EXHIBIT 4.15
EXECUTION VERSION
AMENDMENT NO. 1 TO THE
AMENDED AND RESTATED SERIES B PREFERRED
SHARE PURCHASE AGREEMENT
AND
WARRANT SIDE LETTER
Dated as of March 9, 2007
Between
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED,
YINGLI POWER HOLDING COMPANY, LTD.,
XXXXXXXXX XXXX,
and
BAYTREE INVESTMENTS (MAURITIUS) PTE LTD.
This AMENDMENT NO. 1 TO THE AMENDED AND RESTATED SERIES B PREFERRED SHARE
PURCHASE AGREEMENT AND WARRANT SIDE LETTER, dated as of March 9, 2007 (this
"Amendment Agreement"), between Yingli Green Energy Holding Company Limited, an
exempted company with limited liability incorporated and existing under the laws
of the Cayman Islands (the "Company"), Yingli Power Holding Company Ltd., a
company with limited liability incorporated and existing under the laws of the
British Virgin Islands, Xx. Xxxxxxxxx Xxxx and Baytree Investments (Mauritius)
Pte Ltd. (the "Lead Investor"). Unless otherwise specified herein, capitalized
terms used herein but not otherwise defined herein shall have the meanings
ascribed to them in the Share Purchase Agreement (defined below).
WITNESSETH
WHEREAS, the Company, Yingli Power Holding Company Ltd., Xx. Xxxxxxxxx
Xxxx, the Lead Investor and certain other investors (together with the Lead
Investor, the "Investors") entered into the Amended and Restated Series B
Preferred Share Purchase Agreement (the "Share Purchase Agreement"), dated as of
December 15, 2006, under which the Investors purchased an aggregate of
24,405,377 of the Series B Preferred Shares, par value US$0.01 per share, of the
Company;
WHEREAS, the Company and the Lead Investor entered into the Warrant Side
Letter, dated as of December 20, 2006 (the "Warrant Side Letter"), in connection
with the issuance to the Investors (other than the Advance Payment Investors) of
warrants to purchase an aggregate of 2,112,057 Ordinary Shares, par value
US$0.01 per share, of the Company;
WHEREAS, under Section 10.05 of the Share Purchase Agreement, the Share
Purchase Agreement may be amended only with the written consent of the Company
and the Lead Investor, in its capacity as the Lead Series B Shareholder, and any
amendment effected in accordance with such section shall be binding upon each
holder of any securities purchased under the Share Purchase Agreement at the
time outstanding, each future holder of all such securities and the Company; and
WHEREAS, the parties hereto wish to amend and supplement certain provisions
of the Share Purchase Agreement and the Warrant Side Letter;
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants and agreements set forth in this Amendment Agreement, the parties
hereto agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1. Amendment of the Warrant Side Letter. The parties hereto
agree that the Warrant Side Letter shall be amended as follows:
(a) The reference to "at any time after March 31, 2007 or such later
date" in paragraph (c) of the Warrant Side Letter shall be deleted and replaced
in its entirety by the following: "at any time after the later of (x) April 30,
2007 and (y) such later date".
2
SECTION 1.2. Amendment of the Share Purchase Agreement. The parties
hereto agree that the Share Purchase Agreement shall be amended and supplemented
as follows:
(a) The reference to "March 31, 2007" in clause (i) of paragraph (a)
of Section 4.01 of the Share Purchase Agreement shall be deleted and replaced in
its entirety by the following: "April 30, 2007";
(b) The reference to "March 31, 2007" in paragraph (b) of Section 8.01
of the Share Purchase Agreement shall be deleted and replaced in its entirety by
the following: "April 30, 2007";
(c) The Warrant Side Letter, as amended pursuant to Section 1.1
hereof, shall form part of the Share Purchase Agreement, as amended pursuant to
this Section 1.2; and
(d) This Amendment Agreement shall be one of the Transaction Documents
and Exhibit A to the Share Purchase Agreement shall be updated accordingly.
SECTION 1.3. Full Force and Effect. For the avoidance of doubt, all
other provisions of each of the Share Purchase Agreement and the Warrant Side
Letter shall remain in full force and effect.
ARTICLE II
COVENANTS
SECTION 2.1. Further Assurances. Each of the parties hereto agrees to
use its commercially reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Amendment Agreement.
SECTION 2.2. Confidentiality. Each of the parties shall hold, and
shall cause its representatives to hold, in confidence this Amendment Agreement,
all documents and information furnished to it by or on behalf of the other party
in connection with the transactions contemplated hereby and shall continue to be
bound by the terms of the confidentiality agreement between the Company and the
Lead Investor, the terms of which are incorporated herein by reference.
ARTICLE III
MISCELLANEOUS
SECTION 3.1. Entire Agreement. This Amendment Agreement and the Share
Purchase Agreement (including the exhibits and annexes attached thereto,
including the Warrant Side Letter, as amended pursuant to this Amendment
Agreement) constitute the sole entire agreement and supersede all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and thereof.
3
SECTION 3.2. Expenses. Each party shall pay its own costs and expenses
incurred in connection with the negotiation, execution and closing of this
Amendment Agreement and the transactions contemplated hereby and thereby,
whether or not the transactions contemplated hereby are consummated.
SECTION 3.3. Amendment and Waiver. This Amendment Agreement may be
amended and the observance of any term of this Amendment Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only with the prior written consent of the Company and the Lead
Investor. Any amendment or waiver effected in accordance with this section shall
be binding upon each holder of any securities purchased in the Share Purchase
Agreement at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities and other
parties hereto.
SECTION 3.4. Assignment. Neither this Amendment Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any party
hereto without the prior written consent of the other party hereto shall be
void, except that the Lead Investor may assign any or all of its rights,
interests and obligations hereunder to its Affiliates, provided that any such
Affiliate agrees in writing to be bound by all of the terms, conditions and
provisions contained herein, but no such assignment shall relieve such Lead
Investor of its obligations hereunder. Subject to the preceding sentence, this
Amendment Agreement is binding upon, inures to the benefit of and is enforceable
by the parties hereto and their respective successors and permitted assigns.
SECTION 3.5. Headings. The headings used in this Amendment Agreement
have been inserted for convenience of reference only and do not define or limit
the provisions hereof.
SECTION 3.6. Governing Law; Dispute Resolution.
(a) This Amendment Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to a contract
executed and performed in such jurisdiction, without giving effect to the
conflicts of laws principles thereof.
(b) Any controversy or claim arising out of or relating to this
Amendment Agreement, or any breach of this Amendment Agreement, shall be
initiated, maintained and finally determined by binding arbitration under the
rules of conciliation and arbitration of the International Chamber of Commerce
(the "ICC"); and the site of the arbitration, unless the parties agree
otherwise, shall be in Hong Kong. The arbitral tribunal shall be appointed
within thirty (30) days of the notice of dispute, and shall consist of three
arbitrators, one of which shall be appointed by the Investors and one by the
Company and the third by the Investors and the Company jointly; provided,
however, that if the Investors and the Company shall be unable to select the
third arbitrator within such thirty (30)-day period, such third arbitrator shall
be chosen by the International Court of Arbitration of the ICC. Judgment upon
any award rendered may be entered in any court having jurisdiction thereof, or
application may be made to such court for a judicial acceptance of the award and
an order of enforcement, as the case may be. Any award
4
pursuant to such proceeding shall be granted in U.S. Dollars. The fees and costs
of the arbitration shall be shared equally by all disputing parties. The
arbitrators shall award legal fees, disbursements and other expenses to the
prevailing party for such amounts as determined by the arbitrators to be
appropriate.
SECTION 3.7. Invalid Provisions. If any provision of this Amendment
Agreement is held to be illegal, invalid or unenforceable under any present or
future Law, and if the rights or obligations of any party hereto under this
Amendment Agreement shall not be materially and adversely affected thereby, (a)
such provision shall be fully severable, (b) this Amendment Agreement shall be
construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof, and (c) the remaining provisions of this
Amendment Agreement shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom.
SECTION 3.8. Counterparts. This Amendment Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. A facsimile,
telecopy or other reproduction of this Amendment Agreement may be executed by
one or more parties hereto and delivered by such party by facsimile or any
similar electronic transmission device pursuant to which the signature of or on
behalf of such party can be seen. Such execution and delivery shall be
considered valid, binding and effective for all purposes. At the request of any
party hereto, all parties hereto agree to execute and deliver an original of
this Amendment Agreement as well as any facsimile, telecopy or other
reproduction hereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Amendment Agreement has been duly executed and
delivered by or on behalf of each party hereto as of the date first above
written.
YINGLI GREEN ENERGY HOLDING COMPANY
LIMITED
By: /s/ Xxxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Chairman and Chief Executive
Officer
YINGLI POWER HOLDING COMPANY LTD.
By: /s/ Xxxxxxxxx Xxxx
------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Director
Xxxxxxxxx xxxx
/s/ Xxxxxxxxx Xxxx
----------------------------------------
BAYTREE INVESTMENTS (MAURITIUS) PTE LTD.
By: /s/ Xxx Xxx Choo
------------------------------------
Name: Xxx Xxx Choo
Title: Director
