EXHIBIT 4.4
EXECUTION COPY
SERIES A PREFERRED SHARE PURCHASE AGREEMENT
dated as of September 20, 2006
by and between
INSPIRATION PARTNERS LIMITED,
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED,
YINGLI POWER HOLDING COMPANY LTD.,
and
XXXXXXXXX XXXX
TABLE OF CONTENTS
Page
No.
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ARTICLE I SALE OF SHARES AND CLOSING.................................. 1
SECTION 1.01. Purchase and Sale...................................... 1
SECTION 1.02. Closing................................................ 1
SECTION 1.03. Purchase Price......................................... 1
SECTION 1.04. Share Certificate...................................... 1
SECTION 1.05. Use of Proceeds........................................ 2
SECTION 1.06. Further Assurances..................................... 2
ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE COMPANY............... 2
SECTION 2.01. Power and Authority.................................... 2
SECTION 2.02. Execution and Delivery................................. 2
SECTION 2.03. Corporate Existence of the Company..................... 3
SECTION 2.04. Company Capital Stock.................................. 3
SECTION 2.05. Subsidiaries........................................... 3
SECTION 2.06. No Conflicts........................................... 4
SECTION 2.07. Governmental Approvals and Filings..................... 4
SECTION 2.08. Books and Records...................................... 4
SECTION 2.09. Financial Statements and Condition..................... 5
SECTION 2.10. Taxes.................................................. 5
SECTION 2.11. Legal Proceedings...................................... 6
SECTION 2.12. Compliance With Laws and Orders........................ 6
SECTION 2.13. Real Property.......................................... 6
SECTION 2.14. Tangible Personal Property............................. 6
SECTION 2.15. Investment Assets...................................... 7
SECTION 2.16. Intellectual Property Rights........................... 7
SECTION 2.17. Contracts.............................................. 7
SECTION 2.18. Insurance.............................................. 8
SECTION 2.19. Employees; Labor Relations............................. 8
SECTION 2.20. Environmental Matters.................................. 9
SECTION 2.21. Brokers................................................ 9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE INVESTOR.............. 10
SECTION 3.01. Corporate Existence.................................... 10
SECTION 3.02. Authority.............................................. 10
SECTION 3.03. No Conflicts........................................... 10
SECTION 3.04. Governmental Approvals and Filings..................... 11
SECTION 3.05. Legal Proceedings...................................... 11
SECTION 3.06. Investment Purpose..................................... 11
SECTION 3.07. Brokers................................................ 11
ARTICLE IV COVENANTS AND OTHER AGREEMENTS.............................. 11
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SECTION 4.01. Covenants of the Company............................... 11
SECTION 4.02. Covenants of the Investor.............................. 13
SECTION 4.03. Mutual Covenants....................................... 14
ARTICLE V CONDITIONS TO CLOSING........................................ 14
SECTION 5.01. Conditions to Each Party's Obligations................. 14
SECTION 5.02. Conditions to Obligations of the Investor.............. 14
SECTION 5.03. Conditions to Obligations of the Company............... 16
ARTICLE VI SURVIVAL; NO OTHER REPRESENTATIONS........................... 16
SECTION 6.01. Survival of Representations and Warranties............. 16
SECTION 6.02. No Other Representations............................... 17
SECTION 6.03. Supplemental Disclosure................................ 17
ARTICLE VII INDEMNIFICATION............................................. 17
SECTION 7.01. Indemnification........................................ 17
SECTION 7.02. Method of Asserting Claims............................. 18
SECTION 7.03. Exclusivity............................................ 21
SECTION 7.04. No Consequential Damages............................... 21
SECTION 7.05. Limitation of Liability................................ 21
ARTICLE VIII TERMINATION................................................. 22
SECTION 8.01. Termination............................................ 22
SECTION 8.02. Effect of Termination.................................. 22
ARTICLE IX DEFINITIONS................................................. 22
SECTION 9.01. Defined Terms.......................................... 22
SECTION 9.02. Construction of Certain Terms and Phrases.............. 28
ARTICLE X MISCELLANEOUS............................................... 28
SECTION 10.01. Notices................................................ 28
SECTION 10.02. Entire Agreement....................................... 30
SECTION 10.03. Expenses............................................... 30
SECTION 10.04. Public Announcements................................... 30
SECTION 10.05. Waiver................................................. 30
SECTION 10.06. Amendment.............................................. 30
SECTION 10.07. No Third Party Beneficiary............................. 30
SECTION 10.08. No Assignment; Binding Effect.......................... 30
SECTION 10.09. Enforcement of Agreement............................... 31
SECTION 10.10. Headings............................................... 31
SECTION 10.11. Governing Law; Consent to Jurisdiction................. 31
SECTION 10.12. Invalid Provisions..................................... 32
SECTION 10.13. Counterparts........................................... 32
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EXHIBITS
Exhibit A Transaction Documents
Exhibit B Shareholders Agreement
Exhibit C Amended and Restated Memorandum of Association
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This SERIES A PREFERRED SHARE PURCHASE AGREEMENT, dated as of
September 20, 2006 (this "AGREEMENT"), is entered into by and between
Inspiration Partners Limited, an international business company incorporated
under the laws of the British Virgin Islands (the "INVESTOR"), Yingli Green
Energy Holding Company Limited, an exempted company with limited liability
incorporated and existing under the laws of the Cayman Islands (the "COMPANY"),
Yingli Power Holding Company Ltd., a company with limited liability incorporated
and existing under the laws of the British Virgin Islands (the "HOLDCO"), and
Xx. Xxxxxxxxx Xxxx (together with the Holdco, the "FOUNDERS"). Capitalized terms
not otherwise defined herein have the meanings set forth in Section 9.01.
WHEREAS, the Company wishes to sell and the Investor wishes to
purchase shares of Series A Preferred Shares, US$0.01 par value per share, of
the Company (the "SERIES A PREFERRED SHARES") on terms and subject to the
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
SALE OF SHARES AND CLOSING
SECTION 1.01. Purchase and Sale. The Company agrees to sell to the
Investor, and the Investor agrees to purchase from the Company, 8,081,081 Series
A Preferred Shares (the "SHARES") at the Closing on the terms and subject to the
conditions set forth in this Agreement.
SECTION 1.02. Closing. The Closing shall take place not later than 12
days after the satisfaction or waiver of the conditions set forth in Articles V
or such other date agreed by the parties hereto (such date being the "CLOSING
DATE") at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 7/F ICBC Tower, 3
Garden Road, Central Hong Kong, or at such other time and place as the Investor
and the Company mutually agree.
SECTION 1.03. Purchase Price. Subject to Section 1.04, upon the terms
and subject to the conditions of this Agreement, on the Closing Date, the
Investor shall pay the Company US$17,010,000 (the "PURCHASE PRICE") in
immediately available funds, to be wired to an account to be designated by the
Company in writing prior to the Closing Date.
SECTION 1.04. Share Certificate. At the Closing, in exchange for the
payment to the Company of the Purchase Price, the Company shall deliver or cause
to be delivered to the Investor a share certificate (the "SHARE CERTIFICATE")
representing all of the Shares duly issued to the Investor.
SECTION 1.05. Use of Proceeds. The Company shall not use the net
proceeds from the Purchase Price (the "Proceeds") for any purpose other than to
acquire at least 51% ownership of Tianwei Yingli from Baoding Yingli Group Co.,
Ltd. ("YINGLI GROUP"), provided further, that such acquisition shall be made in
accordance with that certain Share Purchase Agreement, dated August 25, 2006, by
and between Yingli Group and the Company (the "YINGLI GROUP SHARE PURCHASE
AGREEMENT"). Following the application of such proceeds in such manner, any
remaining Proceeds may be applied for the general corporate purpose of the
Company. The Proceeds shall be deposited in an account of the Company at a bank
located outside of the PRC and shall be withdrawn only by the Company's
authorized signatories subject to the Investor's prior approval, which shall not
be unreasonably withheld so long as the Proceeds are being used for the purposes
permitted hereunder.
SECTION 1.06. Further Assurances. At any time or from time to time
after the Closing, each of the parties hereto shall, at the expense of the party
making such request, execute and deliver such other documents and instruments,
provide such materials and information and take such other actions as may
reasonably be necessary, proper or advisable, to the extent permitted by Law, to
fulfill its obligations under this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company and the Founders (together, the "WARRANTORS") hereby
jointly and severally represent and warrant to the Investor that the statements
contained in this Article II are true, correct and complete as of the date of
this Agreement and, where appropriate, the date of the Closing, except as set
forth in the Disclosure Schedule:
SECTION 2.01. Power and Authority. The Company has full corporate
power and authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby,
including without limitation the sale and issuance of the Shares pursuant to
this Agreement.
SECTION 2.02. Execution and Delivery. The execution and delivery by
the Company of the Transaction Documents and the performance by the Company of
its obligations under the Transaction Documents have been duly and validly
authorized by or on behalf of the Company, no other action on the part of the
Company or its shareholders being necessary except as expressly contemplated
hereby. The Transaction Documents have been duly and validly executed and
delivered by the Company and assuming the due execution of the Transaction
Documents by other parties hereto, constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with
their terms.
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SECTION 2.03. Corporate Existence of the Company. The Company is a
corporation duly incorporated, validly existing and in good standing under the
laws of the Cayman Islands, and has full corporate power and authority to
conduct its business as and to the extent now conducted and to own, use and
lease its Assets and Properties. The Company is duly qualified, licensed or
admitted to do business in each jurisdiction in which the ownership, use or
leasing of its Assets and Properties, or the conduct or nature of its business,
makes such qualification, licensing or admission necessary, except for those
jurisdictions in which the adverse effects of all such failures by the Company
to be qualified, licensed or admitted would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect.
SECTION 2.04. Company Capital Stock. Immediately prior to the Closing,
the authorized capital stock of the Company shall be US$5,000,000, consisting of
(a) 491,918,919 ordinary shares, US$0.01 par value per share, of which
59,800,000 shares are issued and outstanding and (b) 8,081,081 shares of Series
A Preferred Shares, US$0.01 par value per share, none of which are issued and
outstanding. The Shares, when issued, sold and delivered in accordance with the
terms and for the consideration set forth in this Agreement, shall be duly
authorized and validly issued, fully paid and nonassessable and free and clear
of all Liens. The delivery of the Share Certificate at the Closing representing
the Shares in the manner provided in Section 1.04 shall transfer to the Investor
good and valid title to the Shares, free and clear of all Liens other than
restrictions on the payment of dividends arising under applicable Law,
restrictions on transferability arising under applicable securities Laws and any
Liens created or suffered to exist by the Investor. Except as disclosed in the
Disclosure Schedule and except as provided in this Agreement, there are no
outstanding Options with respect to any shares of the Company.
SECTION 2.05. Subsidiaries.
(a) Each of the Subsidiaries is a corporation duly organized and
validly existing under the laws of its jurisdiction of incorporation and has
full corporate power and authority to conduct its business as and to the extent
now conducted and to own, use and lease its Assets and Properties. Each of the
Subsidiaries is duly qualified, licensed or admitted to do business in each
jurisdiction in which the ownership, use or leasing of its Assets and
Properties, or the conduct or nature of its business, makes such qualification,
licensing or admission necessary, except for those jurisdictions in which the
adverse effects of all such failures by any Subsidiary to be qualified, licensed
or admitted would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(b) The Disclosure Schedule lists for each of the Subsidiaries its
jurisdiction of organization, the amount of its authorized capital stock or its
equivalent, the amount of its outstanding capital stock or its equivalent, and
the record owners of such outstanding capital stock or its equivalent. As of the
date hereof and as of the Closing Date, except as disclosed in the Disclosure
Schedule, all the outstanding shares of capital stock or its equivalent of each
of the Subsidiaries have been duly authorized
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and validly issued, are fully paid and nonassessable and free and clear of all
Liens other than the Permitted Liens. Except as disclosed in the Disclosure
Schedule, there are no outstanding Options or other rights, agreements,
arrangements or commitments to which any Subsidiary is a party or by which any
Subsidiary is bound relating to the issued or unissued shares of capital stock
or its equivalent of any Subsidiary.
SECTION 2.06. No Conflicts. Except as disclosed in the Disclosure
Schedule or except as would not reasonably be expected to have, individually or
in the aggregate, a Material Adverse Effect, the execution and delivery by the
Company of the Transaction Documents do not, and the performance by the Company
of its obligations under the Transaction Documents, and the consummation of the
transactions contemplated thereby shall not:
(a) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the organizational documents of the Company
or any Subsidiary;
(b) conflict with or result in a violation or breach of any term or
provision of any Law or Order applicable to the Company, any Subsidiary or any
of their respective Assets and Properties; or
(c) (i) conflict with or result in a violation or breach of, (ii)
constitute a default under, (iii) require the Company or any Subsidiary to
obtain any consent, approval or action of, make any filing with or give any
notice to any Person as a result or under the terms of, (iv) result in or give
to any Person any right of termination, cancellation, acceleration or
modification in or with respect to, or (v) result in the creation or imposition
of any Lien upon the Company, any Subsidiary or any of their respective Assets
and Properties under, any material Contract or License to which the Company or
any Subsidiary is a party or by which any of them or any of their respective
Assets and Properties is bound.
SECTION 2.07. Governmental Approvals and Filings. Except as disclosed
in the Disclosure Schedule, no consent, approval or action of, filing with or
notice to any Governmental or Regulatory Authority on the part of the Company or
any Subsidiary is required in connection with the execution, delivery and
performance of the Transaction Documents or the consummation of the transactions
contemplated thereby.
SECTION 2.08. Books and Records. The Company has made available to the
Investor prior to the execution of this Agreement complete and correct copies of
the organizational documents of the Company and each Subsidiary. The minute
books and other similar records of the Company and each Subsidiary as made
available to the Investor prior to the execution of this Agreement contain a
true and complete record, in all material respects, of all actions taken at all
meetings and by written consents in lieu of meetings of the stockholders, the
boards of directors and committees of the boards of directors of the Company and
each Subsidiary. The shareholders register of the Company and each Subsidiary as
made available to the Investor prior to the execution of
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this Agreement accurately reflect all record issuances and transfers prior to
the execution of this Agreement of the capital stock of the Company and each
Subsidiary. To the Knowledge of the president, the directors, the vice
presidents and the department heads of the Company, the Books and Records of the
Company and each Subsidiary made available to the Investor prior to the
execution of this Agreement do not contain any untrue statement of a material
fact.
SECTION 2.09. Financial Statements and Condition
(a) Prior to the execution of this Agreement, the Company has made
available to the Investor true and complete copies of the Financial Statements.
The information contained in the Financial Statements shall be substantially
similar to the information contained in the audited consolidated balance sheets,
income statements and statements of cash flow of Tianwei Yingli for the years
ended on December 31, 2003, 2004 and 2005 (the "ACTUAL ANNUAL FINANCIAL
STATEMENTS") and the unaudited consolidated balance sheets, income statements
and statements of cash flow of Tianwei Yingli for the six months ended June 30,
2006 (the "ACTUAL INTERIM FINANCIAL STATEMENTS"); provided, that (i) net income
for each of the years ended on December 31, 2003, 2004 and 2005 as indicated in
the Financial Statements shall not be greater or less than net income for each
of the corresponding years indicated in the Actual Annual Financial Statements
by more than ten percent (10%) and (ii) net income for the six months ended on
June 30, 2006 shall not be greater or less than net income for the corresponding
period indicated in the Actual Interim Financial Statements by more than fifteen
percent (15%).
(b) Except for the execution and delivery of the Transaction Documents
and the transactions to take place pursuant thereto on or prior to the Closing
Date or as disclosed in the Disclosure Schedule, since January 1, 2006 until the
Closing Date, the business of the Company and the Subsidiaries has been operated
in all material respects in the ordinary course consistent with past practice
and there has not been any change in the Business or Condition of the Company
that has or would reasonably be expected to have a Material Adverse Effect.
(c) To the Knowledge of the Company, except as reflected in the
Financial Statements described in paragraph (a) of this Section or as set forth
in the Disclosure Schedule, and except for Liabilities incurred in the ordinary
course of business consistent with past practice, neither the Company nor any
Subsidiary has any material Liabilities of any nature (whether accrued,
absolute, contingent or otherwise) required by GAAP to be set forth on a
consolidated balance sheet of the Company or in the notes thereto.
SECTION 2.10. Taxes. Except as disclosed in the Disclosure Schedule,
as of the date hereof, (1) the Company and each Subsidiary have filed all Tax
returns and reports required to be filed by the Company and each Subsidiary, or
requests for extensions to file such returns or reports have been timely filed
or granted and have not expired, and (2) there have been no examinations or
audits of any tax returns or reports by any applicable governmental agency.
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As of the date hereof, the Company and each Subsidiary have paid all undisputed
Taxes shown as due on such Tax returns and reports in all material respects.
Further, each of the Company and its Subsidiaries has duly withheld individual
income taxes and adequately paid mandatory contributions to the statutory
welfare or social security funds on behalf of all its employees in material
compliance with the applicable regulations in each respective jurisdiction such
that there shall be no default or underpayment in respect of individual income
taxes and mandatory contributions to the statutory social security funds that
has or would reasonably be expected to have a Material Adverse Effect.
SECTION 2.11. Legal Proceedings. As of the date hereof, except as
disclosed in the Disclosure Schedule or except as would not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect:
(a) there are no Actions or Proceedings pending or, to the Knowledge
of the Company, threatened seeking to restrain, adjourn or otherwise prohibit or
make illegal the consummation of any of the transactions contemplated by the
Transaction Documents; and
(b) there are no Actions or Proceedings pending or, to the Knowledge
of the Company, threatened against, relating to or affecting the Company, any
Subsidiary or any of their respective Assets and Properties.
SECTION 2.12. Compliance With Laws and Orders. Except as disclosed in
the Disclosure Schedule or except as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, neither the Company
nor any Subsidiary has received any received any written communication since
January 1, 2004 until the date hereof from any Governmental or Regulatory
Authority that alleges that the Company or any Subsidiary, as applicable, is in
violation of or in default under any Law or Order applicable to the Company or
such Subsidiary. To the Knowledge of the Company, each of the Company and its
Subsidiaries is in compliance, in all material respects, with all Laws or
Orders.
SECTION 2.13. Real Property.
(a) Each of the Company and the Subsidiaries has good title, free and
clear of any Lien other than the Permitted Liens, to each parcel of real
property owned by it and is in possession of each such parcel of real property,
together with all buildings, structures, facilities, fixtures and other
improvements thereon.
(b) Each of the Company and the Subsidiaries has a valid and
subsisting leasehold estate in and the right to quiet enjoyment of the real
properties leased by it, free and clear of any Liens other than the Permitted
Liens (except by the Lessor).
SECTION 2.14. Tangible Personal Property. Except as would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect, each of the Company and the Subsidiaries is in possession of and
has good title to,
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or has valid leasehold interests in or valid rights under Contract to use, all
tangible personal property material to the Business or Condition of the Company,
free and clear of any Liens other than the Permitted Liens.
SECTION 2.15. Investment Assets. As of the date hereof, the Disclosure
Schedule lists each Investment Asset in excess of US$3 million held by the
Company or any Subsidiary in any Person which is not a Subsidiary. Except as
disclosed in the Disclosure Schedule, as of the date hereof, all such Investment
Assets listed on the Disclosure Schedule are owned by the Company or a
Subsidiary and are free and clear of all Liens other than the Permitted Liens.
SECTION 2.16. Intellectual Property Rights. As of the date hereof,
each of the Company and the Subsidiaries either has all right, title and
interest in or a valid and binding right under Contract to use the Intellectual
Property material to the Business or Condition of the Company (the "COMPANY
INTELLECTUAL PROPERTY"). As of the date hereof, (a) all registrations with and
applications to Governmental or Regulatory Authorities in respect of the Company
Intellectual Property owned by the Company or a Subsidiary are valid and in full
force and effect and (b) the execution of the Transaction Documents and the
consummation of the transactions contemplated thereby do not trigger any
restrictions on the direct or indirect transfer of any material Contract, or any
interest therein, held by the Company or any Subsidiary in respect of the
Company Intellectual Property. As of the date hereof, neither the Company nor
any Subsidiary has received notice that the Company or any Subsidiary is
infringing any Intellectual Property of any other Person in any material
respect; to the Knowledge of the Company, no claim to such effect is pending and
has not been resolved; and as of the date hereof, to the Knowledge of the
Company, neither the Company nor any Subsidiary is infringing any Intellectual
Property of any other Person in any material respect.
SECTION 2.17. Contracts.
(a) As of the date hereof, the Disclosure Schedule contains a true and
complete list of each of the following Contracts to which the Company or any
Subsidiary is a party or by which any of their respective Assets and Properties
is bound:
(i) Contracts providing for a commitment of employment or
consultation services for a specified or unspecified term or otherwise relating
to employment or termination of employment of each member of senior management
of the Company and the Subsidiaries;
(ii) Contracts containing any provision or covenant prohibiting
or materially limiting the ability of the Company or any Subsidiary to engage in
any business activity or compete with any Person or prohibiting or materially
limiting the ability of any Person to compete with the Company or any
Subsidiary;
(iii) material partnership, joint venture, shareholders' or other
similar Contracts with any Person;
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(iv) Contracts relating to Indebtedness of the Company or any
Subsidiary in excess of US$3 million;
(v) Contracts with distributors, manufacturers, suppliers or
sales agencies that involve a binding payment or obligation by or to the Company
or any Subsidiary of more than US$3 million annually;
(vi) Contracts relating to (A) the future disposition or
acquisition of any Assets and Properties individually or in the aggregate
material to the Business or Condition of the Company, other than dispositions or
acquisitions in the ordinary course of business, and (B) any merger or other
business combination (other than this Agreement);
(vii) Contracts between or among the Company and any Subsidiary
relating to Indebtedness or the provision of services between such entities; and
(viii) Contracts with top five (5) distributors, manufacturers,
suppliers or sales agencies, which collectively account for at least seventy
percent (70%) of the supply of silicon to the Company and its Subsidiaries in
the aggregate as of the date of this Agreement.
(b) As of the date hereof, none of the Contracts required to be
disclosed in the Disclosure Schedule has been terminated prior to the expiration
of the agreed minimum term by any party thereto nor, to the Knowledge of the
Company as to any Contract the Company or any Subsidiary is a party, has any
party indicated its intention to terminate any of such Contracts. Except as
disclosed in the Disclosure Schedule, , to the Knowledge of the Company, neither
the Company nor any Subsidiary or any other party to such Contract is in
violation or breach of or default under any such Contract in any material
respect.
SECTION 2.18. Insurance. As of the date hereof, except as disclosed in
the Disclosure Schedule or except as would not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, no premiums are due
or have not been paid in relation to, and neither the Company nor any Subsidiary
has received any notice of cancellation or termination in respect of, or, to the
Knowledge of the Company, is in default under, any insurance policy currently in
effect that insure the business, operations or employees of the Company or any
Subsidiary or affect or relate to the ownership, use or operation of any of the
Assets and Properties of the Company or any Subsidiary in any material respect.
SECTION 2.19. Employees; Labor Relations. As of the date hereof,
except as disclosed in the Disclosure Schedule, there are no disputes pending
or, to the Knowledge of the Company, threatened in writing between the Company
or any Subsidiary and any trade union or other representatives of its employees,
except in each
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case for such disputes as would not reasonably be expected to have, individually
or in the aggregate, a Material Adverse Effect.
SECTION 2.20. Environmental Matters. As of the date hereof, except as
disclosed in the Disclosure Schedule:
(a) Neither the Company nor any Subsidiary has received any written
communication since January 1, 2003 until the date hereof from any Governmental
or Regulatory Authority that alleges that the Company or any Subsidiary, as
applicable, is not in compliance with applicable Environmental Laws in any
material respect, except for any non-compliance that has been settled or
resolved.
(b) To the Knowledge of the Company, neither the Company nor any
Subsidiary is in violation of or not in compliance with applicable Environmental
Laws in any material respect.
(c) To the Knowledge of the Company, each of the Company and the
Subsidiaries has obtained or maintains all environmental, health and safety
permits and governmental authorizations necessary for the construction of its
facilities and the conduct of its operations as currently conducted, as
applicable (collectively, the "ENVIRONMENTAL PERMITS"), and all such
Environmental Permits are in good standing or, where applicable, a renewal
application or an application for any new operations has been timely filed and
is pending agency approval, and the Company and the Subsidiaries are in
compliance with all terms and conditions of such Environmental Permits. To the
Knowledge of the Company, neither the Company nor any Subsidiary has received
any notice from any Governmental Authority that it will revoke, cancel,
withdraw, terminate, suspend, not renew, or modify any such Environmental
Permits.
(e) This Section 2.20 contains the sole and exclusive representations
and warranties of the Company with respect to environmental matters arising
under any Environmental Law.
SECTION 2.21. Brokers. All negotiations relating to this Agreement and
the transactions contemplated hereby have been carried out by the Company
directly with the Investor without the intervention of any Person on behalf of
the Company in such manner as to give rise to any valid claim by any Person
against the Investor, the Company or any Subsidiary for a finder's fee,
brokerage commission or similar payment.
SECTION 2.22. Related Party Transaction. Except as disclosed in the
Disclosure Schedules, no Founder, officer or director of the Company or any
Subsidiary or any Affiliate of any such person has any agreement with the
Company or any Subsidiary (except for employment contracts), understanding,
proposed transaction with, or is indebted to, any Company or Subsidiary, nor is
any Company or Subsidiary indebted (or committed to make loans or extend or
guarantee credit) to any of such persons (other than for accrued salaries,
reimbursable expenses or other standard
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employee benefits). Except as disclosed in the Disclosure Schedules, no Founder,
officer or director of the Company or any Subsidiary has any direct or indirect
ownership interest in (i) any firm or corporation with which a the Company or
any Subsidiary is affiliated, (ii) any firm or corporation with which the
Company or any Subsidiary has a business relationship, (iii) any firm or
corporation that competes with the Company or any Subsidiary or (iv) any firm or
corporation which purchases from or sells, licenses or furnishes to the Company
or any Subsidiary any goods, property, intellectual or other property rights or
services. Except as disclosed in the Disclosure Schedules, there is no agreement
between any Founder and any other shareholder with respect to the ownership or
control of the Company or any Subsidiary.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to the Company as follows:
SECTION 3.01. Corporate Existence. The Investor is an international
business company duly incorporated, validly existing and in good standing under
the laws of the British Virgin Islands. The Investor has full corporate power
and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
SECTION 3.02. Authority. The execution and delivery by the Investor of
this Agreement, and the performance by the Investor of its obligations
hereunder, have been duly and validly authorized by all necessary action on the
part of the Investor, no other action on the part of the Investor or its equity
holders being necessary. This Agreement has been duly and validly executed and
delivered by the Investor and constitutes a legal, valid and binding obligation
of the Investor enforceable against the Investor in accordance with its terms.
SECTION 3.03. No Conflicts. The execution and delivery by the Investor
of this Agreement do not, and the performance by the Investor of its obligations
under this Agreement and the consummation of the transactions contemplated
hereby shall not:
(a) conflict with or result in a violation or breach of any of the
terms, conditions or provisions of the corporate organizational documents of the
Investor;
(b) conflict with or result in a violation or breach of any term or
provision of any Law or Order applicable to the Investor or any of its Assets
and Properties; or
(c) (i) conflict with or result in a violation or breach of, (ii)
constitute (with or without notice or lapse of time or both) a default under,
(iii) require the Investor
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to obtain any consent, approval or action of, make any filing with or give any
notice to any Person as a result or under the terms of, (iv) result in or give
to any Person any right of termination, cancellation, acceleration or
modification in or with respect to, or (v) result in the creation or imposition
of any Lien upon the Investor or any of its Assets and Properties under, any
Contract or License to which the Investor is a party or by which any of its
Assets and Properties is bound.
SECTION 3.04. Governmental Approvals and Filings. No consent, approval
or action of, filing with or notice to any Governmental or Regulatory Authority
on the part of the Investor is required in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby.
SECTION 3.05. Legal Proceedings. There are no Actions or Proceedings
pending or, to the Knowledge of the Investor, threatened seeking to restrain,
enjoin or otherwise prohibit or make illegal the consummation of any of the
transactions contemplated by this Agreement.
SECTION 3.06. Investment Purpose. The Investor is acquiring the Shares
solely for the purpose of investment and not with a view to, or for offer or
sale in connection with, any distribution thereof.
SECTION 3.07. Brokers. All negotiations relating to this Agreement and
the transactions contemplated hereby have been carried out by the Investor
directly with the Company without the intervention of any Person on behalf of
the Investor in such manner as to give rise to any valid claim by any Person
against the Company for a finder's fee, brokerage commission or similar payment.
ARTICLE IV
COVENANTS AND OTHER AGREEMENTS
SECTION 4.01. Covenants of the Warrantors. The Warrantors covenant and
agree with the Investor that, at all times from and after the date hereof until
the Closing, the Company shall comply and the Warrantors shall procure the
Company's compliance with all covenants and provisions of this Section 4.01,
except to the extent the Investor may otherwise consent in writing, which
consent shall not be unreasonably withheld, delayed or conditioned.
(a) Regulatory and Other Approvals. The Company shall, and shall cause
the Subsidiaries to, as promptly as practicable, (a) take all commercially
reasonable steps necessary or desirable to obtain all consents, approvals or
actions of, make all filings with and give all notices to Governmental or
Regulatory Authorities or any other Person required of the Company or any
Subsidiary to consummate the transactions contemplated hereby, including without
limitation those described in the Disclosure Schedules, (b) provide such other
information and communications to such
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Governmental or Regulatory Authorities or other Persons as such Governmental or
Regulatory Authorities or other Persons may reasonably request in connection
therewith and (c) provide reasonable cooperation to the Investor in connection
with the performance of its obligations under Section 4.02. The Company shall
provide prompt notification to the Investor when any such consent, approval,
action, filing or notice referred to in clause (a) above is obtained, taken,
made or given, as applicable, and shall advise the Investor of any
communications (and, unless precluded by Law, provide copies of any such
communications that are in writing) with any Governmental or Regulatory
Authority or other Person regarding any of the transactions contemplated by this
Agreement.
(b) Conduct of Business. The Company and each Subsidiary shall conduct
its business in the ordinary course consistent with past practice. Without
limiting the generality of the foregoing, between the date of this Agreement and
the Closing Date, the Company shall use, and the Company shall cause each
Subsidiary to use, commercially reasonable efforts, but only to the extent the
officers of the Company believe such action to be in the best interests of the
Company and the Subsidiaries as a whole, to (i) preserve intact the present
business organization and reputation of the Company and the Subsidiaries,
respectively, in all material respects, (ii) keep available (subject to
dismissals and retirements in the ordinary course of business) the services of
the key officers and employees of the Company and the Subsidiaries,
respectively, (iii) maintain the respective Assets and Properties of the Company
and the Subsidiaries in working order and condition consistent with past custom
and practice, ordinary wear and tear excepted, and (iv) maintain the goodwill of
key customers, suppliers and lenders and other Persons with whom the Company and
any Subsidiary otherwise has significant business relationships.
(d) Fulfillment of Conditions. The Warrantors shall take all
commercially reasonable steps necessary or desirable and proceed diligently and
in good faith to satisfy each condition to the obligations of the Investor
contained in this Agreement and shall not take or fail to take any action that
would reasonably be expected to result in the non-fulfillment of any such
condition.
(e) Delivery of Financial Statements. As promptly as practicable, but
no later than one hundred twenty (120) days, after the end of 2006, the Company
shall deliver to the Investor audited consolidated balance sheets, income
statements and statements of cash flow of Tianwei Yingli, in each case prepared
in accordance with GAAP. As promptly as practicable, but no later than one
hundred twenty (120) days, after the end of 2007, the Company shall deliver to
the Investor audited consolidated balance sheets, income statements and
statements of cash flow of the Company, in each case prepared in accordance with
GAAP.
(f) Employment Agreements. Each of the Company and its Subsidiaries
shall cause all of their present and future officers and employees to enter into
a standard form(s) of employment agreement containing standard confidentiality,
invention assignment, non-compete, non-solicit, and other applicable employment
terms
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with the Company or its Subsidiaries, as the case may be in form and substance
reasonably satisfactory to the Investor.
(g) Founder Proceeds. The Founder hereby agrees and covenants that the
Founder will cause Yingli Group and the Company to use best efforts to use the
purchase price paid by the Company to Yingli Group for the acquisition of at
least 51% equity interest in Tianwei Yingli to subscribe for and purchase,
through the Company, new equity interests in Tianwei Yingli, subject to legal
restrictions and the consent of Baoding Tiawnei Baobian Electric Co., Ltd. and
in accordance with the Yingli Group Share Purchase Agreement.
(h) Repayment of Loan. The Company shall, and the Existing
Shareholders shall procure the Company to, repay that certain outstanding loan
between Yingli Group and Tianwei Yingli in the amount of approximately RMB 12.4
million within thirty (30) days of the Closing.
(i) Amended and Restated Articles of Association. The Warrantors shall
take all necessary steps to file or register the Company's Amended and Restated
Articles of Association substantially in the form attached hereto as Exhibit C
with applicable Governmental and Regulatory Authorities.
SECTION 4.02. Covenants of the Investor. The Investor covenants and
agrees with the Company that, at all times from and after the date hereof until
the Closing, the Investor shall comply with all covenants and provisions of this
Section 4.02, except to the extent the Company may otherwise consent in writing,
which consent shall not be unreasonably withheld, delayed or conditioned.
(a) Regulatory and Other Approvals. The Investor shall as promptly as
practicable (i) take all commercially reasonable steps necessary or desirable to
obtain all consents, approvals or actions of, make all filings with and give all
notices to Governmental or Regulatory Authorities or any other Person required
of the Investor to consummate the transactions contemplated hereby, (ii) provide
such other information and communications to such Governmental or Regulatory
Authorities or other Persons as such Governmental or Regulatory Authorities or
other Persons may reasonably request in connection therewith and (iii) provide
reasonable cooperation to the Company in connection with the performance of its
obligations under this Section 4.02. The Investor shall provide prompt
notification to the Company when any such consent, approval, action, filing or
notice referred to in clause (iv) above is obtained, taken, made or given, as
applicable, and shall advise the Company of any communications (and, unless
precluded by Law, provide copies of any such communications that are in writing)
with any Governmental or Regulatory Authority or other Person regarding any of
the transactions contemplated by this Agreement.
(b) Fulfillment of Conditions. The Investor shall take all
commercially reasonable steps necessary or desirable and proceed diligently and
in good faith to satisfy each condition to the obligations of the Company
contained in this
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Agreement and shall not take or fail to take any action that would reasonably be
expected to result in the non-fulfillment of any such condition.
SECTION 4.03. Mutual Covenants. Each party hereto covenants and agrees
with the other party that, at all times from and after the date hereof until the
Closing, such party shall comply with all covenants and provisions of this
Section 4.03, except to the extent the other party may otherwise consent in
writing, which consent shall not be unreasonably withheld, delayed or
conditioned.
(a) Confidentiality. Each party hereto shall hold, and shall cause its
representatives to hold, in confidence this Agreement, the Transaction
Documents, all documents and information furnished to it by or on behalf of the
other party in connection with the transactions contemplated hereby and shall
continue to be bound the terms of the confidentiality agreement dated July 31,
2006, between the Company and the Investor, the terms of which are incorporated
herein by reference.
(b) Publicity. Neither party hereto shall make any announcement
regarding this Agreement or the transactions contemplated hereby without the
prior written consent of the other party, except as may be required pursuant to
applicable Law and except pursuant to Section 10.04.
ARTICLE V
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Each Party's Obligations. The obligation
of any of the parties hereto to consummate the transactions contemplated by this
Agreement is subject to the fulfillment, at or before the Closing, of each of
the following conditions (all or any of which may be waived in whole or in part
by the Investor in its sole discretion):
(a) Orders and Laws. There shall not be in effect on the Closing Date
any Order or Law restraining, enjoining or otherwise prohibiting or making
illegal the consummation of any of the transactions contemplated by this
Agreement.
(b) Regulatory Consents and Approvals. All consents, approvals and
actions of, filings with and notices to any Governmental or Regulatory Authority
necessary to permit the Company and the Investor to perform their obligations
under this Agreement and to consummate the transactions contemplated hereby
shall have been duly obtained, made or given and shall be in full force and
effect, and all terminations or expirations of waiting periods imposed by any
Governmental or Regulatory Authority necessary for the consummation of the
transactions contemplated by this Agreement shall have occurred.
SECTION 5.02. Conditions to Obligations of the Investor. The
obligation of the Investor to consummate the transactions contemplated by this
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Agreement is subject to the fulfillment, at or before the Closing, of each of
the following conditions (all or any of which may be waived in whole or in part
by the Investor in its sole discretion):
(a) Representations and Warranties. The representations and warranties
made by the Warrantors in this Agreement, taken as a whole, shall be true and
correct in all material respects on and as of the Closing Date as though made on
and as of the Closing Date (or, in the case of representations and warranties
made as of a specified date earlier than the Closing Date, on and as of such
earlier date), except for any such breaches which in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
(b) Performance. The Warrantors shall have performed and complied
with, in all material respects, the agreements, covenants and obligations
required by this Agreement to be so performed or complied with by the Warrantors
at or before the Closing.
(c) Due Diligence. The Investor shall have completed to its reasonable
satisfaction all business, legal and financial due diligence, and any items
requiring correction identified by the Investor shall have been corrected to the
Investor's reasonable satisfaction.
(d) No Material Change. Since June 30, 2006, there has not been any
material change in the information contained in the Financial Statements, except
for any change, which individually or in the aggregate would not reasonably be
expected to have a Material Adverse Effect.
(e) Officer's Certificate. The Company's chief executive officer shall
deliver to the Purchasers at the Closing a certificate certifying that the
conditions specified in Sections 5.02(a) and 5.02(b) have been fulfilled.
(f) Transaction Documents. Each party to each Transaction Document
shall have duly executed and delivered each of the Transaction Documents to
which it is a party, which shall each be on terms reasonably satisfactory to the
Investor.
(g) Memorandum and Articles of Association. The Company shall have
obtained all necessary authorizations of the Company's board of directors and
shareholders to adopt the Amended and Restated Memorandum and Articles of
Association substantially in the form attached hereto as Exhibit C.
(h) Employment Agreements. The Company shall have entered into an
employment agreement, which shall include appropriate non-compete, non-solicit,
confidentiality and invention assignment provisions, with each of Xxxxxxxxx
Xxxx, Xxxxxxxxx Xxxx and Xxxxxxx Xxxx, to the reasonable satisfaction of the
Investor.
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(j) Opinion of Counsel. The Investor shall have received as of the
Closing Date the opinions of each of Xxxxxxx Xxxx & Xxxxxxx, Cayman Islands
counsel to the Company, and Fangda Partners, the PRC counsel to the Company, to
the reasonable satisfaction of the Investor.
(k) Expense Side Letter. The Company and the Investor shall have
entered on or prior to the Closing Date a side letter relating to the fees and
expenses incurred in connection with the consummation of the transactions
contemplated herein (the "EXPENSE SIDE LETTER").
(j) Issuance of New Shares. Prior to the Closing, the Company shall
not, and the Warrantors shall procure the Company not to, have issued or
authorized the issuance of any ordinary shares or Series A Preferred Shares
other than as set forth in Section 2.04 hereof.
(k) Determination of the ESOP Percentage. Prior to the Closing, the
Warrantors and the Investor shall have agreed on the Primary ESOP Percentage and
the Secondary ESOP Percentage (each as defined in the Shareholders Agreement).
SECTION 5.03. Conditions to Obligations of the Company. The obligation
of the Company to consummate the transactions contemplated by this Agreement is
subject to the fulfillment, at or before the Closing, of each of the following
conditions (all or any of which may be waived in whole or in part by the
Investor in its sole discretion):
(a) Representations and Warranties. The representations and warranties
made by the Investor in this Agreement, taken as a whole, shall be true and
correct in all material respects on and as of the Closing Date as though made on
and as of the Closing Date.
(b) Performance. The Investor shall have performed and complied with,
in all material respects, the agreements, covenants and obligations required by
this Agreement to be so performed or complied with by the Investor at or before
the Closing.
ARTICLE VI
SURVIVAL; NO OTHER REPRESENTATIONS
SECTION 6.01. Survival of Representations and Warranties. The
representations and warranties of the Company contained in Article II and in the
Disclosure Schedule, as supplemented and amended from time to time pursuant to
Section 6.03, shall survive only until the first anniversary of the Closing,
except that any representation or warranty that would otherwise terminate in
accordance with this sentence shall continue to survive if a Claim Notice or
Indemnity Notice (as applicable) shall have been timely given in good faith
based on facts reasonably expected to establish
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a valid claim under Article VII on or prior to such termination date, until the
related claim for indemnification has been satisfied or otherwise resolved as
provided in Article VII.
SECTION 6.02. No Other Representations. Except those representations
and warranties contained in Article II as qualified by the Disclosure Schedule,
as supplemented or amended from time to time pursuant to Section 6.03, it is the
explicit intent of each party hereto that the Company is making no
representation or warranty whatsoever, express or implied, at law or in equity,
whether under contract, tort or other applicable law, in respect of the
Business, the Company or any Subsidiary, or any of their respective Assets and
Properties, Liabilities or operations. In addition, the Company makes no
representation or warranty to the Investor with respect to any financial
projection or forecast relating to the Business or Condition of the Company
provided by or on behalf of the Company to the Investor or any of its Affiliates
or Representatives, provided, that, such financial projection or forecast were
prepared in good faith. With respect to any projection or forecast with respect
to the Company and the Subsidiaries or the Business delivered by or on behalf of
the Company to the Investor or any of its Affiliates or Representatives, the
Investor acknowledges that (a) there are uncertainties inherent in attempting to
make such projections and forecasts, (b) it is familiar with such uncertainties,
(c) it is taking full responsibility for making its own evaluation of the
adequacy and accuracy of all such projections and forecasts furnished to it and
(d) it shall have no claim against the Company or any of their Affiliates or
Representatives with respect thereto, except where it is determined that such
projection or forecast were not prepared in good faith.
SECTION 6.03. Supplemental Disclosure. The Company shall have the
right from time to time prior to the Closing to supplement or amend the
Disclosure Schedule with respect to any matter arising or discovered after the
date hereof which, if existing or known at the date of this Agreement, would
have been required to be set forth or described in the Disclosure Schedule.
ARTICLE VII
INDEMNIFICATION
SECTION 7.01. Indemnification.
(a) Following the Closing, subject to paragraphs (c) and (d) of this
Section, Section 7.03 and the other Sections of this Article VII, the Warrantors
shall jointly and severally indemnify the Investor in respect of, and hold it
harmless from and against, any and all Losses suffered, incurred or sustained by
it or to which it becomes subject, resulting from, arising out of or relating to
any breach of representation or warranty or non-fulfillment of or failure to
perform any covenant or agreement on the part of the Company made in or pursuant
to this Agreement.
-17-
(b) Notwithstanding anything to the contrary contained in this
Agreement, no amounts of indemnity shall be payable by the Warrantors as a
result of any Losses arising under paragraph (a) of this Section 7.01:
(i) with respect to any claim, unless and until the aggregate
amount of Losses suffered by the Investor exceeds US$1 million, in which case
the Investor shall be entitled to indemnification of the entire amount of
Losses;
(ii) to the extent that, prior to Closing, the Investor had
actual knowledge (including by way of notice from the Company through
supplements to the Disclosure Schedule or otherwise), but elected to proceed
with the Closing notwithstanding such knowledge;
(iii) to the extent it arises from or was caused by actions taken
by the Investor or any of its Affiliates; or
(iv) to the extent that the Investor had been compensated for
such Loss.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the Warrantors shall, in no circumstance, be obligated hereunder to
indemnify the Investor in respect of any and all Losses in an amount in excess
of the Purchase Price.
(d) Notwithstanding anything to the contrary contained in this
Agreement, this Article VII shall survive any termination of this Agreement.
SECTION 7.02. Method of Asserting Claims. All claims for
indemnification by any Indemnified Party under Section 7.01 must be asserted and
resolved as follows:
(a) In the event any claim or demand in respect of which an
Indemnified Party might seek indemnity under Section 7.01 is asserted against or
sought to be collected from such Indemnified Party by a Person other than the
Warrantors or any of their respective Affiliates (a "THIRD PARTY CLAIM"), the
Indemnified Party shall deliver a Claim Notice with reasonable promptness to the
Indemnifying Party. The Indemnifying Party shall notify the Indemnified Party as
soon as practicable within the Dispute Period whether the Indemnifying Party
disputes its liability to the Indemnified Party under Section 7.01 and whether
the Indemnifying Party desires, at its sole cost and expense, to defend the
Indemnified Party against such Third Party Claim.
(i) If the Indemnifying Party notifies the Indemnified Party
within the Dispute Period that the Indemnifying Party desires to defend the
Indemnified Party with respect to the Third Party Claim pursuant to this Section
7.02(a), then the Indemnifying Party shall have the right to defend, at the sole
cost and expense of the Indemnifying Party, such Third Party Claim by all
appropriate proceedings, which proceedings shall be vigorously and diligently
prosecuted by the Indemnifying Party to a
-18-
final conclusion or shall be settled at the discretion of the Indemnifying Party
(but only with the consent of the Indemnified Party, which consent shall not be
unreasonably withheld or delayed in the case of any settlement that provides for
any relief other than the payment of monetary damages as to which the
Indemnified Party shall be indemnified in full). The Indemnifying Party shall
have full control of such defense and proceedings, including (except as provided
in the immediately preceding sentence) any settlement thereof, except that:
(x) the Indemnified Party may, at the sole cost and expense
of the Indemnified Party, at any time prior to the Indemnifying Party's delivery
of the notice referred to in the first sentence of this clause (i), file any
motion, answer or other pleadings or take any other action that the Indemnified
Party reasonably believes to be necessary or appropriate to protect its
interests and not prejudicial to the Indemnifying Party (it being understood and
agreed that, except as provided in clause (ii) below, if an Indemnified Party
takes any such action that is prejudicial and causes a final adjudication that
is adverse to the Indemnifying Party, the Indemnifying Party shall be relieved
of its obligations hereunder with respect to the portion of such Third Party
Claim prejudiced by the Indemnified Party's action); and
(y) if requested by the Indemnifying Party, the Indemnified
Party shall, at the sole cost and expense of the Indemnifying Party, cooperate
with the Indemnifying Party and its counsel in contesting any Third Party Claim
that the Indemnifying Party elects to contest, or, if appropriate and related to
the Third Party Claim in question, in making any counterclaim against the Person
asserting the Third Party Claim, or any cross-complaint against any Person
(other than the Indemnified Party or any of its Affiliates).
The Indemnified Party may retain separate counsel to
represent it in, but not control, any defense or settlement of any Third Party
Claim controlled by the Indemnifying Party pursuant to this clause (i), and the
Indemnified Party shall bear its own costs and expenses with respect to such
separate counsel except as provided in the preceding sentence. Notwithstanding
the foregoing, the Indemnified Party may retain or take over the control of the
defense or settlement of any Third Party Claim the defense of which the
Indemnifying Party has elected to control if the Indemnified Party irrevocably
waives its right to indemnity under Section 7.01 with respect to such Third
Party Claim.
(ii) If the Indemnifying Party fails to notify the Indemnified
Party within the Dispute Period that the Indemnifying Party desires to defend
the Third Party Claim pursuant to this Section 7.02(a), then the Indemnified
Party shall have the right to defend, at the sole cost and expense of the
Indemnifying Party, the Third Party Claim by all appropriate proceedings, which
proceedings shall be vigorously and diligently prosecuted by the Indemnified
Party to a final conclusion or shall be settled at the discretion of the
Indemnified Party (with the consent of the Indemnifying Party, which consent
shall not be unreasonably withheld or delayed). The Indemnified Party
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shall have full control of such defense and proceedings, including (except as
provided in the immediately preceding sentence) any settlement thereof;
provided, however, that:
(x) if requested by the Indemnified Party, the Indemnifying
Party shall, at the sole cost and expense of the Indemnifying Party, cooperate
with the Indemnified Party and its counsel in contesting any Third Party Claim
which the Indemnified Party is contesting, or, if appropriate and related to the
Third Party Claim in question, in making any counterclaim against the Person
asserting the Third Party Claim, or any cross-complaint against any Person
(other than the Indemnifying Party or any of its Affiliates);
(y) notwithstanding the foregoing provisions of this clause
(ii), if the Indemnifying Party has notified the Indemnified Party within the
Dispute Period that the Indemnifying Party disputes its liability hereunder to
the Indemnified Party with respect to such Third Party Claim and if such dispute
is resolved in favor of the Indemnifying Party in the manner provided in clause
(iii) below, the Indemnifying Party shall not be required to bear the costs and
expenses of the Indemnified Party's defense pursuant to this clause (ii) or of
the Indemnifying Party's participation therein at the Indemnified Party's
request, and the Indemnified Party shall reimburse the Indemnifying Party in
full for all reasonable costs and expenses incurred by the Indemnifying Party in
connection with such litigation; and
(z) the Indemnifying Party may retain separate counsel to
represent it in, but not control, any defense or settlement controlled by the
Indemnified Party pursuant to this clause (ii), and the Indemnifying Party shall
bear its own costs and expenses with respect to such participation.
(iii) If the Indemnifying Party notifies the Indemnified Party
that it does not dispute its liability to the Indemnified Party with respect to
the Third Party Claim under Section 7.01 or fails to notify the Indemnified
Party within the Dispute Period whether the Indemnifying Party disputes its
liability to the Indemnified Party with respect to such Third Party Claim, the
Loss arising from such Third Party Claim shall, subject to the provisions of
Section 7.01(c), be conclusively deemed a liability of the Indemnifying Party
under Section 7.01 and the Indemnifying Party shall, subject to the provisions
of Section 7.01(c), pay the amount of such Loss to the Indemnified Party on
demand following the final determination thereof. If the Indemnifying Party has
timely disputed its liability with respect to such claim, the Indemnifying Party
and the Indemnified Party shall proceed in good faith to negotiate a resolution
of such dispute and, if not resolved through negotiations, such dispute shall be
resolved in accordance with the dispute resolution provisions in Section 10.11.
(b) In the event of a claim by any Indemnified Party under Section
7.01 against any Indemnifying Party that does not involve a Third Party Claim,
the Indemnified Party shall deliver an Indemnity Notice with reasonable
promptness to the Indemnifying Party. If the Indemnifying Party notifies the
Indemnified Party that it does not dispute the claim described in such Indemnity
Notice or fails to notify the
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Indemnified Party within the Dispute Period whether the Indemnifying Party
disputes the claim described in such Indemnity Notice, the Loss arising from the
claim specified in such Indemnity Notice shall, subject to the provisions of
Section 7.01(c), be conclusively deemed a liability of the Indemnifying Party
under Section 7.01 and the Indemnifying Party shall, subject to the provisions
of Section 7.01(c), pay the amount of such Loss to the Indemnified Party on
demand following the final determination thereof. If the Indemnifying Party has
timely disputed its liability with respect to such claim, the Indemnifying Party
and the Indemnified Party shall proceed in good faith to negotiate a resolution
of such dispute, and if not resolved through negotiations, such dispute shall be
resolved in accordance with the dispute resolution provisions in Section 10.11.
SECTION 7.03. Exclusivity. After the Closing, except in the event of
fraud, the indemnities set forth in this Article VII shall be the sole and
exclusive remedies of the Investor and their respective officers, directors,
employees, agents and Affiliates for any breach of representation or warranty or
nonfulfillment of or failure to perform any covenant or agreement made in or
pursuant to this Agreement, and the parties shall not be entitled to a
rescission of this Agreement or to any further indemnification rights or claims
of any nature whatsoever in respect thereof, all of which the parties hereto
hereby waive. No Person who was an officer, director or stockholder of the
Company or any of the Subsidiaries prior to the Closing or any of their
respective Affiliates shall have any liability to make any payment in respect of
any breach of any representation or warranty or non-performance of any covenant
or agreement made in or pursuant to this Agreement, except for the Company's
indemnification obligations under this Article VII.
SECTION 7.04. No Consequential Damages. Anything herein to the
contrary notwithstanding, no party shall be liable under this Agreement or with
respect to the transactions contemplated hereby for any consequential,
exemplary, punitive, special, indirect or incidental damages, including loss of
profits or revenue or any multiple of damages.
SECTION 7.05. Limitation of Liability. No recourse shall be had for
any claim based on or otherwise in respect of this Agreement or the transactions
contemplated hereby against any Person other than the Warrantors or the
Investor.
SECTION 7.06. Payment. Notwithstanding anything to the contrary
contained in this Agreement, at the absolute discretion of the Investor, all
Losses suffered by the Investors may be settled by (a) payment of cash in an
amount equal to the Losses, or (b) the Company's allotment and issuance of such
number of Ordinary Shares equal to (i) the amount of Losses suffered by the
Investors divided by (ii) the fair market value of one Ordinary Share as
determined in good faith by the Board (with the consent of the Investor
Nominee); provided, that, in the event that the Investor decides to settle the
Losses in the form of Ordinary Shares as provided in clause (b) above, in lieu
the Ordinary Shares to be issued pursuant to clause (b) above, the Founder shall
have the option of transferring to the Investor such number of Ordinary Shares
held by the Holdco equal to (i) the amount of Losses suffered by the Investors
divided by (ii) the fair market
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value of one Ordinary Share as determined in good faith by the Board (with the
consent of the Investor Nominee); and provided, further that any such allotment,
issuance or transfer pursuant to clause (b) or (c), as the case may be, shall be
grossed up and shall not have any dilutive effect on the Investor.
ARTICLE VIII
TERMINATION
SECTION 8.01. Termination. This Agreement may be terminated, and the
transactions contemplated hereby may be abandoned:
(a) at any time before the Closing, by mutual written agreement of the
Company and the Investor; or
(b) at any time after October 31, 2006, by the Company or the
Investor, upon notification to the non-terminating party by the terminating
party, if the Closing shall not have occurred on or before such date and such
failure to consummate is not caused by a breach of this Agreement by the
terminating party; provided, however, that on or before such date the parties
may mutually agree to extend such date until December 31, 2006.
SECTION 8.02. Effect of Termination. If this Agreement is validly
terminated pursuant to Section 8.01, this Agreement shall forthwith become null
and void, and there shall be no liability or obligation on the part of the
Company or the Investor (or any of their respective officers, directors,
employees, agents or other Representatives or Affiliates) under this Agreement
or in connection with the transactions contemplated hereby, except that such
termination shall not relieve any breaching party from liability hereunder from
willful breach of any representation or warranty contained herein or any breach
of any covenant or agreement contained herein.
ARTICLE IX
DEFINITIONS
SECTION 9.01. Defined Terms. As used in this Agreement, the following
defined terms have the meanings indicated below:
"ACTIONS OR PROCEEDINGS" means any action, suit, proceeding,
arbitration or Governmental or Regulatory Authority investigation.
"ACTUAL ANNUAL FINANCIAL STATEMENTS" has the meaning ascribed to it in
Section 2.09(a).
"ACTUAL INTERIM FINANCIAL STATEMENTS" has the meaning ascribed to it
in Section 2.09(a).
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"AFFILIATE" means any Person that directly, or indirectly through one
or more intermediaries, controls or is controlled by or is under common control
with the Person specified. For purposes of this definition, control of a Person
means the power, direct or indirect, to direct or cause the direction of the
management and policies of such Person whether by Contract or otherwise and, in
any event and without limitation of the previous sentence, any Person owning
fifty percent (50%) or more of the voting securities of another Person shall be
deemed to control that Person.
"AGREEMENT" means this Series A Preferred Share Purchase Agreement,
the Disclosure Schedule, as supplemented and amended from time to time pursuant
to Section 6.03, the exhibits and annexes attached hereto.
"ASSETS AND PROPERTIES" of any Person means all assets and properties
of every kind, nature, character and description (whether real, personal or
mixed, whether tangible or intangible, and wherever situated), including the
goodwill related thereto, operated, owned or leased by such Person.
"BOOKS AND RECORDS" means all files, documents, instruments, papers,
books and records relating to the Business or Condition of the Company,
including without limitation financial statements, Tax returns and related work
papers and letters from accountants, budgets, pricing guidelines, ledgers,
journals, deeds, title policies, minute books, stock certificates and books,
stock transfer ledgers, Contracts, Licenses, operating data and plans.
"BUSINESS" means the design, manufacture, sales, assembly,
installation and servicing of photovoltaic products engaged in by the Company,
directly or indirectly through the Subsidiaries.
"BUSINESS DAY" means a day other than Saturday, Sunday or any day on
which banks located in Hong Kong are authorized or obligated to close.
"BUSINESS OR CONDITION OF THE COMPANY" means the business, financial
condition or results of operations of the Company and the Subsidiaries taken as
a whole.
"CLAIM NOTICE" means written notification pursuant to Section 7.02(a)
of a Third Party Claim as to which indemnity under Section 7.01 is sought by an
Indemnified Party, enclosing a copy of all papers served, if any, and specifying
the nature of and basis for such Third Party Claim and for the Indemnified
Party's claim against the Indemnifying Party under Section 7.01, together with
the amount or, if not then reasonably determinable, the estimated amount,
determined in good faith, of the Loss arising from such Third Party Claim.
"CLOSING" means the closing of the transactions contemplated by
Article I.
"CLOSING DATE" has the meaning ascribed to it in Section 1.02.
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"COMPANY" has the meaning ascribed to it in the forepart of this
Agreement.
"COMPANY INTELLECTUAL PROPERTY" has the meaning ascribed to it in
Section 2.16.
"CONTRACT" means any agreement, lease, license, evidence of
Indebtedness, mortgage, indenture, security agreement or other contract.
"CUT-OFF DATE" means, with respect to any representation or warranty
contained in this Agreement, the date on which such representation or warranty
ceases to survive as provided in Section 6.01.
"DISCLOSURE SCHEDULE" means the records delivered or deemed to be
disclosed to the Investor on behalf of the Company herewith and dated as of the
date hereof, containing all lists, exceptions and other information and
materials as may be provided or deem to be provided pursuant to this Agreement,
as supplemented and amended from time to time pursuant to Section 6.03.
"DISPUTE PERIOD" means the period ending twenty (20) days following
receipt by an Indemnifying Party of either a Claim Notice or an Indemnity
Notice.
"ENVIRONMENTAL PERMITS" has the meaning ascribed to it in Section
2.20(b).
"ENVIRONMENTAL LAWS" means all Laws of any jurisdiction in which the
Company or any Subsidiary conducts business or operations relating to pollution
and the environment generally.
"EXPENSE SIDE LETTER" has the meaning ascribed to it in Section
5.02(k).
"FINANCIAL STATEMENTS" means the drafts of the unaudited consolidated
balance sheets, income statements and statements of cash flow of Tianwei Yingli
for the years ended on December 31, 2003, 2004 and 2005 and for the six months
ended June 30, 2006, in each case, prepared in accordance with GAAP.
"FOUNDERS" has the meaning ascribed to it in the Preamble.
"GAAP" means generally accepted accounting principles in the United
States, consistently applied throughout the specified period and in the
immediately prior comparable period.
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any applicable court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of any jurisdiction in which a Person conducts business or
operations.
-24-
"HOLDCO" has the meaning ascribed to it in the Preamble.
"ICC" has the meaning ascribed to it in Section 10.11(b).
"INDEBTEDNESS" of any Person means all obligations of such Person (i)
for borrowed money, (ii) evidenced by notes, bonds, debentures or similar
instruments, (iii) under capital leases and (iv) in the nature of guarantees of
the obligations described in clauses (i) through (iii) above of any other
Person.
"INDEMNIFIED PARTY" means any Person claiming indemnification under
any provision of Article VII.
"INDEMNIFYING PARTY" means any Person against whom a claim for
indemnification is being asserted under any provision of Article VII.
"INDEMNITY NOTICE" means written notification pursuant to Section
7.02(b) of a claim for indemnity under Article VII, specifying the nature of and
basis for such claim, together with the amount or, if not then reasonably
determinable, the estimated amount, determined in good faith, of the Loss
arising from such claim.
"INTELLECTUAL PROPERTY" of any Person means all patents and patent
rights, trademarks and trademark rights, trade names and trade name rights,
service marks and service xxxx rights, service names and service name rights,
brand names, inventions, copyrights and copyright rights, know-how and all
pending applications for and registrations of patents, trademarks, service marks
and copyrights.
"INVESTMENT ASSETS" of any Person means all debentures, notes and
other evidences of Indebtedness, stocks, securities (including rights to
purchase and securities convertible into or exchangeable for other securities),
interests in joint ventures and general and limited partnerships, mortgage loans
and other investment or portfolio assets owned of record or beneficially by such
Person (other than trade receivables generated in the ordinary course of
business of such Person).
"INVESTOR" has the meaning ascribed to it in the forepart of this
Agreement.
"IPO" has the meaning ascribed to it in Section 4.02(c).
"KNOWLEDGE" means a party's actual knowledge after due and diligent
inquiries of officers, directors and other employees of such party reasonably
believed to have knowledge of the matter in question.
"LAWS" means, with respect to a Person, all laws, statutes, rules,
regulations, ordinances and other pronouncements having the effect of law of any
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jurisdiction in which such Person conducts business or operations or of any
Governmental or Regulatory Authority.
"LIABILITIES" means all Indebtedness, obligations and other
liabilities of a Person (whether absolute, accrued, contingent, fixed or
otherwise, or whether due or to become due).
"LICENSES" means all licenses, permits, certificates of authority,
authorizations, approvals, registrations, franchises and similar consents
granted or issued by any Governmental or Regulatory Authority.
"LIENS" means any mortgage, pledge, assessment, security interest,
lease, lien, levy, charge or other encumbrance of any kind, or any conditional
sale Contract, title retention Contract or other Contract to give any of the
foregoing.
"LOSS" means any and all damages, fines, penalties, deficiencies,
losses and expenses (including without limitation interest, court costs,
reasonable fees of attorneys, accountants and other experts or other reasonable
expenses of litigation or other proceedings or of any claim, default or
assessment).
"MATERIAL ADVERSE EFFECT" means an effect of any change, circumstance,
condition, development, effect, event, occurrence or state of facts that,
individually or in the aggregate, is or has been, or would reasonably be
expected to be, materially adverse to the Business or Condition of the Company,
other than an effect of any change, circumstance, condition, development,
effect, event, occurrence or state of facts relating to (i) economic, industry,
or securities market conditions generally, (ii) any change in Laws or regulatory
or political conditions affecting the solar energy industry generally, including
any acts of war or terrorist activities, (iii) any change in GAAP, or (iv) any
adverse change, effect, event, occurrence, state of facts or development arising
from or relating to compliance with the terms of this Agreement, or action
taken, or failed to be taken, to which the Investor has consented in writing.
"OPTION" with respect to any Person means any security, right,
subscription, warrant, option, "phantom" stock right or other Contract that
gives the right to (i) purchase or otherwise receive or be issued any shares of
capital stock of such Person or any security of any kind convertible into or
exchangeable or exercisable for any shares of capital stock of such Person or
(ii) receive or exercise any benefits or rights similar to any rights enjoyed by
or accruing to the holder of shares of capital stock of such Person, including
any rights to participate in the equity or income of such Person or to
participate in or direct the election of any directors or officers of such
Person or the manner in which any shares of capital stock of such Person are
voted.
"ORDER" means any writ, judgment, decree, injunction or similar order
of any Governmental or Regulatory Authority (in each such case whether
preliminary or final).
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"PERMITTED LIEN" means (i) statutory Liens for current Taxes not yet
due and payable or Taxes being contested in good faith through appropriate
proceedings, (ii) mechanics', carriers', workers', repairers' and other similar
Liens imposed by Law arising or incurred in the ordinary course of business for
obligations not yet due, (iii) in the case of leases of vehicles and other
personal property, Liens which do not, individually or in the aggregate,
materially impair the use of such leased equipment or other personal property,
(iv) Liens incidental to the operation of the Business or the ownership by the
Company or any Subsidiary of any of their Assets and Properties which were (x)
not incurred in connection with the borrowing of money or the advance of credit
and which do not materially detract from the value of the assets encumbered
thereby or materially interfere with the use thereof, or (y) incurred prior to
the date hereof, (v) in the case of Licenses or other rights to use the Company
Intellectual Property, Liens or other restrictions arising from the terms
thereof, and (vi) Liens on leases of real property arising from the provisions
of such leases, including, in relation to leased real property, any agreements
and/or conditions imposed on the issuance of land use permits, zoning, business
licenses, use permits or other entitlements of various types issued by any
Governmental or Regulatory Authority, necessary or beneficial to the continued
use and occupancy of the Assets and Properties of the Company or any Subsidiary.
"PERSON" means any natural person, corporation, limited liability
company, general partnership, limited partnership, proprietorship, other
business organization, trust, union, association or Governmental or Regulatory
Authority.
"PRC" means the People's Republic of China.
"PURCHASE PRICE" has the meaning ascribed to it in Section 1.03.
"REPRESENTATIVES" means, with respect to any Person, such Person's
counsel, accountants, financial advisors, consultants and other representatives.
"SERIES A PREFERRED SHARES" has the meaning ascribed to it in the
forepart of this Agreement.
"SHARES" has the meaning ascribed to it in Section 1.01.
"SHARE CERTIFICATE" has the meaning ascribed to it in Section 1.04.
"SUBSIDIARY" means any Person in which the Company, directly or
indirectly, beneficially owns more than fifty percent (50%) of either the equity
interests in, or the voting control of, such Person, including without
limitation Tianwei Yingli.
"TAXES" means any taxes, charges, fees, levies, other assessments, or
withholding taxes or charges imposed by any Governmental or Regulatory
Authority, and includes any interest and penalties on or additions to any such
Taxes and any expenses incurred in connection with the determination, settlement
or litigation of any Tax Liabilities.
-27-
"THIRD PARTY CLAIM" has the meaning ascribed to it in Section 7.02(a).
"TIANWEI YINGLI" means Baoding Tianwei Yingli New Energy Resources
Co., Ltd., a company with limited liability organized under the laws of the PRC.
"TRANSACTION DOCUMENTS" means this Agreement and each of the
agreements and documents set forth in Exhibit A attached hereto, including but
not limited to a Shareholders Agreement (the "SHAREHOLDERS AGREEMENT")
substantially in the form attached hereto as Exhibit B.
"U.S. DOLLARS" or "US$" means the lawful currency of the United States
of America.
"YINGLI GROUP" has the meaning ascribed to it in Section 1.05.
"YINGLI GROUP SHARE PURCHASE AGREEMENT" has the meaning ascribed to it
in Section 1.05.
SECTION 9.02. Construction of Certain Terms and Phrases. Unless the
context of this Agreement otherwise requires, (i) words of any gender include
each other gender; (ii) words using the singular or plural number also include
the plural or singular number, respectively; (iii) the terms "hereof," "herein,"
"hereby," "hereunder" and derivative or similar words refer to this entire
Agreement; (iv) the terms "Article" or "Section" refer to the specified Article
or Section of this Agreement; and (v) the phrase "ordinary course of business"
refers to the business of the Company consistent with past custom and practice.
Whenever this Agreement refers to a number of days, such number shall refer to
calendar days unless Business Days are specified. All accounting terms used
herein and not expressly defined herein shall have the meanings given to them
under GAAP. Any representation or warranty contained herein as to the
enforceability of a Contract (including this Agreement) shall be subject to the
effect of any bankruptcy, insolvency, reorganization, moratorium or other
similar Law affecting the enforcement of creditors' rights generally and to
general equitable principles (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. All notices, requests and other communications
hereunder must be in writing and shall be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
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If to the Investor, to:
Inspiration Partners Limited
AZIA Center, Unit 2701B
1233 Lujiazui Xxxx Xxxx
Xxxxxxxx X.X.Xxxxx 000000
Facsimile No.: x00 00 00000000
Attn: Xxxxxx Xx and Xxxxxxx Xxxx
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx
00/Xx Xxxx xx Xxxxx Xxxxx
0 Xxxxxx Xx.
Xxxxxxx, Xxxx Xxxx
Facsimile No.: 852 3192 9731
Attn: Xxxxxxx Xxx, Esq.
If to the Company, to:
Yingli Green Energy Holding Company Limited
No. 3055 Middle Fuxing Road
Baoding, People's Republic of China
Facsimile No.: x00 000 0000 000
Attn: Conghui Liu
and
Xxxxxxx Xxxxxxx & Xxxxxxxx LLP
7/F ICBC Tower
0 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Facsimile No.: x000-0000-0000
Attn: Xxxxxxx Xxxx, Esq.
All such notices, requests and other communications shall (a) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (b) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt, and (c) if delivered by
mail in the manner described above to the address as provided in this Section,
be deemed given upon receipt (in each case regardless of whether such notice,
request or other communication is received by any other Person to whom a copy of
such notice, request or other communication is to be delivered pursuant to this
Section). Any party from time to time may change its address, facsimile number
or other information for the purpose of notices to that party by giving notice
specifying such change to the other party hereto.
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SECTION 10.02. Entire Agreement. This Agreement (including the
Disclosure Schedule, as supplemented and amended from time to time pursuant to
Section 6.03, the exhibits and annexes attached hereto) supersedes all prior
discussions and agreements between the parties with respect to the subject
matter hereof and contains the sole and entire agreement between the parties
hereto with respect to the subject matter hereof.
SECTION 10.03. Expenses. Except as otherwise expressly provided in
this Agreement or in the Expense Side Letter, whether or not the transactions
contemplated hereby are consummated, each party shall pay its own costs and
expenses incurred in connection with the negotiation, execution and closing of
this Agreement and the transactions contemplated hereby and thereby.
SECTION 10.04. Public Announcements. At all times at or before the
Closing, the Company and the Investor shall not issue or make any reports,
statements or releases to the public with respect to this Agreement or the
transactions contemplated hereby without the consent of the other, which consent
shall not be unreasonably withheld or delayed. If either party is unable to
obtain the approval of its public report, statement or release from the other
party and such report, statement or release is, in the opinion of legal counsel
to such party, required by Law in order to discharge such party's disclosure
obligations, then such party may make or issue the legally required report,
statement or release and promptly furnish the other party with a copy thereof.
The Company and the Investor shall also obtain the other party's prior approval
of any press release to be issued immediately following the Closing announcing
the consummation of the transactions contemplated by this Agreement.
SECTION 10.05. Waiver. Any term or condition of this Agreement may be
waived at any time by the party that is entitled to the benefit thereof, but no
such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the party waiving such term or condition. No waiver
by any party of any term or condition of this Agreement, in any one or more
instances, shall be deemed to be or construed as a waiver of the same or any
other term or condition of this Agreement on any future occasion. All remedies,
either under this Agreement or by Law or otherwise afforded, shall be cumulative
and not alternative.
SECTION 10.06. Amendment. This Agreement may be amended, supplemented
or modified only by a written instrument duly executed by or on behalf of each
party hereto.
SECTION 10.07. No Third Party Beneficiary. The terms and provisions of
this Agreement are intended solely for the benefit of each party hereto and
their respective successors or permitted assigns, and it is not the intention of
the parties to confer third party beneficiary rights upon any other Person.
SECTION 10.08. No Assignment; Binding Effect. Neither this Agreement
nor any right, interest or obligation hereunder may be assigned by any party
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hereto without the prior written consent of the other party hereto and any
attempt to do so shall be void, except that the Investor may assign any or all
of its rights, interests and obligations hereunder to an Affiliate, provided
that any such Affiliate agrees in writing to be bound by all of the terms,
conditions and provisions contained herein, but no such assignment shall relieve
the Investor of its obligations hereunder. Subject to the preceding sentence,
this Agreement is binding upon, inures to the benefit of and is enforceable by
the parties hereto and their respective successors and permitted assigns.
SECTION 10.09. Enforcement of Agreement. Notwithstanding anything to
the contrary in this Agreement, the parties hereto agree that irreparable damage
for which monetary damages, even if available, would not be an adequate remedy
would occur in the event that any of the provisions of this Agreement (including
the failure by any party to take such actions as are required of it hereunder to
consummate this Agreement) was not performed in accordance with its specified
terms or was otherwise breached. It is accordingly agreed that the parties shall
be entitled to an injunction or other equitable relief to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in
any court of competent jurisdiction, this being in addition to any other remedy
to which they are entitled at law or in equity.
SECTION 10.10. Headings. The headings used in this Agreement have been
inserted for convenience of reference only and do not define or limit the
provisions hereof.
SECTION 10.11. Governing Law; Dispute Resolution.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to a contract executed and
performed in such jurisdiction, without giving effect to the conflicts of laws
principles thereof.
(b) Any controversy or claim arising out of or relating to this
Agreement, or any breach of this Agreement, shall be initiated, maintained and
finally determined by binding arbitration under the rules of conciliation and
arbitration of the International Chamber of Commerce (the "ICC"); and the site
of the arbitration, unless the parties agree otherwise, shall be in Hong Kong.
The arbitral tribunal shall be appointed within thirty (30) days of the notice
of dispute, and shall consist of three arbitrators, one of which shall be
appointed by the Investor and one by the Company and the third by the Investor
and the Company jointly; provided, however, that if the Investor and the Company
shall be unable to select the third arbitrator within such thirty (30)-day
period, such third arbitrator shall be chosen by the International Court of
Arbitration of the ICC. Judgment upon any award rendered may be entered in any
court having jurisdiction thereof, or application may be made to such court for
a judicial acceptance of the award and an order of enforcement, as the case may
be. Any award pursuant to such proceeding shall be granted in U.S. Dollars. The
fees and costs of the arbitration shall be shared equally by all disputing
parties. The arbitrators shall award legal fees, disbursements and other
expenses to the prevailing party for such amounts as determined by the
arbitrators to be appropriate.
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SECTION 10.12. Invalid Provisions. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under any present or future Law,
and if the rights or obligations of any party hereto under this Agreement shall
not be materially and adversely affected thereby, (a) such provision shall be
fully severable, (b) this Agreement shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
and (c) the remaining provisions of this Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom.
SECTION 10.13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
[Signatures follow on the next page.]
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IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by or on behalf of each party hereto as of the date first above
written.
INSPIRATION PARTNERS LIMITED
By: /s/ Xxxxxx Xx
---------------------------------------
Name: Xxxxxx Xx
Title: Director
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
By: /s/ Xxxxxxxxx Xxxx
---------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Chairman and Chief Executive Officer
YINGLI POWER HOLDING COMPANY LTD.
By: /s/ Xxxxxxxxx Xxxx
---------------------------------------
Name: Xxxxxxxxx Xxxx
Title: Director
/s/ Xxxxxxxxx Xxxx
-------------------------------------------
Xxxxxxxxx Xxxx
EXHIBIT A
LIST OF TRANSACTION DOCUMENTS
Share Purchase Agreement, dated as of September 20, 2006, by and among
Inspiration Partners Limited, Yingli Green Energy Holding Company Limited,
Yingli Power Holding Company Ltd. and Xx. Xxxxxxxxx Xxxx.
Expense Side Letter, dated as of September 20, 2006, by and between Inspiration
Partners Limited and Yingli Green Energy Holding Company Limited.
Joint Venture Contract, dated August 25, 2006, by and between Baoding Tianwei
Baobian Electric Co., Ltd. and Yingli Green Energy Holding Company Limited.
Share Purchase Agreement, dated August 25, 2006, by and between Baoding Yingli
Group, Co., Ltd. and Yingli Green Energy Holding Company Limited.
EXHIBIT B
SHAREHOLDERS AGREEMENT
[SEPARATELY PROVIDED]
EXHIBIT C
AMENDED AND RESTATED MEMORANDUM OF ASSOCIATION
[SEPARATELY PROVIDED]
