, we hereby give our express consent
to amend the Agreement as follows:
1. The original provision of Section B.(1) "Within three (3) years (including
the Lockup Period) as from the date of the IPO, neither Xx. Xx Yonghua nor
Xx. Xxxx Hanfei may transfer any of his shares in the Company by any of the
arrangements described in Section A above, whether through Yonghua Solar
Power Investment Holding Ltd. or WHF Investment Co., Ltd.. After the expiry
of such three (3) years, each of Xx. Xxxx and Xx. Xx may transfer his
shares in the Company under the rules and regulations of the US Securities
and Exchange Commission (the "SEC") subject to his performance of the
information disclosure obligations relating thereto" shall be amended to
read as follows:
"(1) WITHIN ONE (1) YEAR, IN CASE OF XX. XX YONGHUA, AND TWO (2) YEARS, IN
CASE OF XX. XXXX HANFEI (IN EACH CASE, INCLUDING LOCKUP PERIOD), AS FROM
THE DATE OF THE IPO, NEITHER XX. XX NOR XX. XXXX MAY TRANSFER ANY OF HIS
SHARES IN THE COMPANY BY ANY OF THE ARRANGEMENTS DESCRIBED IN SECTION A
ABOVE, WHETHER THROUGH YONGHUA SOLAR POWER INVESTMENT HOLDING LTD. OR WHF
INVESTMENT CO., LTD.. AFTER THE EXPIRY OF SUCH THREE (3) YEARS, EACH OF XX.
XXXX AND XX. XX MAY TRANSFER HIS SHARES IN THE COMPANY UNDER THE RULES AND
REGULATIONS OF THE US SECURITIES AND EXCHANGE COMMISSION (THE "SEC")
SUBJECT TO HIS PERFORMANCE OF THE INFORMATION DISCLOSURE OBLIGATIONS
RELATING THERETO."
2. The original provision of the first paragraph of Section B. (2) "(2) After
the expiry of the Lockup Period, each of Mr. Gu Yongliang, Xx. Xxx
Rongqiang, Xx. Xx Haijuan, Xx. Xxxx Xxxxxx and Xx. Xxxx Xingxue may
transfer his/her shares in the Company by any of the arrangements described
in Section A above, through Yongliang Solar Power Investment Holding Ltd.,
Yongqiang Solar Power Investment Holding Ltd., Yongfa Solar Power
Investment Holding Ltd., YongGuan Solar Power Investment Holding Ltd.,
YongXing Solar Power Investment Holding Ltd. respectively; provided,
however, that the aggregate of the shares so transferred during any year
after expiry of the Lockup Period may not exceed 1/3 of his/her total
number of record shares at the date of the IPO subject to any share split
or combination of the Company ("QUOTA"), or in other words, the total
number of the shares held by any such Shareholder may not be completely
transferred at least after three (3) years after the IPO. Any portion of
any Quota not used in previous years may be added to the Quota for the
current year." shall be amended to read as follows:
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English Translation
"(2) AFTER THE EXPIRY OF THE LOCKUP PERIOD, EACH OF MR. GU YONGLIANG, XX.
XXX RONGQIANG, XX. XXXX YUTING AND XX. XXXX XINGXUE MAY TRANSFER HIS SHARES
IN THE COMPANY BY ANY OF THE ARRANGEMENTS DESCRIBED IN SECTION A ABOVE,
THROUGH YONGLIANG SOLAR POWER INVESTMENT HOLDING LTD., YONGQIANG SOLAR
POWER INVESTMENT HOLDING LTD., YONGGUAN SOLAR POWER INVESTMENT HOLDING LTD.
AND YONGXING SOLAR POWER INVESTMENT HOLDING LTD., RESPECTIVELY; PROVIDED,
HOWEVER, THAT THE AGGREGATE OF THE SHARES SO TRANSFERRED DURING ANY YEAR
AFTER EXPIRY OF THE LOCKUP PERIOD MAY NOT EXCEED 1/3 OF HIS TOTAL NUMBER OF
RECORD SHARES AT THE DATE OF THE IPO SUBJECT TO ANY SHARE SPLIT OR
COMBINATION OF THE COMPANY ("QUOTA"), OR IN OTHER WORDS, THE TOTAL NUMBER
OF THE SHARES HELD BY ANY SUCH SHAREHOLDER MAY NOT BE COMPLETELY
TRANSFERRED AT LEAST AFTER THREE (3) YEARS AFTER THE IPO. ANY PORTION OF
ANY QUOTA NOT USED IN PREVIOUS YEARS MAY BE ADDED TO THE QUOTA FOR THE
CURRENT YEAR."
3. The original provision of the first paragraph of Section B. (3) "(3) After
the expiry of the Lockup Period, Xx. Xxx Min may transfer his shares in the
Company by any of the arrangements described in Section A above through
Forever-brightness Investments Limited; provided, however, that during the
first year after the expiry of the Lockup Period he can only transfer 50%
of his shares in the Company and the remaining 50% of the shares may not be
transferred until after the first anniversary of the expiry date of the
Lockup Period." shall be amended to read as follows:
"(3) AFTER THE EXPIRY OF THE LOCKUP PERIOD, XX. XXX MIN AND XX. XX HAIJUAN
MAY TRANSFER HIS/HER SHARES IN THE COMPANY BY ANY OF THE ARRANGEMENTS
DESCRIBED IN SECTION A ABOVE THROUGH FOREVER-BRIGHTNESS INVESTMENTS LIMITED
AND YONGFA SOLAR POWER INVESTMENT HOLDING LTD., RESPECTIVELY; PROVIDED,
HOWEVER, THAT DURING THE FIRST YEAR AFTER THE EXPIRY OF THE LOCKUP PERIOD
HE/SHE CAN ONLY TRANSFER 50% OF HIS/HER SHARES IN THE COMPANY AND THE
REMAINING 50% OF THE SHARES MAY NOT BE TRANSFERRED UNTIL AFTER THE FIRST
ANNIVERSARY OF THE EXPIRY DATE OF THE LOCKUP PERIOD."
Capitalized terms used and not defined in this Letter of Consent shall have the
same meanings assigned to them in the Agreement.
This Letter of Consent shall be interpreted in Chinese and be governed by the
laws of the State of New York, the United States of America.
IN WITNESS WHEREOF, the parties hereto have caused this Letter of Consent to be
executed as of 2007.
[Signature Page Follows]
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English Translation
By: Xx Xxxxxxx [signature]
---------------------
Name: Xx Xxxxxxx
By: Wang Hanfei [signature]
--------------------
Name: Wang Hanfei
By: Cui Rongqiang [signature]
-------------------
Name: Cui Rongqiang
By: Gu Yongliang [signature]
--------------------
Name: Gu Yongliang
By: Yu Haijuan [signature]
----------------------
Name: Yu Haijuan
By: Xxxx Xxxxxx [signature]
--------------------
Name: Xxxx Xxxxxx
By: Cao Min [signature]
------------------------
Name: Cao Min
By: Tong Xingxue [signature]
-------------------
Name: Tong Xingxue
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