Exhibit 4.8
Dated December 4, 2007
SOLARFUN POWER HOLDINGS CO., LTD.
and
GOOD ENERGIES INVESTMENTS (JERSEY) LIMITED
and
YONGHUA SOLAR POWER INVESTMENT HOLDING LTD.
and
CITIGROUP VENTURE CAPITAL INTERNATIONAL GROWTH PARTNERSHIP, L.P.
and
CITIGROUP VENTURE CAPITAL INTERNATIONAL CO-INVESTMENT, L.P.
AND
WHF INVESTMENT CO., LTD.
SECOND SHAREHOLDERS AGREEMENT
OF
SOLARFUN POWER HOLDINGS CO., LTD.
(LINKLATERS LOGO)
Linklaters LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone (x0) 000 000 0000
Facsimile (x0) 000 000 0000
Ref L-A08677742
1 DEFINITIONS...............................................................1
1.1 DEFINITIONS..........................................................1
1.2 ADDITIONAL DEFINITIONS...............................................5
1.3 CONSTRUCTION.........................................................5
2 REPRESENTATIONS AND WARRANTIES............................................6
2.1 REPRESENTATIONS AND WARRANTIES OF THE PARTIES........................6
3 CORPORATE GOVERNANCE......................................................7
3.1 GENERAL..............................................................7
3.2 GOOD ENERGIES NOMINEES TO THE BOARD..................................7
3.3 COMMITTEES OF THE BOARD AND SUBSIDIARY DIRECTORS.....................8
3.4 REMOVAL OF GOOD ENERGIES NOMINEES....................................8
3.5 APPOINTMENT OF EXECUTIVE OFFICERS....................................8
3.6 CONSULTATION RIGHT...................................................8
3.7 CONTINUATION OF THE CHAIRMAN.........................................9
4 TRANSFER OF SHARES........................................................9
4.1 GENERAL..............................................................9
4.2 RIGHT OF FIRST REFUSAL..............................................10
4.3 NO CIRCUMVENTION OF SHARE TRANSFER RESTRICTIONS.....................11
5 TERM AND TERMINATION.....................................................11
5.1 TERM AND TERMINATION................................................11
5.2 EFFECT OF TERMINATION...............................................11
5.3 PARTY-SPECIFIC TERMINATION..........................................12
6 GOVERNING LAW AND RESOLUTION OF DISPUTES.................................12
6.1 GOVERNING LAW.......................................................12
6.2 DISPUTE RESOLUTION FORUM............................................12
6.3 SPECIFIC PERFORMANCE................................................13
6.4 WAIVER OF IMMUNITIES................................................13
6.5 PERFORMANCE PENDING DISPUTE RESOLUTION..............................14
6.6 SURVIVAL............................................................14
7 MISCELLANEOUS............................................................14
7.1 NO PARTNERSHIP; AGENCY..............................................14
7.2 ENTIRE AGREEMENT; FIRST SHAREHOLDERS AGREEMENT......................14
7.3 BINDING EFFECT; BENEFIT.............................................14
7.4 ASSIGNMENT..........................................................15
7.5 AMENDMENT; WAIVER...................................................15
7.6 NOTICES.............................................................15
7.7 COUNTERPARTS........................................................16
7.8 SEVERABILITY........................................................16
7.9 FURTHER ACTS AND ASSURANCES.........................................16
7.10 CONFLICT............................................................17
1
This SECOND SHAREHOLDERS AGREEMENT (this "AGREEMENT") dated as of December 4,
2007, is made by and among the shareholders listed on Schedule A hereto (each, a
"SHAREHOLDER" and collectively, the "SHAREHOLDERS"), GOOD ENERGIES INVESTMENTS
(JERSEY) LIMITED, a company organized under the laws of Jersey ("GOOD ENERGIES")
and SOLARFUN POWER HOLDINGS CO. LTD., a company incorporated in the Cayman
Islands (the "COMPANY").
WHEREAS:
(A) Good Energies has previously entered into a Stock Purchase Agreement, dated
December 4, 2007 (the "STOCK PURCHASE AGREEMENT"), by and among the
Shareholders and Good Energies, pursuant to which Good Energies has agreed
to purchase an aggregate total of 66,745,638 of the Company's ordinary
shares of the Company, par value US$0.0001 per share ("ORDINARY SHARES")
and 281,011 American Depositary Shares, each representing five (5) Ordinary
Shares (the "AMERICAN DEPOSITARY SHARES");
(B) In connection with the Stock Purchase Agreement, the Shareholders have
agreed to enter into this Agreement;
(C) Following the completion of the transactions set forth in the Stock
Purchase Agreement (the "CLOSING"), the Shareholders will continue to own
that number of Ordinary Shares and/or American Depositary Shares as set
forth on SCHEDULE A (together with any other Ordinary Shares, American
Depositary Shares or other Equity Securities of the Company that are
Beneficially Owned by any Shareholder or Permitted Transferee during the
term of this Agreement, the "SHARES"), and the Shareholders and Good
Energies wish to provide for certain rights and obligations regarding the
Company as set forth herein;
(D) Certain of the Shareholders and other Persons have previously entered into
a Shareholders Agreement, dated June 27, 2006 (the "FIRST SHAREHOLDERS
AGREEMENT"); and
(E) The Board of Directors of the Company, recognizing the benefit of having
Good Energies as a strategic Shareholder in the Company to assist the
Company in the development of its business and achieve the maximization of
the value of the Company to all of its Shareholders and other
constituencies, has determined that it is advisable and in the best
interests of the Company for the Company to enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants set forth
below and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and intending to be legally bound, the parties
hereto agree as follows:
1 DEFINITIONS
1.1 DEFINITIONS
The following terms shall have the following meanings for purposes of this
Agreement:
1.1.1 "AFFILIATE" means, with respect to any Person, any
other Person directly or indirectly controlling, controlled
by, or under common control with such Person (including any
Subsidiary) and "AFFILIATES" and "AFFILIATED" shall have
1
correlative meanings. For the purpose of this definition,
the term "CONTROL" (including with correlative meanings, the
terms "CONTROLLING", "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting
securities or by contract or otherwise. Without prejudice to
the foregoing, any fund, collective investment scheme,
trust, partnership, including without limitation, any
co-investment partnership, special purpose or other vehicle
or any subsidiary or affiliate of any of the foregoing,
which is controlled by Citigroup Inc. or any of its direct
or indirect subsidiaries as well as any or all of Citigroup
Venture Capital International Growth Partnership, L.P. and
Citigroup Venture Capital International Partnership G.P.,
shall be deemed to be an "Affiliate" of CVCI.
1.1.2 "ARTICLES OF ASSOCIATION" means the memorandum and
articles of association of the Company, including the
memorandum and articles of association amended and restated
in accordance with the Purchase Agreement and as amended
from time to time.
1.1.3 "BANKRUPTCY EVENT" means with respect to any Person
(the "BANKRUPTCY PARTY"), (a) the commencement by it of a
Bankruptcy Proceeding with respect to itself or the consent
by it to be subject to a Bankruptcy Proceeding commenced by
another Person, (b) the commencement by another Person of a
Bankruptcy Proceeding with respect to the Bankruptcy Party
that remains unstayed or undismissed for a period of thirty
(30) consecutive days, (c) the appointment of or taking
possession by a Receiver over the Bankruptcy Party or any
substantial part of its property, (d) the making by the
Bankruptcy Party of a general assignment for the benefit of
its creditors or the admission by the Bankruptcy Party in
writing of its inability to generally pay its debts as they
become due, (e) the entry by a court having jurisdiction
over the Bankruptcy Party or a substantial part of its
property of an Order for relief under any Bankruptcy Law
which remains unstayed or undismissed for a period of thirty
(30) consecutive days, (i) adjudging the Bankruptcy Party
bankrupt or insolvent, (ii) approving as properly filed a
petition seeking the reorganization or other similar relief
with respect to the Bankruptcy Party, (iii) appointing a
Receiver over the Bankruptcy Party or any substantial part
of its property or (iv) otherwise ordering the winding up
and liquidation of the Bankruptcy Party or (f) the
occurrence of any event similar to (a), (b), (c), (d) or (e)
under any applicable Law with respect to the Bankruptcy
Party.
1.1.4 "BANKRUPTCY LAW" means any bankruptcy, insolvency,
reorganization, composition, moratorium or other similar
Law.
1.1.5 "BANKRUPTCY PROCEEDING" means a case or proceeding under any
Bankruptcy Law wherein a Person may be adjudicated bankrupt,
insolvent or become subject to an Order of reorganization,
arrangement, adjustment, winding up, dissolution,
composition or other similar Order.
2
1.1.6 "BENEFICIAL OWNERSHIP" by a Person of any securities
includes ownership by any Person who, directly or
indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares (a)
voting power which includes the power to vote, or to direct
the voting of, such security, and/or (b) investment power
which includes the power to dispose, or to direct the
disposition, of such security, and shall otherwise be
interpreted in accordance with the term "beneficial
ownership" as determined under Rule 13d-3 under the
Securities Exchange Act of 1934, as amended. The terms
"BENEFICIALLY OWN" and "BENEFICIAL OWNER" have
correlative meanings
1.1.7 "BOARD" means the board of directors of the Company.
1.1.8 "BUSINESS DAY" means a day other than Saturday, Sunday or
any day on which banks located in New York, Hong Kong or PRC
are authorized or obligated to close.
1.1.9 "CAUSE" means, with respect to a Director, (a) such
Director's or officer's willful or continued failure to
substantially perform his or her duties, (b) such Director's
or officer's conviction or under formal investigation in a
criminal proceeding (other than traffic violations or other
minor infractions), (c) such Director's or other officer's
being censured or subject to equivalent action by any
internationally recognized securities exchange, or (d) such
Director or officer being subject to a Bankruptcy Event.
1.1.10 "CVCI" means Citigroup Venture Capital International Growth
Partnership, L.P., and Citigroup Venture Capital
International Co-Investment, L.P., each a limited
partnership organized under the laws of the Cayman Islands.
1.1.11 "DIRECTOR" means a director of the Company (including any
duly appointed alternate director).
1.1.12 "ENCUMBRANCE" means (a) any mortgage, charge (whether fixed
or floating), pledge, lien, hypothecation, assignment, deed
of trust, title retention, security interest or other
encumbrance of any kind securing, or conferring any priority
of payment in respect of, any obligation of any Person,
including any right granted by a transaction which, in legal
terms, is not the granting of security but which has an
economic or financial effect similar to the granting of
security under applicable Law, (b) any lease, sub-lease,
occupancy agreement, easement or covenant granting a right
of use or occupancy to any Person, (c) any proxy, power of
attorney, voting trust agreement, interest, option, right of
first offer, negotiation or refusal or Transfer restriction
in favor of any Person and (d) any adverse claim as to
title, possession or use.
1.1.13 "EQUITY SECURITIES" means the capital stock, membership
interests, partnership interests, registered capital or
other ownership interest in any Person or any options,
warrants or other securities that are directly or indirectly
convertible into, or exercisable or exchangeable for, such
capital stock, membership interests, partnership interests,
registered capital or other
3
ownership interests (whether or not such derivative
securities are issued by such Person) and includes the
Shares.
1.1.14 "GOVERNMENT AUTHORITY" means any court, tribunal,
arbitrator, authority, agency, commission, official or other
instrumentality of the United States, the PRC and the Cayman
Island, any other country or territory or any province,
state, country, city or other political subdivision of the
United States, the PRC and the Cayman Islands or any other
country or territory.
1.1.15 "LAW" means any law, treaty, statute, ordinance, code, rule
or regulation of any Government Authority or any Order.
"Law" also includes the rules of any stock exchange or
self-regulatory organization upon which the Company's Equity
Securities are listed or included for quotation.
1.1.16 "ORDER" means any writ, judgment, decree, injunction, award
or similar order of any Government Authority (in each case
whether preliminary or final).
1.1.17 "ORDINARY SHARES" has the meaning given in the recitals and
includes any subdivisions, combinations, splits or
reclassifications of such "Ordinary Shares".
1.1.18 "PARTIES" means collectively the Shareholders, the Company,
Good Energies and any Person who becomes a party to this
Agreement under Clause 4.1(a). Each of the Parties shall be
referred to as a "PARTY."
1.1.19 "PERMITTED TRANSFEREE" means with respect to any Person, (i)
such Person's Affiliates, (ii) any investment funds managed
by such Person's Affiliates or any Subsidiary of such Person
or, (iii) any Affiliate or Subsidiary of such Person's
parent entity.
1.1.20 "PERSON" means an individual, firm, corporation,
partnership, association, limited liability company, trust
or estate or any other entity or organization whether or not
having separate legal existence, including any Government
Authority.
1.1.21 "PRC" or "CHINA" each means the People's Republic of China.
1.1.22 "PUBLIC TRANSFEREE" means any Person to whom Shares are
Transferred on a public market; provided, that such Transfer
has not been directed to a particular Person with whom a
Shareholder has an understanding, agreement or arrangement
(written or otherwise) regarding such Transfer.
1.1.23 "RECEIVER" means any receiver, liquidator, trustee,
administrator, sequestrator or other similar official.
1.1.24 "SHAREHOLDERS" has the meaning stated in the preamble and
shall include any Permitted Transferee.
1.1.25 "SUBSIDIARY" means, with respect to any Person, any entity
which such Person controls, directly or indirectly. For
purposes of this definition, "control" has the meaning set
forth above under the definition of "Affiliate."
4
1.1.26 "TRANSFER" means to sell, exchange, assign, pledge, charge,
grant a security interest, make a hypothecation, gift or
other encumbrance, or enter into any contract therefor, or
into any voting trust or other agreement or arrangement with
respect to the transfer of voting rights or any other legal
or beneficial interest in any of the Shares, create any
other claim thereto or make any other transfer or
disposition whatsoever, whether voluntary or involuntary,
affecting the right, title, interest or possession in, to or
of such Shares, and "TRANSFER", "TRANSFERS" and
"TRANSFERRED" shall have correlative meanings.
1.2 ADDITIONAL DEFINITIONS
The following terms shall have the meanings defined in the indicated
Clause for purposes of this Agreement:
AGREEMENT...........................1 ICC...............................12
AMERICAN DEPOSITARY SHARES..........1 ORDINARY SHARES....................1
BANKRUPTCY PARTY....................2 RULES.............................12
BENEFICIAL OWNER....................3 SHAREHOLDER........................1
BENEFICIALLY OWN....................3 SHAREHOLDERS.......................1
CLOSING.............................1 SHAREHOLDERS MEETING...............7
CONTRACT............................9 SHARES.............................1
GOOD ENERGIES.......................1 STOCK PURCHASE AGREEMENT...........1
GOOD ENERGY NOMINEES................7
1.3 CONSTRUCTION
1.3.1 Whenever used in this Agreement, except as otherwise
expressly provided or unless the context otherwise requires,
any noun or pronoun shall be deemed to include the plural as
well as the singular and to cover all genders.
1.3.2 Unless otherwise specified, words such as "herein,"
"hereof," "hereby," "hereunder" and words of similar import
refer to this Agreement as a whole and not to any particular
clause or sub-clause of this Agreement, and references
herein to "articles" or "clauses" refer to articles or
clauses of this Agreement.
1.3.3 Unless otherwise specified, references herein to the word
"including" shall be deemed to be followed by words "without
limitation" or "but not limited to," as applicable, or words
of similar import.
1.3.4 The word "or" shall not be interpreted to be exclusive. If
any translated version of this Agreement differs from the
English version, the English version shall control.
1.3.5 The table of contents and headings in this Agreement are
intended solely for convenience of reference and shall be
given no effect in the construction or interpretation of
this Agreement.
1.3.6 Whenever this Agreement refers to a number of days, such
number shall refer to calendar days unless Business Days are
specified.
5
2 REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE PARTIES
Each Party represents and warrants, severally and not jointly, to each
other Party that as of the date of this Agreement:
2.1.1 such Party has the full power and authority to enter into,
execute and deliver this Agreement and to perform the
transactions contemplated hereby and, if such Party is not a
natural Person, such Party is duly incorporated or organized
and existing and in good standing under the laws of the
jurisdiction of its incorporation or organization;
2.1.2 the execution and delivery by such Party of this Agreement
and the performance by such Party of the transactions
contemplated hereby have been duly authorized by all
necessary corporate or other action of such Party;
2.1.3 assuming the due authorization, execution and delivery
hereof by each of the other Parties, this Agreement
constitutes the legal, valid and binding obligation of such
Party, enforceable against such Party in accordance with its
terms, except as such enforceability may be limited by
applicable Bankruptcy Laws affecting creditors' rights
generally;
2.1.4 the execution, delivery and performance of this Agreement by
such Party and the consummation of the transactions
contemplated hereby will not (i) violate any provision of
the organizational or governance documents of such Party;
(ii) require such Party to obtain any consent, approval or
action of, or make any filing with or give any notice to,
any Government Authority in such Party's country of
organization or any other Person pursuant to any instrument,
contract or other agreement to which such Party is a party
or by which such Party is bound, other than any such
consent, approval, action or filing that has already been
duly obtained or made; (iii) conflict with or result in any
material breach or violation of any of the terms and
conditions of, or constitute (or with notice or lapse of
time or both would constitute) a default under any
instrument, contract or other agreement to which such Party
is a party or by which such Party is bound; (iv) violate any
Order against, or binding upon, such Party or upon its
respective securities, properties or businesses; or (v)
violate any Law of such Party's country of organization or
any other country in which it maintains its principal
office; and
2.1.5 such Party, such Party's assets and such Party's business
and record keeping practices are not in violation of any
Law, the violation of which would, at any time (including
after the Closing) have a material adverse effect upon (i)
such Party, (ii) such Party's ability to perform its
obligations hereunder or (iii) any of the other Party's
hereto.
6
3 Corporate Governance
3.1 General
From and after the date hereof, each Shareholder shall vote its Shares
at any regular or special meeting of shareholders of the Company or in
connection with any written consent of the shareholders of the Company
(a "SHAREHOLDERS MEETING"), and shall take, subject to applicable Law,
all other actions necessary or required to give effect to the
provisions of this Agreement and to procure that the Articles of
Association (and any such organizational documents of any Subsidiary
of the Company) do not at any time conflict with any provision of this
Agreement. In all other respects, each Shareholder shall be entitled
to vote in such Shareholder's own best interests.
3.2 GOOD ENERGIES NOMINEES TO THE BOARD
3.2.1 Subject to applicable Law:
(i) in connection with any election for members of the
Board at any Shareholders Meeting, the Company shall,
at the request of Good Energies, include person(s)
designated by Good Energies in the slate of directors
to be considered by the Shareholders for election as
directors (the "GOOD ENERGIES NOMINEE(S)") in
accordance with Clause 3.2.2; and
(ii) the Company shall take no action intended to diminish
the prospects of such Good Energies Nominees being
elected to the Board or increase the prospects of such
Good Energies Nominees being removed from the Board.
3.2.2
(i) If Good Energies and its Affiliates Beneficially Own
less than 5% of the Equity Securities of the Company at
the time of any Shareholders Meeting, Good Energies
shall not designate any Good Energies Nominees at such
Shareholders Meeting;
(ii) if Good Energies and its Affiliates Beneficially Own at
least 5% but less than 16% of the Equity Securities of
the Company at the time of any Shareholders Meeting,
Good Energies shall designate one Good Energies Nominee
at such Shareholders Meeting; and
(iii)if Good Energies and its Affiliates Beneficially Own at
least 16% of the Equity Securities of the Company at
the time of any Shareholders Meeting, Good Energies
shall designate two Good Energies Nominees at such
Shareholders Meeting.
3.2.3 Each Shareholder shall vote its Shares at any Shareholders
Meeting called for the purpose of electing the Good Energies
Nominees to elect such Good Energies Nominees, and shall
take all other actions necessary or required to
7
ensure the election to the Board of the persons nominated to
the Board by Good Energies.
3.3 COMMITTEES OF THE BOARD AND SUBSIDIARY DIRECTORS
3.3.1 Subject to applicable Law:
(i) the Company shall consider at least one (1) Good
Energies Nominee to be appointed to each committee or
sub-committee of the Board; and
(ii) the Company shall consider at least one (1) person
nominated by Good Energies, which may be a Good
Energies Nominee, to be appointed to serve as a
director on the board of directors of any Subsidiary of
the Company and, to the extent practicable, on the
board of directors of each joint venture to which the
Company is a party.
Appointment or replacement of any such Nominee shall be at the
discretion of the Board as may be in the best interests of the Company
and its shareholders, provided that the Board shall consider in good
faith whether the appointment of any person so proposed by Good
Energies would be in the best interests of the Company.
3.3.2 The Company, if requested by Good Energies, shall appoint an
observer to any committee or sub-committee of the Board or
the Board of Directors of any Subsidiary or joint venture to
which the Company is a party.
3.4 REMOVAL OF GOOD ENERGIES NOMINEES
Where Good Energies wishes to remove any Good Energies Nominee, each
of the Shareholders shall vote its Shares at any Shareholders Meeting
or in any written consent of Shareholders so as to effect such
preference. Except as provided in the previous sentence, no
Shareholder shall vote its Shares for the removal of a Good Energies
Nominee.
3.5 APPOINTMENT OF EXECUTIVE OFFICERS
Owing to Good Energies' familiarity with the industry in which the
Company operates, and to ensure the Company secures the best
management team possible, Good Energies shall have the right from
time-to-time to propose to the Board, for the Board's consideration,
nominees for the executive officer positions of the Company, including
the Chief Executive Officer, Chief Technology Officer and Chief
Business Development Officer. Appointment or replacement of any such
officer shall be at the discretion of the Board as may be in the best
interests of the Company and its shareholders, provided that the Board
shall consider in good faith whether the appointment of any person so
proposed by Good Energies would be in the best interests of the
Company.
3.6 CONSULTATION RIGHT
From and after the date hereof, (x) subject to applicable Law and to
the extent practicable, the Company will consult with Good Energies
prior to taking each of the following actions, and (y) each
Shareholder shall vote its Shares at any Shareholders Meeting, and
shall use its best efforts to take or refrain from taking, subject to
applicable
8
Law, all other actions necessary or required such that each of the
following actions on the part of the Company or any Subsidiary shall
not be taken unless Good Energies has consented in advance:
3.6.1 the entry into any contract, agreement, understanding,
whether oral or written (a "CONTRACT") that would have a
value or potential liability to the Company in excess of 5%
of the Company's net assets as of the time such contract is
entered into or is otherwise likely to be material to the
Company;
3.6.2 the engagement of any business other than photovoltaic
business or a change in the nature or scope of the business
of the Company or any Subsidiary;
3.6.3 any joint ventures, strategic alliances, partnerships or
similar arrangement with any third party;
3.6.4 any recapitalization, merger, asset swap, share sale or
transfer of substantially all of the rights to intellectual
properties or other assets, or any other extraordinary
transaction;
3.6.5 any amendment to the Articles of Association or any other
constitutional documents, including without limitation
increase and decrease in the capitalization of the Company
or any Subsidiary; and
3.6.6 entry into any agreement or understanding to do any of the
foregoing.
3.7 CONTINUATION OF THE CHAIRMAN
The other Parties, in recognition of the contributions of Xx. Xxxxxxx
Xx, Chairman of the Company, hereby confirm that Xx. Xx will continue
to serve as the Chairman of the Company until at least the second
(2nd) anniversary of the date hereof. Xx. Xxxxxxx Xx acknowledges such
term.
4 TRANSFER OF SHARES
4.1 GENERAL
4.1.1 Without Good Energies' prior written consent, for a period
of one (1) year from the date hereof (the "LOCKUP PERIOD"),
Yonghua Solar Power Investment Holding Ltd. agrees that
neither it nor any Permitted Transferee of Yonghua Solar
Power Investment Holding Ltd. shall, directly or indirectly,
make or permit any Transfer of Shares Beneficially Owned by
Yonghua Solar Power Investment Holding Ltd.or such
Permitted Transferee to any Person other than a Permitted
Transferee of Yonghua Solar Power Investment Holding Ltd..
4.1.2 During the one year period immediately following the Lockup
Period, neither Yonghua Solar Power Investment Holding Ltd.
nor any of its Permitted Transferees shall, directly or
indirectly, make or permit any Transfer of Shares
Beneficially Owned by Yonghua Solar Power Investment Holding
Ltd.or such Permitted Transferee to any Person (each such
transfer, an "UNRESTRICTED
9
TRANSFER"), except to the extent that the aggregate of all
Unrestricted Transfers does not exceed 50% of the total
Shares Benefically Owned by Yonghua Solar Power Investment
Holding Ltd. and its Permitted Transferees immediately
following Closing.
4.1.3 Even to the extent otherwise restricted from making a
Transfer of Shares pursuant to Sections 4.1.1and 4.1.2,
Yonghua Solar Power Investment Holding Ltd. and any of its
Permitted Transferees shall be permitted to Transfer Shares
to a Permitted Transferee if all the following conditions
are met: (a) prior to such Transfer, the Permitted
Transferee has agreed in writing to be bound by the terms
and conditions of this Agreement by signing a copy of this
Agreement in which case such transferee shall be considered
a Shareholder and a Party to this Agreement except when such
transferee is already a Party to this Agreement, (b) the
Transfer complies in all respects with the terms of this
Agreement and (c) the Transfer complies in all respects with
applicable securities and other Laws. Any Transfer of Shares
by any Shareholder in violation of the preceding sentence
shall be null and void, and the Company shall not register
and the Shareholders shall procure that no transfer agent
registers such Transfer.
4.2 RIGHT OF FIRST REFUSAL
Good Energies shall have a right of first refusal (the "RIGHT OF FIRST
REFUSAL") with respect to any proposed Transfer of Shares (other than
a Transfer to a Permitted Transferee or a Public Transferee) by
Yonghua Solar Power Investment Holding Ltd. or any of its Permitted
Transferees. In the event that Yonghua Solar Power Investment Holding
Ltd. or any of its Permitted Transferees (for the purpose of this
Clause, the "COVERED TRANSFEROR") receives an offer from a bona fide
Third Party (the "THIRD PARTY PURCHASER") to purchase any Shares, the
Covered Transferor shall be required to send Good Energies a written
notice (the "RIGHT OF FIRST REFUSAL NOTICE") prior to the consummation
of such Transfer of Shares to the Third Party Purchaser. The Right of
First Refusal Notice shall set forth the number of Shares that the
Covered Transferor proposes to Transfer, the price per share to be
received for the Shares and any other proposed terms and conditions
relating to such Transfer and the identity (including name and
address) of the Third Party Purchaser. The Right of First Refusal
Notice shall certify that the Covered Transferor has received a firm
offer from the Third Party Purchaser and in good faith believes a
binding agreement for the Transfer is obtainable on the terms set
forth in the Right of First Refusal Notice. The Right of First Refusal
Notice shall also include a copy of any written proposal, term sheet
or letter of intent or other agreement relating to the proposed
Transfer.
The delivery of a Right of First Refusal Notice shall constitute an
offer, which shall be irrevocable for ten (10) days from the date of
the Right of First Refusal Notice (the "RIGHT OF FIRST REFUSAL NOTICE
PERIOD") by the Covered Transferor to Transfer to Good Energies the
Shares subject to the Right of First Refusal Notice (the "OFFERED
SHARES")
10
on the terms and conditions set forth therein. Good Energies shall
have the right, but not the obligation, to accept such offer to
purchase all or part of the Offered Shares free of Encumbrances by
giving a written notice of its acceptance of such offer (an
"ACCEPTANCE NOTICE") to the Covered Transferor prior to the expiration
of the Right of First Refusal Notice Period. Delivery of an Acceptance
Notice by Good Energies to the Covered Transferor shall constitute a
contract between Good Energies and the Covered Transferor for the
Transfer of the Offered Shares on the terms and conditions set forth
therein. The failure of Good Energies to give an Acceptance Notice
within the Right of First Refusal Notice Period shall be deemed a
rejection of its Right of First Refusal with respect to the subject
Transfer.
The closing of any Transfer of Shares between a Covered Transferor and
Good Energies pursuant to this Clause 4.2 shall take place within ten
(10) days from the last day of the Right of First Refusal Notice
Period; provided, that if such Transfer is subject to any prior
approval or other consent required by applicable Law or stock exchange
rule, the time period during which the closing of such Transfer may
occur shall be extended until the expiration of ten (10) days after
all such approvals and consents shall have been granted but in no case
later than ninety (90) days from the last day of the Right of First
Refusal Notice Period. Each Party to such Transfer shall use
commercially reasonable efforts to obtain all such approvals and
consents.
4.3 NO CIRCUMVENTION OF SHARE TRANSFER RESTRICTIONS
Each Party agrees that the Transfer restrictions in this Agreement may
not be avoided by the holding of Shares directly or indirectly through
a Person that can itself be sold in order to dispose of an interest in
Shares free of such restrictions. Any Transfer of any shares (or other
interest) held by any Person Controlling a Shareholder shall be
treated as being a Transfer of the Shares held by that Shareholder,
and the provisions of this Agreement that apply in respect of the
Transfer of Shares shall thereupon apply in respect of the Shares so
held by that the Shareholder.
5 TERM AND TERMINATION
5.1 TERM AND TERMINATION
This Agreement shall remain in effect until:
5.1.1 the Company has been dissolved, liquidated and wound up;
5.1.2 such time as Good Energies and its Affiliates Beneficially
Own less than 5% of the Equity Securities of the Company; or
5.1.3 the Parties have agreed in writing to terminate this
Agreement.
5.2 EFFECT OF TERMINATION
Following any termination of this Agreement, this Agreement shall have
no further force or effect, provided that no such termination shall
relieve any Party of any liability for a willful breach of this
Agreement prior to such termination.
11
5.3 PARTY-SPECIFIC TERMINATION
The rights and obligations of individual Shareholders under this
Agreement shall terminate if such Shareholder and its Affiliates holds
less than the lesser of (a) 5% of the Equity Securities of the Company
and (b) less than half the percentage of Equity Securities of the
Company such Shareholder shall hold upon Closing. No such termination
shall relieve any Shareholder of any liability for a willful breach of
this Agreement prior to such termination.
6 GOVERNING LAW AND RESOLUTION OF DISPUTES
6.1 GOVERNING LAW
This Agreement and any disputes, claims or controversies arising from,
related to or in connection with this Agreement shall be construed in
accordance with the Laws of the State of New York.
6.2 DISPUTE RESOLUTION FORUM
6.2.1 If there is any dispute, claim or controversy arising from,
related to or in connection with this Agreement, or the
breach, termination or invalidity hereof, the Parties shall
first attempt to resolve such dispute, controversy or claim
through friendly consultations. If the dispute, claim or
controversy is not resolved through friendly consultations
within thirty (30) days after a Party has delivered a
written notice to another Party requesting the commencement
of consultation, then the dispute, claim or controversy
shall be finally settled by arbitration conducted by the
International Chamber of Commerce (the "ICC") in accordance
with the Arbitration Rules of the ICC then in effect and as
may be amended by the rest of this Clause 6.2 (the "RULES").
There shall be three (3) arbitrators of whom the plaintiff
and the defendant shall each nominate one (1) in accordance
with the Rules. The two (2) named arbitrators shall nominate
the third arbitrator within thirty (30) days of the
nomination of the second arbitrator. If any arbitrator has
not been named within the time limits specified in the
Rules, such appointment shall be made by the International
Court of Arbitration of the ICC upon the written request of
either Party within thirty (30) days of such request. The
arbitration shall be held and the award shall be rendered in
Hong Kong. Each Party shall cooperate in good faith to
expedite (to the maximum extent practicable) the conduct of
any arbitral proceedings commenced under this Agreement.
6.2.2 Prompt resolution of any dispute is important to both
parties, and the parties agree that the arbitration of any
dispute shall be conducted expeditiously. The arbitrator(s)
are instructed and directed to assume case management
initiative and control over the arbitration process
(including scheduling of events, pre-hearing discovery and
activities, and the conduct of the hearing), in order to
12
complete the arbitration as expeditiously as is reasonably
practical for obtaining a just resolution of the dispute.
6.2.3 The arbitrator(s) shall follow and apply the applicable law.
The arbitrator(s) shall grant such legal or equitable
remedies and relief in compliance with applicable law that
the arbitrator(s) deem just and equitable, but only to the
extent that such remedies or relief could be granted by a
state or federal court and as otherwise limited by the terms
in this Agreement. No punitive damages may be awarded by the
arbitrator(s). No court action may be maintained seeking
punitive damages.
6.2.4 The award shall be final and binding upon the Parties, and
shall be the exclusive remedy between the Parties regarding
any claims, counterclaims, issues, or accountings presented
to the arbitral tribunal. To the fullest extent allowed by
applicable Law, each Party hereby waives any right to appeal
such award. Judgment upon the award may be entered in any
court having jurisdiction thereof, and for purposes of
enforcing any arbitral award made hereunder, each Party
irrevocably submits to the jurisdiction of any court sitting
where any of such Party's material assets may be found. Any
arbitration proceedings, decisions or awards rendered
hereunder shall be governed by the United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral
Awards of June 10, 1958, as amended, and the Parties agree
that any award rendered hereunder shall not be deemed a
domestic arbitration under the laws of any jurisdiction.
6.2.5 By agreeing to arbitration, the Parties do not intend to
deprive any court of its jurisdiction to issue a
pre-arbitral injunction, pre-arbitral attachment or other
order in aid of arbitration proceedings and the enforcement
of any award.
6.2.6 The costs of the arbitration, as defined in the Rules, shall
be allocated between the Parties by the arbitrators and
shall be set forth in the arbitral award. Any amounts
subject to the dispute, controversy or claim that are
ultimately awarded to a Party under this Clause 6.2 shall
bear interest at the rate of six percent per annum from the
earlier of (i) the date of the request for arbitration and
(ii) the date such amount would have become due and owing
but for the dispute, controversy or claim until the date the
arbitral award is paid in full.
6.3 SPECIFIC PERFORMANCE
Each Party hereby acknowledges that the remedies at law of the other
Parties for a breach or threatened breach of this Agreement would be
inadequate and, in recognition of this fact, any Party, without
posting any bond, and in addition to all other remedies that may be
available, shall be entitled in accordance with Clause 6.2.3 to seek
equitable relief in the form of specific performance, injunctions or
any other equitable remedy.
6.4 WAIVER OF IMMUNITIES
13
Each Party irrevocably waives any right that it has or may hereafter
acquire, in any jurisdiction, to claim for itself or its revenues,
assets or properties, immunity from service of process, suit, the
jurisdiction of any court, an interlocutory order or injunction or the
enforcement of the same against its property in such court, attachment
prior to judgment, attachment in aid of execution of an arbitral award
or judgment (interlocutory or final) or any other legal process.
6.5 PERFORMANCE PENDING DISPUTE RESOLUTION
Unless otherwise terminated in accordance with the terms hereof, this
Agreement and the rights and obligations of the Parties hereunder
shall remain in full force and effect during the pendency of any
proceeding under Clause 6.2.
6.6 SURVIVAL
Unless otherwise terminated in accordance with the terms hereof, this
Article 6 shall survive the termination or expiration of this
Agreement.
7 MISCELLANEOUS
7.1 NO PARTNERSHIP; AGENCY
The Shareholders expressly do not intend hereby to form an agency
relationship or partnership either general or limited, under any
jurisdiction's agency, partnership or other similar law. The
Shareholders do not intend to be agents or partners of each other, or
agents of or partners to any third party, or to create any other
fiduciary relationship among themselves, solely by virtue of their
status as Shareholders. To the extent that any Shareholder, by word or
action, improperly represents to another Person that any Shareholder
is an agent or partner of another Shareholder or that the Company is a
partnership, the Shareholder making such representation shall be
liable to any other Shareholder that incurs any Losses arising out of
or relating to such representation.
7.2 ENTIRE AGREEMENT; FIRST SHAREHOLDERS AGREEMENT
7.2.1 This Agreement constitutes the whole agreement among the
parties hereto and thereto relating to the subject matter
hereof and thereof and supersedes all prior agreements or
understandings both oral and written among all of the
parties hereto and thereto relating to the subject matter
hereof and thereof.
7.2.2 The First Shareholders Agreement shall remain unamended and
in full force.
7.3 BINDING EFFECT; BENEFIT
This Agreement shall inure to the benefit of and be binding upon the
Parties and their respective heirs, successors, legal representatives
and permitted assigns. Nothing in this Agreement, expressed or
implied, is intended to confer on any Person other than the Parties,
and their respective heirs, successors, legal representatives and
permitted assigns, any rights, remedies, obligations or liabilities
under or by reason of this Agreement.
14
7.4 ASSIGNMENT
7.4.1 Except as set out in Section 7.4.1, no Party may assign,
delegate or otherwise transfer any of its rights or
obligations under this Agreement without the written consent
of the other Parties.
7.4.2 Notwithstanding Section 7.4.1, any Party may, without the
written consent of the other Parties, assign, delegate or
otherwise transfer any of its rights or obligations under
this Agreement to a Permitted Transferee, in connection with
a Transfer to such Transferee, provided (a) prior to such
Transfer, the Permitted Transferee has agreed in writing to
be bound by the terms and conditions of this Agreement by
signing a copy of this Agreement in which case such
transferee shall be considered a Shareholder and a Party to
this Agreement, and (b) timely notice is provided to the
other Parties.
7.5 AMENDMENT; WAIVER
7.5.1 This Agreement may not be amended, modified or supplemented
except by a written instrument executed by each of the
Parties.
7.5.2 No waiver of any provision of this Agreement shall be
effective unless set forth in a written instrument signed by
the Party waiving such provision. No failure or delay by a
Party in exercising any right, power or remedy hereunder
shall operate as a waiver thereof, nor shall any single or
partial exercise of the same preclude any other or further
exercise thereof or the exercise of any other right, power
or remedy. Without limiting the foregoing, no waiver by a
Party of any breach by any other Party of any provision
hereof shall be deemed to be a waiver of any subsequent
breach of that or any other provision hereof. The rights and
remedies herein provided shall be cumulative and not
exclusive of any rights, powers or remedies provided at law
or in equity.
7.6 NOTICES
Each notice, demand or other communication given or made under this
Agreement shall be in writing and delivered or sent to the relevant
Party at its address or fax number set out below (or such other
address or fax number as the addressee has by five days prior written
notice specified to the other Parties). Any notice, demand or other
communication so addressed to the relevant Party shall be deemed to
have been delivered (a) if delivered in person or by messenger, when
proof of delivery is obtained by the delivering Party; (b) if sent by
post within the same country, on the third day following posting, and
if sent by post to another country, on the fifth day following
posting, and (c) if given or made by fax, upon dispatch and the
receipt of a transmission report confirming dispatch. The initial
address and facsimile for the Parties for the purposes of this
Agreement are:
(i) If to the Shareholders, to the address set forth on
SCHEDULE A hereto.
(ii) If to Good Energies, to:
Good Energies Investments (Jersey) Limited
15
0 Xxxx Xxxxxx
Xx. Xxxxxx
Xxxxxx, Xxxxxxx Xxxxxxx XX0 0XX
Facsimile No.: 44 1534 754 510
Attn: Xxxx Xxxxxxx
with a courtesy copy to:
Linklaters LLP
Xxxx 00 Xxxxx 00
China World Tower 1
No. 1 Xxxx Xxx Men Wai Avenue
Beijing, PRC
Facsimile No.: x00 (00) 0000-0000
Attn: Xxxx Xxxx and Xxxxxx Xxxxx
(iii) If to the Company, to:
Solarfun Power Holdings Co., Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
Attn: Mr. Min Cao
with a courtesy copy to:
Shearman & Sterling LLP
2318 China World Tower 1
Xx. 0 Xxxx Xxx Xxx Xxx Xxxxxx
Xxxxxxx, XXX 000000 Facsimile
No.: x00 (00) 0000-0000
Attn: Xxxx Seem, Esq.
7.7 COUNTERPARTS
This Agreement may be signed in any number of counterparts including
counterparts transmitted by facsimile, each of which shall be deemed
an original with the same effect as if the signatures thereto and
hereto were upon the same instrument.
7.8 SEVERABILITY
If any provision contained in this Agreement shall for any reason be
determined to be partially or wholly invalid, illegal or unenforceable
by any court of competent jurisdiction, such provision shall be of no
force and effect to the extent so determined, but the invalidity,
illegality or unenforceability of such provision shall have no effect
upon and shall not impair the validity, legality or enforceability of
any other provision of this Agreement.
7.9 FURTHER ACTS AND ASSURANCES
16
Each Party shall give such further assurance, provide such further
information, take such further actions and execute and deliver such
further documents and instruments as are, in each case, within its
power to give, provide and take so as to give full force and effect to
the provisions of this Agreement.
7.10 CONFLICT
In case of any inconsistency between the Articles of Association and
this Agreement, the Shareholders will use their best efforts to amend
the Articles of Association to ensure that the Articles of Association
are consistent with this Agreement.
[Signatures follow on the next page]
17
IN WITNESS WHEREOF, each of the Parties hereto have caused this Agreement to be
duly executed by its respective authorized officers as of the date set forth
above:
YONGHUA SOLAR POWER INVESTMENT HOLDING LTD.
by: /s/ Xxxxxxx Xx
--------------------------
Name: Xxxxxxx Xx
Title:
CITIGROUP VENTURE CAPITAL INTERNATIONAL
GROWTH PARTNERSHIP, L.P.
BY: CITIGROUP VENTURE CAPITAL
INTERNATIONAL PARTNERSHIP G.P. LIMITED, AS
GENERAL PARTNER
by: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxx
Title:
CITIGROUP VENTURE CAPITAL INTERNATIONAL
CO-INVESTMENT, L.P.
BY: CITIGROUP VENTURE CAPITAL
INTERNATIONAL PARTNERSHIP G.P. LIMITED, AS
GENERAL PARTNER
by: /s/ Xxxxxxx Xxxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxxx
Title:
WHF INVESTMENT CO., LTD.
by: /s/ Xxxxxx Xxxx
--------------------------
Name: Xxxxxx Xxxx
Title:
BRILLIANT ORIENT INTERNATIONAL LIMITED
18
by: /s/ Xxxxxx Xxxx
--------------------------
Name: Xxxxxx Xxxx
Title:
LC FUND III, L.P.
by: /s/ Zhu Linan
--------------------------
Name: Zhu Linan
Title:
GOOD ENERGIES INVESTMENTS (JERSEY) LIMITED
by: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title:
by: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title:
SOLARFUN POWER HOLDINGS CO., LTD.
by: /s/ Xxxxxxx Xx
--------------------------
Name: Xxxxxxx Xx
Title:
19
SCHEDULE A
------------------------------------------------------------------------------------------------------------------------------------
SHAREHOLDER ADDRESS FOR NOTICES NUMBER OF ORDINARY SHARES (INCLUDING
ORDINARY SHARES HELD IN THE FORM OF
AMERICAN DEPOSITARY SHARES) HELD BY
SHAREHOLDER FOLLOWING THE CLOSING
------------------------------------------------------------------------------------------------------------------------------------
Yonghua Solar Power Investment Holding Ltd. Xx. 000 Xxxxxxx Xxxx 38,634,750 Ordinary Shares
Qidong City, Jiangsu Province
PRC
Facsimile No.: x00(00)0000-0000
Attn: Xxxxxxx Xx (CHINESE CHARACTERS)
Citigroup Venture Capital International Growth c/o Citigroup Venture Capital International 24,368,382 Ordinary Shares
Partnership, L.P. Asia Limited
00/X, Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000-0000
Attn: Xxxxxxx Xxxxx and Xxxxxxx Xxx
Citigroup Venture Capital International c/o Citigroup Venture Capital International 1,329,794 Ordinary Shares
Co-Investment, L.P. Asia Limited
00/X, Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
Facsimile No: (000) 0000-0000
Attn: Xxxxxxx Xxxxx and Xxxxxxx Xxx
1
WHF Investment Co., Ltd. No. 000 Xxxxxxx Xxxx0 6,271,875 Ordinary Shares
Qidong City, Jiangsu Province
PRC
Facsimile No.: x00(00)0000-0000
Attn: Xxxxxx Xxxx (CHINESE CHARACTERS)
Yongfa Solar Power Investment Holding Ltd. No. 000 Xxxxxxx Xxxx 0 Xxxxxxxx Shares
Qidong City, Jiangsu Province
PRC
Facsimile No.: x00(00)0000-0000
Attn: Xxxxxxx Xx (CHINESE CHARACTERS)
Yongliang Solar Power Investment Holding Ltd. No. 000 Xxxxxxx Xxxx 0 Xxxxxxxx Shares
Qidong City, Jiangsu Province
PRC
Facsimile No.: x00(00)0000-0000
Attn: Yongliang Gu (CHINESE CHARACTERS)
2
Brilliant Orient Limited 7th Floor, Tower A 2,529,096 American Depositary Shares
Raycom Info. Tech Center
No. 2 Ke Xxx Xxxx Xxx Xx
Beijing 100080, PRC
LC Fund III L.P. c/o Legend Capital Limited 1,000,000 American Depositary Shares
10th Floor, Tower A and 4,467,207 Ordinary Shares
Raycom Info. Tech Center
No. 2 Ke Xxx Xxxx Xxx Xx
Xxxxx Xxxx Cun Xxxxxxx Xxxxxxxx
Xxxxxxx 000000, XXX
Xxxxxxxxx No.: x00(00)0000-0000
Attn: Xx. Xxx Xxxxx
3
