Exhibit 4.4
LDK SOLAR CO., LTD.
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (this "AGREEMENT") is entered into as of December
19, 2006 by and among LDK Solar Co., Ltd., a company organized and existing
under the laws of the Cayman Islands (the "COMPANY"), Xx. Xxxx Xiaofeng
(together with any permitted transferee or assign of such person, the
"FOUNDER"), and each of the investors set forth in Schedule A hereto (together
with any permitted transferee or assign of such investor, each an "INVESTOR" and
collectively, the "INVESTORS").
RECITALS
A. The Company and certain of the Investors are parties to the Series C
Preferred Shares Purchase Agreement, dated as of December 15, 2006 (the
"SHARE PURCHASE AGREEMENT"), pursuant to which such Investors have agreed
to subscribe for a certain number of Series C Preferred Shares of the
Company.
B. The Company and certain of the Investors are parties to that certain
Shareholders Agreement (the "PRIOR AGREEMENT"), dated as of September 28,
2006, by and among the Company, the Founder, the holders of the Series A-1
Preferred Shares, the holders of the Series A-2 Preferred Shares and the
holders of the Series B Preferred Shares (collectively, the "EXISTING
SHAREHOLDERS").
C. It is a condition precedent under the Share Purchase Agreement that the
Prior Agreement be amended and restated and this Agreement be entered into
by and among the Company, the Founder and the Investors.
D. The Prior Agreement may be amended with the consent of the written consent
of each of (i) the Company; (ii) the Founder; (iii) the holders holding at
least two thirds (2/3) of the total number of issued and outstanding Series
A-1 Preferred Shares and Series A-2 Preferred Shares, voting together as a
single class; and (iv) the holders holding at least two thirds (2/3) of the
total number of issued and outstanding Series B Preferred Shares.
E. The undersigned Existing Shareholders include (i) holders of at least two
thirds (2/3) of the total number of issued and outstanding Series A-1
Preferred Shares and Series A-2 Preferred Shares, voting together as a
single class and (ii) holders of at least two thirds (2/3) of the total
number of issued and outstanding Series B Preferred Shares.
F. It is understood by the Company, the Founder and the Investors that this
Agreement is intended to be binding on all shareholders of the Company.
NOW, THEREFORE, in consideration of the premises set forth above and the mutual
promises and covenants set forth in this Agreement, the parties to the Prior
Agreement hereby agree to amend and restate the Prior Agreement in its entirety
as set forth herein, and all parties hereto agree as follows:
1. INTERPRETATION.
1.1 Definitions.
The following terms shall have the meanings ascribed to them below:
"AFFILIATE" means, with respect to any given Person, a Person that
Controls, is Controlled by, or is under common Control with the given
Person.
"AGREEMENT" has the meaning set forth in the preamble hereto.
"CENTER" means the Hong Kong International Arbitration Centre.
"CLOSING" has the meaning set forth in Section 2.2 of the Share Purchase
Agreement.
"COMPANY" has the meaning set forth in the preamble hereto.
"COMPANY GROUP" means the Company and all Group Companies, taken together.
"COMPANY OPTION PLAN" means an employee stock option plan adopted by
established by the Company on July 28, 2006 pursuant to which stock options
will be granted out of the Company Option Pool.
"COMPANY OPTION POOL" means an aggregate of 9,024,666 Ordinary Shares which
shall be reserved prior to the Closing, representing up to ten percent
(10%) of the total number of issued and outstanding shares of the Company
on an as converted and fully diluted basis immediately after the Closing,
as may be adjusted from time to time pursuant to the Company Option Plan,
to be issued to the Key Persons, officers, directors, consultants,
employees or other service providers of the Company from time to time
pursuant to the Company Option Plan.
"COMPETITOR" means any Person that may be reasonably deemed to be engaged
in any business that develops, manufactures or produces solar grade silicon
ingots and wafers.
"CONTROL" means, when used with respect to any Person, the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise, and
the terms "Controlling" and "Controlled" have meanings correlative to the
foregoing.
"CONVERSION SHARES" means shares issuable upon conversion of the Preferred
Shares or upon exercise of the Warrants.
"EQUITY SECURITIES" means any Ordinary Shares or warrants, options and
rights exercisable for Ordinary Shares and instruments convertible or
exchangeable for Ordinary Shares, including, without limitation, the
Preferred Shares.
"EXCHANGE ACT" means the U.S. Exchange Act of 1934, as amended.
"EXERCISING HOLDER" has the meaning set forth in Section 2.2(b)(iii).
"FOUNDER" has the meaning set forth in the preamble hereto.
"GROUP COMPANIES" means a Person (other than a natural person) that is a
Subsidiary of
-2-
the Company.
"HOLDERS" means the Investors, together with the permitted transferees and
assigns of any Investor.
"ISSUANCE NOTICE" has the meaning set forth in Section 3.2 hereof.
"INVESTOR DIRECTOR" has the meaning set forth in Section 6.1 hereof.
"KEY PERSONS" means Xxxx Xxxxxxxx, Shao Yonggan, Zhu Liangbao and all the
other Persons listed in Schedule B hereof.
"LOCK-UP PERIOD" has the meaning set forth in Section 5.1(a) hereof.
"MAXIMUM IPO NEW ISSUE" means the number of Ordinary Shares to be issued at
an initial public offering of the Company that represents 15% of the total
number of issued and outstanding Ordinary Shares (including the number of
Ordinary Shares to be issued in such an initial public offering and the
over-allotment option, if any) on an as converted basis, being an amount of
15,984,705 shares.
"MEMORANDUM AND ARTICLES" means the third amended and restated memorandum
and articles of association of the Company to be adopted by the members of
the Company in December 2006, as may be amended from time to time.
"NEW SECURITIES" means any Equity Securities of the Company whether now or
hereafter authorized; provided that the term "New Securities" does not
include (i) securities issued upon conversion of the Preferred Shares; (ii)
the Preferred Shares issuable upon the exercise of the Warrants and
securities issued upon conversion of such Preferred Shares; (iii) Ordinary
Shares issuable to the Key Persons, officers, directors, consultants,
employees or other service providers of the Company pursuant to the Company
Option Plan; (iv) securities issued in a Qualified IPO; (v) securities
issued in connection with any stock split, stock dividend or
re-capitalization of the Company; and (vi) securities issued pursuant to
the acquisition of another business entity or business segment of any such
entity by the Company by merger, purchase of substantially all the assets
or other reorganization whereby the Company will own not less than
fifty-one percent (51%) of the voting power of such business entity or
business segment of any such entity.
"OFFERED SHARES" has the meaning set forth in Section 2.2(a).
"ORDINARY SHARES" means the Company's ordinary shares, with a par value of
US$0.10 per share.
"ORDINARY SHARE EQUIVALENTS" means warrants, options and rights exercisable
for Ordinary Shares and instruments convertible or exchangeable for
Ordinary Shares, including, without limitation, the Preferred Shares.
"PERSON" means any individual, corporation, partnership, limited
partnership, proprietorship, association, limited liability company, firm,
trust, estate or other enterprise or entity.
"PRC" means the People's Republic of China, but solely for the purposes of
this
-3-
Agreement, excluding the Hong Kong Special Administrative Region, Macau
Special Administrative Region and Taiwan.
"PRC SUBSIDIARY" means Jiangxi LDK Solar Hi-Tech Co., Ltd., a company
organized and existing under the laws of the PRC.
"PREFERRED SHARES" means the Company's outstanding Series A-1 Preferred
Shares, Series A-2 Preferred Shares, Series B Preferred Shares and Series C
Preferred Shares collectively.
"PROHIBITED TRANSFER" has the meaning set forth in Section 2.6(a).
"QUALIFIED EXCHANGE" means (i) the New York Stock Exchange or the Nasdaq
Stock Market's National Market System, or (ii) any other exchange of
recognized international reputation and standing duly approved by the
Company's Board of Directors, including the affirmative vote of the
Investor Director.
"QUALIFIED IPO" means an initial public offering on a Qualified Exchange
that values the Company at no less than US$1,210,000,000 immediately prior
to the initial public offering with a per share offering price of no less
than US$11.00 and that results in aggregate proceeds to the Company of at
least US$300,000,000. The selection of the lead underwriter(s) of the
Qualified IPO shall be led by the management of the Company and subject to
the consent of the Investor Director, which consent shall not be
unreasonably withheld.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
"SELLING HOLDER" has the meaning set forth in Section 2.3(a).
"SERIES A SHARE PURCHASE AGREEMENT" means the Series A Preferred Shares
Purchase Agreement, dated as of July 28, 2006.
"SERIES A-1 PREFERRED SHARES" means the Company's series A-1 preferred
shares, with a par value of US$0.10 per share.
"SERIES A-2 PREFERRED SHARES" means the Company's series A-2 preferred
shares, with a par value of US$0.10 per share.
"SERIES B SHARE PURCHASE AGREEMENT" has the meaning set forth in Section
6.6.
"SERIES B PREFERRED SHARES" means the Company's series B preferred shares,
with a par value of US$0.10 per share.
"SERIES C PREFERRED SHARES" means the Company's series C preferred shares,
with a par value of US$0.10 per share.
"SHARE PURCHASE AGREEMENT" has the meaning set forth in the recitals.
"SUBSIDIARY" means, with respect to any Person, a corporation or other
entity that is, directly or indirectly, controlled by such Person, by the
possession of the power to direct or cause the direction of the management
and policies of first mentioned Person, whether through the ownership of
voting securities or equity interest, by contract or otherwise.
-4-
"TAX" and "TAXES" means and includes any and all taxes, including any and
all income, gross receipts, franchise, license, severance, stamp,
occupation, premium, environmental, customs duties, capital stock, profits,
unemployment, disability, real property, personal property, transfer,
registration, value added, estimated, sales, use, excise, withholding,
employment, payroll, social security taxes, and similar assessments,
charges, and fees (including interest, penalties and additions to such
taxes, penalties for failure to file or late filing of any return, report
or other filing, and any interest in respect of such penalties and
additions) imposed or assessed by any federal, state or local taxing
authority, including the Cayman Islands, Hong Kong or the PRC (or any
political subdivision thereof or therein).
"TAX RETURNS" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including any schedule
or attachment thereto, and including any amendment thereof.
"TRANSFER" has the meaning set forth in Section 2.1(a).
"TRANSFER NOTICE" has the meaning set forth in Section 2.2(a).
"TRANSFEROR" has the meaning set forth in Section 2.2(a).
"WARRANT" or "WARRANTS" means the Warrant(s) the Company issued to the
holders of the Series A-1 Preferred Shares and the holders of the Series
A-2 Preferred Shares pursuant to certain Warrant Purchase Agreement(s),
each dated as of July 28, 2006.
1.2 Interpretation.
For all purposes of this Agreement, except as otherwise expressly provided,
(i) the terms defined in this Section 1 shall include the plural as well as
the singular, (ii) all references in this Agreement to designated
"Sections" and other subdivisions are to the designated Sections and other
subdivisions of the body of this Agreement, (iii) pronouns of either gender
or neuter shall include, as appropriate, the other pronoun forms, (iv) the
words "herein," "hereof" and "hereunder" and other words of similar import
refer to this Agreement as a whole and not to any particular Section or
other subdivision and (v) all references in this Agreement to designated
Schedules, Exhibits and Annexes are to the Schedules, Exhibits and Annexes
attached to this Agreement unless explicitly stated otherwise.
2. RIGHTS OF FIRST REFUSAL AND CO-SALE RIGHTS.
2.1 Prohibition on Transfer of Shares.
(a) Founder.
Notwithstanding the other terms of this Agreement, prior to the
expiration of twelve (12) months after the closing of a Qualified IPO,
the Founder, regardless of the Founder's employment with the Company,
may not, directly or indirectly, sell, assign, transfer, pledge,
hypothecate, or otherwise encumber or dispose of in any way, all or
any part of any interest (whether involving the legal or beneficial
interest) ("TRANSFER") in the Equity Securities now or hereafter owned
or held by him, except with the prior written consent of two
-5-
thirds (2/3) of the total number of issued and outstanding Preferred
Shares, voting as a single class and on an as converted basis.
(b) Prohibited Transfers Void.
Any sale, assignment, transfer, pledge, hypothecation or other
encumbrance or disposition of Equity Securities not made in
conformance with this Agreement shall be null and void, shall not be
recorded on the books of the Company and shall not be recognized by
the Company.
2.2 Rights of First Refusal.
(a) Transfer Notice.
If at any time any holder of Equity Securities that is not also a
Holder (as defined herein) (a "TRANSFEROR") proposes to Transfer
Equity Securities to one or more third parties, then the Transferor
shall give each Holder written notice of the Transferor's intention to
make the Transfer (the "TRANSFER NOTICE"), which Transfer Notice shall
include (i) a description of the Equity Securities to be transferred
("OFFERED SHARES"), including without limitation the number of shares
of the Equity Securities to be Transferred and the nature of such
Transfer, (ii) the identity(identities) (including name(s) and
address(es)) of the prospective transferee(s), and (iii) the
consideration and the material terms and conditions upon which the
proposed Transfer is to be made. The Transfer Notice shall certify
that the Transferor has received a firm offer from the prospective
transferee(s) and in good faith believes a binding agreement for the
Transfer is obtainable on the terms set forth in the Transfer Notice.
The Transfer Notice shall also include a copy of any written proposal,
term sheet or letter of intent or other agreement relating to the
proposed Transfer.
(b) Holders' Option.
(i) Each Holder shall have an option for a period of thirty (30) days
from the Holder's receipt of the Transfer Notice to elect to
purchase its respective pro rata share of the Offered Shares at
the same price and subject to the same terms and conditions as
described in the Transfer Notice.
(ii) Each Holder may exercise such purchase option and, thereby,
purchase all or any portion of its pro rata share (with any
re-allotments as provided below) of the Offered Shares, by
notifying the Transferor and the Company in writing, before
expiration of the 30-day period as to the number of such shares
which it wishes to purchase (including any re-allotment). For
purposes of this clause (ii), each Holder's pro rata share of the
Offered Share shall be a fraction of the Offered Shares, of which
the number of Equity Securities (assuming the exercise,
conversion and exchange of any Ordinary Shares Equivalents) owned
by such Holder on the date of the Transfer Notice shall be the
numerator and the total number of Equity Securities (assuming the
exercise, conversion and
-6-
exchange of any Ordinary Share Equivalents) held by all Holders
on the date of the Transfer Notice shall be the denominator.
(iii)Each Holder which exercises its right of first refusal under
clause (ii) above (an "EXERCISING HOLDER") shall have a right of
re-allotment such that, if any other Holder fails to exercise the
right to purchase its full pro rata share of the Offered Shares,
the Exercising Holder may exercise an additional right to
purchase a pro rata share of such unpurchased Offered Shares by
notifying the Transferor and the Company in writing within ten
(10) days after the expiration of the 30-day period described in
clause (ii) above. For purposes of this clause (iii), each
Exercising Holder's pro rata share of the unpurchased Offered
Shares shall be a fraction of the unpurchased Offered Shares
(rounded to the nearest whole share), of which the number of
shares to be purchased by such Exercising Holder under clause
(ii) shall be the numerator, and the total number of shares to be
purchased by all Exercising Holders under clause (ii) shall be
the denominator.
(iv) Each Holder shall be entitled to apportion the Offered Shares to
be purchased among its partners and affiliates, provided that
such Holder notifies the Transferor of such allocation.
(v) If a Holder gives the Transferor notice that it desires to
purchase its pro rata share of the Offered Shares and, as the
case may be, its re-allotment, then payment for the Offered
Shares shall be by a cashier's or certified check or wire
transfer in immediately available funds, against delivery of the
Offered Shares to be purchased at a place agreed by the parties
and at the time of the scheduled closing therefor, which shall be
no later than sixty (60) days after the Holder's receipt of the
Transfer Notice, unless the Transfer Notice contemplated a later
closing with the prospective third party transferee or unless the
value of the purchase price has not yet been established pursuant
to Section 2.2(c).
(c) Valuation of Property.
(i) Should the purchase price specified in the Transfer Notice be
payable in property other than cash or evidences of indebtedness,
the Holders shall have the right to pay the purchase price in the
form of cash equal in amount to the value of such property.
(ii) If the Transferor and the Holders cannot agree on such cash value
within ten (10) days after the date on which the relevant option
is exercised by the Holders, the valuation shall be made by an
appraiser of recognized standing selected by the Transferor and
the Holders or, if they cannot agree on an appraiser within
twenty (20) days after the Holders' receipt of the Transfer
Notice, each shall select an appraiser of recognized standing and
the two appraisers shall designate a third appraiser of
recognized standing, whose appraisal shall be determinative of
such value.
-7-
(iii)The cost of such appraisal shall be shared equally by the
Transferor and the Holders, with the half of the cost borne by
the Company and the Holders to be borne pro rata by each based on
the number of shares such Holders were interested in purchasing
pursuant to this Section 2.
(iv) If the time for the closing of the Holders' purchase has expired
but for the determination of the value of the purchase price
offered by the prospective transferee(s), such closing shall be
held on or prior to the fifth business day after such valuation
shall have been made pursuant to this subsection.
2.3 Right of Co-Sale.
(a) To the extent the Holders do not exercise their respective rights of
first refusal as to all of the Offered Shares pursuant to Section 2.2,
each Holder (a "SELLING HOLDER") which notifies the Transferor in
writing within thirty (30) days after receipt of the Transfer Notice
referred to in Section 2.2(a) shall have the right to participate in
such sale of Equity Securities on the same terms and conditions as
specified in the Transfer Notice.
(i) Such Selling Holder's notice to the Transferor shall indicate the
number of Equity Securities the Selling Holder wishes to sell
under its right to participate.
(ii) To the extent one or more of the Holders exercise such right of
participation in accordance with the terms and conditions set
forth below, the number of Equity Securities that the Transferor
may sell in the Transfer shall be correspondingly reduced.
(b) Each Selling Holder may elect to sell up to such number of Equity
Securities equal to (on a fully converted basis) the product obtained
by multiplying (i) the aggregate number of Ordinary Shares covered by
the Transfer Notice (including the number of Ordinary Shares that
would be issuable upon the exercise, conversion or exchange of
Ordinary Share Equivalents) by (ii) a fraction, the numerator of which
is the number of Ordinary Shares (including the number of Ordinary
Shares that would be issuable upon the exercise, conversion or
exchange of Ordinary Share Equivalents) owned by the Selling Holder on
the date of the Transfer Notice and the denominator of which is the
total number of Ordinary Shares (including the number of Ordinary
Shares that would be issuable upon the exercise, conversion or
exchange of Ordinary Share Equivalents) owned by all Selling Holders
on the date of the Transfer Notice.
(c) If any Holder fails to elect to fully participate in such Transferor's
sale pursuant to this Section 2.3, the Transferor shall give notice of
such failure to the Selling Holders. Such notice may be made by
telephone if confirmed in writing within two (2) days. The Selling
Holders shall have five (5) days from the date such notice was given
to agree to sell their pro rata share of the unsold portion. For
purposes of this paragraph, a Selling Holder's pro rata share shall be
a fraction of the unsold portion, the numerator of which shall be the
number of Ordinary
-8-
Shares (including the number of Ordinary Shares that would be issuable
upon the exercise, conversion or exchange of Ordinary Share
Equivalents) notified to be sold by the Selling Holder pursuant to
Section 2.3(b) and the denominator of which shall be the total number
of Ordinary Shares (including the number of Ordinary Shares that would
be issuable upon the exercise, conversion or exchange of Ordinary
Share Equivalents) notified to be sold by all Selling Holders pursuant
to Section 2.3(b).
(d) Each Selling Holder shall effect its participation in the sale by
promptly delivering to the Transferor for transfer to the prospective
purchaser one or more certificates, properly endorsed for transfer,
which represent the type and number of Equity Securities which such
Selling Holder elects to sell; provided, however that if the
prospective third-party purchaser objects to the delivery of Equity
Securities in lieu of Ordinary Shares, such Selling Holder shall
convert such Equity Securities into Ordinary Shares and deliver
certificates corresponding to such Ordinary Shares. The Company agrees
to make any such conversion concurrent with the actual transfer of
such shares to the purchaser and contingent on such transfer.
(e) The share certificate or certificates that a Selling Holder delivers
to the Transferor pursuant to Section 2.3(d) shall be transferred to
the prospective purchaser in consummation of the sale of the Equity
Securities pursuant to the terms and conditions specified in the
Transfer Notice, and the Transferor shall concurrently therewith remit
to such Selling Holder that portion of the sale proceeds to which such
Selling Holder is entitled by reason of its participation in such
sale.
(f) To the extent that any prospective purchaser prohibits the
participation of a Selling Holder exercising its co-sale rights
hereunder in a proposed Transfer or otherwise refuses to purchase
shares or other securities from a Selling Holder exercising its
co-sale rights hereunder, the Transferor shall not sell to such
prospective purchaser any Equity Securities unless and until,
simultaneously with such sale, the Transferor shall purchase such
shares or other securities from such Selling Holder for the same
consideration and on the same terms and conditions as the proposed
transfer described in the Transfer Notice.
(g) Notwithstanding the above terms under this Section 2.3, if at any
time, the Founder has a bona fide offer from a third party which
offers to purchase from the Founder such number of Equity Securities
that results in the number of Equity Securities held by the Founder
after such sale (which must be approved by Holders representing not
less than two thirds (2/3) of all the Preferred Shares then
outstanding, voting as a single class on an as converted basis) being
less than 75% of the total Equity Securities that are then issued and
outstanding (on an as-converted and fully diluted basis), the Founder
shall procure that the Holders be offered to sell all of their Equity
Securities at the same price and subject to the same terms and
conditions as offered by such third party to the Founder, on an
as-converted and fully converted basis. For the avoidance of doubt,
reduction of the Founder's ownership in the Company by any other
-9-
reason, such as upward adjustment of any Holder's ownership in the
Company or issuance of stock options under the Company Option Plan,
shall not trigger such co-sale rights.
2.4 Non-Exercise of Rights.
(a) Subject to any other applicable restrictions on the sale of such
shares, to the extent that the Holders have not exercised their rights
to purchase the Offered Shares within the time periods specified in
Section 2.2 and the Holders have not exercised their rights to
participate in the sale of the Offered Shares within the time periods
specified in Section 2.3, the Transferor shall have a period of sixty
(60) days from the expiration of such rights in which to sell the
Offered Shares to the third-party transferee(s) identified in the
Transfer Notice upon terms and conditions (including the purchase
price) no more favorable than those specified in the Transfer Notice.
Within fifteen (15) days of entering into any agreement to sell
Offered Shares to a third party under this Section, the Transferor
shall furnish each Holder with a copy of all agreements relating to
such sale.
(b) The third-party transferee(s) shall acquire the Offered Shares free
and clear of subsequent rights of first refusal and co-sale rights
under this Agreement. In the event the Transferor does not consummate
the sale or disposition of the Offered Shares within sixty (60) days
from the expiration of such rights, the Holders' first refusal rights
and co-sale rights shall continue to be applicable to any subsequent
disposition of the Offered Shares by the Transferor until such rights
lapse in accordance with the terms of this Agreement.
(c) The exercise or non-exercise of the rights of the Holders under this
Section 2 to purchase Equity Securities from a Transferor or
participate in the sale of Equity Securities by a Transferor shall not
adversely affect their rights to make subsequent purchases from a
Transferor of Equity Securities or subsequently participate in sales
of Equity Securities by a Transferor hereunder.
2.5 Limitations to Co-Sale.
Notwithstanding the provisions of Section 2.3, the co-sale right of the
Holders shall not apply to the sale of any Equity Securities (A) to the
public pursuant to a registration statement filed with, and declared
effective by, the Securities and Exchange Commission under the Securities
Act, including a Qualified IPO or (B) to or by the Company.
2.6 Prohibited Transfers.
(a) In the event any Transferor should sell any Equity Securities in
contravention of the co-sale rights of the Holders under Section 2.3
(a "PROHIBITED TRANSFER"), the Holders, in addition to such other
remedies as may be available at law, in equity or hereunder, shall
have the put option provided below, and such Transferor shall be bound
by the applicable provisions of such option.
(b) In the event of a Prohibited Transfer, each Holder shall have the
right to sell to the Transferor the type and number of Equity
Securities equal to the number of Equity Securities such Holder would
have been entitled to transfer to the third-
-10-
party transferee(s) under Section 2.3 hereof had the Prohibited
Transfer been effected pursuant to and in compliance with the terms
hereof. Such sale shall be made on the following terms and conditions:
(i) The price per share at which the shares are to be sold to the
Transferor shall be equal to the price per share paid by the
third-party transferee(s) to the Transferor in the Prohibited
Transfer. The Transferor shall also reimburse each Holder for any
and all fees and expense, including legal fees and expenses,
incurred pursuant to the exercise or the attempted exercise of
such Holder's rights under Section 2.
(ii) Within ninety (90) days after the later of the dates on which the
Holder (A) received notice of the Prohibited Transfer or (B)
otherwise becomes aware of the Prohibited Transfer, such Holder
shall, if exercising the option created hereby, deliver to the
Transferor the certificate or certificates representing shares to
be sold under this Section 2.6 by such Holder, each certificate
to be properly endorsed for transfer.
(iii)The Transferor shall, upon receipt of the certificate or
certificates for the shares to be sold by a Holder, pursuant to
this Section 2.6, pay the aggregate purchase price therefor and
the amount of reimbursable fees and expenses, as specified in
subparagraph 2.6(b)(i), in cash or by other means acceptable to
the Holder.
(iv) Notwithstanding the foregoing, any attempt by the Transferor to
transfer Equity Securities in violation of this Section 2 shall
be void, and the Company agrees it will not effect such a
transfer nor will it treat any alleged transferee(s) as the
holder of such shares without the written consent of a majority
in interest of the Holders.
3. PRE-EMPTIVE RIGHT
3.1 General
The Company hereby grants to each Holder a pre-emptive right to purchase up
to a pro rata share of any New Securities which the Company may, from time
to time, propose to sell and issue. A Holder's "pro rata share", for
purposes of this pre-emptive right, shall be determined according to the
number of Ordinary Shares owned by such Holder immediately prior to the
issuance of the New Securities, on an as-converted basis, in relation to
the total number of Ordinary Shares outstanding immediately prior to the
issuance of the New Securities, on an as-converted basis. Each Investor
shall have a right of over-allotment such that, if any Investor fails to
exercise its right hereunder to purchase its pro rata share of New
Securities, the other Investors may purchase the non-purchasing Investor's
portion on a pro rata basis within five (5) days from the date such
non-purchasing Investor fails to exercise its right hereunder.
3.2 Issuance Notice
In the event the Company proposes to undertake an issuance of New
Securities, it shall
-11-
give each Investor written notice (an "ISSUANCE NOTICE") of such intention,
describing the type of New Securities, and their price and the general
terms upon which the Company proposes to issue the same. Each Investor
shall have fifteen (15) days or such shorter period of time agreed to by
such Investor after any such notice is mailed or delivered to agree to
purchase up to such Investor's pro rata share of such New Securities for
the price and upon the terms specified in the notice by giving written
notice to the Company and stating therein the quantity of New Securities to
be purchased.
3.3 Sales by the Company
Upon the expiration of twenty (20) days or such shorter period of time
agreed to by such Investor from the Company's delivery of the Issuance
Notice and for sixty (60) days thereafter, the Company may sell any New
Securities with respect to which the Investors' pre-emptive rights under
this Section 3 was not exercised, at a price and upon terms no more
favorable to the purchasers thereof than specified in the Issuance Notice.
In the event the Company has not sold such New Securities within such
60-day period, the Company shall not thereafter issue or sell any New
Securities, without first again offering such securities to the Investors
in the manner provided in Section 3.1 above.
3.4 The pre-emptive right granted under this Agreement shall expire upon, and
shall not be applicable to, a Qualified IPO.
3.5 To the extent any holder of Preferred Shares transfers any such shares to
any other Person, such holder may assign its rights under this Section 3 to
such Person.
4. INFORMATION AND INSPECTION RIGHTS
4.1 The Company shall deliver to each Investor:
(a) as soon as practicable, but in any event within one-hundred and twenty
(120) days after the end of each fiscal year of the Company,
consolidated (with respect to the Company) and unconsolidated (with
respect to the PRC Subsidiary) income statements and statements of
cash flows for the Company Group for such fiscal year, consolidated
balance sheets for the Company and each member of the Company Group as
of the end of the fiscal year all prepared in accordance with IFRS and
audited and certified by the Auditor;
(b) as soon as practicable, but in any event within sixty (60) days after
the end of each fiscal quarter, unconsolidated unaudited income
statements, statements of cash flows and balance sheets for such
fiscal quarter of the PRC Subsidiary, and a management report of the
Company;
(c) as soon as practicable, but in any event within thirty (30) days of
the end of each month, unconsolidated unaudited income statements,
statements of cash flows and balance sheets for the PRC Subsidiary as
of the end of such month, and a management report of the Company; and
(d) as soon as practicable, but in any event prior to the end of each
fiscal year, an operating budget, budget of capital expenditures, and
strategic plan for the succeeding fiscal year, all as approved by the
Board.
-12-
4.2 Inspection
The Company shall permit each Investor, at such Investor's expense, to
visit and inspect any of the properties and examine the books of account
and records of the Company Group and discuss the affairs, finances and
accounts of the Company Group with the directors, officers, accountants,
legal counsel and investment bankers of the Company Group, all at such
reasonable times as may be requested in writing by such Investor. Without
limiting the foregoing, the Company shall permit each Investor, at such
Investor's expense, to inspect all Tax Returns for the Company Group,
together with all supporting materials or materials used in the preparation
of such Tax Returns, and to discuss the Company's Tax policies with the
directors, officers, employees, accountants, legal counsel and investment
bankers of the Company and the Group Companies, all at such reasonable
times as may be requested by the Investors.
4.3 Termination of Information and Inspection Covenants
The covenants set forth in Sections 4.1 through 4.2 shall terminate as to
each holder of the Preferred Shares or Conversion Shares and be of no
further force or effect if (i) the Company becomes subject to the filing
requirements of the Exchange Act or the rules of any other organized
securities exchange, or (ii) such holder of the Preferred Shares shall
cease to hold any Preferred Shares or Conversion Shares.
5. LOCK-UP OF INVESTORS' PREFERRED SHARES
5.1 Notwithstanding anything to the contrary contained herein, each of the
Investors agrees:
(a) not to Transfer any Preferred Shares (i) prior to January 31, 2007
with respect to the holders of the Series A-1 Preferred Shares and the
holders of the Series A-2 Preferred Shares; (ii) prior to March 28,
2007 with respect to the holders of the Series B Preferred Shares; and
(iii) within the six (6) month period after the Closing Date (as
defined in the Share Purchase Agreement) with respect to the holders
of the Series C Preferred Shares (each a "LOCK-UP PERIOD");
(b) to notify the Company in writing of any proposed Transfer after the
expiration of the respective Lock-up Period set forth in Section
5.1(a) above; and
(c) to be subject to any reasonable lock-up period as may be determined in
good faith by the lead underwriter(s) of the Qualified IPO.
5.2 Each of the Investors agrees not to, in any event, transfer any Equity
Securities held by it to any Competitor as determined in good faith by the
Board of Directors of the Company.
6. BOARD OF DIRECTORS
6.1 The Board of Directors of the Company shall consist of five (5) directors.
The holders of the Series A-1 Preferred Shares and Series A-2 Preferred
Shares, voting as a single class, shall have the right to appoint one (1)
member of the Board of Directors, who shall be Xxxxx Xxxx (the "INVESTOR
Director"). The remaining directors shall be nominated, elected and removed
by the holders of Ordinary Shares in accordance with the Memorandum and
Articles. The Investor Director designated by the holders of the
-13-
Series A-1 Preferred Shares and the Series A-2 Preferred Shares will be
entitled to be a member of all board committees, including the Compensation
Committee and the Auditing Committee once they are formed by the Board of
Directors.
6.2 Meetings of the Board of Directors shall be held at least once per calendar
quarter on as regular a basis as possible by giving at least fifteen (15)
calendar day's prior notice of such meeting and the agenda of such meeting.
The number of directors necessary to constitute a quorum at any regular or
special meeting of the Board of Directors of the Company shall be a
majority of the total number of directors then in office.
6.3 The Company and the PRC Subsidiary shall, and the Founder shall procure the
Company and the PRC Subsidiary to, cause the Board of Directors of each
member of the Company Group to be composed of the same nominees designated
by such Persons pursuant to Section 6.1.
6.4 The Company shall indemnify and hold harmless each director appointed
pursuant to Section 6.1 who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the
fact that he is or was a director of the Company, or is or was a director
of the Company serving at the request of the Company as a director of
another company, partnership, joint venture, trust, employee benefit plan
or other enterprise, against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful.
6.5 Each of the parties to this Agreement shall vote any shares of the Company
held thereby and if applicable, cause its respective representatives on the
Board to, and the Company shall, and the Founder shall cause the Company
to, promptly take any and all actions necessary to effect the provisions of
this Section 6 and Section 7 below.
6.6 Each of the Investors who is a holder of the Series B Preferred Shares at
September 28, 2006 (excluding Tech Team Holdings Limited, Grand Gains
International Limited and BOFA Capital Company Limited), as long as it
retains at least 80% of the Series B Preferred Shares acquired under that
Series B Preferred Shares Purchase Agreement, dated as of September 28,
2006 (as amended, the "SERIES B SHARE PURCHASE AGREEMENT"), shall be
entitled, by notice in writing to the Company, to appoint one (1) person as
an observer (collectively, the "BOARD OBSERVERS") to attend and speak at,
either in person or by teleconference, any and all meetings of the Board of
Directors of the Company, the PRC Subsidiary and all committee meetings
thereof, without any voting rights. The Company shall provide such Board
Observers the same information concerning the Company, the PRC Subsidiary
and such committees thereof. The travel expenses incurred by the Board
Observers to attend such meetings shall be borne by the relevant appointing
holder of the Series B Preferred Shares.
6.7 Each of the Investors who is a holder of the Series C Preferred Shares at
December 19, 2006, as long as it retains at least 80% of the Series C
Preferred Shares acquired under
-14-
the Share Purchase Agreement, shall be entitled, by notice in writing to
the Company, to appoint one (1) person as a Board Observer to attend and
speak at, either in person or by teleconference, any and all meetings of
the Board of Directors of the Company, the PRC Subsidiary and all committee
meetings thereof, without any voting rights. The Company shall provide such
Board Observers the same information concerning the Company, the PRC
Subsidiary and such committees thereof. The travel expenses incurred by the
Board Observers to attend such meetings shall be borne by the relevant
appointing holder of the Series C Preferred Shares.
7. MAJOR CORPORATE TRANSACTIONS
7.1 So long as any shares of the Preferred Shares remain outstanding, neither
the Company nor any other members of the Company Group shall, and the
Founder shall cause the Company and such member of the Company Group not
to, take any of the following actions without, in addition to any other
authorizations or approvals required by Applicable Law and the Memorandum
and Articles, the prior written approval of (i) the holders of at least two
thirds (2/3) of the total number of the then issued and outstanding Series
A-1 Preferred Shares and the Series A-2 Preferred Shares, voting together
as a single class, (ii) the holders of at least two thirds (2/3) of the
total number of the then issued and outstanding Series B Preferred Shares,
and (iii) the holders of at least two thirds (2/3) of the total number of
the then issued and outstanding Series C Preferred Shares:
(a) any amendment to the Articles of the Company or the PRC Subsidiary;
(b) issuance or sale by any member of the Company Group of any securities
other than (i) any issuance of the Conversion Shares, (ii) any grant
of stock options under the Company Option Plan, and (iii) any issuance
of the Series A-1 Preferred Shares and/or the Series A-2 Preferred
Shares upon the exercise of the Warrants and the issuance of
Conversion Shares thereof;
(c) any redemption, retirement, purchase or other acquisition, direct or
indirect, by any member of the Company Group of any outstanding
Ordinary Shares or Equity Securities (or any warrants, rights or
options to acquire any such Ordinary Shares or Equity Securities),
other than in accordance with the right of redemption of the Investors
as provided in the Memorandum and Articles, or any other reduction or
similar change of capital structure of any member of the Company
Group;
(d) any merger, acquisition, consolidation, joint venture or like
transaction involving any member of the Company Group (whether or not
such member of the Company Group is the surviving corporation),
including, but not limited to, any transfer of equity interest in the
PRC Subsidiary or any new issue of registered capital in the PRC
Subsidiary to any Person other than the Company;
(e) any liquidation, dissolution, winding-up, bankruptcy, revocation of
voluntary dissolution (judicial or non-judicial) or similar proceeding
filed by or against any of the members of the Company Group;
-15-
(f) any sale, lease, transfer, exchange or other disposition of all or
substantially all of the assets of the Company (including the
disposition of operating rights of any member of the Company Group);
(g) any transfer or exclusive license in any of the Company Group's
technology other than licenses of non-exclusive rights in such
technology that are required or necessary in the ordinary course of
business;
(h) creation, incurrence, assumption or permission to exist any mortgage,
pledge, charge, lien or other encumbrance on all or substantially all
of assets of any member of the Company Group, other than those
required or necessary in the ordinary course of business which shall
not exceed US$5,000,000 in any single transaction;
(i) launch of an initial public offering of the Ordinary Shares at a price
lower than the minimum offering price as required for a Qualified IPO
(i.e., US$11.00 per Ordinary Share) or issuance of Ordinary Shares in
an amount that exceeds the IPO Maximum New Issue in an initial public
offering of the Ordinary Shares;
(j) any declaration or payment of any dividend or other distribution prior
to an IPO of the Company, direct or indirect, in cash or in property
by any member of the Company Group on account of any class of share
capital of such member of the Company Group now or hereafter
outstanding;
(k) any sale, transfer or other disposition of any Ordinary Shares by the
Founder prior to the expiration of the twelve (12) month period after
the closing of the Qualified IPO;
(l) any sale, transfer or other disposition by any Key Person of any
shares acquired through the exercise of stock options received under
the Company Option Plan before the Qualified IPO;
(m) any sale, transfer or other disposition of any shares by any other
holder of equity interest in the Company (other than any of the
Investors or their transferees or permitted assigns) representing more
than a five percent (5%) equity interest in the Company (on a fully
diluted and as converted basis);
(n) engagement in any transactions by any member of the Company Group with
(i) its directors, (ii) shareholders, (iii) the Founder, the Key
Persons or their respective Affiliates, (iv) close relatives of the
Founder or Affiliates of such relatives, (v) close relatives of the
Affiliates of the Founder or Affiliates of such relatives, or (vi) any
corporation or other entity of which majority equity is held or which
is otherwise controlled by any of the Persons listed in (i) through
(vi) of this paragraph (p), jointly or respectively;
(o) creation, incurrence, assumption, guarantee or otherwise becoming
liable (directly or indirectly) by any of the member of the Company
Group with respect to any indebtedness (including capital leases)
which represents an amount in excess of US$8,000,000;
-16-
(p) the purchase or lease by any member of the Company Group of any real
estate property valued in excess of US$3,000,000;
(q) the purchase by any member of the Company Group of listed or unlisted
securities;
(r) public offerings and/or registration of securities other than the
Qualified IPO of the Company;
(s) any adoption by the Company Group of a business plan or annual budget
or any material amendment to its current business plan or annual
budget, or any material alteration or change in the strategic
direction or business operations in a manner that is not contemplated
in the most recent business plan or annual budget;
(t) termination of the Company Option Plan or adoption of any other share
option or similar incentive plan of any member of the Company Group or
any material amendment to the same, including change or determination
of the number of options reserved, vesting periods and exercise prices
of the stock options thereunder;
(u) grant of loans to any director, officer or employee of any member of
the Company Group; and
(v) changes of the independent auditors or changes in accounting practices
or policies by any member of the Company Group.
7.2 So long as any shares of the Series A-1 Preferred Shares and/or Series A-2
Preferred Shares remain outstanding, neither the Company nor any other
members of the Company Group shall, and the Founder shall cause the Company
and such member of the Company Group not to, make increase or decrease in
the total number of directors comprising the board of directors of any
member of the Company Group without, in addition to any other
authorizations or approvals required by Applicable Law and the Memorandum
and Articles, the prior written approval of the holders of at least two
thirds (2/3) of the total number of the then issued and outstanding Series
A-1 Preferred Shares and the Series A-2 Preferred Shares, voting together
as a single class.
7.3 Notwithstanding anything provided in Section 7 to the contrary, to the
extent any of the actions referred to in Sections 7.1 and 7.2 above will
impact the liquidation preference or redemption rights of the holders of
the Series A-1 Preferred Shares and/or the holders of the Series A-2
Preferred Shares, the holders of the Series A-1 Preferred Shares and the
Series A-2 Preferred Shares shall vote as separate classes with respect to
each of such actions.
7.4 Notwithstanding anything provided in Section 7 to the contrary, the
selection of the lead underwriter(s) of the Qualified IPO shall be led by
the management of the Company and subject to the consent of the Investor
Director, which consent shall not be unreasonably withheld.
-17-
8. ASSIGNMENTS AND TRANSFERS; NO THIRD PARTY BENEFICIARIES.
This Agreement and the rights and obligations of the parties hereunder
shall inure to the benefit of, and be binding upon, their respective
successors and permitted assigns, but shall not otherwise be for the
benefit of any third party.
9. LEGEND.
9.1 Each existing or replacement certificate for shares now owned or hereafter
acquired by the Founder or issued to any person in connection with a
transfer pursuant to Section 2.2 hereof shall bear the following legend
upon its face:
"THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A
SHAREHOLDERS AGREEMENT BY AND BETWEEN THE SHAREHOLDER, THE COMPANY AND
CERTAIN HOLDERS OF SHARES OF THE COMPANY. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY."
9.2 The Founder agrees that the Company may instruct its transfer agent to
impose transfer restrictions on the shares represented by certificates
bearing the legend referred to in Section 9.1 above to enforce the
provisions of this Agreement and the Company agrees to promptly do so. The
legend shall be removed upon termination of this Agreement.
10. EFFECT OF CHANGE IN COMPANY'S CAPITAL STRUCTURE.
Appropriate adjustments shall be made in the number and class of shares in
the event of a stock dividend, stock split, reverse stock split,
combination, reclassification or like change in the capital structure of
the Company.
11. FURTHER INSTRUMENTS AND ACTIONS.
The parties agree to execute such further instruments and to take such
further action as may reasonably be necessary to carry out the intent of
this Agreement. The Founder agrees to cooperate affirmatively with the
Company and the Holders, to the extent reasonably requested by the Company
or the Holders, to enforce rights and obligations pursuant hereto.
12. MISCELLANEOUS.
12.1 Governing Law.
This Agreement shall be governed by and construed under the laws of Hong
Kong without regard to conflicts of law thereunder.
12.2 Notices.
Any notice required or permitted by any provision of this Agreement shall
be given in writing in English and shall be provided by one or more of the
following means and shall be deemed to have been duly given (a) if
delivered personally, when received, (b) if transmitted by facsimile, on
the date of transmission with receipt of a transmittal
-18-
confirmation, (c) if by international courier service, on the fourth (4th)
business day following the date of deposit with such courier service, or
such earlier delivery date as may be confirmed in writing to the sender by
such courier service or (d) if transmitted by telephone as permitted by
Section 2.3(c), on the date of such telephone transmission. If notice is
provided pursuant to subclause (a) or (c) above, such notice shall be
addressed: (i) in case of the Company, the Founder and the Investors, to
their respective addresses as set forth on the signature page hereof or at
such other addresses as such parties may designate by ten (10) day's
advance written notice to the other parties hereto, and (ii) in the case of
any permitted transferee of a party to this Agreement or its transferee, to
such transferee at its address as designated in writing by such transferee
to the Company from time to time.
12.3 Term.
This Agreement shall terminate upon the earlier of (i) the closing of a
Qualified IPO, and (ii) the full redemption of the Preferred Shares
pursuant to the Articles of Association of the Company.
12.4 Entire Agreement.
This Agreement contains the entire understanding of the parties hereto with
respect to the subject matter hereof, supersedes all other agreements
between or among any of the parties with respect to the subject matter
hereof. Notwithstanding the foregoing, all the provisions in the Series A
Share Purchase Agreement other than Section 9 shall remain in full force
and effect and be binding on the parties thereto.
12.5 Amendments and Waivers.
Any term of this Agreement may be amended and the observance of any term of
this Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively), only with the written consent
of each of (i) the Company, (ii) the Founder, (iii) the Holders
representing not less than two thirds (2/3) of the then issued and
outstanding Series A-1 Preferred Shares and the Series A-2 Preferred
Shares, voting together as a single class, (iv) the Holders representing
not less than two thirds (2/3) of the then issued and outstanding Series B
Preferred Shares and (v) the Holders representing not less than two thirds
(2/3) of the then issued and outstanding C Preferred Shares. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon
the parties and their respective successors and assigns.
12.6 Ownership.
The Founder represents and warrants that he is the sole ultimate and
beneficial owner of the Equity Securities subject to the right of first
refusal and co-sale agreements as set forth in this Agreement and that no
other person has any interest (other than a community property interest) in
such shares.
12.7 Waiver of Pre-emptive Right
Effective upon the later of (a) the Closing and (b) the execution and
delivery of this Agreement by the Company, the Founder, the holders of at
least two thirds (2/3) of the
-19-
then issued and outstanding Series A-1 Preferred Shares and the Series A-2
Preferred Shares, voting together as a single class, and the holders of at
least two thirds (2/3) of the then issued and outstanding Series B
Preferred Shares, the holders of a pre-emptive right under the Prior
Agreement hereby waive, pursuant to the relevant provisions in the Prior
Agreement, any right to receive notice of, and to participate in, the sale
and issuance by the Company of any shares of the Series C Preferred Shares
(including the Conversion Shares) pursuant to the Share Purchase Agreement.
12.8 Severability.
In case any provision of the Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
12.9 Titles and Subtitles.
The titles and subtitles used in this Agreement are used for convenience
only and are not to be considered in construing or interpreting this
Agreement.
12.10 Counterparts.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same instrument.
12.11 Dispute Resolution.
(a) Any dispute, controversy or claim arising out of or relating to this
Agreement, or the interpretation, breach, termination or validity
hereof, shall be resolved through consultation. Such consultation
shall begin immediately after one party hereto has delivered to the
other party hereto a written request for such consultation. If within
thirty (30) days following the date on which such notice is given the
dispute cannot be resolved, the dispute shall be submitted to
arbitration upon the request of either party with notice to the other.
(b) The arbitration shall be conducted in Hong Kong under the auspices of
the Hong Kong International Arbitration Centre (the "CENTRE"). There
shall be three arbitrators. Each party hereto shall each select one
arbitrator within thirty (30) days after giving or receiving the
demand for arbitration. Such arbitrators shall be freely selected, and
the parties shall not be limited in their selection to any prescribed
list. The Chairman of the Centre shall select the third arbitrator,
who shall be qualified to practice law in the State of New York. If
either party does not appoint an arbitrator who has consented to
participate within thirty (30) days after selection of the first
arbitrator, the relevant appointment shall be made by the Chairman of
the Centre.
(c) The arbitration proceedings shall be conducted in English. The
arbitration tribunal shall apply the arbitration rules of the Centre
in effect at the time of the arbitration. However, if such rules are
in conflict with the provisions of this
-20-
Section 12.11, including the provisions concerning the appointment of
arbitrators, the provisions of this Section 12.11 shall prevail.
(d) The arbitrators shall decide any dispute submitted by the parties to
the arbitration strictly in accordance with the substantive law of the
State of New York and shall not apply any other substantive law.
(e) Each party hereto shall cooperate with the other in making full
disclosure of and providing complete access to all information and
documents requested by the other in connection with such arbitration
proceedings, subject only to any confidentiality obligations binding
on such party.
(f) The award of the arbitration tribunal shall be final and binding upon
the disputing parties, and either party may apply to a court of
competent jurisdiction for enforcement of such award.
(g) Either party shall be entitled to seek preliminary injunctive relief,
if possible, from any court of competent jurisdiction pending the
constitution of the arbitral tribunal.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT INTENTIONALLY BLANK.]
-21-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
COMPANY:
LDK SOLAR CO., LTD.
By: /s/ Xxxxxxxx Xxxx
-----------------
Name: Xxxx Xxxxxxxx
Capacity: Chief Executive Officer
Address:
LDK Solar Co., Ltd.
Room 2303
Harbor Ring Xxxxx
Xx. 00 Xxxxxx Xxxxxx Xxxx
Xxxxxxxx 000000
Attention: Xx. Xxxx Xiaofeng & Xx. Xxxx Yonggang
Facsimile: (00-00) 0000-0000
-22-
FOUNDER:
XXXX XXXXXXXX
By: /s/ Xxxxxxxx Xxxx
-----------------
Name: Xxxx Xxxxxxxx
Address:
LDK Solar Co., Ltd.
Room 2303
Harbor Ring Xxxxx
Xx. 00 Xxxxxx Xxxxxx Xxxx
Xxxxxxxx 000000
-23-
INVESTOR:
FINANCIERE NATEXIS SINGAPORE 4 PTE, LTD.
By: /s/ Xxxx Xxxx
--------------
Name: Xxxx Xxxx (Xxxxx)
Capacity: Authorized Officer
Registered Address:
Financiere Natexis Singapore 4 Pte, Ltd.
Xxxx & Leow
27th Floor, Millennia Tower
0 Xxxxxxx Xxxxxx
Xxxxxxxxx 00000000
Notice Address:
Natexis Private Equity Asia Limited
Xxxxx 0000, 00/X Xxxxxxxx Xxxx Xxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxx 000000
Attention: Xxxx Xxxx (Xxxxx)
Facsimile: (00-00) 0000-0000
-24-
INVESTOR:
DECATUR OVERSEAS CORPORATION
By: /s/ Xxxx Xxxx
------------------------------
Name: Xxxx Xxxx (Xxxxx)
----------------------------
Capacity: Authorized Officer
Address:
Natexis Private Equity Asia Limited
Xxxxx 0000, 00/X Xxxxxxxx Xxxx Xxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxx 000000
Attention: Xxxx Xxxx (Xxxxx) or Nicolazo Xx Xxxxxx, Xxxx
Facsimile: (00-00) 0000-0000
-25-
INVESTOR:
BRILLIANT EVER INVESTMENTS LIMITED
By: /s/ Xxxx Xx
------------------------------
Name: Xxxx Xx
----------------------------
Capacity: Authorized Signatory
------------------------
Address:
Suite 2302-3, 23/F Great Xxxxx Xxxxxx
00 Xxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Attention: Xx Xxxxx Xxxx
Facsimile: (000) 0000-0000
-26-
INVESTOR:
BOUNDLESS FUTURE INVESTMENT LIMITED
By: /s/ Xxxx Xx
------------------------------
Name: Xxxx Xx
----------------------------
Capacity: Authorized Signatory
------------------------
Address:
Suite 2302-3, 23/F Great Xxxxx Xxxxxx
00 Xxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Attention: Xx Xxxxx Xxxx
Facsimile: (000) 0000-0000
-27-
INVESTOR:
SHINE FIELD INVESTMENTS LIMITED
By: /s/ Xxxx Xx
------------------------------
Name: Xxxx Xx
----------------------------
Capacity: Authorized Signatory
------------------------
Address:
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola, BVI
c/o Petrius Lui or Ignatius Seu
00xx Xxxxx Xxxxxxx Xxxxx
0 Xxxxxxxxx Xxxxx
Xxxx Xxxx
Attention: Petrius Lui or Ignatius Seu
Facsimile: (000) 0000-0000
-28-
INVESTOR:
CDH SOLARFUTURE LIMITED
By: /s/ Xxx Xxxxx Hua
-----------------
Name: Xxx Xxxxx Hua
Capacity: Director
Address:
Xxxxx 00, Xxx Xxxxxxx Xxxx
Xxxxxxxxx 000000
Attention: Xx. Xxx Xxxxx Hua
Facsimile: (00) 0000 0000
-29-
INVESTOR:
CHF WAFER COMPANY LIMITED
By: /s/ Xxxxxx Xx
--------------------------------
Name: Xxxxxx Xx
------------------------------
Capacity: Authorized Representative
--------------------------
Address:
X.X. Xxx 000, Xxxxxxxx Xxxxxxx
Xxxx Xxxx, Xxxxxxx
British Virgin Islands
x/x Xxxxx Xxxxxxxxxxx Xxxxxxx Xxxxxxxxxx
Suites 305-307
St George's Building
0 Xxx Xxxxx Xxxxxx, Xxxxxxx
Xxxx Xxxx
Xxxxxxxxx: Xxxx Xxxx
Facsimile: (000) 0000-0000
-30-
INVESTOR:
CHINA ENVIRONMENT FUND 2004, LP.
By: /s/ Xxx Xxx
------------------------------
Name: Xxx Xxx
----------------------------
Capacity: Authorized Signatory
------------------------
Address:
X.X. Xxx 000
Xxxxxx Xxxx, Xxxxxx Xxxxxxx
x/x Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxxxxxx
X0000, XX Xxxxx, Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxx 000000
Attention: Xx. Xxxxxxxxx Xxx
Facsimile: (00-00) 0000-0000
-31-
INVESTOR:
CHINA ENVIRONMENT FUND 2002, LP.
By: /s/ Xxx Xxx
------------------------------
Name: Xxx Xxx
----------------------------
Capacity: Authorized Signatory
------------------------
Registered address:
X.X. Xxx 000
Xxxxxx Xxxx, Xxxxxx Xxxxxxx
Notice address:
x/x Xxxxxxxx Xxxxxxx Xxxxxxx Xxxxxxxxxx
X0000, XX Xxxxx, Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxx 000000
Attention: Xx. Xxxxxxxxx Xxx
Facsimile: (00-00) 0000-0000
-32-
INVESTOR:
SILVERPOINTE INVESTMENTS LTD
By: /s/ Xxxx Xxxx
------------------------------
Name: Xxxx Xxxx
----------------------------
Capacity: Director
------------------------
Registered address:
Portcullis TrustNet (BVI) Limited
Portcullis TrustNet Xxxxxxxx
X.X. Xxx 0000, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
Notice address:
0 Xxxxx Xxxxxx, #00-00 XXX Xxxxxxxx, Xxxxxxxxx 000000
Attention: Chiang Xxxx Xxxxx
Telephone: (00) 0000-0000
-33-
INVESTOR:
JAFCO ASIA TECHNOLOGY FUND III
By: /s/ Xxxxxxx Xxxx Xxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx Xxxx Xxxx
----------------------------
Capacity: Attorney
------------------------
Address of registered office:
c/o Walkers SPV Limited
P.O. Box 908GT, Xxxx Street
Xxxxxx Town, Grand Cayman, Cayman Islands
Notice address:
c/o JAFCO Investment (Asia Pacific) Ltd.
0 Xxxxxxx Xxxx
#00-00 Xxxxxxxxx 000000
Attention: The President
Facsimile: (00) 0000-0000
With a copy to:
JAFCO Investment (Hong Kong) Ltd.
30/F, Two IFC, 0 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx
Attention: General Manager
Facsimile: (000) 0000-0000
-34-
INVESTOR:
MUS ROOSEVELT CHINA PACIFIC FUND L.P.
By: /s/ Jun Otsuka
---------------
Name: Jun Otsuka
Capacity: Managing Director
Address:
c/o MUS Roosevelt Capital Partners, Ltd.
Offshore Incorporations (Cayman) Limited
Scotia Centre 4/F
P.O. Box 2804
Xxxxxx Town, Grand Cayman, Cayman Islands
With a copy to:
Mitsubishi UFJ Securities (HK) Capital, Limited
11/F, XXX Xxxxx
Xxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attention: Mr. Jun Otsuka (Managing Director)
Facsimile: (000) 0000-0000
-35-
INVESTOR:
TECH TEAM HOLDINGS LIMITED
By: /s/ Xxxx Xxxx
------------------------------
Name: Xxxx Xxxx
----------------------------
Capacity: Director
------------------------
Address:
0xx Xxxxx, Xxxxxx Xxxxxxxx, Xxxx Xxxx, Xxxxxxx, Xxxxxxx Xxxxxx
Xxxxxxx
Notice address:
000 Xxxxxxx Xxxx
Xxxxx 00-000
Xxxxxx, Xxxxxxxx
China 201204
Attention: Xxxxx Xxxx XXXX
Facsimile: (00-00) 0000-0000
-36-
INVESTOR:
GRAND GAINS INTERNATIONAL LIMITED
By: /s/ Xxxx Xxxx
------------------------------
Name: Xxxx Xxxx
----------------------------
Capacity: Authorized Signatory
------------------------
Registered address:
Palm Grove House, P.O. Box 438, Road Town, Tortola, British
Virgin Islands
Notice address:
00/X, Xxxxx xx Xxxxx Merchants Bank
No. 0000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 000000
Attention: Li Hongwei
Facsimile: (00-000) 0000-0000
-37-
INVESTOR:
BOFA CAPITAL COMPANY LIMITED
By: /s/ Lingyong Peng
------------------------------
Name: Lingyong Peng
----------------------------
Capacity: Authorized Signatory
------------------------
Registered address:
c/x Xxxxxx Finance BVI Limited, P.O. Box 173, Kingston Xxxxxxxx,
Road Town, Tortola, British Virgin Islands
Notice address:
Xxxx 00X
Xxxxxxxx 0
Xxxxxxxxxx 0 Xxxx
Haidian District
Beijing, P.R.China
Attention: Xx. Xxxx Lingyong
Facsimile: (00-00) 0000 0000
-38-
SCHEDULE A
INVESTORS
---------
NAME OF INVESTORS TYPE AND NUMBER OF PREFERRED SHARES HELD
----------------- ----------------------------------------
Brilliant Ever Investments Limited .................................... 2,000,000 Series A-1 Preferred Shares
Boundless Future Investment Limited ................................... 1,000,000 Series A-1 Preferred Shares
Financiere Natexis Singapore 4 Pte Ltd. ............................... 1,128,571 Series A-2 Preferred Shares
1,150,000 Series B Preferred Shares
1,466,666 Series C Preferred Shares
Decatur Overseas Corporation .......................................... 451,429 Series A-2 Preferred Shares
Shine Field Investments Limited ....................................... 1,150,000 Series B Preferred Shares
333,333 Series C Preferred Shares
CDH SolarFuture Limited ............................................... 2,000,000 Series B Preferred Shares
1,066,667 Series C Preferred Shares
Silverpointe Investments Ltd. ......................................... 25,233 Series C Preferred Shares
CHF Wafer Company Limited ............................................. 1,000,000 Series B Preferred Shares
China Environment Fund 2004, LP. ...................................... 833,333 Series B Preferred Shares
China Environment Fund 2002, LP. ...................................... 66,667 Series C Preferred Shares
JAFCO Asia Technology Fund III ........................................ 833,333 Series B Preferred Shares
MUS Roosevelt China Pacific Fund L.P. ................................. 500,000 Series B Preferred Shares
20,049 Series C Preferred Shares
Tech Team Holdings Limited ............................................ 250,000 Series B Preferred Shares
20,048 Series C Preferred Shares
Grand Gains International Limited ..................................... 250,000 Series B Preferred Shares
BOFA Capital Company Limited .......................................... 33,334 Series B Preferred Shares
1,337 Series C Preferred Shares
-39-
SCHEDULE B
KEY PERSONS
-----------
Xxxx Xxxxxxxx Fu Xxxxxxxx
Xxx Liangbao Xxxxx Qiumao
Xxxx Xxxxxxxx Fu Xxxxx
Xxxx Xxx Xxxxx Xxxxxxx
Xxxxxx Xxxxx Lu Xxxxxxxx
Xxx Qiqiang Song Xxxx
Xxx Lung Xxx Xxx Qinyun
Xxxxxxx Xx Xxxxxxx Xxxxxx Xxxxxxx Cabrini
Rosseio Pleiro Xing Guo Ping
Xxx Xxxx Xxxxx Xxxx Xxxxxxx
Xxxxxx Xxxxx Xxxx Jianwen
-40-
