Exhibit 4.5
EXECUTION COPY
SHAREHOLDERS AGREEMENT
AMONG
YONGHUA SOLAR POWER INVESTMENT HOLDING LTD.
WHF INVESTMENT CO., LTD.
YONGQIANG SOLAR POWER INVESTMENT HOLDING LTD.
YONGLIANG SOLAR POWER INVESTMENT HOLDING LTD.
YONGFA SOLAR POWER INVESTMENT HOLDING LTD.
YONGXING SOLAR POWER INVESTMENT HOLDING LTD.
YONGGUAN SOLAR POWER INVESTMENT HOLDING LTD.
FOREVER-BRIGHTNESS INVESTMENTS LIMITED
XXXXXXX XX (CHINESE CHARACTERS), XXXXXX XXXX (CHINESE CHARACTERS),
RONGQIANG CUI (CHINESE CHARACTERS), YONGLIANG (CHINESE CHARACTERS),
XXXXXXX XX (CHINESE CHARACTERS), XXXXXXX XXXX (CHINESE CHARACTERS),
XXXXXX XXXX (CHINESE CHARACTERS), MIN CAO (CHINESE CHARACTERS)
CITIGROUP VENTURE CAPITAL INTERNATIONAL GROWTH PARTNERSHIP, L.P.
CITIGROUP VENTURE CAPITAL INTERNATIONAL CO-INVESTMENT, L.P.
HONY CAPITAL II L.P.
LC FUND III L.P.
XXXXXXX XXXXXX XXXXX
XXXXXXX YAR KHAN
GOOD ENERGIES INVESTMENTS LIMITED
AND
SOLARFUN POWER HOLDINGS CO., LTD.
DATED AS OF JUNE 27, 2006
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS..........................................................2
1.1 DEFINITIONS.........................................................2
1.2 ADDITIONAL DEFINITIONS..............................................6
1.3 CONSTRUCTION........................................................6
ARTICLE II REPRESENTATIONS AND WARRANTIES......................................7
2.1 REPRESENTATIONS AND WARRANTIES OF THE PARTIES.......................7
ARTICLE III CORPORATE GOVERNANCE...............................................8
3.1 GENERAL.............................................................8
3.2 AUTHORITY OF THE BOARD OF DIRECTORS.................................8
3.3 COMPOSITION OF THE BOARD OF DIRECTORS...............................8
3.4 COMMITTEES OF THE BOARD.............................................8
3.5 REMOVAL AND REPLACEMENT OF DIRECTORS................................9
3.6 DIRECTORS' ACCESS TO INFORMATION....................................9
3.7 BOARD MEETINGS.....................................................10
3.8 ACTION BY THE BOARD................................................11
3.9 REMUNERATION OF DIRECTORS..........................................11
3.10 APPOINTMENT OF EXTERNAL AUDITORS...................................11
3.11 APPOINTMENT OF EXECUTIVE OFFICERS..................................11
3.12 SUBSIDIARIES.......................................................12
3.13 INVESTORS' CONSENT RIGHTS..........................................12
3.14 LIMIT ON SHAREHOLDER ACTION........................................14
ARTICLE IV PRE-EMPTIVE RIGHTS OF THE SHAREHOLDERS.............................14
4.1 SHAREHOLDERS PRE-EMPTIVE RIGHTS....................................14
4.2 NOTICE OF NEW ISSUANCES............................................15
4.3 ADDITIONAL ALLOCATION PROCEDURES...................................15
4.4 BINDING EFFECT OF THIS AGREEMENT...................................15
ARTICLE V RESTRICTIONS ON THE TRANSFER OF SHARES..............................15
5.1 GENERAL............................................................15
5.2 PERMITTED TRANSFERS................................................16
5.3 LEGEND ON SHARE CERTIFICATES.......................................16
5.4 RIGHT OF FIRST REFUSAL.............................................17
5.5 TAG-ALONG RIGHTS...................................................18
5.6 NO CIRCUMVENTION OF SHARE TRANSFER RESTRICTIONS....................19
5.7 TRANSFER BY INVESTORS..............................................19
ARTICLE VI INITIAL PUBLIC OFFERING............................................19
6.1 OBLIGATION TO CONDUCT A QUALIFYING IPO.............................19
6.2 REGISTRATION RIGHTS................................................20
6.3 LOCK-UP PERIOD.....................................................20
6.4 PROPORTIONAL SALE IN AN INITIAL PUBLIC OFFERING....................20
ARTICLE VII CERTAIN COVENANTS OF THE COMPANY AND THE CONTROLLING INDIVIDUALS..20
7.1 FINANCIAL INFORMATION..............................................20
7.2 MAINTENANCE OF BOOKS AND RECORDS...................................21
7.3 ACCESS TO BOOKS AND RECORDS........................................21
7.4 AUDIT RIGHTS.......................................................21
7.5 SECURITIES FILINGS.................................................21
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7.6 INSURANCE..........................................................21
7.7 INTELLECTUAL PROPERTY PROTECTION...................................22
7.8 NOTIFICATION OF SOLICITATION.......................................22
7.9 OPERATIONAL AND STRATEGIC SUGGESTIONS..............................22
7.10 CONTROLLING INDIVIDUALS' UNDERTAKING...............................22
7.11 UNDERTAKINGS BY XX. XXXXXXX XX.....................................22
ARTICLE VIII COVENANTS RELATED TO CONFIDENTIALITY AND NON-COMPETITION.........22
8.1 CONFIDENTIALITY....................................................22
8.2 RESTRICTION ON ANNOUNCEMENTS.......................................23
8.3 NON-COMPETITION....................................................23
ARTICLE IX TERM AND TERMINATION...............................................24
9.1 TERM AND TERMINATION...............................................24
9.2 EFFECT OF TERMINATION; SURVIVAL....................................24
ARTICLE X EVENTS OF DEFAULT...................................................25
10.1 EVENTS OF DEFAULT..................................................25
10.2 EFFECT OF EVENTS OF DEFAULT........................................26
10.3 NO PREJUDICE.......................................................26
ARTICLE XI GOVERNING LAW & RESOLUTION OF DISPUTES.............................26
11.1 GOVERNING LAW......................................................26
11.2 DISPUTE RESOLUTION FORUM...........................................26
11.3 SPECIFIC PERFORMANCE...............................................27
11.4 WAIVER OF IMMUNITIES...............................................27
11.5 PERFORMANCE PENDING DISPUTE RESOLUTION.............................27
11.6 SURVIVAL...........................................................27
ARTICLE XII MISCELLANEOUS.....................................................27
12.1 NO PARTNERSHIP; AGENCY.............................................27
12.2 INDEMNIFICATION....................................................27
12.3 ENTIRE AGREEMENT...................................................29
12.4 BINDING EFFECT; BENEFIT............................................29
12.5 ASSIGNMENT.........................................................29
12.6 AMENDMENT; WAIVER..................................................29
12.7 NOTICES............................................................29
12.8 COUNTERPARTS.......................................................34
12.9 SEVERABILITY.......................................................34
12.10 FURTHER ACTS AND ASSURANCES........................................34
12.11 CONFLICT...........................................................34
LIST OF EXHIBITS
----------------
EXHIBIT A-1: NUMBER AND PERCENTAGE OF SHARES HELD AFTER THE CLOSING
EXHIBIT A-2: NUMBER AND PERCENTAGE OF SHARES HELD AFTER THE SECOND CLOSING
EXHIBIT B: FORM OF REGISTRATION RIGHTS AGREEMENT
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SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT (this "AGREEMENT") dated as of June 27, 2006 is made
by and among (i) Yonghua Solar Power Investment Holding Ltd. ("LU BVI"), WHF
Investment Co., Ltd. ("WANG HANFEI BVI"), Yongqiang Solar Power Investment
Holding Ltd. ("CUI BVI"), Yongliang Solar Power Investment Holding Ltd. ("GU
BVI"), Yongfa Solar Power Investment Holding Ltd. ("YU BVI"), Yongxing Solar
Power Investment Holding Ltd. ("TONG BVI"), Yongguan Solar Power Investment
Holding Ltd. ("XXXX XXXXXX BVI"), and Forever-brightness Investments Limited
("CAO BVI"), each a company incorporated and validly existing under the laws of
the British Virgin Islands (collectively, the "EXISTING SHAREHOLDERS"), (ii)
Xxxxxxx Xx (CHINESE CHARACTERS), Xxxxxx Xxxx (CHINESE CHARACTERS), Rongqiang Cui
(CHINESE CHARACTERS), YONGLIANG GU (CHINESE CHARACTERS), Xxxxxxx Xx (CHINESE
CHARACTERS), Xingxu Tong (CHINESE CHARACTERS), Xxxxxx Xxxx (CHINESE CHARACTERS)
and Min Cao (CHINESE CHARACTERS) (collectively, the "CONTROLLING INDIVIDUALS"),
(iii) 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 (together "CVCI")
(iv) Hony Capital II L.P. ("HONY") and LC Fund III L.P. ("LC"), each a limited
partnership organized under the laws of the Cayman Islands (LC and Hony together
"LEGEND"), (v) Xxxxxxx Xxxxxx Haram, a Lebanese citizen (Passport No.: 2145190)
(vi) Rasheed Yar Khan, an Indian citizen (Passport No.: Z1710012), (vii) Good
Energies Investments Limited, a company organized under the laws of Jersey
("GOOD ENERGIES"), (viii) any co-investors jointly approved by CVCI, Legend, and
the Company and who shall become a party to this Agreement by executing and
delivering a counterpart signature page to this Agreement (CVCI, Legend, Xxxxxxx
Xxxxxx Haram, Rasheed Yar Khan, Good Energies, and other co-investors, if any,
are collectively referred to hereinafter as the "INVESTORS" and individually an
"INVESTOR"), and (ix) Solarfun Power Holdings Co., Ltd., an exempted company
incorporated and validly existing with limited liability under the laws of the
Cayman Islands (the "COMPANY").
WHEREAS:
(A) The Investors, certain Existing Shareholder and the Company have
entered into a Series A Convertible Preference Shares Purchase
Agreement dated June 6, 2006 (the "PURCHASE AGREEMENT") pursuant to
which, (i) upon the Closing (as defined in the Purchase Agreement),
the Existing Shareholders and the Investors will hold the number and
percentage of Shares of the Company set forth next to each such
Party's name on EXHIBIT A-1, and (ii) upon the Second Closing (as
defined in the Purchase Agreement), if applicable, the Existing
Shareholders and the Investors will hold the number and percentage of
Shares of the Company set forth next to each such Party's name on
EXHIBIT A-2;
(B) (a) Xxxxxxx Xx (CHINESE CHARACTERS) holds all of the outstanding share
capital of Lu BVI, (b) Xxxxxx Xxxx (CHINESE CHARACTERS) holds all of
the outstanding share capital of Wang Hanfei BVI, (c) Rongqiang Cui
(CHINESE CHARACTERS) holds all of the outstanding share capital of Cui
BVI, (d) Yongliang Gu (CHINESE CHARACTERS) holds all of the
outstanding share capital of Gu BVI, (e) Xxxxxxx Xx (CHINESE
CHARACTERS) holds all of the outstanding share capital of Yu BVI, (f)
Xxxxxxx Xxxx (CHINESE CHARACTERS) holds all of the outstanding share
capital of Tong BVI, (g) Xxxxxx Xxxx (CHINESE CHARACTERS) holds all of
the outstanding share capital of Xxxx Xxxxxx BVI and (h) Min Cao
(CHINESE CHARACTERS) holds all of the outstanding share capital of Cao
BVI;
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(C) The Parties wish to provide for certain of their rights and
obligations regarding the management of the Company, the transfer of
the Shares of the Company and certain other rights and obligations of
the Parties as set forth herein; and
(D) It is a condition to the Closing under the Purchase Agreement that the
Parties shall have executed this agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual promises,
covenants and agreements of the Parties contained herein, the Parties agree as
follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. The following terms shall have the following meanings for
purposes of this Agreement:
"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
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.
"ARTICLES OF INCORPORATION" 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.
"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
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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.
"BANKRUPTCY LAW" means any bankruptcy, insolvency, reorganization,
composition, moratorium or other similar Law.
"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.
"BOARD" means the board of directors of the Company.
"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.
"CONFIDENTIAL INFORMATION" means (a) any information concerning the
organization, business, technology, trade secrets, know-how, finance,
transactions or affairs of any Party or any Party's Representatives (whether
conveyed in written, oral or in any other form and whether such information has
been furnished before, on or after the date of this Agreement), (b) any
information or materials prepared by a Party or its Representatives that
contains or otherwise reflects, or is generated from, Confidential Information,
(c) the Transaction Documents, the transactions contemplated thereby, including
their existence, the identity of the Investors and their Affiliates, the terms
and conditions thereof or any discussions, correspondence or other
communications among the parties to any Transaction Document or their respective
Representatives relating to the Transaction Documents or any of the transactions
contemplated thereunder and (d) any documents or information concerning any
Party or any Party's Representatives furnished to any other Party in connection
with such Party's due diligence review, if any, conducted in evaluating the
transactions contemplated by the Transaction Documents.
"DIRECTOR" means a director of the Company (including any duly appointed
alternate director).
"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, (ii) any lease, sub-lease, occupancy
agreement, easement or covenant granting a right of use or occupancy to any
Person, (iii) 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 (iv) any adverse claim as to title, possession or use.
"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
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exercisable or exchangeable for, such capital stock, membership interests,
partnership interests, registered capital or other ownership interests (whether
or not such derivative securities are issued by such Person) and includes the
Shares.
"EXISTING SHAREHOLDERS" has the meaning stated in the preamble and shall
include any Permitted Transferee who is an Affiliate of an Existing Shareholder.
Each of the Existing Shareholders shall be referred to as an "EXISTING
SHAREHOLDER."
"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.
"INITIAL PUBLIC OFFERING" means the first Public Offering of Equity
Securities of a Person upon the consummation of which such securities are listed
on an internationally recognized securities exchange.
"INVESTORS" has the meaning stated in the preamble and shall include any
Permitted Transferee who is an Affiliate of an Investor. Each of the Investors
shall be referred to as an "INVESTOR."
"LAW" means any law, treaty, statute, ordinance, code, rule or regulation
of any Government Authority or any Order.
"ORDER" means any writ, judgement, decree, injunction, award or similar
order of any Government Authority (in each case whether preliminary or final).
"ORDINARY SHARES" means ordinary shares in the Company with voting rights,
par value U.S.$0.0001 per share, including any subdivisions, combinations,
splits or reclassifications thereof.
"PARTIES" means collectively the Investors, the Existing Shareholders, the
Controlling Individuals, the Company and any Person who becomes a party to this
Agreement under Clause 5.1(a). Each of the Parties shall be referred to as a
"PARTY."
"PERCENTAGE OWNERSHIP" means, with respect to any Shareholder, a percentage
represented by the fraction, the numerator of which is the number of Shares then
registered in the name of such Shareholder in the Company's register of members
and the denominator of which is the total number of Shares then issued and
outstanding.
"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.
"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.
"PRC" or "CHINA" each means the People's Republic of China.
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"PREFERENCE SHARES" means the Series A Convertible Preference Shares in the
Company, par value U.S.$0.0001 per share.
"PUBLIC OFFERING" means, in the case of an offering in the United States,
an underwritten public offering of Equity Securities of a Person pursuant to an
effective registration statement under the U.S. Securities Act of 1933, as
amended, and, in the case of an offering in any other jurisdiction, a widely
distributed underwritten offering of Equity Securities of a Person in which both
retail and institutional investors are eligible to buy in accordance with the
securities laws of such jurisdiction.
"PUBLIC TRANSFEREE" means any Person to whom Shares are Transferred on a
public market in or following an Initial Public Offering of the Company;
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.
"REPRESENTATIVES" means with respect to any Person, such Person's
directors, officers, employees, agents, Affiliates, partners, legal and
financial advisers, accountants, consultants and controlling persons.
"RECEIVER" means any receiver, liquidator, trustee, administrator,
sequestrator or other similar official.
"SHAREHOLDER" means each Person who is registered as a shareholder of the
Company in the Company's register of members that is a Party whether in
connection with the execution and delivery of the Agreement as of the date
hereof or in accordance with Clause 5.1(a).
"SHARES" means the Ordinary Shares and the Preference Shares.
"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."
"THIRD PARTY" means a bona fide prospective purchaser, who is unrelated and
unaffiliated with the Company or any Subsidiary of the Company or any
Shareholders of the Company, of Shares in an arm's-length transaction from a
Shareholder where such purchaser is not a Party or a Permitted Transferee of
such Shareholder.
"TRANSACTION DOCUMENTS" each of the agreements and documents set forth in
schedule 7.9 of the Purchase Agreement, including but not limited to this
Agreement and the Purchase Agreement.
"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.
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1.2 ADDITIONAL DEFINITIONS. The following terms shall have the meanings
defined in the indicated Clause for purposes of this Agreement:
DEFINED TERM CLAUSE REFERENCE
------------ ----------------
"Acceptance Notice" 5.4(b)
"Agreement" Preamble
"Cause" 3.5(c)
"CEO" 3.7(b)
"CFO" 3.11
"Closing" Recital (A)
"Company" Preamble
"Disclosing Party" 8.1
"Existing Shareholder Director" 3.3
"Events of Default" 10.1
"ICC" 11.2(a)
"Indemnified Person" 12.2(a)
"Investor Director" 3.3
"Investor Indemnitee" 12.2(b)
"Losses" 3.14
"New Issuance" 4.1
"Offered Shares" 5.4(b)
"Offeree" 5.4(a)
"Parties" Preamble
"Proposal" 7.8
"Purchase Agreement" Recital (A)
"Qualifying IPO" 6.1
"Right of First Refusal" 5.4(a)
"Right of First Refusal Notice Period" 5.4(b)
"Right of First Refusal Notice" 5.4(a)
"Rights Issuance Portion" 4.1
"Rights Offering Notice" 4.2
"Rights Offering Period" 4.2
"Rules" 11.2(a)
"Second Closing" Recital (A)
"Shareholders Meeting" 3.1
"Tag Along Acceptance Notice" 5.5(b)
"Tag Along Completion Date" 5.5(a)
"Tag Along Notice" 5.5(a)
"Tag Along Portion" 5.5(c)
"Tag Along Purchaser" 5.5(a)
"Tag Along Right" 5.5(b)
"Transferor" 5.4(a)
1.3 CONSTRUCTION. 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. 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-
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clause of this Agreement, and references herein to "articles" or "clauses" refer
to articles or clauses of this Agreement. 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.
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. 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. Whenever this Agreement refers
to a number of days, such number shall refer to calendar days unless Business
Days are specified.
ARTICLE II
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:
(a) 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;
(b) 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;
(c) 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;
(d) 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
(e) 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
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(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.
ARTICLE III
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 (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 each of the other Transaction Documents, including ensuring that the
Articles of Incorporation (and any such organizational documents of any
Subsidiary of the Company) do not at any time conflict with any provision of
this Agreement or any other Transaction Document. Without limiting the previous
sentence, each Shareholder shall procure, subject to applicable law, that each
Director nominated by such Shareholder shall vote and take all other action
necessary or required to implement the provisions of this Agreement and each of
the other Transaction Documents. In all other respects, each Shareholder shall
be entitled to vote in such Shareholder's own best interests.
3.2 AUTHORITY OF THE BOARD OF DIRECTORS. Subject only to the provisions of
this Agreement and applicable Law:
(a) the Board shall have ultimate responsibility for management and control
of the Company; and
(b) the Board shall be required to make all major decisions of the Company
(including all decisions with respect to matters set forth in Clause 3.13), and
each Shareholder shall procure, subject to applicable law, that the Company and
each Director or officer nominated by such shareholder refrain from taking and
the Company shall refrain from taking such actions without prior approval of the
Board.
3.3 COMPOSITION OF THE BOARD OF DIRECTORS. The number of Directors
constituting the Board shall be at least twelve (12). Each Shareholder shall
vote its Shares at any Shareholders Meeting called for the purpose of electing
Directors or in any written consent of Shareholders executed for such purpose to
elect, and shall take all other actions necessary or required to ensure the
election to the Board of, (i) five (5) nominees of the Investors (each, an
"INVESTOR DIRECTOR"), including two (2) to be nominated by CVCI (each a "CVCI
DIRECTOR"), two (2) to be nominated by Legend (each a "LEGEND DIRECTOR") and one
(1) to be nominated by Good Energies (the "GOOD ENERGIES DIRECTOR"); (ii) seven
(7) nominees of the Existing Shareholders (each, an "EXISTING SHAREHOLDER
DIRECTOR"); and (iii) certain number of independent directors to be jointly
nominated by the Investors and the Existing Shareholders. The Chairman of the
Board shall be selected by the Board from among the Existing Shareholder
Directors. Each Director shall have the right to appoint an observer to assist
with the Directors' work.
3.4 COMMITTEES OF THE BOARD. The Board may establish such committees with
such powers as may be permitted by applicable Law and the Articles of
Incorporation; provided, that any such committees shall be subject to the
direction of and any policies adopted by the Board. Without limiting the
foregoing, the Board shall establish a compensation committee (the "COMPENSATION
COMMITTEE"), whose scope of responsibilities
8
shall include making recommendations to the Board on matters of compensation and
benefits for senior executives, including establishment of any employee stock
option plans, and an audit committee (the "AUDIT COMMITTEE"), whose
responsibilities shall include making recommendation to the Board on matters
relating to accounting policies and treatment, internal control and budget. Each
such committee established by the Board, including without limitation the
Compensation Committee and the Audit Committee, shall consist of five (5)
members, three (3) of which shall be appointed by the Existing Shareholders and
one (1) of which shall be appointed from the CVCI Directors and one (1) from the
Legend Directors; provided that, it shall be a right but not an obligation for
CVCI or Legend to appoint any of its Directors to each such committee. All
meetings of a committee shall require a quorum of at least a majority of the
members of such committee, including the CVCI Director and the Legend Director
appointed to such committee hereunder. In the event that CVCI or Legend notifies
the Company in writing that it will not appoint any of its Directors to any
committee, the committee shall have the power to take all actions within its
scope of responsibilities without the participation of such Investor Director.
If CVCI or Legend elects not to appoint its Directors to any committee, the
right of CVCI and Legend to appoint their Directors to such committee in the
future shall not be affected in any way.
3.5 REMOVAL AND REPLACEMENT OF DIRECTORS.
(a) Each Shareholder shall have the absolute right to remove any director
nominated by it at any time at its sole discretion, and each of the Shareholders
shall vote its Shares at any Shareholders Meeting or in any written consent of
Shareholders so as to effectuate such right. Except as provided in the previous
sentence, no Shareholder shall vote for the removal of an Investor Director or
an Existing Shareholder Director unless there is Cause (as defined in (c)
below).
(b) If, as a result of death, resignation, removal (with or without Cause)
or otherwise, there shall exist or occur any vacancy on the Board, the
Shareholder entitled under Clause 3.3 to nominate the Director whose death,
resignation, removal or other departure resulted in such vacancy shall nominate
another individual to serve in place of such Director and the Shareholders shall
elect such individual to the Board as soon as practicable thereafter. If it is
an Investor Director whose death, resignation, removal or other departure has
resulted in the vacancy, neither the Shareholders nor the Board shall transact
any business of the Company until the Investor entitled under Clause 3.3 to
nominate the Director whose death, resignation, removal or other departure
resulted in such vacancy has elected the replacement for such Director, unless
such Investor shall have failed to nominate a replacement Director within ten
(10) Business Days after such death, resignation, removal or other departure.
(c) "CAUSE" means (a) a 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.
3.6 DIRECTORS' ACCESS TO INFORMATION. Each Director shall be entitled to
examine the books and accounts of the Company or any Subsidiary of the Company
and shall have free access, at all reasonable times and upon reasonable prior
notice, to any and all
9
properties and facilities of the Company or any Subsidiary of the Company. The
Company shall provide such information relating to the business affairs and
financial position of the Company or any Subsidiary of the Company as any
Director may require. Any Director may provide such information to his or her
nominating Shareholder.
3.7 BOARD MEETINGS.
(a) Frequency and Location. Meetings of the Board shall take place at least
once in every fiscal quarter of the Company unless otherwise determined by the
Board. Board meetings shall be held in Shanghai, PRC or Hong Kong or any other
location agreed by at least one CVCI Director, one Legend Director, the Good
Energies Director and one Existing Shareholder Director; provided, that if the
Directors cannot agree on a location for any particular Board meeting, the
meeting shall be held in Shanghai, PRC.
(b) Notice. A meeting of the Board may be called by the Chairman of the
Board, or any two Directors giving notice in writing to the Chief Executive
Officer of the Company (the "CEO") specifying the date, time, location and
agenda for such meeting. The CEO shall, promptly following receipt of such
notice, deliver a copy of such notice to each Director and each Shareholder,
accompanied by a written agenda specifying the business of such meeting and
copies of all papers relevant for such meeting. Not less than fourteen (14) days
prior written notice shall be given to each Director and Shareholder; provided,
that such notice period (i) shall not apply in the case of an adjourned meeting
pursuant to Clause 3.8(a), (ii) may be reduced with the unanimous written
consent of the Directors, and (iii) may be waived by any Director who fails to
receive the notice of the meeting but chooses to attend the meeting.
(c) Telephone Participation. To the extent permitted by applicable law,
Directors may participate in Board meetings by telephone or video conferencing
or any other means of contemporaneous communication; provided, that each
Director taking part in the meeting is able to hear each other Director taking
part and; provided, further, that each Director must acknowledge his or her
presence for the purpose of the meeting and any Director not doing so shall not
be entitled to speak or vote at the meeting. Such participation shall constitute
presence for purposes of the quorum provisions of Clause 3.8(a). A Director may
not leave the meeting by disconnecting his or her telephone or other means of
communication unless he or she has previously obtained the express consent of
the Chairman of the Board and a Director shall conclusively be presumed to have
been present and formed part of the quorum at all times during the meeting
unless he or she has previously obtained the express consent of the Chairman of
the Board to leave the meeting as aforesaid.
(d) Written Resolutions. Any action that may be taken by the Directors at a
Board meeting may alternatively be taken by a written resolution signed by all
of the Directors. The expressions "written" and "signed" include writings or
signatures transmitted by facsimile.
(e) Language; Preparation of Minutes. All meetings of the Board shall be
conducted in Chinese or English, and written minutes of all meetings of the
Board shall be prepared in English and provided by the Company to each Director
and each Shareholder within ten (10) Business Days after each meeting of the
Board.
10
3.8 ACTION BY THE BOARD.
(a) Quorum. All meetings of the Board shall require a quorum of at least a
majority of the Directors which shall include at least one CVCI Director, one
Legend Director and the Good Energies Director. If such a quorum is not present
within sixty (60) minutes after the time appointed for the meeting, the meeting
shall be adjourned, the Parties shall reschedule the meeting within fifteen (15)
days in good faith and the Directors shall be obliged to participate in such
rescheduled meeting in good faith. If a quorum is still not present at such
rescheduled meeting, the Directors then present shall be deemed to constitute a
quorum and may transact the business specified for the adjourned meeting.
(b) Ordinary Actions. At any Board meeting, each Director may exercise one
vote. Any Director may, by written notice to the Chairman of the Board, (i)
authorize another Director to attend and vote by proxy for such Director at any
Board meeting or (ii) appoint an alternate Director to attend and vote for such
Director at any Board Meeting. The adoption of any resolution of the Board shall
require the affirmative vote of a majority of the Directors present at a duly
constituted meeting of the Board. Any Director may put forth a resolution for
vote at a Board Meeting; provided, that the Board shall not adopt any resolution
covering any matter that is not specified on the agenda for such meeting unless
at least one CVCI Director, one Legend Director and the Good Energies Director
are present at such meeting and vote in favor of such resolution.
3.9 REMUNERATION OF DIRECTORS. No Director shall be entitled to any
remuneration for serving in such capacity except for: (a) reimbursement of
reasonable out-of-pocket expenses in connection with the performance of his or
her duties as Director, (b) if such Director is otherwise an employee of or
consultant to the Company, remuneration received in such capacity or (c) benefit
under any share option scheme or plan of the Company or its Subsidiaries.
3.10 APPOINTMENT OF EXTERNAL AUDITORS. Each Shareholder agrees to vote its
Shares, and each Shareholder who has nominated a Director pursuant to Clause 3.3
agrees to procure that its nominated Directors shall vote to cause the Board to
appoint as the Company's auditors an internationally recognized accounting firm;
provided that such accounting firm, as of the date hereof, shall be one of the
affiliates of KPMG, PricewaterhouseCoopers, Ernst & Young or Deloitte Touche
Tohmatsu.
3.11 APPOINTMENT OF EXECUTIVE OFFICERS. The Existing Shareholders and CVCI,
Legend and Good Energies shall jointly appoint the CEO of the Company, the Chief
Financial Officer of the Company (the "CFO") and Chief Operating Officer of the
Company (the "COO"), except that the CEO of the Company immediately after the
date hereof shall be Xxxxxx Xxxx (Io(0)(0)o E). Only the Party or Parties who
have the right to appoint such officer may remove such officer or fill any
vacancy that may arise upon the death, resignation, removal or other departure
of such officer, provided that, the Board shall have the right to remove any
officer for Cause (as defined in Clause 3.5(c) above). The CEO shall report to
the Board and manage the day-to-day affairs of the Company subject to the
directions and policies of the Board adopted from time to time. The CFO shall
report to the CEO and shall be responsible for the financial and accounting
aspects of the Company. All other executive officers and members of the senior
management of the Company shall be appointed and their scope of their duties
determined by the CEO in consultation with the Board, subject to the right of
CVCI, Legend and Good Energies to approve the appointment or change of CEO,
11
CFO, and COO and any change in their rights and obligations pursuant to Section
3.13(t) hereof.
3.12 SUBSIDIARIES. Except as otherwise agreed by the Shareholders, each
Subsidiary of the Company shall be governed and managed in accordance with the
same procedures (including the procedures related to nominating and removing
directors and officers) applicable to the Company as set forth in this Article
III.
3.13 INVESTORS' CONSENT RIGHTS. Commencing from the date of the Closing
until the termination of this Agreement in accordance with Clause 9.1 hereof,
subject to any additional requirements imposed by applicable Law, the
Shareholders agree that none of the Company, any Subsidiary, any shareholder
(other than the Investors), director, officer, committee, committee member,
employee, or agent of the Company or any Subsidiary or any of their respective
delegates shall be entitled to, without the unanimous affirmative consent or
approval of CVC, Legend and Good Energies, take any of the following actions:
(a) the issuance of any kind of equity or equity-linked securities or
equivalent arrangements, including creation of new or additional employee stock
option plans or changes to existing stock option plan; provided that with
respect to the Employee Stock Option Plan as provided in Section 6.2 of the
Purchase Agreement, CVCI, Legend and Good Energies shall respond to the
Company's proposal within ten (10) Business Days following the date that the
Company has delivered such proposal to each of CVCI, Legend and Good Energies
pursuant to Section 12.7 hereof, and in the event any of CVCI, Legend and Good
Energies disapproves of any aspects of the Company's proposal, it shall give the
Company reasonable explanations for its disapproval. The Company may revise its
proposal and resubmit it to CVCI, Legend and Good Energies for their approval
pursuant to the same procedure described above. For avoidance of doubt, this
Section 3.13(a) shall not apply to the issuance of Preference Shares
contemplated by Section 4.1(v) hereof;
(b) any stock split, or stock combination, or redemption or repurchase of
any securities;
(c) any change to the terms and conditions of any existing securities;
(d) the issuance of any debt or debt instruments in excess of RMB50 million
in any one transaction or RMB100 million in any consecutive twelve month period;
(e) any non-operational transactions, loans, guarantees, mortgages or
charges with Affiliates, executives or any party;
(f) engagement of any business other than photovoltaic business and change
of nature or scope of business of the Company or any Subsidiary;
(g) any acquisition or disposal of assets, businesses or assumption of any
debt in connection of such acquisition exceeding RMB10 million in any one
transaction or RMB20 million in any consecutive twelve month period;
(h) any unbudgeted acquisition of fixed assets in an amount exceeding RMB2
million;
12
(i) any unbudgeted expense exceeding RMB1,500,000 and any unbudgeted
monthly expense exceeding 10% of average monthly expenses for the twelve (12)
months immediately preceding the incurrence of such expense;
(j) any transfer or disposal of material intangible property, including
without limitation transfer and licensing of any existing and future patents and
trademarks;
(k) any capital expenditures;
(l) any joint ventures, strategic alliances, partnerships or similar
arrangement with any third party;
(m) any loan exceeding RMB30 million in any one transaction, or any net
debt to equity ratio in excess of a ratio of 1.5:1 (net debt is defined as
interest bearing debt less cash and cash equivalent);
(n) any related party transaction with any shareholder, director, officers
or Affiliates of the Company or its Subsidiaries and their respective Affiliates
exceeding RMB100,000 in one transaction;
(o) any guarantee or similar obligation by the Company or any Subsidiary
relating to Indebtedness of any Person;
(p) any liquidation, dissolution or winding up of the Company or any
Subsidiary;
(q) any recapitalization, merger, asset swap, sale or transfer of
substantially all of the rights to intellectual properties or assets, or other
extraordinary transaction;
(r) conclusion or amendment of any contract or other contractual
arrangement with a value exceeding RMB30 million;
(s) adoption, amendment, or approval of any strategic plan, annual business
plan, the annual budget, mid-year budget and year-end accounting;
(t) any appointment and change of the chief executive officer, the chief
financial officer and the chief operating officer of the Company and of its
Subsidiaries, and any change in their rights and obligations;
(u) declaration of dividends and other distributions;
(v) change in the number of directors or change of auditor;
(w) material changes of compensation and incentive policies;
(x) any incurrence or creation of pledge, lien, mortgage or any other types
of securities interest on the building, plant, office facilities or other fixed
assets or equipment of the Company or any Subsidiary exceeding RMB10 million;
13
(y) amendment to the Articles of Incorporation or any other constitutional
documents, including without limitation increase and decrease in the
capitalization of the Company or any Subsidiary;
(z) changes of external auditor or any material change in accounting
policies;
(aa) an initial public offering (the "IPO") and IPO related matters, except
that with respect to the currently proposed IPO of the Company, unanimous
written consent of CVCI, Legend and Good Energies will not be required for any
matters that do not affect the Investors' rights and obligations hereunder or
the transactions contemplated by this Agreement and other Transaction Documents,
and that if at an appropriate time prior to the road show by the Company in
connection with the currently proposed IPO the Board establishes a steering
committee, which shall include at least one CVCI Director and one Legend
Director in accordance with Clause 3.4 hereof, to be in charge of matters
relating to the proposed IPO and whose resolution will require the affirmative
vote of a majority of the members of the committee, including at least the CVCI
Director and the Legend Director, unanimous written consent of CVCI, Legend and
Good Energies will no longer be required for such IPO-related matters;
(bb) initiation and settlement of any litigation with a claim that exceeds
US$1,000,000;
(cc) any waiver of a material right or of a material debt;
(dd) any satisfaction or discharge of any lien, claim or encumbrance or
payment of any obligation by the Company or any Subsidiary, except in the
ordinary course of business and that is not material to the assets, properties,
financial conditions, operating results or business of the Company and the
Subsidiaries as currently conducted and proposed to be conducted; and
(ee) entry into any agreement or understanding to do any of the foregoing.
3.14 LIMIT ON SHAREHOLDER ACTION. No Shareholder, acting solely in its
capacity as a Shareholder, shall act as an agent of the Company or have any
authority to act for or to bind the Company, except as authorized by the Board.
Any Shareholder that takes any action or binds the Company in violation of this
Clause shall be solely responsible for, and shall indemnify the Company and each
other Shareholder against, any losses, claims, damages, liabilities, judgments,
fines, obligations, expenses and liabilities of any kind or nature whatsoever
(including to any investigative, legal and other expenses incurred in connection
with, and any amounts paid in settlement of, any pending or threatened legal
action or proceeding) (collectively, "LOSSES") that the Company or such other
Shareholders, as the case may be, may at any time become subject to or liable
for by reason of such violation.
ARTICLE IV
PRE-EMPTIVE RIGHTS OF THE SHAREHOLDERS
4.1 SHAREHOLDERS PRE-EMPTIVE RIGHTS. The Company shall not conduct
14
any new issuance of Equity Securities or creation of equity or equity-linked
securities or equivalent arrangements other than in (i) a Qualifying IPO, (ii)
Ordinary Shares issued upon conversion of the Preference Shares, (iii)
securities issued as a dividend, (iv) Ordinary Shares issued or issuable to
officers, directors, and employees of, and consultants to, the Company pursuant
to options or awards under the stock option plans adopted by the Board and
approved by CVCI, Legend and Good Energies in accordance with Clause 3.13(a)
hereof, (v) Preference Shares issued pursuant to Section 2.4 or 2.5(b) of the
Purchase Agreement, (vi) securities or share capital issued to all Shareholders
pro rata without consideration pursuant to a share dividend, share subdivision,
or similar transaction (a "NEW ISSUANCE"), unless the New Issuance has been
approved as required by this Agreement and the Company has offered to each of
the Investors the right to participate in such New Issuance in proportion to
such Investor's Percentage Ownership as of the date of the Rights Offering
Notice (as defined below) (a "RIGHTS ISSUANCE PORTION") on the same terms and
conditions.
4.2 NOTICE OF NEW ISSUANCES. Each time that the Company proposes to conduct
a New Issuance, it shall give each Investor a written notice (the "RIGHTS
OFFERING NOTICE") of its intention, describing the type, price and terms
(including the proposed date upon which such New Issuance is to be completed) of
the New Issuance. Each Investor shall have thirty (30) days from the date of the
Rights Offering Notice (the "RIGHTS OFFERING PERIOD") to confirm its intention
to purchase a portion of the New Issuance up to its Rights Issuance Portion for
the price and upon the terms specified in the Rights Offering Notice by giving
written notice to the Company stating the portion of the New Issuance that it
agrees to purchase. Failure to respond to the Rights Offering Notice by an
Investor within the Rights Offering Period shall be deemed to be such Investor's
irrevocable rejection of its right to participate in such New Issuance. The
Company shall have 120 days from the date of the Rights Offering Notice to
complete the New Issuance, failing which, such New Issuance shall again be
subject to this Clause.
4.3 ADDITIONAL ALLOCATION PROCEDURES. If an Investor fails to respond to
the Rights Offering Notice within the Rights Offering Period or if an Investor
responds to the Rights Offering Notice within the Rights Offering Period but
agrees to purchase a portion of the New Issuance less than its Rights Issuance
Portion, each other Investor participating in the New Issuance shall have the
right to acquire a portion of the New Issuance declined by such Investor in
proportion to such Investor's Rights Issuance Portion.
4.4 BINDING EFFECT OF THIS AGREEMENT. The Company shall not issue any
Shares to any Person unless such Person 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 Person shall be considered a Shareholder and a Party to this
Agreement; provided, that this Clause 4.4 shall not apply to any Person who is
already a Party to this Agreement.
ARTICLE V
RESTRICTIONS ON THE TRANSFER OF SHARES
5.1 GENERAL. Except as permitted under Clause 5.2 hereof, no Shareholder
shall, directly or indirectly, Transfer any Shares or any right, title or
interest therein or thereto unless (a) the 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
15
the terms of this Agreement and (c) the Transfer complies in all respects with
applicable securities 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.
5.2 PERMITTED TRANSFERS.
(a) The restrictions on Transfer set forth in Clauses 5.1, 5.4 and 5.5
shall not apply to any Transfer to a Public Transferee.
(b) The restrictions on Transfer set forth in Clauses 5.4 and 5.5 shall not
apply to any Transfer to a Permitted Transferee; provided, that:
(i) the Shareholder transferring Shares shall remain jointly and
severally liable with such Permitted Transferee; and
(ii) if any Permitted Transferee holding Shares Transferred to it by a
Shareholder pursuant to this Clause 5.2(b) shall no longer qualify as a
Permitted Transferee of such Shareholder, the ownership of such Shares shall be
deemed to have automatically reverted to such Shareholder and such Permitted
Transferee shall return the Shares to such Shareholder or to another Permitted
Transferee of such Shareholder in accordance with such Shareholder's
instruction.
(c) The restrictions on Transfer set forth in Clauses 5.1, 5.4 and 5.5
shall not apply to any Transfer of Shares by the Existing Shareholders to the
Investors in accordance with Section 2.5(b) of the Purchase Agreement to the
extent that any such Transfer is necessary.
(d) Lu BVI shall have the right to Transfer an aggregate of no more than
two percent (2%) of the number of the total outstanding Shares of the Company as
of the date of this Agreement to any Third Party, either in one Transfer or
several Transfers. The restrictions on Transfer set forth in Clauses 5.4 and 5.5
shall not apply to the Transfer(s) under this Clause 5.2(d).
5.3 LEGEND ON SHARE CERTIFICATES.
(a) In addition to any other legend that may be required under applicable
Law, each certificate for Shares shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED. THE SHARES ARE
SUBJECT TO RESTRICTIONS ON TRANSFER AS SET FORTH IN THE AMENDED AND
RESTATED MEMORANDUM AND ARTICLES OF ASSOCIATION OF THE COMPANY AND A
SHAREHOLDERS AGREEMENT DATED AS OF JUNE ___, 2006, AS AMENDED FROM TIME TO
TIME, A COPY OF EACH OF WHICH MAY BE OBTAINED UPON REQUEST FROM THE
COMPANY. NO TRANSFER OF THESE SHARES SHALL BE EFFECTIVE UNLESS AND UNTIL
THE TERMS AND CONDITIONS OF THE AFORESAID AMENDED AND
16
RESTATED MEMORANDUM AND ARTICLES OF ASSOCIATION AND SHAREHOLDERS AGREEMENT
HAVE BEEN COMPLIED WITH IN FULL."
(b) If any Shares cease to be subject to any restrictions on Transfer set
forth in this Agreement, the Company shall, upon the written request of the
holder thereof, issue to such holder a new certificate evidencing such shares
without the legend required by Clause 5.3(a).
5.4 RIGHT OF FIRST REFUSAL.
(a) Each Investor 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 an Existing Shareholder. In
the event that an Existing Shareholder (or group of Existing Shareholders) (the
"TRANSFEROR") receives an offer from a bona fide Third Party (the "THIRD PARTY
PURCHASER") to purchase any Shares, the Transferor shall be required to send
each Investor (each an "OFFEREE" and collectively the "OFFEREES") a written
notice (the "RIGHT OF FIRST REFUSAL NOTICE") prior to the consummation of the
such Transfer of Shares to the Third Party Purchaser. The Right of First Refusal
Notice shall set forth the number of Shares that the 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 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.
(b) The delivery of a Right of First Refusal Notice shall constitute an
offer, which shall be irrevocable for thirty (30) days from the date of the
Right of First Refusal Notice (the "RIGHT OF FIRST REFUSAL NOTICE PERIOD"), by
the Transferor to Transfer to each Offeree the Shares subject to the Right of
First Refusal Notice (the "OFFERED SHARES") on the terms and conditions set
forth therein. Each Offeree 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 Transferor prior to the expiration of the Right of
First Refusal Notice Period. Subject to Clause 5.4(c), delivery of an Acceptance
Notice by an Offeree to the Transferor shall constitute a contract between such
Offeree and the Transferor for the Transfer of the Offered Shares on the terms
and conditions set forth therein. The failure of an Offeree 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.
(c) In the event more than one Offeree shall deliver an Acceptance Notice
to the Transferor within the Right of First Refusal Notice Period, the number of
Offered Shares subject to each such contract shall be proportionate to the
relative Percentage Ownership of each Offeree delivering an Acceptance Notice,
or on such other basis as such Offerees shall agree.
(d) The closing of any Transfer of Shares between a Transferor and any
Offerees pursuant to this Clause 5.4 shall take place within thirty (30) days
from the last day
17
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.
5.5 TAG-ALONG RIGHTS.
(a) If any of the Offered Shares is not purchased pursuant to Clause 5.4
above and thereafter is to be sold to a Third Party (the "TAG ALONG PURCHASER"),
the Transferor shall deliver to each Offeree a written notice (the "TAG-ALONG
NOTICE") no later than fourteen (14) days after the Right of First Refusal
Notice Period, setting forth (A) the information set forth in the Right of First
Refusal Notice which shall be the same as set forth therein, plus (B) the
expected date of consummation of the proposed Transfer (the "TAG ALONG
COMPLETION DATE"), which shall be within thirty (30) days after the last day of
the Right of First Refusal Notice Period, (C) a representation that the Tag
Along Purchaser has been informed of the Tag-Along Rights provided for in this
Clause 5.5 and has agreed to purchase all Shares required to be purchased in
accordance with the terms of this Clause 5.5 and (D) a representation that no
consideration, tangible or intangible, is being provided to the Transferor that
is not reflected in the price to be paid to the Offerees exercising their
Tag-Along Rights hereunder.
(b) Each Offeree shall have the right (the "TAG ALONG RIGHT") to require
the Tag Along Purchaser to purchase its Tag Along Portion (as defined below) on
terms and conditions at least as favorable as those given to the Transferor,
such right to be exercised by an Offeree delivering a written notice to the
Transferor specifying the number of Shares constituting its Tag Along Portion
(the "TAG ALONG ACCEPTANCE NOTICE") within fourteen (14) days from the date of
the Tag Along Notice. A Tag Along Acceptance Notice shall constitute a binding
agreement by the Offeree to Transfer its Tag Along Portion free of Encumbrances
to the Tag Along Purchaser on the Tag Along Completion Date.
(c) With respect to each Offeree who has timely delivered a Tag Along
Acceptance Notice, the Transferor shall procure that the Tag Along Purchaser
purchase on the Tag Along Completion Date each such Offeree's Tag Along Portion:
(i) in addition to the number of Shares proposed to be sold in the Transfer or
(ii) in lieu of such number of the Transferor's Shares equal to the number of
Shares constituting such Offeree's Tag Along Portion and (iii) in either case,
at a price per share and upon terms and conditions at least as favorable to such
Offeree as those stated in the Tag Along Notice. "TAG-ALONG PORTION" means, with
respect to any Offeree, the number of Shares proposed to be sold in the Transfer
proportionate to such Offeree's relative Percentage Ownership.
(d) The closing of any Transfer in which Offerees are exercising Tag Along
Rights shall take place on the Tag Along Completion Date; provided, that if the
Transfer is subject to any prior regulatory approval or consent, the Tag Along
Completion Date may 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 after 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.
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(e) If no Offeree delivers a Tag Along Acceptance Notice, the Transferor
shall have the right to complete the Transfer to the Tag Along Purchaser on the
Tag Along Completion Date for a price per share no greater than the per share
price set forth in the Tag Along Notice and otherwise on terms and conditions
not more favorable to the Transferor than those set forth in the Tag Along
Notice. If the Transferor does not consummate the Transfer on the Tag Along
Completion Date, it may not thereafter Transfer the Offered Shares except in
compliance in full with all the provisions of Clause 5.4 and this Clause 5.5.
For the avoidance of doubt, if any Offeree has properly elected to exercise its
Tag-Along Right and the Tag Along Purchaser fails to purchase such Offeree's Tag
Along Portion within the time limitations set forth in Clause 5.5(d), the
Transferor shall not make the Transfer, and if purported to be made, such
Transfer shall be void.
5.6 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 an Controlling Individual in an Existing
Shareholder shall be treated as being a Transfer of the Shares held by that
Existing 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 Existing Shareholder; provided that this Clause 5.6 shall not apply in
respect of any Transfer to a Permitted Transferee.
5.7 TRANSFER BY INVESTORS. An Investor may not Transfer any Shares owned by
such Investor unless with the prior written consent of CVCI, Legend and Good
Energies; provided that no such prior written consent will be required in a
Transfer by any Investor to its Permitted Transferee.
ARTICLE VI
INITIAL PUBLIC OFFERING
6.1 OBLIGATION TO CONDUCT A QUALIFYING IPO.
(a) The Company agrees to use its best efforts to complete an Initial
Public Offering of the Company within thirty-six (36) months after the Closing
and such Initial Public Offering shall incorporate the following features: (i)
an underwritten Initial Public Offering on the main board of one or more of the
following internationally recognized exchanges: the New York Stock Exchange, the
NASDAQ National Market, the Hong Kong Stock Exchange, the Frankfurt Stock
Exchange and the London Stock Exchange; (ii) the public float following such an
offering shall equal or exceed 20% of the proposed market capitalization of the
Company; (iii) Ordinary Shares of the Company shall be widely distributed and
meet all requirements of the relevant exchanges; and (iv) the offering size of
the Initial Public Offering is at least US$150 million (a "QUALIFYING IPO").
Each Party agrees to cooperate in good faith and take any and all measures
reasonably required to effect such a Qualifying IPO, including voting its Shares
and procuring its nominated Directors and officers of the Company to take all
other necessary action at the reasonably appropriate time such as (if necessary
or required) causing the Company to restructure, reclassify its shares, amend
its articles of incorporation, amend its financing and/or operating arrangements
and/or obtain any necessary or required consents from third parties. CVCI,
Legend and Good
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Energies shall have the right to veto the Initial Public Offering other than the
currently proposed IPO of the Company if such Investors determine in their sole
discretion that the conditions for a Qualifying IPO are unlikely to be met.
CVCI, Legend and Good Energies shall be consulted in connection with the
Qualifying IPO and CVCI, Legend and the Company will jointly select and appoint
one or more underwriter(s) for the offering. The Investors shall have priority
over other Shareholders of the Company to sell its Shares in an Initial Public
Offering; provided that the Existing Shareholders may sell up to twenty percent
(20%) of the number of Shares available to all the selling Shareholders of the
Company for sale in such Initial Public Offering.
(b) In the event that a Qualifying IPO is not completed within twenty four
(24) months after the Closing, so long as all conditions for a public offering
of the Company's shares are satisfied in the sole judgment of the Investors,
CVCI, Legend and Good Energies shall have the right to request the Company to
complete a Qualifying IPO and the Company shall, and the Existing Shareholders
shall cause the Company to, complete such a Qualifying IPO. For avoidance of
doubt, such Investors' exercise of their right hereunder shall not be counted as
one exercise of their demand registration rights under the Registration Rights
Agreement.
6.2 REGISTRATION RIGHTS. The Company shall enter into a registration rights
agreement with the Shareholders in the form attached to this Agreement as
EXHIBIT B (the "REGISTRATION RIGHTS AGREEMENT").
6.3 LOCK-UP PERIOD. Subject to Clauses 5.2(c) and (d) and Clause 6.1(a)
hereof with respect to sale by the Existing Shareholders in an Initial Public
Offering, no Existing Shareholder may Transfer any Shares to any Third Party
from the date of closing of a Qualifying IPO until twelve (12) months
thereafter, unless otherwise approved by CVCI, Legend and Good Energies in
writing.
6.4 PROPORTIONAL SALE IN AN INITIAL PUBLIC OFFERING. The Parties hereto
agree that in connection with an Initial Public Offering of the Company's Shares
the number of Shares held by the Investors that will be included in such
offering shall be allocated among the Investors on a pro rata basis based on the
total number of Shares held by the Investors.
ARTICLE VII
CERTAIN COVENANTS OF THE COMPANY AND THE CONTROLLING INDIVIDUALS
7.1 FINANCIAL INFORMATION. Commencing on the date hereof and ending on the
date this Agreement is terminated pursuant to Clause 9.1 hereof, the executive
officers of the Company shall submit to the Board, and obtain their approval of,
prior to the start of each fiscal year of the Company, a business plan setting
forth the annual budget and operating plan of the Company for such fiscal year,
and the Company shall provide the Investors with the following financial and
business information relating to the Company and its Subsidiaries:
(a) no later than forty (40) days after the end of each month, monthly
financial/business reporting package in the format to be proposed by Investors;
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(b) unaudited half-year and quarterly financial statements (including
income statement, balance sheet, and cash flow statements), certified by the CFO
of the Company within 30 days from the end of each half-year or quarterly period
for the Company in the format to be proposed by Investors (on a consolidated
basis);
(c) unaudited half-year and quarterly financial statements (including
income statement, balance sheet, and cash flow statements), certified by the CFO
of the Company within 45 days from the end of each half-year or quarterly period
for each of the Company's Subsidiaries in the format to be proposed by
Investors;
(d) Annual unaudited consolidated financial statements of the Company
within 60 days of the financial year end, and annual audited consolidated
financial statements of the Company within three (3) months of the financial
year end, audited by the External Auditors of the Company appointed in
accordance with Clause 3.10 hereof;
(e) annual Company revenue and capital budgets not less than 60 days prior
to the commencement of each financial year; and
(f) other information that may reasonably requested by the Investors from
time to time.
7.2 MAINTENANCE OF BOOKS AND RECORDS. The Company and each of its
Subsidiaries shall keep proper, complete and accurate books of account in each
case in accordance with United States GAAP and such accounts shall be audited
annually in accordance with such standards by the auditors selected in
accordance with Clause 3.10. The Company and each of its Subsidiaries shall also
keep such other books of account to the extent required by and in accordance
with applicable Law.
7.3 ACCESS TO BOOKS AND RECORDS. The Company shall permit each Shareholder
and its authorized representatives the right during normal business hours and
upon at least two (2) days' prior notice to the Company in writing to inspect
its books and accounting records and those of each of its Subsidiaries, if any,
to make extracts and copies therefrom at its own expense and during normal
business hour and at reasonable times to have full access to all of the
Company's and each of any of its Subsidiary's property and assets and executive
officers and directors.
7.4 AUDIT RIGHTS. CVCI, Legend and Good Energies shall each at its cost
have the right to cause a financial audit to be conducted on the Company and
each of its Subsidiaries, if any, not more than once per year by an auditor
designated by the Investor requesting the audit. In connection with any such
audit, the Company (and its Subsidiaries, if applicable) shall furnish to the
Shareholders and the auditors conducting such audit such financial and other
information relating to the business of the Company and/or any of its
Subsidiaries as they may reasonably require.
7.5 SECURITIES FILINGS. The Company and each of its Subsidiaries, if any,
shall provide to each of the Investors, promptly after the filing thereof,
copies of any registration statement, preliminary prospectus, final prospectus,
application for listing or other document filed with any securities regulatory
authority or securities exchange in any jurisdiction.
7.6 INSURANCE. The Company shall maintain all proper insurance
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policies on its behalf and on behalf of each of its directors, officers and, if
any, Subsidiaries, at all times in a sufficient amount and with such coverage as
is generally maintained by responsible companies in the same industry. If the
Company fails to subscribe for such insurance or to pay the insurance premiums
or other fees necessary to maintain such insurance, any Investor may (but shall
not be obliged to) cause the properties of the Company and each of its
Subsidiaries, if any, to be insured or pay the insurance premiums or fees
referred to above, and the Company shall reimburse such Shareholder for all
expenses it has incurred in connection with this sentence following the
Company's receipt of written notice of such expenditures.
7.7 INTELLECTUAL PROPERTY PROTECTION. The Company and each of its
Subsidiaries shall take all necessary steps to protect any and all of their
respective intellectual property rights, including registering all their
respective trademarks, brand names and copyrights and wherever prudent applying
for patents on their respective technology.
7.8 NOTIFICATION OF SOLICITATION. The Company and each Existing Shareholder
agree that upon receipt of any inquiry, proposal or offer (a "PROPOSAL") with
respect to a merger, consolidation or other business combination involving the
Company or any of its Subsidiaries or any acquisition or similar transaction
(including without limitation a tender or exchange offer) involving the purchase
(or indirect purchase through the purchase of capital stock of any Subsidiaries)
of (i) all or any portion of the assets of the Company or its Subsidiaries or
(ii) any share of capital stock of the Company or any of its Subsidiaries, the
Company or such Existing Shareholder shall promptly, and in no case later than
three (3) Business Days after receipt of such Proposal, cause a written notice
to be delivered to each Investor that set forth to the fullest extent possible
the details of such Proposal.
7.9 OPERATIONAL AND STRATEGIC SUGGESTIONS. The Company shall afford the
Investors the opportunity to make proposals, recommendations and suggestions to
the officers of the Company or its Subsidiaries relating to the business and
affairs of the Company or its Subsidiaries.
7.10 CONTROLLING INDIVIDUALS' UNDERTAKING. Each Controlling Individual
hereby undertakes to cause the Company and the Existing Shareholder owned by
such Controlling Individual to comply with the terms and conditions of this
Agreement.
7.11 UNDERTAKINGS BY XX. XXXXXXX XX. Xx. Xxxxxxx Xx (CHINESE CHARACTERS)
shall, indirectly through his holding in Lu BVI, remain as the single largest
shareholder of the Company at any time before the Company completes a Qualifying
IPO and for three (3) years thereafter. In addition, Xx. Xxxxxxx Xx agrees to
devote at least half of his time to the business and affairs of the Company and
its Subsidiaries.
ARTICLE VIII
COVENANTS RELATED TO CONFIDENTIALITY AND NON-COMPETITION
8.1 CONFIDENTIALITY. Each Party who has received Confidential Information
from another Party (such other Party, the "DISCLOSING PARTY") undertakes that
none of it, any of its Representatives or any Representative of any of its
Affiliates shall reveal to any other Person such Confidential Information
without the prior written consent of the Disclosing Party; provided, that such
undertaking shall not apply to:
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(a) disclosure of Confidential Information that is or has become generally
available to the public other than as a result of disclosure by or at the
direction of a Party or a Party's Representatives or the Representatives of any
Affiliate of any Party in violation of this Agreement;
(b) disclosures of Confidential Information by a Party to its
Representatives or the Representatives of any of its Affiliates to whom it is
necessary or helpful in connection with this Agreement or any other Transaction
Document for such Confidential Information to be disclosed;
(c) disclosures of Confidential Information to the extent necessary or
required under any applicable Law or the rules of any stock exchange or in
connection with any judicial process regarding any legal action, suit or
proceeding arising out of or relating to this Agreement or any other Transaction
Document, after giving prior written notice to the other Parties to the extent
practicable under the circumstances, and subject to having undertaken any
reasonably available arrangements to protect confidentiality;
(d) disclosures of Confidential Information by any Shareholder that are
reasonably necessary to permit a Person to evaluate the business of the Company
upon such Shareholder entering into negotiations with any Person with a view to
Transferring any Shares to such Person; provided, that such Person has executed
a confidentiality agreement in such form as may be reasonably required by the
Board;
(e) disclosure of information by the Investors to any person to whom its
Shares may be transferred pursuant to Clause 5.2(b) and to any investor or
prospective investor in any such Person; or
(f) disclosure of Confidential Information to legal counsels, accountants
and other professionals subject to confidentiality obligations retained by the
Parties for the purposes of an IPO.
The restrictions contained in the foregoing Clause 8.1 shall not apply to
the disclosure of information by any Investor to whom its Shares may be
Transferred pursuant to Clause 5.2(b) or to any investor or prospective investor
in such person. The obligations under this Clause 8.1 shall survive the
termination of this Agreement.
8.2 RESTRICTION ON ANNOUNCEMENTS. Each Party shall, and shall cause each of
its Representatives and each Representative of each of its Affiliates, not to
make any public announcement about the subject matter of this Agreement or
regarding the Company or any of its business and operating plans from time to
time, whether in the form of a press release or otherwise, without first
consulting with the other Parties and obtaining the other Parties' prior written
consent to make such announcement, except as required by applicable Law or the
rules of any stock exchange on which such Party or any Affiliate of such Party
is listed or registered. If disclosure is so required, the other Parties shall
be given a reasonable opportunity to review and comment on any such required
disclosure.
8.3 NON-COMPETITION.
(a) For so long as this Agreement is in effect and the relevant Existing
Shareholder holds any Shares, such Existing Shareholder, the relevant
Controlling Individual
23
and any of its Affiliates and any of their Representatives shall not (i) compete
with the Company, (ii) directly or indirectly, including without limitation
through investment by Jiangsu Linyang Electronics Co., Ltd. (CHINESE
CHARACTERS), a limited liability company organized under the laws of the PRC,
own, acquire, operate, become an employee of, render services to or participate
in the management of or invest in or loan any funds to any Person that competes
or is reasonably expected to compete with the Company or (iii) solicit, canvass
or entice away any director, officer, employee (including any part-time,
regular, contract or fixed term director, officer or employee) to work for or
otherwise render services to any other Person.
(b) For so long as this Agreement is in effect and the relevant Investor
holds any Shares, Citigroup Venture Capital International Growth Partnership,
L.P. and Citigroup Venture Capital International Asia Pacific Limited and
Legend, in each case not including their respective Affiliates, will not make
investment in Changzhou Xxxxx Solar Energy Co., Ltd. (CHINESE CHARACTERS),
Nanjing China Electric Photovoltaic Science & Technology Co., Ltd. (CHINESE
CHARACTERS), Baoding Tianwei Yingli New Energy Resources Co., Ltd. (CHINESE
CHARACTERS), JingAo Solar Co., Ltd. (CHINESE CHARACTERS), and Ningbo Solar
Energy Power Co., Ltd. (CHINESE CHARACTERS) before the Company completes an
Initial Public Offering. The Investors' undertakings under this Clause 8.3(b)
will be automatically terminated if the Company has not completed an Qualifying
IPO in eighteen (18) months from the date of the Closing.
ARTICLE IX
TERM AND TERMINATION
9.1 TERM AND TERMINATION. This Agreement shall remain in effect until:
(a) the Company has been dissolved, liquidated and wound up;
(b) the Parties have agreed in writing to terminate this Agreement;
(c) the Company has completed a Qualifying IPO;
(d) the aggregate Percentage Ownership of the Investors and the Existing
Shareholders has fallen below fifty percent (50%) in which case the Investors
and the Existing Shareholders shall each have the right, but not the obligation,
to terminate this Agreement by sending a written notice to such effect to the
other Parties; or
(f) the Company has become subject to a Bankruptcy Event in which case the
Investors shall each have the right, but not the obligation, to terminate this
Agreement by sending a written notice to such effect to the other Parties; or
(g) terminated in accordance with Clause 10.2.
9.2 EFFECT OF TERMINATION; SURVIVAL. Following any termination of this
Agreement, this Agreement shall have no further force or effect, provided that:
24
(a) (i) definitions under Article I that are referred to in any surviving
Articles or clauses identified under this Clause 9.2(a) shall survive any
termination of this Agreement, (ii) Clauses 2, 7.10 (only to the extent
applicable with respect to the clauses that will survive termination of this
Agreement under this Clause 9.2(a)), 8.1, 8.2, 9.2, 10.3 and Articles XI and XII
(other than Clause 12.11) shall survive any termination of this Agreement and
(iii) Clauses 5.6, 6.3 and 7.11 shall survive only the termination of this
Agreement as a result of a Qualifying IPO pursuant to Clause 9.1(c) of this
Agreement.
(b) termination of this Agreement shall not prejudice any accrued rights of
any Party.
ARTICLE X
EVENTS OF DEFAULT
10.1 EVENTS OF DEFAULT. Each of the following shall constitute events of
default ("EVENTS OF DEFAULT") on the part of a Shareholder or the Company under
this Agreement:
(a) failure by such Shareholder or any of its Affiliates who are
Shareholders or the Company to comply in any material respect with any covenant,
obligation or agreement of such Party contained in this Agreement where such
failure shall not have been cured within thirty (30) days after the date when a
written notice thereof has been given to such Party by any non-defaulting
Shareholder; or
(b) a Bankruptcy Event occurs with respect to such Shareholder or any of
its Affiliates who are Shareholders.
For purposes of this Article X, a default by a Controlling Individual shall
constitute a default by the Existing Shareholder owned by such Controlling
Individual.
25
10.2 EFFECT OF EVENTS OF DEFAULT. Upon an Event of Default, the
non-defaulting Shareholders who are Investors or Existing Shareholders shall
have the right to terminate this Agreement; provided that such Shareholders have
sent a written notice to the other Parties stating that they are terminating the
Agreement and; provided further that this Agreement shall only terminate as to
such terminating Shareholders and their Affiliates and, as to the other
Shareholders, the Agreement shall remain in full force and effect.
10.3 NO PREJUDICE. The rights of non-defaulting Shareholders under Clause
10.2 shall not prejudice any additional rights such Shareholders have under this
Agreement and under applicable Law.
ARTICLE XI
GOVERNING LAW & RESOLUTION OF DISPUTES
11.1 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.
11.2 DISPUTE RESOLUTION FORUM.
(a) 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 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 11.2 (the "RULES"). There shall be three
arbitrators of whom the plaintiff and the defendant shall each nominate one (1)
in accordance with the Rules. The two 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 days of such
request. The arbitration shall be held and the award shall be rendered in
Singapore. The arbitration proceeding shall be conducted and the award shall be
rendered in the English language. Each Party shall cooperate in good faith to
expedite (to the maximum extent practicable) the conduct of any arbitral
proceedings commenced under this Agreement.
(b) 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.
26
(c) 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.
(d) 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 11.2 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.
11.3 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 11.2(c) to seek equitable relief in the form
of specific performance, injunctions or any other equitable remedy.
11.4 WAIVER OF IMMUNITIES. 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.
11.5 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 11.2.
11.6 SURVIVAL. Unless otherwise terminated in accordance with the terms
hereof, this Article XI shall survive the termination or expiration of this
Agreement.
ARTICLE XII
MISCELLANEOUS
12.1 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.
12.2 INDEMNIFICATION.
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(a) The Company shall indemnify each Shareholder and its Affiliates and
each Director and officer of the Company (collectively, the "INDEMNIFIED
PERSONS") against any Losses that any Indemnified Person may at any time become
subject to or liable for in connection with claims brought against any of them
on behalf of the Company or by a third party in connection with any of their
status as a shareholder, director or officer of the Company or any of their
service to or on behalf of the Company to the maximum extent permitted under
applicable Law.
(b) The Company hereby agrees to indemnify and hold harmless the Investors,
their respective directors and officers and their Affiliates and the directors,
officers, partners, Affiliates and controlling persons thereof (each, an
"INVESTOR INDEMNITEE") from and against any Losses to which the Investor
Indemnitee may become subject, in so far as such Losses may arise out of or
result from any breach or inaccuracy of any representation, warranty or covenant
expressly made by the Company or the failure of the Company to fulfill any
express agreement or covenant contained in this Agreement; and Lu BVI and
Xxxxxxx Xx (CHINESE CHARACTERS) hereby agree to jointly and severally indemnify
and hold harmless any Investor Indemnitee from and against any Losses to which
such Investor Indemnitee(s) may become subject, in so far as such Losses may
arise out of or result from any breach or inaccuracy of any representation,
warranty or covenant made by the Company, the Existing Shareholders and/or the
Controlling Individuals, or the failure of the Company, the Existing
Shareholders and/or the Controlling Individuals to fulfill any agreement or
covenant contained in this Agreement; provided that such Investor Indemnitee(s)
will not have the right to be indemnified pursuant to this Clause 12.2(b) unless
and until, with respect to any single claim, such Investor Indemnitee(s) shall
have suffered, incurred, sustained or become subject to Losses when aggregated
exceeding US$50,000, or with respect to any claims, such Investor Indemnitee(s)
shall have suffered, incurred, sustained or become subject to Losses when
aggregated exceeding US$150,000, after which such Investor Indemnitee(s) shall
be entitled to indemnity under this Clause 12.2(b) for all Losses without regard
to the US$50,000 or US$150,000 basket, as applicable.
The maximum liability of the Company, Lu BVI and Xxxxxxx Xx, collectively,
under this Clause 12.2(b) and Section 10.1(a) of the Purchase Agreement shall be
an amount equal to the Aggregate Purchase Price (as defined in the Purchase
Agreement) paid by the Investors at the Closing under the Purchase Agreement
plus the aggregate purchase price paid by Good Energies at the Second Closing,
if the Second Closing takes place in accordance with the Purchase Agreement.
(c) Notwithstanding anything to the contrary herein, each of the Company,
the Existing Shareholders and the Controlling Individuals acknowledges that
monetary remedy or damages would not be a sufficient remedy for any breach of
this Agreement by the Company, the Existing Shareholders and the Controlling
Individuals and, in addition to the remedies set forth herein, each of the
Investors shall be entitled to specific performance and injunctive or other
equity relief as a remedy for any such breach.
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12.3 ENTIRE AGREEMENT. This Agreement (together with the other Transaction
Documents) 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.
12.4 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. Except for the rights to indemnification
set forth in Clause 12.2, 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.
12.5 ASSIGNMENT.
(a) 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.
(b) Without prejudice to the foregoing clause (a), any Investor may at any
time following the date of this Agreement transfer its rights or obligations
under this Agreement to (i) any Permitted Transferee of such Investor without
the written consent of the other Parties; (ii) any financial investors to whom
its Shares are Transferred pursuant to the terms of this Agreement without the
written consent of the Existing Shareholders; and (iii) any Person who is not a
financial investor to whom its Shares are Transferred pursuant to the terms of
this Agreement with the prior consent of the Existing Shareholders, provided
that such consent shall not be unreasonably withheld.
12.6 AMENDMENT; WAIVER.
(a) This Agreement may not be amended, modified or supplemented except by a
written instrument executed by each of the Parties.
(b) 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.
12.7 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
29
dispatch. The initial address and facsimile for the Parties for the purposes of
this Agreement are:
If to the Investors, to:
Citigroup Venture Capital International Growth Partnership, L.P.
c/o Citigroup Venture Capital International Asia Pacific Limited
00/X, Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxx
Xxxx XxxxXxxxxxxxx No.: (000) 0000-0000
Attn: Xxxxxxx Xxxxx and Xxxxxxx Xxx
Citigroup Venture Capital International Co-Investment, L.P.
c/o Citigroup Venture Capital International Asia Pacific Limited
00/X, Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
Facsimile No.: (000) 0000-0000
Attn: Xxxxxxx Xxxxx and Xxxxxxx Xxx
Hony Capital II L.P.
7F, Tower A, Raycom Info Tech Park
Xx. 0 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx, XXX 000000
Facsimile No.: x00 (00) 0000-0000
Attn: Xx. Xxxx Xihong
LC Fund III L.P.
x/x Xxxxxx Xxxxxxx Xxxxxxx
00xx Xxxxx, Xxxxx A
Raycom Info. Tech Center
No. 2 Ke Xxx Xxxx Xxx Xx
Xxxxx Xxxx Cun Xxxxxxx Xxxxxxxx
Xxxxxxx 000000, Xxxxx
Facsimile No.: x00 (00) 0000-0000
Attn: Xx. Xxx Xxxxx
with a courtesy copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
3007 Xxxxxxxx Xxxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Facsimile No.: x000-0000-0000
Attn: Xxxxxx Sun, Esq.
30
If to Good Energies, to:
Good Energies Investments Limited
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
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
If to the Existing Shareholders, to:
Yonghua Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Attn: Xxxxxxx Xx (CHINESE CHARACTERS)
WHF Investment Co., Ltd
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Attn: Xxxxxx Xxxx (CHINESE CHARACTERS)
Yongqiang Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
Attn: Rongqiang Cui (CHINESE CHARACTERS)
Yongliang Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
00
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Facsimile No.: x00 (00) 0000-0000
Attn: Yongliang Gu (CHINESE CHARACTERS)
Yongfa Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Attn: Xxxxxxx Xx (CHINESE CHARACTERS)
Yongxing Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Attn: Xxxxxxx Xxxx (CHINESE CHARACTERS)
Yongguan Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Attn: Xxxxxx Xxxx (CHINESE CHARACTERS)
Forever-Brightness Investments Limited
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
Attn: Min Cao (CHINESE CHARACTERS)
If to the Controlling Individuals, to:
Xxxxxxx Xx (CHINESE CHARACTERS)
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Xxxxxx Xxxx (CHINESE CHARACTERS)
Xx. 000 Xxxxxxx Xxxx
00
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Facsimile No.: x00 (000) 0000-0000
Rongqiang Cui (CHINESE CHARACTERS)
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
Yongliang Gu (CHINESE CHARACTERS)
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
Xxxxxxx Xx (CHINESE CHARACTERS)
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Xxxxxxx Xxxx (CHINESE CHARACTERS)
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Xxxxxx Xxxx (CHINESE CHARACTERS)
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Min Cao (CHINESE CHARACTERS)
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
If to the Company, to:
Solarfun Power Holdings Co., Ltd.
33
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
Attn: Mr. Min Cao (CHINESE CHARACTERS)
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.
12.8 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.
12.9 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.
12.10 FURTHER ACTS AND ASSURANCES. 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.
12.11 CONFLICT. In case of any inconsistency between the Articles of
Incorporation and this Agreement, the Shareholders will amend the Articles of
Incorporation to ensure that the Articles of Incorporation are consistent with
this Agreement.
[Signatures follow on the next page.]
34
IN WITNESS WHEREOF, each of the Parties hereto have caused this Agreement
to be duly executed by its respective authorized officers:
EXISTING SHAREHOLDERS:
YONGHUA SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Xxxxxxx Xx
-------------------------------------
Name: Xxxxxxx Xx (CHINESE CHARACTERS)
Title: Director
WHF INVESTMENT CO., LTD.
By: /s/: Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx (CHINESE CHARACTERS)
Title: Director
YONGQIANG SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Rongqiang Cui
-------------------------------------
Name: Rongqiang Cui (CHINESE CHARACTERS)
Title: Director
YONGLIANG SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Yongliang Gu
-------------------------------------
Name: Yongliang Gu (CHINESE CHARACTERS)
Title: Director
YONGFA SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Xxxxxxx Xx
-------------------------------------
Name: Xxxxxxx Xx (CHINESE CHARACTERS)
Title: Director
YONGXING SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx (CHINESE CHARACTERS)
Title: Director
YONGGUAN SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx (CHINESE CHARACTERS)
Title: Director
FOREVER-BRIGHTNESS INVESTMENTS
LIMITED
By: /s/: Min Cao
-------------------------------------
Name: Min Cao (CHINESE CHARACTERS)
Title: Director
CONTROLLING INDIVIDUALS:
XXXXXXX XX (CHINESE CHARACTERS)
By: /s/ Xxxxxxx Xx
-------------------------------------
XXXXXX XXXX (CHINESE CHARACTERS)
By: /s/ Xxxxxx Xxxx
-------------------------------------
RONGQIANG CUI (CHINESE CHARACTERS)
By: /s/: Rongqiang Cui
-------------------------------------
YONGLIANG GU (CHINESE CHARACTERS)
By: /s/: Yongliang Gu
-------------------------------------
XXXXXXX XX (CHINESE CHARACTERS)
By: /s/: Xxxxxxx Xx
-------------------------------------
XXXXXXX XXXX (CHINESE CHARACTERS)
By: /s/: Xxxxxxx Xxxx
-------------------------------------
XXXXXX XXXX (CHINESE CHARACTERS)
By: /s/: Xxxxxx Xxxx
-------------------------------------
MIN CAO (CHINESE CHARACTERS)
By: /s/: Min Cao
-------------------------------------
INVESTORS:
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: Director
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: Director
HONY CAPITAL II, L.P.
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name:
Title:
LC FUND III, L.P.
By: Xxxxx Xxx
-------------------------------------
Name:
Title:
XXXXXXX XXXXXX HARAM
By: /s/ Xxxxxxx Xxxxxx Horam
------------------------------------
RASHEED YAR KHAN
By: /s/: Rasheed Yar Khan
------------------------------------
GOOD ENERGIES INVESTMENTS LIMITED
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name:
Title: Director
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name:
Title: Director
THE COMPANY:
SOLARFUN POWER HOLDINGS CO., LTD.
By: /s/ Xxxxxxx Xx
------------------------------------
Name:
Title:
