Exhibit 1.1
[FORM OF UNDERWRITING AGREEMENT RELATING TO THE ADS OFFERING]
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
7,000,000 AMERICAN DEPOSITARY SHARES
REPRESENTING
7,000,000 ORDINARY SHARES
(PAR VALUE US$0.01 PER SHARE)
UNDERWRITING AGREEMENT
December [ ], 2007
Credit Suisse Securities (USA) LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Xxxxxx Xxxxxx
Xxxxxxx Xxxxx (Asia) L.L.C.,
00xx Xxxxx, Xxxxxx Xxxx Xxxxxx,
0 Xxxxx'x Xxxx Xxxxxxx,
Xxxx Xxxx
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
4 World Financial Center
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx
As Representatives of the several Underwriters named in Schedule I attached
hereto.
Ladies and Gentlemen:
The shareholders (the "Selling Shareholders") named in Schedule II hereto
of Yingli Green Energy Holding Company Limited, an exempted company incorporated
in the Cayman Islands (the "Company"), propose, subject to the terms and
conditions stated herein, to issue and sell to the Underwriters named in
Schedule I attached hereto (the "Underwriters") an aggregate of 7,000,000
American Depositary Shares representing 7,000,000 ordinary shares, par value
US$0.01 per share (the "Ordinary Shares"), of the Company (the "Firm ADSs") and,
at the election of the Underwriters, up to 1,050,000 additional American
Depositary Shares representing 1,050,000 Ordinary Shares (the "Optional ADSs").
The Firm ADSs and the Optional ADSs that the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called the "ADSs". The
Ordinary Shares represented by the Firm ADSs are hereinafter called the "Firm
Shares" and the Ordinary Shares represented by the Optional ADSs are hereinafter
called the "Optional Shares", and the Firm Shares and the Optional Shares are
herein collectively called the "Shares".
The ADSs are to be issued pursuant to a deposit agreement (the "Deposit
Agreement"), dated as of June 13, 2007, among the Company, JPMorgan Chase Bank,
N.A., as depositary (the "Depositary"), and holders from time to time of the
American Depositary Receipts (the "ADRs") issued by the Depositary and
evidencing the ADSs. Each ADS will initially represent the right to receive one
Ordinary Share deposited pursuant to the Deposit Agreement.
It is understood by all the parties that the Underwriters are offering
ADSs in the United States and internationally outside of the People's Republic
of China (the "PRC"), which, for purposes of this
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Agreement only, excludes Taiwan, The Hong Kong Special Administrative Region and
The Macau Special Administrative Region.
1 (a) The Company and Yingli Power Holding Company Limited (hereinafter
referred to as "Yingli Power" or the "Controlling Selling Shareholder"), jointly
and severally, represents and warrants to, and agrees with, each of the
Underwriters and each of the Selling Shareholders that:
(i) A registration statement on Form F-1 (File No. 333-147223) (the
"Initial Registration Statement") in respect of the Shares has been filed
with the U.S. Securities and Exchange Commission (the "Commission"); the
Initial Registration Statement and any post-effective amendment thereto,
each in the form heretofore delivered to you, and, excluding exhibits
thereto, to you for each of the other Underwriters, have been declared
effective by the Commission in such form; other than a registration
statement, if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under the U.S.
Securities Act of 1933, as amended (the "Act"), which became effective or
will become effective upon filing, no other document with respect to the
Initial Registration Statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the Rule
462(b) Registration Statement, if any, has been issued and no proceeding
for that purpose has been initiated or, to the Company's knowledge after
due inquiry, threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act is hereinafter called a "Preliminary Prospectus";
the various parts of the Initial Registration Statement and the Rule
462(b) Registration Statement, if any, including all exhibits thereto and
including the information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof and deemed by virtue of Rule 430A under the Act
to be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the Initial
Registration Statement became effective or such part of the Rule 462(b)
Registration Statement, if any, became or hereafter becomes effective, are
hereinafter collectively called the "Registration Statement"; the
Preliminary Prospectus relating to the Shares and the ADSs that was
included in the Registration Statement, dated [-], 2007, is hereinafter
called the "Pricing Prospectus"; such final prospectus, in the form first
filed pursuant to Rule 424(b) under the Act, is hereinafter called the
"Prospectus"; and any "issuer free writing prospectus" as defined in Rule
433 under the Act relating to the Shares and the ADSs is hereinafter
called an "Issuer Free Writing Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by the
Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representative expressly for use
therein;
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( iii) For the purposes of this Agreement, the "Applicable Time" is
[-] (New York City time) on the date of this Agreement; the Pricing
Prospectus as supplemented by those Issuer Free Writing Prospectuses and
other documents listed in Schedule III (b) attached hereto, taken together
(collectively, the "Pricing Disclosure Package") as of the
Applicable Time, did not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and each Issuer Free Writing Prospectus listed
on Schedule III attached hereto does not conflict with the information
contained in the Registration Statement, the Pricing Prospectus or the
Prospectus and each such Issuer Free Writing Prospectus, as supplemented
by and taken together with the Pricing Disclosure Package as of the
Applicable Time, did not include any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this
representation and warranty shall not apply to statements or omissions
made in an Issuer Free Writing Prospectus in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representative expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of
the Act and the rules and regulations of the Commission thereunder and do
not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable
filing date as to the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance
upon and in conformity with information furnished in writing to the
Company by an Underwriter through the Representative expressly for use
therein;
(v) A registration statement on Form F-6 (File No. 333-142852) in
respect of the ADSs has been filed with the Commission; such registration
statement in the form heretofore delivered to you and, excluding exhibits,
to you for each of the other Underwriters, has been declared effective by
the Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the Commission; no
stop order suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated or, to
the Company's knowledge after due inquiry, threatened by the Commission
(the various parts of such registration statement, including all exhibits
thereto, each as amended at the time such part of the registration
statement became effective, being hereinafter called the "ADS Registration
Statement"); and the ADS Registration Statement when it became effective
conformed, and any further amendments thereto will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder, and did not, as of the
applicable effective date, contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vi) A registration statement on Form 8-A (File No. 001-33469) in
respect of the registration of the Shares and the ADSs under the U.S.
Securities Exchange Act of 1934,
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as amended (the "Exchange Act"), has been filed with the Commission; such
registration statement in the form heretofore delivered to you and,
excluding exhibits, to you for each of the other Underwriters, has been
declared effective by the Commission in such form; no other document with
respect to such registration statement has heretofore been filed with the
Commission; no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for that purpose
has been initiated or, to the Company's knowledge after due inquiry,
threatened by the Commission (the various parts of such registration
statement, including all exhibits thereto, each as amended at the time
such part of the registration statement became effective, being
hereinafter called the "Form 8-A Registration Statement"); and the Form
8-A Registration Statement when it became effective conformed, and any
further amendments thereto will conform, in all material respects to the
requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and did not and will not, as of the applicable
effective date, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading;
(vii) Neither the Company nor any of its Subsidiaries (as defined in
Clause 1(a)(viii) below) has sustained since the date of the latest
audited financial statements included in the Pricing Prospectus any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus; and, since
the respective dates as of which information is given in the Registration
Statement and the Pricing Prospectus, there has not been any change in the
share capital and long-term debt or material adverse change in short-term
debt of the Company or any of its Subsidiaries or any other material
adverse change, or any development involving a prospective material
adverse change, in or affecting the general affairs, management, financial
position, shareholders' equity, or results of operations of the Company
and its Subsidiaries (a "Material Adverse Effect"), otherwise than as set
forth or contemplated in the Pricing Prospectus;
(viii) The Company has been duly incorporated and is validly
existing as a company in good standing under the laws of the Cayman
Islands, with power and authority (corporate and other) to own, lease and
operate its properties and conduct its business as described in the
Pricing Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; Yingli Green Energy (International)
Holding Company Ltd. ("Yingli International") has been duly incorporated
and is validly existing as a company in good standing under the laws of
the British Virgin Islands, with power and authority (corporate and other)
to own, lease and operate its properties and conduct its business as
described in the Pricing Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction; Yingli
Green Energy Europe GmbH ("Yingli Europe") has been duly incorporated and
is validly existing as a company in good standing under the laws of the
Germany, with power and authority (corporate and other) to own, lease and
operate its properties and conduct its business as described in the
Pricing Prospectus, and has been duly qualified as a foreign corporation
for the transaction of
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business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; and each of Yingli Energy (China) Company Ltd. ("Yingli
China"), Baoding Tianwei Yingli New Energy Resources Co., Ltd. ("Tianwei
Yingli"), Yingli Energy (Beijing) Co., Ltd. ("Yingli Beijing") Chengdu
Yingli New Energy Resources Co., Ltd. ("Chengdu Yingli"), Tibet Tianwei
Yingli New Energy Resources Co., Ltd. ("Tibet Yingli"), and Tibet Keguang
Industries and Trading Co., Ltd. ("Tibet Keguang", and together with
Yingli China, Yingli Beijing, Tianwei Yingli, Chengdu Yingli and Tibet
Yingli, the "Subsidiaries") has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the PRC, with
power and authority (corporate or other) to own, lease and operate its
properties and conduct its business as described in the Pricing
Prospectus, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, except the failure to be so
qualified in any such jurisdiction that would not reasonably be expected
to have a Material Adverse Effect;
(ix) As of the date of this Agreement, except for Yingli
International and Tianwei Yingli, the Company has no other direct
subsidiaries; as of the date of this Agreement, except for Yingli China,
Yingli Beijing and Yingli Europe, Yingli International has no other
subsidiaries; as of the date of this Agreement, Yingli China and Yingli
Beijing have no subsidiaries and do not own or control, directly or
indirectly, any equity or other ownership interest in any corporation,
partnership, joint venture or any other person; as of the date of this
Agreement, except for Chengdu Yingli and Tibet Yingli, Tianwei Yingli has
no other subsidiaries; as of the date of this Agreement, Tianwei Yingli
does not own or control, directly or indirectly, any equity or other
ownership interest in any corporation, partnership, joint venture or any
other person except for Baoding Dongfa Tianying New Energy Resources, Co.,
Ltd ("Dongfa Tianying"), in which Tianwei Yingli holds a 30% equity
interest; as of the date of this Agreement, except for Tibet Keguang,
Tibet Yingli has no other subsidiaries and, except that Tibet Yingli holds
640,000 shares in Tibet Rhodiola Pharmaceutical Holding Company and
460,000 in Tibet Hebang Electrical Source Technology Co., Ltd., Tibet
Yingli does not own or control, directly or indirectly, any equity or
other ownership interest in any corporation, partnership, joint venture or
any other person;
(x) Each of the Company and its Subsidiaries has good and marketable
title to all personal property owned by it, and has good and valid title
to all real property or the beneficial interests in and the right to
transfer, lease and mortgage the land use rights and building ownership
rights over all of the real properties as owned by it, in each case free
and clear of all liens, charges, encumbrances, and defects, except such as
are described in the Pricing Prospectus or such as do not materially
affect the value of such property and do not interfere with the use made
and proposed to be made of such property by each of the Company and its
Subsidiaries; each lease to which any of the Company or its Subsidiaries
is a party, is legal, valid, binding and enforceable in accordance with
its terms and, to the best of its knowledge, against the other parties
thereto, and no material default (or event which with notice or lapse of
time, or both, would constitute a default) by the Company or any of its
Subsidiaries has occurred and is continuing under any such lease; the use
of any premises occupied by the Company or any of its Subsidiaries is in
accordance with that provided for the lease, land use rights, tenancy,
license, concession or agreement of whatsoever nature relating to such
occupation and the relevant above entity has observed
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and performed the terms and conditions thereof on the part of the tenant
to be observed and performed; and none of the Company and any of its
Subsidiaries has received any claim for liabilities in respect of any
properties previously occupied by it or in which it owned or held any
interests, including without limitation, leasehold premises assigned,
surrendered or otherwise disposed of.
(xi) Except as described in the Pricing Prospectus, the Company and
its Subsidiaries maintain insurance covering their respective properties
and product liabilities as the Company and its Subsidiaries reasonably
deem adequate in accordance with customary industry practice; such
insurance insures against such losses and risks to an extent which is
adequate to protect the Company and its Subsidiaries and their respective
businesses; all such insurance is fully in force on the date hereof and
will be fully in force at the time of purchase and each additional time of
purchase, if any; neither the Company nor any of its Subsidiaries has
reason to believe that it will not be able to renew any such insurance as
and when such insurance expires; and there is no material insurance claim
made by or against the Company or any of its Subsidiaries, pending, to the
knowledge of the Company after due inquiry, threatened or outstanding and
no facts or circumstances exist which would reasonably be expected to give
rise to any such claim and all due premiums in respect thereof have been
paid;
(xii) None of the Company and any of its Subsidiaries has sent or
received any communication regarding termination of, or intent not to
renew, any of the contracts or agreements referred to or described in the
Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus,
or referred to or described in, or filed as an exhibit to, the
Registration Statement, and no such termination or non-renewal has been
threatened by the Company or any of its Subsidiaries or, to the Company's
knowledge after due inquiry, any other party to any such contract or
agreement;
(xiii) The Company and its Subsidiaries have all necessary licenses,
franchises, concessions, consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all declarations and
filings with, all governmental agencies to own, lease, license and use its
properties and assets and conduct its business in the manner described in
the Pricing Prospectus, except where the lack of which would not,
individually or in the aggregate, have a Material Adverse Effect, and such
licenses, franchises, concessions, consents, authorizations, approvals,
orders, certificates or permits contain no material restrictions or
conditions not described in the Pricing Prospectus; and except as
described in the Pricing Prospectus, neither the Company nor any of its
Subsidiaries has a reasonable basis to believe that any regulatory body is
considering modifying, suspending or revoking any such licenses, consents,
authorizations, approvals, orders, certificates or permits, and the
Company and its Subsidiaries are in compliance with the provisions of all
such licenses, consents, authorizations, approvals, orders, certificates
or permits, except where the lack of which would not, individually or in
the aggregate, have a Material Adverse Effect;
(xiv) Neither the Company nor any of its Subsidiaries is (A) in
breach of or in default under any laws, regulations, rules, orders,
decrees, guidelines or notices of the PRC, the Cayman Islands or any other
jurisdiction where it was incorporated or operates, (B) in breach of or in
default under any approval, consent, waiver, authorization, exemption,
permission, endorsement or license granted by any court or governmental
agency or body or any stock exchange authorities ("Governmental Agency")
in the PRC, the Cayman
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Islands, or any other jurisdiction where it was incorporated or operates,
(C) in violation of its constituent documents or (D) in default in the
performance or observance of any material obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party
or by which it or any of its properties may be bound, except, with respect
to (D), where any default would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(xv) The Company has an authorized and paid-in capitalization as set
forth in the Pricing Prospectus, and all of the issued share capital of
the Company, including the Shares underlying the ADSs to be sold by the
Selling Shareholders to the Underwriters hereunder, have been duly and
validly authorized and issued, are fully paid and non-assessable and all
of the issued Ordinary Shares conform in all material respects to the
description of the Ordinary Shares contained in the Pricing Prospectus;
and all of the issued share capital of each of the Subsidiaries of the
Company have been duly and validly authorized and issued, and are fully
paid and non-assessable, except that the registered capital of Yingli
China has not yet been contributed; the Company duly and validly owns the
equity interest of Tianwei Yingli and Yingli International in the
percentage set forth in the Pricing Prospectus under the caption "History
and Restructuring", free and clear of all liens, encumbrances, equities or
claims; other than the share capital of Tianwei Yingli and Yingli
International, the Company does not directly own any shares of stock or
any other equity interests or long-term debt securities of any
corporation, firm, partnership, joint venture, association or other
entity; Tianwei Yingli duly and validly owns the equity interest of
Chengdu Yingli, Tibet Yingli and Dongfa Tianying in the percentages set
forth in the Pricing Prospectus under the caption "History and
Restructuring", free and clear of all liens, encumbrances, equities or
claims; Yingli International duly and validly owns the equity interest of
Yingli China and Yingli Europe in the percentages set forth in the Pricing
Prospectus under the caption "History and Restructuring", free and clear
of all liens, encumbrances, equities or claims; Tibet Yingli duly and
validly owns the equity interest of Tibet Keguang in the percentage set
forth in the Pricing Prospectus under the caption "History and
Restructuring", free and clear of all liens, encumbrances, equities or
claims; the holders of outstanding Ordinary Shares are not entitled to
preemptive or other rights to acquire the Shares or the ADSs; there are no
outstanding securities convertible into or exchangeable for, or warrants,
rights or options to purchase from the Company, or obligations of the
Company to issue, Ordinary Shares or any other class of share capital of
the Company except as set forth in the Pricing Prospectus under the
captions "Capitalization", "Restructuring", "Management - 2006 Equity
Incentive Plan", "Principal and Selling Shareholders", "Description of
Share Capital" and "Related Party Transactions"; the Shares, when issued
and delivered against payment therefor, may be freely deposited by the
Company and the Selling Shareholders with the Depositary against issuance
of ADRs evidencing ADSs; the ADSs, when issued and delivered against
payment thereof, will be freely transferable by the Company and the
Selling Shareholders to or for the account of the several Underwriters and
to the extent described in the Pricing Prospectus the initial purchasers
thereof; and there are no restrictions on subsequent transfers of the ADSs
except as described in the Pricing Prospectus under the captions
"Description of Share Capital", "Description of American Depositary
Shares" and "Shares Eligible for Future Sale"; there are no outstanding
securities convertible into or exchangeable for, or warrants, rights or
options to purchase from Tianwei Yingli, or obligation of Tianwei Yingli
to issue equity shares or other class of capital stock of Tianwei Yingli,
except as set forth in the Pricing Prospectus under the caption
"Restructuring";
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(xvi) Except as described in the Registration Statement (excluding
the exhibits thereto), the Pricing Prospectus and the Prospectus, (A) no
person has any preemptive rights, resale rights, rights of first refusal
or other rights to purchase any Ordinary Shares or shares of any other
share capital of or other equity interests in the Company or Tianwei
Yingli and (B) no person has the right to act as an underwriter or as a
financial advisor to the Company in connection with the offer and sale of
the ADSs;
(xvii) The Shares to be issued underlying the ADSs to be sold by the
Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable and will conform in all material respects to the
description of the Ordinary Shares contained in the Prospectus;
(xviii) Except as disclosed in the Pricing Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement, the ADS Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act;
(xix) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(xx) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, reorganization
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and upon issuance by
the Depositary of ADRs evidencing ADSs and the deposit of Shares in
respect thereof in accordance with the provisions of the Deposit
Agreement, such ADRs will be duly and validly issued and the persons in
whose names the ADRs are registered will be entitled to the rights
specified therein and in the Deposit Agreement; and the Deposit Agreement
and the ADRs conform in all material respects to the descriptions thereof
contained in the Pricing Prospectus and the Prospectus;
(xxi) All dividends and other distributions declared and payable on
the share capital of the Company may under the current laws and
regulations of the Cayman Islands be paid to the Depositary, and all such
dividends and other distributions will not be subject to withholding or
other taxes under the laws and regulations of the Cayman Islands and are
otherwise free and clear of any other tax, withholding or deduction in the
Cayman Islands and without the necessity of obtaining any consents,
approvals, authorizations, orders, registrations, clearances or
qualifications of or with any Governmental Agency having jurisdiction over
the Company or any of its Subsidiaries or any of their respective
properties (hereinafter referred to as "Governmental Authorizations") in
the Cayman Islands;
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(xxii) Each of Tianwei Yingli and Yingli China is currently not
prohibited, directly or indirectly, from paying any dividends or other
distributions to the Company, except as disclosed in the Pricing
Prospectus; other than as set forth in the Pricing Prospectus, dividends
declared with respect to after-tax retained earnings on the equity
interests of Tianwei Yingli may under the current laws and regulations of
the PRC be paid to the Company in U.S. dollars, and, except as disclosed
in the Pricing Prospectus, all such dividends and other distributions will
not be subject to withholding or other taxes under the laws and
regulations of the PRC and, except as disclosed in the Pricing Prospectus,
are otherwise free and clear of any other tax, withholding or deduction in
the PRC and without the necessity of obtaining any Governmental
Authorization in the PRC;
(xxiii) The issue and sale of the Shares to be sold by the Company
and the sale of the Shares to be sold by the Selling Shareholders
hereunder, the deposit of the Shares being deposited with the Depositary
against issuance of the ADRs evidencing the ADSs, the compliance by the
Company with all of the provisions of this Agreement and the Deposit
Agreement and the consummation of the transactions herein and therein
contemplated will not (A) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound or to which any
of the property or assets of the Company or any of its Subsidiaries is
subject, (B) result in any violation of the provisions of the constituent
documents of the Company or any of its Subsidiaries or (C) result in any
violation of any statute or any order, rule or regulation of any
Governmental Agency having jurisdiction over the Company or any of its
Subsidiaries or any of their properties or assets;
(xxiv) No consent, approval, authorization, order, registration,
clearance or qualification of or with any Governmental Agency is required
for the issue and sale of the Shares or the ADSs, for the deposit of the
Shares being deposited with the Depositary against issuance of ADRs
evidencing the ADSs to be delivered or for the consummation by the Company
of the transactions contemplated by this Agreement and the Deposit
Agreement, except (A) the registration under the Act of the Shares and the
ADSs and listing of the ADSs on the New York Stock Exchange ("NYSE"), (B)
such Governmental Authorizations as have been duly obtained and are in
full force and effect and copies of which have been furnished to you, (C)
such Governmental Authorizations as may be required under state securities
or Blue Sky laws or any laws of jurisdictions outside the Cayman Islands
and the United States in connection with the purchase and distribution of
the Shares and ADSs by or for the respective accounts of the several
Underwriters and (D) such Government Authorizations as disclosed in the
Pricing Prospectus;
(xxv) The ADSs have been approved for listing on the NYSE and all
issued and outstanding ADSs representing the Ordinary Shares are duly
listed on the NYSE;
(xxvi) Neither the Company nor any of its Subsidiaries is engaged in
any trading activities involving commodity contracts or other trading
contracts which are not currently traded on a securities or commodities
exchange and for which the market value cannot be determined;
9
(xxvii) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or on
behalf of the Underwriters to the government of the Cayman Islands,
British Virgin Islands or the PRC, or any political subdivision or taxing
authority thereof or therein in connection with: (A) the deposit with the
Depositary of the Shares by the Company and Selling Shareholders against
the issuance of ADRs evidencing the ADSs, (B) the sale and delivery by the
Company and Selling Shareholders of the Shares and the ADSs to or for the
respective accounts of the several Underwriters or (C) the sale and
delivery by the Underwriters of the Shares and the ADSs to the initial
purchasers thereof in the manner contemplated by this Agreement;
(xxviii) Neither the Company nor any of its Subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares and the ADSs;
(xxix) The statements set forth in the Pricing Prospectus under the
captions "Description of Share Capital" and "Description of American
Depositary Shares", insofar as they purport to constitute a summary of the
terms of the Ordinary Shares and the ADSs, respectively, and under the
captions "Taxation" and "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to therein,
constitute accurate, complete and fair summaries regarding the matters
described therein in all material respects;
(xxx) The statements set forth in the Pricing Prospectus under the
caption "History and Restructuring", insofar as they purport to describe
the events, transactions and documents referred to therein, are accurate,
complete and fair summaries regarding the matters described therein in all
material respects;
(xxxi) Other than as set forth in the Pricing Prospectus, there are
no legal, arbitration, administrative or governmental proceedings
(including, without limitation, governmental investigations or inquiries)
pending to which the Company or any of its Subsidiaries or the Company's
directors and executive officers is a party or of which any property of
the Company or any of its Subsidiaries is the subject (A) that, if
determined adversely to the Company or any of its Subsidiaries or the
Company's directors and executive officers, would, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, or
(B) that are required to be described in the Pricing Prospectus and are
not so described; and except as set forth in the Pricing Prospectus, to
the Company's knowledge after due inquiry, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(xxxii) The Company is not and, after giving effect to the offering
and sale of the Shares and ADSs and the application of the proceeds
thereof, will not be an "investment company", as such term is defined in
the U.S. Investment Company Act of 1940, as amended (the "Investment
Company Act");
(xxxiii) Each of this Agreement and the Deposit Agreement is in
proper form to be enforceable against the Company in accordance with its
terms; to ensure the legality, validity, enforceability or admissibility
into evidence in the Cayman Islands of this Agreement or the Deposit
Agreement, it is not necessary that this Agreement or the
10
Deposit Agreement be filed or recorded with any court or other authority
in the Cayman Islands or that any stamp or similar tax in the Cayman
Islands be paid on or in respect of this Agreement, the Deposit Agreement
or any other documents to be furnished hereunder;
(xxxiv) The Registration Statement, the Pricing Prospectus, the
Prospectus, any Issuer Free Writing Prospectus and the ADS Registration
Statement and the filing of the Registration Statement, the Pricing
Prospectus, the Prospectus, any Issuer Free Writing Prospectus and the ADS
Registration Statement with the Commission have been duly authorized by
and on behalf of the Company, and the Registration Statement and the ADS
Registration Statement have been duly executed pursuant to such
authorization by and on behalf of the Company;
(xxxv) Except as described in the Pricing Prospectus, in each case,
(A) each of the Company and its Subsidiaries owns, possesses, licenses or
has other rights to use the patents and patent applications, copyrights,
trademarks, service marks, trade names, Internet domain names, technology,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary rights) and other intellectual property necessary or used in
any material respect to conduct their business in the manner in which it
is being conducted and in the manner in which it is contemplated as set
forth in the Pricing Prospectus (collectively, the "Intellectual
Property"); (B) all copyrights owned or licensed by the Company or any of
its Subsidiaries are enforceable or valid; (C) neither the Company nor any
of its Subsidiaries has received any notice of violation or conflict with
(and neither the Company nor any of its Subsidiaries knows of any basis
for violation or conflict with) rights of others with respect to the
Intellectual Property; (D) there are no pending, to the Company's
knowledge after due inquiry, or threatened actions, suits, proceedings or
claims by others that allege the Company or any of its Subsidiaries is
infringing any Intellectual Property or other proprietary right, except
where the actions, suits, proceedings or claims would not, individually or
in the aggregate, have a Material Adverse Effect; (E) the discoveries,
inventions, products or processes of the Company and its Subsidiaries
referenced in the Pricing Prospectus do not violate or conflict with any
intellectual property or proprietary right of any third person, or any
discovery, invention, product or process that is the subject of a patent
application filed by any third person; and (F) the Company and its
Subsidiaries are not in breach of, and have complied in all material
respects with the terms of, any license or other agreement relating to the
Intellectual Property, except where such breach would not, individually or
in the aggregate, reasonably be expected to have a Material Adverse
Effect; and there are no contracts or other documents related to the
Intellectual Property required to be described in or filed as an exhibit
to the Registration Statement other than those described in or filed as an
exhibit to the Registration Statement;
(xxxvi) The Company is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1297(a) of the United States
Internal Revenue Code of 1986, as amended, for the taxable year 2006, and
is not likely to become a PFIC in the future;
(xxxvii) Except as described in the Registration Statement and the
Pricing Prospectus, the Company has not sold, issued or distributed any
shares during the six-month period preceding the date hereof, including
any sales pursuant to Rule 144A, Regulation D or Regulation S promulgated
under the Act, other than shares issued
11
pursuant to employee benefit plans, qualified share option plans or other
employee compensation plans or pursuant to outstanding options, rights or
warrants;
(xxxviii) The Company is a "foreign private issuer" within the
meaning of Rule 405 under the Act;
(xxxix) At the time of filing the Initial Registration Statement,
the Company was not an "ineligible issuer", as defined in Rule 405 under
the Act;
(xl) KPMG, who have certified certain financial statements of the
Company and its Subsidiaries, are independent public accountants of the
Company as required by the Act and the rules and regulations of the
Commission thereunder and are independent in accordance with the
requirements of the United States Public Company Accounting Oversight
Board;
(xli) Except as described in the Pricing Prospectus, no material
indebtedness (actual or contingent) and no material contract or
arrangement is outstanding between the Company or any of its Subsidiaries
and any director or executive officer of the Company or any of its
Subsidiaries or any person connected with such director or executive
officer (including his/her spouse, infant children, any company or
undertaking in which he/she holds a controlling interest); and there are
no material relationships or transactions between the Company or any of
its Subsidiaries on the one hand and its affiliates, officers and
directors or their shareholders, customers or suppliers on the other hand
except as disclosed in the Pricing Prospectus;
(xlii) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that: (A) transactions are executed in accordance with management's
general or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of financial statements of the Company and
its Subsidiaries in conformity with generally accepted accounting
principles in the United States ("US GAAP"); (C) access to assets is
permitted only in accordance with management's general or specific
authorization; (D) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate actions are taken
with respect to any differences; and (E) the Company and its Subsidiaries
have made and kept books, records and accounts which, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of
assets of such entity;
(xliii) Except as described in the Pricing Prospectus, the Company
has established and maintains and evaluates a system of internal control
over financial reporting (as such term is defined in Rule 13a-15(f) of the
Exchange Act) that complies with the requirements of the Exchange Act and
has been designed by the Company's principal executive officer and
principal financial officer, or under their supervision, to provide
reasonable assurance regarding the reliability of financial reporting and
the preparation of financial statements for external purposes in
accordance with US GAAP; all material weaknesses, if any, in the Company's
internal control over financial reporting have been identified to the
Company's independent auditors; since the date of the latest audited
financial statements included in the Prospectus, there has been no change
in the Company's internal control over financial reporting or in other
factors that could significantly affect internal controls, including any
corrective actions with regard to significant
12
deficiencies and material weaknesses, and, except as described in the
Pricing Prospectus, the Company's independent accountants have not
notified the Company of any "reportable conditions" (as that term is
defined under standards established by the American Institute of Certified
Public Accountants) in the Company's internal accounting controls, or
other weaknesses or deficiencies in the design or operation of the
Company's internal accounting controls, that have materially affected, or
are reasonably likely to materially affect, the Company's internal control
over financial reporting, or could adversely affect the Company's ability
to record, process, summarize and report financial data consistent with
the assertions of the Company's management in the financial statements;
and the Company has taken all necessary actions to ensure that, upon and
at all times after the filing of the Registration Statement, the Company
and its Subsidiaries and their respective officers and directors, in their
capacities as such, will be in compliance in all material respects with
the applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 (the
"Xxxxxxxx-Xxxxx Act") and the rules and regulations promulgated
thereunder. The Company has established and maintains and evaluates
disclosure controls and procedures (as such term is defined in Rule
13a-15(e) of the Exchange Act) that comply with the requirements of the
Exchange Act, such disclosure controls and procedures have been designed
to ensure that material information relating to the Company and its
Subsidiaries is made known to the Company's principal executive officer
and principal financial officer by others within those entities; and such
disclosure controls and procedures are effective to perform the functions
for which they were established;
(xliv) The statements set forth in the Pricing Prospectus under the
caption "Management's Discussion and Analysis of Financial Condition and
Results of Operation - Control and Procedures" insofar as they purport to
describe the internal control of the Company and its Subsidiaries are
true, accurate, complete and fair summaries in all material respects;
(xlv) Except as described in the Pricing Prospectus, neither the
Company nor any of its Subsidiaries has any material obligation to provide
retirement, healthcare, death or disability benefits to any of the present
or past employees of the Company or any of its Subsidiaries, or to any
other person;
(xlvi) No material labor dispute, work stoppage, slow-down or other
conflict with the employees of the Company or any of its Subsidiaries
exists or is threatened;
(xlvii) The section entitled "Management's Discussion and Analysis
of Financial Condition and Results of Operations - Critical Accounting
Policies" in the Pricing Prospectus truly, accurately and completely in
all material respects describes: (A) accounting policies which the Company
believes are the most important in the portrayal of the Company and
Tianwei Yingli's financial condition and results of operations and which
require management's most difficult, subjective or complex judgments
("Critical Accounting Policies"); (B) judgments and uncertainties
affecting the application of Critical Accounting Policies; and (C) the
likelihood that materially different amounts would be reported under
different conditions or using different assumptions; and the Company's
Board of Directors and management have reviewed and agreed with the
selection, application and disclosure of Critical Accounting Policies and
have consulted with its legal counsel and independent public accountants
with regard to such disclosure;
13
(xlviii) Since the date of the latest audited financial statements
included in the Pricing Prospectus, neither the Company nor any of its
Subsidiaries has: (A) entered into or assumed any contract, (B) incurred
or agreed to incur any liability (including any contingent liability) or
other obligation, (C) acquired or disposed of or agreed to acquire or
dispose of any business or any other asset or (D) assumed or acquired or
agreed to assume or acquire any liabilities (including contingent
liabilities), that would, in any of clauses (A) through (D) above, be
material to the Company and its Subsidiaries and that are not otherwise
described in the Pricing Prospectus;
(xlix) The section entitled "Management's Discussion and Analysis of
Financial Condition and Results of Operations - Liquidity and Capital
Resources" in the Pricing Prospectus accurately and fully describes: (A)
all material trends, demands, commitments, events, uncertainties and
risks, and the potential effects thereof, that the Company believes would
materially affect liquidity and are reasonably likely to occur; and (B)
all off-balance sheet transactions, arrangements, and obligations,
including, without limitation, relationships with unconsolidated entities
that are contractually limited to narrow activities that facilitate the
transfer of or access to assets by the Company or any of its Subsidiaries,
such as structured finance entities and special purpose entities
(collectively, "off-balance sheet arrangements") that are reasonably
likely to have a material effect on the liquidity of the Company or any of
its Subsidiaries or the availability thereof or the requirements of the
Company or any of its Subsidiaries for capital resources;
(l) Except as set forth in the Pricing Prospectus, none of the
Company and any of its Subsidiaries is engaged in any material
transactions with its directors, officers, management, shareholders, or
any other affiliate, including any persons who formerly held positions as
directors, officers, managers and/or shareholders, on terms that are not
available from unrelated third parties on an arm's-length basis;
(li) No holder of any of the Shares or the ADSs after the
consummation of the transactions contemplated by this Agreement or the
Deposit Agreement is or will be subject to any personal liability in
respect of any liability of the Company by virtue only of its holding of
any such Shares or ADSs; and except as set forth in the Pricing
Prospectus, there are no limitations on the rights of holders of the
Shares or the ADSs to hold, vote or transfer their securities;
(lii) The audited consolidated annual financial statements (and the
notes thereto) of the Company and Tianwei Yingli, respectively, included
in the Pricing Prospectus fairly present in all material respects the
consolidated financial position of the Company and Tianwei Yingli as of
the dates specified and the consolidated results of operations and changes
in consolidated financial position of the Company and Tianwei Yingli for
the periods specified, and such financial statements have been prepared in
conformity with US GAAP applied on a consistent basis throughout the
periods presented thereby (other than as described therein); The unaudited
condensed consolidated interim financial statements as of and for the
quarter ended September 30, 2006 and 2007 respectively, and the related
notes thereto included in the Pricing Prospectus fairly present in all
material respects the financial position of the Company and its
Subsidiaries as of the dates indicated and the results of their operations
and the changes in their cash flows for the periods specified, and such
financial statements have been prepared in conformity with the US GAAP
applied on a consistent basis throughout the periods covered thereby; the
14
unaudited consolidated interim financial statements as of and for the
period ended September 30, 2006 and 2007, respectively, have been reviewed
by the Company's independent accountants in accordance with Statement of
Auditing Standards No. 100;
(liii) Under the laws of the Cayman Islands, each holder of ADRs
evidencing ADSs issued pursuant to the Deposit Agreement shall be
entitled, subject to the Deposit Agreement, to seek enforcement of its
rights through the Depositary or its nominee registered as representative
of the holders of the ADRs in a direct suit, action or proceeding against
the Company;
(liv) All amounts payable by the Company in respect of the ADRs
evidencing the ADSs or the underlying Shares shall be made free and clear
of and without deduction for or on account of any taxes imposed, assessed
or levied by the Cayman Islands or any authority thereof or therein
(except such income taxes as may otherwise be imposed by the Cayman
Islands on payments hereunder to an Underwriter whose net income is
subject to tax by the Cayman Islands or withholding, if any, with respect
to any such income tax) nor are any taxes imposed in the Cayman Islands
on, or by virtue of the execution or delivery of, such documents;
(lv) The Company has paid all taxes required to be paid through the
date hereof and all returns, reports or filings which ought to have been
made by or in respect of the Company and its Subsidiaries for taxation
purposes as required by the law of the jurisdictions where the Company and
its Subsidiaries are incorporated, managed or engage in business have been
made and all such returns are correct and on a proper basis in all
material respects and are not the subject of any dispute with the relevant
tax, revenue or other appropriate authorities except where such dispute
would not reasonably be expected to have a Material Adverse Effect; all
taxes and other assessments of a similar nature (whether imposed directly
or through withholding) including any interest, additions to tax or
penalties applicable thereto due or claimed to be due from such
authorities have been paid in full; the provisions included in the audited
consolidated financial statements as set out in the Pricing Prospectus
included appropriate provisions required under US GAAP for all taxation in
respect of accounting periods ended on or before the accounting reference
date to which such audited accounts relate for which the Company was then
or might reasonably be expected thereafter to become or have become
liable; and neither the Company nor any of its Subsidiaries has received
written notice of any material tax deficiency with respect to the Company
or any of its Subsidiaries;
(lvi) The Company has provided or made available to you true,
correct, and complete copies of all documentation pertaining to any
extension of credit in the form of a personal loan made, directly or
indirectly, by the Company or any of its Subsidiaries to any director or
executive officer of the Company or any of its Subsidiaries; and since
December 31, 2006, none of the Company or its Subsidiaries has, directly
or indirectly, including through any of its Subsidiaries: (A) extended
credit, arranged to extend credit, or renewed any extension of credit, in
the form of a personal loan, to or for any director or executive officer
of the Company, or to or for any family member or affiliate of any
director or executive officer of the Company; or (B) made any material
modification, including any renewal thereof, to any term of any personal
loan to any director or executive officer of the Company or any of its
Subsidiaries, or any family member or affiliate of any director or
executive officer, which loan was outstanding on December 31, 2006, that
(x) is
15
outstanding on the date hereof and (y) constitutes a violation of any
applicable law or regulation;
(lvii) Any statistical and market-related data included in the
Pricing Prospectus and the Prospectus are based on or derived from sources
that the Company believes to be reliable and accurate, and the Company has
obtained the written consent for the use of such data from such sources to
the extent required;
(lviii) The application of the net proceeds from the offering of
ADSs, as described in the Prospectus, will not (A) contravene any
provision of any current and applicable laws or the current constituent
documents of the Company or any of its Subsidiaries, (B) contravene the
terms or provisions of, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument currently binding upon the Company or any of its
Subsidiaries or (C) contravene or violate the terms or provisions of any
Governmental Authorization applicable to the Company or any of its
Subsidiaries;
(lix) There are no contracts, agreements or understandings between
the Company and any person that would give rise to a valid claim against
the Company or any Underwriter for a brokerage commission, finder's fee or
other like payment in connection with the issuance and sale of the ADSs;
(lx) The choice of law set forth in Section 15 hereof as the
governing law of this Agreement is a valid choice of law and would be
recognized and given effect to in any action brought before a court of
competent jurisdiction in the Cayman Islands, except for those laws (i)
which such court considers to be procedural in nature, (ii) which are
revenue or penal laws or (iii) the application of which would be
inconsistent with public policy, as such term is interpreted under the
laws of the Cayman Islands. The courts of the Cayman Islands would
recognize as a valid judgment, a final and conclusive judgment in personam
obtained in U.S. courts against the Company based upon this Agreement
under which a sum of money is payable (other than a sum of money payable
in respect of multiple damages, taxes or other charges of a like nature or
in respect of a fine or other penalty) and would give a judgment based
thereon provided that (a) such courts had proper jurisdiction over the
parties subject to such judgment; (b) such courts did not contravene the
rules of natural justice of the Cayman Islands; (c) such judgment was not
obtained by fraud; (d) the enforcement of the judgment would not be
contrary to the public policy of the Cayman Islands; (e) no new admissible
evidence relevant to the action is submitted prior to the rendering of the
judgment by the courts of the Cayman Islands; and (f) there is due
compliance with the correct procedures under the laws of the Cayman
Islands; under the laws of the PRC, the choice of law provisions set forth
in Section 15 hereof will be recognized by the courts of the PRC and any
judgment obtained in any New York Court (as defined in Section 8(d)
hereof) arising out of or in relation to the obligations of the Company
under this Agreement will be recognized in PRC courts subject to the
applicable provisions of the Civil Procedure Law of the PRC relating to
the enforceability of foreign judgments;
(lxi) None of the Company, any of its Subsidiaries, and, to the best
knowledge of the Company after due inquiry, no director, officer, agent,
employee or other person associated with or acting on behalf of the
Company or any of its Subsidiaries, has used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful
16
expenses relating to a political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the U.S. Foreign Corrupt Practices Act of 1977; or made any
unlawful bribe, payoff, influence payment, kickback, payment or rebate;
(lxii) Except as disclosed in the Pricing Prospectus, the events and
transactions described in the Pricing Prospectus under the caption
"Restructuring" (the "Restructuring in the Pricing Prospectus") and any
other events, transactions and steps in connection with or as contemplated
by the Restructuring in the Pricing Prospectus (including, without
limitation, the registration with the State Administration of Foreign
Exchange or its local counterparts and the approval by the Ministry of
Commerce, the State Administration of Industry and Commerce or their
respective local counterparts following the repatriation of foreign
exchange back into the PRC) (the "Related Restructuring", and collectively
with the Restructuring in the Pricing Prospectus, the "Restructuring")
have been completed and effected prior to the date hereof and constitute
binding and irrevocable transactions completed by the parties to (A) the
Share Purchase Agreement, dated August 25, 2006, by and between the
Company and Baoding Yingli Group Co., Ltd. ("Yingli Group"), (B) the Joint
Venture Contract, dated August 25, 2006, by and between Tianwei Yingli and
Baoding Tianwei Baobian Electric Co., Ltd., as amended, and (C) any other
documents set forth or referred to in the Pricing Prospectus under the
caption "Restructuring" (collectively, the "Restructuring Documents");
each of the Restructuring Documents has been effected prior to the date
hereof in compliance with all applicable national, provincial, municipal
and local laws, and constitutes a binding transaction completed by the
parties to the Restructuring Documents; each of the Restructuring
Documents has been duly authorized, executed and delivered by the Company,
Yingli Power, Yingli Group or Tianwei Yingli that is a party to such
document prior to the date hereof and each Restructuring Document
constitutes a valid and legally binding document of the Company, Yingli
Power, Yingli Group or Tianwei Yingli that is a party and such document is
enforceable in accordance with its terms, subject, as to enforceability,
to bankruptcy, insolvency, reorganization and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(lxiii) The Restructuring (including, without limitation, the
increase of the registered capital of Tianwei Yingli from XXX 00 million
to XXX 000 million, Yingli Group's increase of its equity interest in
Tianwei Yingli from 49% to 51%, the transfer of 51% equity interest in
Tianwei Yingli by Yingli Group to the Company, increase of the registered
capital of Tianwei Yingli from RMB 1,624.38 million to RMB 3,375.22
million, and the Company's increase of its equity interest in Tianwei
Yingli from 70.11% to 74.01%) and the Restructuring Documents and the
consummation thereof and the execution and the delivery by the Company,
Yingli Group or Tianwei Yingli, as the case may be, of each Restructuring
Document to which it is a party and the performance of their respective
obligations thereunder does not (A) contravene any provision of applicable
law or statute, rule or regulation of any Governmental Agency having
jurisdiction over the Company, Yingli Power, Yingli Group, Tianwei Yingli
or any of their subsidiaries or any of their properties (including but not
limited to the Ministry of Commerce, the China Securities Regulatory
Commission, the State Administration of Industry and Commerce, the
National Development and Reform Commission, the State-owned Assets
Supervision and Administration Commission, the State Tax Bureau and the
State Administration of Foreign Exchange of the PRC, the Hebei Provincial
Office of Commerce, the Hebei Provincial Administration of Industry and
Commerce, the Hebei Provincial Development and Reform
17
Commission, the Hebei State-owned Asset Administration Commission, the
Hebei Provincial State Tax Bureau, the Hebei Provincial Local Tax Bureau,
the Hebei Provincial Administration of Foreign Exchange, the Baoding
Municipal Government, the Baoding City Administration of Industry and
Commerce, the Baoding City State-owned Asset Administration Commission,
the Baoding State Tax Bureau, the Baoding City Local Tax Bureau, the
Baoding City Administration of Foreign Exchange), (B) contravene the
articles of association, business license or other constituent documents
of the Company, Yingli Power, Yingli Group, Tianwei Yingli or any of their
subsidiaries, or (C) conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
license, indenture, mortgage, deed of trust, loan agreement, note, lease
or other agreement or instrument to which the Company, Yingli Power,
Yingli Group, Tianwei Yingli or any of their subsidiaries is a party or by
which the Company, Yingli Power, Yingli Group, Tianwei Yingli or any of
their subsidiaries is bound or to which any of their property or assets is
subject, except, with respect to (C), where such conflict, breach,
violation or default would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(lxiv) Except as disclosed in the Pricing Prospectus, all
Governmental Authorizations required in all jurisdictions in connection
with the Restructuring and the Restructuring Documents and the execution,
delivery and performance of the Restructuring Documents have been made or
unconditionally obtained in writing (including, without limitation (i) all
actions necessary for the approval of the Restructuring and the
Restructuring Documents by any governmental agency and (ii) the consent of
third parties under joint venture agreements, bank loans, guarantees and
other contracts material to the Company, Yingli Power, Yingli Group and
Tianwei Yingli taken as a whole, if the consent of such third parties is
necessary to be obtained), and no such consent, approval, authorization,
order, registration, filing or qualification has been withdrawn or revoked
or is subject to any condition precedent which has not been fulfilled or
performed;
(lxv) Other than the Restructuring Documents, there are no other
material documents or agreements, written or oral, that have been entered
into by the Company, Tianwei Yingli, Yingli Power, Yingli Group or any of
their respective subsidiaries in connection with the Restructuring which
have not been previously provided, or made available, to the Underwriters
and, to the extent material to the Company, Tianwei Yingli, Yingli Power,
Yingli Group or any of their subsidiaries, disclosed in the Pricing
Prospectus;
(lxvi) Except as disclosed in the Pricing Prospectus, each of the
Company and its affiliates that were incorporated outside of the PRC has
taken, or is in the process of taking, reasonable steps to comply with,
and to ensure compliance by each of its shareholders, option holders,
directors, officers and employees that is, or is directly or indirectly
owned or controlled by, a PRC resident or citizen with, any applicable
rules and regulations of the relevant PRC government agencies (including
but not limited to the Ministry of Commerce, the National Development and
Reform Commission and the State Administration of Foreign Exchange)
relating to overseas investment by PRC residents and citizens or overseas
listing by offshore special purpose vehicles controlled directly or
indirectly by PRC companies and individuals, such as the Company (the "PRC
Overseas Investment and Listing Regulations"), including, without
limitation, requesting each shareholder, option holder, director, officer
and employee that is, or is directly or indirectly
18
owned or controlled by, a PRC resident or citizen to complete any
registration and other procedures required under applicable PRC Overseas
Investment and Listing Regulations;
(lxvii) (i) None of the Company or its Subsidiaries, affiliates,
employees, agents and directors and officers: (a) does or plans to conduct
or otherwise get involved with any business with or involving the
government of, or any person or project, targeted by or located in, any
country targeted by any of the economic sanctions promulgated by any
Executive Order issued by the President of the United States or
administered by the United States Treasury Department's Office of Foreign
Assets Control (the "OFAC") or other government administered sanctions;
(b) supports or facilitates or plans to support or facilitate or otherwise
get involved with any such business or project; (ii) the Company is not
controlled (within the meaning of the Executive Orders or regulations
promulgating such economic sanctions or the laws authorizing such
promulgation) by any such government or person; (iii) the proceeds from
the offering of the ADSs contemplated hereby will not be used to fund any
operations in, to finance any investments, projects or activities in, or
to make any payments to, any country targeted by any of such economic
sanctions, or to make any payments to, or finance any activities with, any
person so targeted or any person in a country so targeted; and (iv) the
Company maintains and has implemented adequate internal controls and
procedures to monitor and audit transactions that are reasonably designed
to detect and prevent any use of the proceeds from the offering of the
ADSs contemplated hereby that is inconsistent with any of the Company's
representations and obligations under clause (iii) of this paragraph or in
the Pricing Prospectus;
(lxviii) None of the Company or its Subsidiaries, affiliates,
employees, agents and directors and officers does any business with the
government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes;
(lxix) The Company and its Subsidiaries and their respective
properties, assets and operations are in compliance with, and the Company
and each of its Subsidiaries hold all permits, authorizations and
approvals required under Environmental Law (as defined below) except where
the lack of which, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect; there are no past, present
or reasonably anticipated future events, conditions, circumstances,
activities, practices, actions, omissions or plans that could reasonably
be expected to give rise to any material costs or liabilities to the
Company or any of its Subsidiaries under, or to interfere with or prevent
compliance by the Company or any Subsidiary with, Environmental Law except
as would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; neither the Company nor any of its
Subsidiaries (A) is the subject of any investigation, (B) has received any
notice or claim, (C) is a party to or affected by any pending or, to the
Company's knowledge after due inquiry, threatened action, suit or
proceeding, (D) is bound by any judgment, decree or order or (E) has
entered into any agreement, in each case relating to any alleged violation
of any Environmental Law or any actual or alleged release or, to the
Company's knowledge after due inquiry, threatened release or cleanup at
any location of any Hazardous Materials (as defined below) (as used
herein, "Environmental Law" means any national, provincial, municipal or
other local or foreign law, statute, ordinance, rule, regulation, order,
notice, directive, decree, judgment, injunction, permit, license,
authorization or other binding requirement, or common law, relating to
health, safety or the protection, cleanup or restoration of the
environment or
19
natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal, transportation,
other handling or release or threatened release of Hazardous Materials,
and "Hazardous Materials" means any material (including, without
limitation, pollutants, contaminants, hazardous or toxic substances or
wastes) that is regulated by or may give rise to liability under any
Environmental Law);
(lxx) Neither the Company nor any of its Subsidiaries has entered
into any memorandum of understanding, letter of intent, definitive
agreement or any similar agreements with respect to a merger or
consolidation or a material acquisition or disposition of assets,
technologies, business units or businesses;
(lxxi) There are no affiliations or associations between any member
of the Financial Industry Regulations Authority ("FINRA") and the Company;
except as described in the Registration Statement (excluding the exhibits
thereto), the Preliminary Prospectus, the Pricing Prospectus and the
Prospectus, there are no affiliations or associations between (A) any
member of the FINRA and (B) any of the Company's officers, directors or 5%
or greater security holders or any beneficial owner of the Company's
unregistered equity securities that were acquired at any time on or after
the 180th day immediately preceding the date the Registration Statement
was initially filed with the Commission;
(lxxii) There are no business relationships or related-party
transactions involving the Company or any of its Subsidiaries or any other
person required to be described in the Registration Statement, each
Preliminary Prospectus, the Pricing Prospectus or the Prospectus which
have not been described as required;
(lxxiii) Each "forward-looking statement" (within the meaning of
Section 27A of the Act or Section 21E of the Exchange Act) contained in
the Registration Statement, each Preliminary Prospectus, the Pricing
Prospectus, the Prospectus and each Issuer Free Writing Prospectus, if
any, has been made or reaffirmed with a reasonable basis and in good
faith.
(lxxiv) Except as disclosed in the Pricing Prospectus, (A) the
Restructuring and the Restructuring Documents have been effected prior to
the date hereof in compliance with the Rules on Mergers and Acquisitions
of Domestic Enterprises by Foreign Investors jointly promulgated by the
Ministry of Commerce, the State-Owned Asset Administration Commission, the
State Tax Bureau, the State Administration of Industry and Commerce, the
China Securities Regulatory Commission and the State Administration of
Foreign Exchange of the PRC on August 8, 2006 (the "M&A Rules") and any
official clarifications guidance, interpretations or implementation rules
in connection with or related to the M&A Rules (collectively, the "M&A
Rules and Related Clarifications"); (B) (i) the Restructuring and the
Restructuring Documents and the consummation thereof and the execution and
the delivery by the Company, Yingli Group, Yingli Power or Tianwei Yingli,
as the case may be, of each Restructuring Document to which it is a party
and the performance of their respective obligations thereunder and (ii)
the issuance and sale of the Shares and the ADSs, the listing and trading
of the ADSs on the NYSE and the consummation of the transactions
contemplated by this Agreement, the Deposit Agreement, the Custody
Agreement (as defined in subsection (b)(xvi) below) and the Power of
Attorney did not, does not and will not contravene any provision of the
M&A Rules and Related Clarifications; and (C) all consents, approvals,
authorizations, orders, registrations, filings
20
and qualifications required under the M&A Rules and Related
Clarifications in connection with (i) the Restructuring and the
Restructuring Documents and the execution, delivery and performance
of the Restructuring Documents and (ii) the issuance and sale of the
Shares and the ADSs, the listing and trading of the ADSs on the NYSE
and the consummation of the transactions contemplated by this
Agreement, the Deposit Agreement, the Custody Agreement and the
Power of Attorney have been made or unconditionally obtained in
writing, including, without limitation, all actions necessary for
the approval of the Restructuring, the Restructuring Documents, the
issuance and sale of the Shares and the ADSs, the listing and
trading of the ADSs on the NYSE and the consummation of the
transactions contemplated by this Agreement, the Deposit Agreement,
the Custody Agreement and the Power of Attorney by any governmental
agency under the M&A Rules and Related Clarifications, and no such
consent, approval, authorization, order, registration, filing or
qualification has been withdrawn or revoked or is subject to any
condition precedent which has not been fulfilled or performed;
(lxxv) Since the filing of the Initial Registration Statement
with the Commission, there has been no change to the composition of
the board of directors of the Company or the composition of the
executive officers of the Company;
(lxxvi) The Company is in compliance in all material respects
with all applicable obligations and duties imposed on it by the
Xxxxxxxx-Xxxxx Act; and
(lxxvii) The statements set forth in the Pricing Prospectus
under the captions "Risk Factors -- Risks Related to Doing Business
in China -- A new PRC rule on mergers and acquisitions may subject
us to sanction, fines and other penalties and affect our future
business growth through acquisition of complimentary business" and
"PRC Government Regulations -- Regulation of Overseas Listings" are
fair and accurate summaries of the matters described therein, and
nothing has been omitted from such summaries which would make the
same misleading in any material respect.
In addition, any certificate signed by any officer of the Company or any
of its Subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the ADSs shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each of the Underwriters.
(b) Each of the Selling Shareholders, severally and not jointly,
represents and warrants as to and in respect of itself only to, and agrees with,
each of the Underwriters and the Company that:
(i) Such Selling Shareholder, if an entity, has been duly
organized and is validly existing as a company or a limited
partnership, as the case may be, in good standing in its
jurisdiction of formation;
(ii) All Governmental Authorizations required for the deposit
of the Shares being deposited by such Selling Shareholder with the
Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at each applicable Time of Delivery (as defined in Section
4 hereof), for the sale and delivery of the ADSs to be sold by such
Selling Shareholder hereunder and for the execution and delivery by
such Selling Shareholder of this Agreement, the Custody Agreement
(as defined in subsection (b)(xvi) below) and the Power of Attorney
hereinafter referred to, and for the sale and delivery of the ADSs
to be
21
sold by such Selling Shareholder hereunder, have been obtained; and
such Selling Shareholder has full right, power and authority to
enter into this Agreement, the Custody Agreement and the Power of
Attorney and to sell, assign, transfer and deliver the ADSs to be
sold by such Selling Shareholder hereunder;
(iii) The sale of the ADSs to be sold by such Selling
Shareholder hereunder, the deposit of the Shares by such Selling
Shareholder with the Depositary against issuance of the ADRs
evidencing the ADSs to be delivered by such Selling Shareholder at
each applicable Time of Delivery and the compliance by such Selling
Shareholder with all of the provisions of this Agreement, the
Deposit Agreement, the Custody Agreement and the Power of Attorney
and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any material statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which such
Selling Shareholder is a party or by which such Selling Shareholder
is bound, or to which any of the property or assets of such Selling
Shareholder is subject, nor will such action result in any violation
of the provisions of the constituent documents of such Selling
Shareholder if such Selling Shareholder is a corporation, the
partnership agreement of such Selling Shareholder if such Selling
Shareholder is a partnership or similar governing documents of such
Selling Shareholder if such Selling Shareholder is any other type of
entity, or any statute or any order, rule or regulation of any
Governmental Agency having jurisdiction over such Selling
Shareholder or the property of such Selling Shareholder;
(iv) There are no affiliations or associations between any
member of the FINRA and such Selling Shareholder [(other than
Baytree Investments (Mauritius) Pte Ltd.], except as described in
the Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus, the Pricing Prospectus and the Prospectus;
none of the proceeds received by such Selling Shareholder from the
sale of the Shares and ADSs to be sold by such Selling Shareholder
hereunder will be paid to a member of the FINRA or any affiliate of
(or person "associated with," as such terms are used in the rules of
the FINRA) such member;
(v) Such Selling Shareholder has, and immediately prior to
each applicable Time of Delivery such Selling Shareholder will have,
good and valid title to the Shares to be represented by the ADSs to
be sold by such Selling Shareholder hereunder at such Time of
Delivery, free and clear of all liens, encumbrances, equities or
claims; and, upon delivery of the ADSs representing such Shares and
payment therefor pursuant hereto, good and valid title to such ADSs,
free and clear of all liens, encumbrances, equities or claims, will
pass to the several Underwriters;
(vi) Neither such Selling Shareholder nor any of its
affiliates, nor any person acting on its or their behalf has taken
or will take, directly or indirectly, any action which is designed
to or which has constituted or which might reasonably be expected to
cause or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares or the ADSs, except that no representation or warranty is
made with respect to any person that is an Underwriter;
22
(vii) The sale of the Shares to be sold by such Selling
Shareholder pursuant to this Agreement is not prompted by any
material non-public information concerning the Company or any of its
Subsidiaries;
(viii) Such Selling Shareholder has not, prior to the
execution of this Agreement, offered or sold any Shares by means of
any "prospectus" (within the meaning of the Act), or used any
"prospectus" (within the meaning of the Act) in connection with the
offer or sale of the Shares and ADSs, in each case other than the
then most recent Preliminary Prospectus;
(ix) The Registration Statement, as it relates to the Selling
Shareholder, did not, as of its effective time, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; at no time during the period that begins on
the earlier of the date of such Preliminary Prospectus and the date
such Preliminary Prospectus was filed with the Commission and ends
at the time of purchase did or will any Preliminary Prospectus, as
then amended or supplemented, as such Preliminary Prospectus relates
to such Selling Shareholder, include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under
which they were made, not misleading, and at no time during such
period did or will any Preliminary Prospectus, as then amended or
supplemented, together with any combination of one or more of the
then issued Issuer Free Writing Prospectuses, if any, in each case
as they relate to such Selling Shareholder, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and at no
time during the period that begins on the earlier of the date of the
Prospectus and the date the Prospectus is filed with the Commission
and ends at the later of the time of purchase, the latest additional
time of purchase, if any, and the end of the period during which a
prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of ADSs did or will the
Prospectus, as then amended or supplemented, as the Prospectus
relates to such Selling Shareholder, include an untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading; and at no time during the
period that begins on the date of such Issuer Free Writing
Prospectus and ends at the time of purchase did or will any Issuer
Free Writing Prospectus, as such Issuer Free Writing Prospectus
relates to such Selling Shareholder, include an untrue statement of
a material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading, provided, however, this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to such Selling Shareholder or to the Company
by an Underwriter through the Representative expressly for use
therein;
(x) The ADSs to be sold by such Selling Shareholder, when
issued and delivered against payment therefor, will be freely
transferable by such Selling Shareholder to or for the account of
the several Underwriters and the initial purchasers thereof; and
there are no restrictions on subsequent transfers of such ADSs under
the laws of the Cayman Islands, the PRC or the United States except
as described in the Pricing
23
Prospectus under the captions "Description of Share Capital",
"Description of American Depositary Shares" and "Shares Eligible for
Future Sale";
(xi) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters to the government of the Cayman
Islands, the British Virgin Islands (the "BVI"), the PRC or the
Republic of Mauritius, as applicable to each Selling Shareholder, or
any political subdivision or taxing authority thereof or therein in
connection with (A) the deposit with the Depositary of the Shares by
such Selling Shareholder against the issuance of ADRs evidencing the
ADSs to be sold by such Selling Shareholder, (B) the sale and
delivery by such Selling Shareholder of the Shares and the ADSs to
be sold by such Selling Shareholder to or for the respective
accounts of the Underwriters or (C) the sale and delivery by the
Underwriters of the Shares and such ADSs to the initial purchasers
thereof.
(xii) All amounts payable by such Selling Shareholder under
this Agreement shall be made free and clear of and without deduction
for or on account of any taxes imposed, assessed or levied by the
Cayman Islands, the BVI, the PRC or the Republic of Mauritius, as
applicable to each Selling Shareholder, or any authority thereof or
therein, nor are any taxes imposed in the Cayman Islands, the BVI or
the PRC as applicable to each Selling Shareholder, on, or by virtue
of the execution of this Agreement or the sale and delivery of the
Shares and ADSs;
(xiii) Each of this Agreement and the Custody Agreement has
been duly authorized, executed and delivered by or on behalf of such
Selling Shareholder and is enforceable against such Selling
Shareholder in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and to ensure the legality, validity, enforceability or
admissibility into evidence in the Cayman Islands, the BVI, the PRC
or the Republic of Mauritius, as applicable to each Selling
Shareholder, of this Agreement and the Custody Agreement, it is not
necessary that this Agreement or the Custody Agreement be filed or
recorded with any court or other authority in the Cayman Islands,
the BVI, the PRC or the Republic of Mauritius, as applicable to each
Selling Shareholder, or that any stamp or similar tax in the Cayman
Islands, the BVI, the PRC, the Republic of Mauritius, as applicable
to each Selling Shareholder, be paid on or in respect of this
Agreement, the Custody Agreement or any other documents to be
furnished hereunder;
(xiv) Other than this Agreement, there are no contracts,
agreements or understandings between such Selling Shareholder and
any person that would give rise to a valid claim against such
Selling Shareholder or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with the offer and
sale of the Shares and the ADSs hereunder;
(xv) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and
Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated, such Selling Shareholder will deliver to you
prior to or at the applicable Time of Delivery (as hereinafter
defined) a properly completed and executed United States Treasury
Department Form W-9 or Form W-8BEN (or other applicable form or
statement specified by Treasury Department regulations in lieu
thereof);
24
(xvi) Certificates in negotiable form representing all of the
Shares to be represented by ADSs to be sold by such Selling
Shareholder hereunder will be placed in custody under a custody
agreement (the "Custody Agreement") to be duly executed and
delivered by or on behalf of such Selling Shareholder to the
Company, as custodian (the "Custodian") in the form set forth in
Annex I attached hereto, and such Selling Shareholder has duly
executed and delivered a Power of Attorney (the "Power of
Attorney") substantially in the form set forth in Annex II attached
hereto, appointing the persons indicated therein, and each
of them, as such Selling Shareholder's attorney-in-Fact (the
"Attorney-in-Fact") with authority to execute and deliver this
Agreement on behalf of such Selling Shareholder, to determine the
purchase price to be paid by the Underwriters to the Selling
Shareholders as provided in Section 2 hereof, to authorize the
delivery of the Shares and ADSs to be sold by such Selling
Shareholder hereunder and otherwise to act pursuant to the terms and
conditions of the Power of Attorney on behalf of such Selling
Shareholder in connection with the transactions contemplated by this
Agreement and the Custody Agreement;
(xvii) The appointment by such Selling Shareholder of the
Attorney-in-Fact by the Power of Attorney are, subject to the terms
and conditions set forth therein, irrevocable; the obligations of
such Selling Shareholder thereunder shall not be terminated by the
Selling Shareholders or by operation of law, whether by the death or
incapacity of any individual Selling Shareholder or, in the case of
an estate or trust, by the death or incapacity of any executor or
trustee or the termination of such estate or trust, or in the case
of a partnership or corporation or limited liability company, by the
dissolution or liquidation of such partnership or corporation or
limited liability company, or by the occurrence of any other event;
if any individual Selling Shareholder or any such executor or
trustee should die or become incapacitated, or if any such estate or
trust should be terminated, or if any such partnership or
corporation or limited liability company should be dissolved or
liquidation, or if any other such event should occur before the
delivery of the Shares and ADSs hereunder, certificates representing
the Shares and such ADSs shall be delivered by or on behalf of such
Selling Shareholder in accordance with the terms and conditions of
this Agreement and of the Custody Agreement; and actions taken by
the Attorney-in-Fact pursuant to the Power of Attorney shall be as
valid as if such death, incapacity, termination, dissolution,
liquidation or other event had not occurred, regardless of whether
or not the Attorney-in-Fact shall have received notice of such
death, incapacity, termination, dissolution, liquidation or other
event; and
(xviii) Neither such Selling Shareholder nor any of its
subsidiaries, affiliates, employees, agents and directors and
officers in the United States: (a) does any business with or
involving the government of, or any person or project targeted by or
located in any country targeted by, any of the economic sanctions
promulgated by any Executive Order issued by the President of the
United States or administered by OFAC or other government
administered sanctions; (b) supports or facilitates any such
business or project in each case other than as permitted under such
economic sanctions; (ii) such Selling Shareholder is not controlled
(within the meaning of the Executive Orders or regulations
promulgating such economic sanctions or the laws authorizing such
promulgation) by any such government or person; and (iii) the
proceeds received by such Selling Shareholder from the sale of ADSs
pursuant to this Agreement will not be used to fund any operations
in, to finance any investments, projects or activities in, or to
make any payments to, any country targeted by any of such economic
sanctions, or to make any payments to, or finance any activities
with, any person so targeted or any person in a country so targeted;
and (iv) such Selling Shareholder (other than Baytree Investments
(Mauritius) Pte Ltd.) maintains and
25
has implemented adequate internal controls and procedures to monitor
and audit transactions that are reasonably designed to detect and
prevent any use of the proceeds from the offering of the ADSs
contemplated hereby that is inconsistent with any of the Company's
representations and obligations under clause (iii) of this paragraph
or in the Pricing Prospectus; and
(xix) Neither such Selling Shareholder nor any of its
subsidiaries, affiliates, employees, agents and directors and
officers in the United States does any business with the government
of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes.
In addition, any certificate signed by any Selling Shareholder (or, with
respect to any Selling Shareholder that is not an individual, any officer of
such Selling Shareholder or of any of such Selling Shareholder's subsidiaries)
or by any representative of such Selling Shareholder and delivered to the
Underwriters or counsel for the Underwriters in connection with the offering and
sale of the ADSs shall be deemed to be a representation and warranty by such
Selling Shareholder, as to matters covered thereby, to each of the Underwriters.
2 Subject to the terms and conditions herein set forth, (a) each Selling
Shareholder agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Selling Shareholders, at a purchase price per ADS of US$[-],
the number of Firm ADSs (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying the aggregate number of Firm ADSs to be sold
by the Selling Shareholders as set forth opposite their respective names in
Schedule II attached hereto by a fraction, the numerator of which is the
aggregate number of Firm ADSs to be purchased by such Underwriter as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the aggregate number of Firm ADSs to be purchased by all of the
Underwriters from the Selling Shareholders hereunder and (b) in the event and to
the extent that the Underwriters shall exercise the election to purchase
Optional ADSs as provided below each of the Selling Shareholders agrees,
severally and not jointly, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from each of the
Selling Shareholders, at the purchase price per ADS set forth in clause (a) of
this Section 2, that portion of the number of Optional ADSs as to which such
election shall have been exercised (to be adjusted by you so as to eliminate
fractional shares) determined by multiplying such number of Optional ADSs by a
fraction, the numerator of which is the maximum number of Optional ADSs which
such Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I attached hereto and the denominator of which is the
maximum number of Optional ADSs that all of the Underwriters are entitled to
purchase hereunder.
The Selling Shareholder, as and to the extent indicated in Schedule II
attached hereto, hereby grants, severally and not jointly, to the Underwriters
the right to purchase at their election up to [-] Optional ADSs, at the purchase
price per ADS set forth in the paragraph above, for the sole purpose of covering
sales of shares in excess of the number of Firm ADSs. Any such election to
purchase Optional ADSs shall be made in proportion to the maximum number of
Optional ADSs to be sold by each Selling Shareholder as set forth in Schedule II
attached hereto. Any such election to purchase Optional ADSs may be exercised
only by written notice from you to the Attorney-in-Fact, given within a period
of 30 calendar days after the date of this Agreement and setting forth the
aggregate number of Optional ADSs to be purchased and the date on which such
Optional ADSs are to be delivered, as determined by you but in no event earlier
than the First Time of Delivery (as defined in Section 4 hereof) or, unless you
and the Selling Shareholders and the Company otherwise agree in writing, earlier
than two or later than ten business days after the date of such notice.
26
3 Upon the authorization by you of the release of the Firm ADSs, the
several Underwriters propose to offer the Firm ADSs for sale upon the terms and
conditions set forth in the Prospectus.
4 (a) The ADSs to be purchased by each Underwriter hereunder, in book
entry form, and in such authorized denominations and registered in such names as
the Representative may request upon at least forty-eight hours' notice to the
Company and the Selling Shareholders prior to an applicable Time of Delivery (as
defined below) (the "Notification Time"), shall be delivered by or on behalf of
the Selling Shareholders to the Representative, through the facilities of The
Depository Trust Company ("DTC"), for the account of such Underwriter, against
payment by or on behalf of such Underwriter of the purchase price therefor by
wire transfer of Federal (same-day) funds to the account(s) specified by the
Company and the Selling Shareholders to the Representative at least forty-eight
hours in advance of such Time of Delivery. The Company and the Selling
Shareholders will cause the certificates representing the ADSs to be made
available for checking at least twenty-four hours prior to the Time of Delivery
with respect thereto at the office of DTC or its designated custodian (the
"Designated Office"). The time and date of such delivery and payment shall be,
with respect to the Firm ADSs, 9:30 a.m., New York City time, on [-], 2007 or
such other time and date as the Representative and the Company may agree upon in
writing, and, with respect to the Optional ADSs, 9:30 a.m., New York City time,
on the date specified by the Representative in the written notice given by the
Representative of the Underwriters' election to purchase such Optional ADSs, or
such other time and date as the Representative and the Company may agree upon in
writing. Such time and date for delivery of the Firm ADSs is herein called the
"First Time of Delivery", such time and date for delivery of the Optional ADSs,
if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 8 hereof, including the
cross-receipt for the ADSs and any additional documents requested by the
Underwriters pursuant to Section 8(r) hereof, will be delivered at the offices
of Xxxxxxxx & Xxxxxxxx LLP, 00X, Xxxx Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx XXX, Xxxxx
(the "Closing Location"), and the ADSs will be delivered as specified in Section
(a) above, all at such Time of Delivery. A meeting will be held at the Closing
Location at 4:00 p.m., Hong Kong time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5 (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such earlier
time as may be required by Rule 430A(a)(3) under the Act; to make no
further amendment or any supplement to the Registration Statement or the
Prospectus prior to the last Time of Delivery which shall be disapproved
by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
amendment or supplement to the Prospectus has been filed and to furnish
you copies thereof; to file promptly all material required to be filed by
the Company with the Commission pursuant to Rule 433(d) under the Act; to
advise you, promptly after it receives notice thereof, of the issuance by
the Commission of any stop
27
order or of any order preventing or suspending the use of any Preliminary
Prospectus or other prospectus in respect of the ADSs, of the suspension
of the qualification of the ADSs for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose,
or of any request by the Commission for the amending or supplementing of
the Registration Statement, any Preliminary Prospectus, the Prospectus or
any Issuer Free Writing Prospectus or for additional information; in the
event of such request for amendment or supplement, to provide you and your
counsel copies of any proposed amendment or supplement for review and
comment a reasonable amount of time prior to any proposed filing and to
file no such amendment or supplement unless approved by you; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or other prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the ADSs for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the ADSs, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time to
time, to furnish the Underwriters with written and electronic copies of
the Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is required at any time
prior to the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the ADSs and if at
such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in light of the circumstances
under which they were made when such Prospectus (or in lieu thereof, the
notice referred to in Rule 173(a) under the Act) is delivered, not
misleading, or, if for any other reason it shall be necessary during such
same period to amend or supplement the Prospectus in order to comply with
the Act, to notify you and upon your request to prepare and furnish
without charge to each Underwriter and to any dealer in securities as many
written and electronic copies as you may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus which
will correct such statement or omission or effect such compliance; and in
case any Underwriter is required to deliver a prospectus (or in lieu
thereof, the notice referred to in Rule 173(a) under the Act) in
connection with sales of any of the ADSs at any time nine months or more
after the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as
many written and electronic copies as you may request of an amended or
supplemented Prospectus complying with Section 10(a)(3) of the Act;
(iv) To make generally available to its security holders as soon as
practicable, but in any event not later than sixteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), a consolidated earnings statement of the Company and its
Subsidiaries (which need not be audited) complying with Section
28
11(a) of the Act and the rules and regulations of the Commission
thereunder (including, at the option of the Company, Rule 158);
(v) During the period beginning from the date of the Prospectus and
continuing to and including the date 90 days after the date of the
Prospectus (the "Lock-Up Period"), without prior written consent of Credit
Suisse Securities (USA) LLC, not to offer, sell, contract to sell, pledge,
grant any option to purchase, purchase any option or contract to sell,
right or warrant to purchase, make any short sale, file a registration
statement with respect to, or otherwise dispose of (including entering
into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequence of ownership interests), except
as provided hereunder, (A) any ADSs or ordinary shares or securities of
the Company that are substantially similar to the ADSs or ordinary shares,
including but not limited to any options or warrants to purchase ordinary
shares or any securities that are convertible into or exchangeable for, or
that represent the right to receive, ADSs or ordinary shares or any such
substantially similar securities; and (B) any ordinary shares of Company's
Subsidiaries or depositary shares or depositary receipts representing such
ordinary shares, including but not limited to any securities that are
convertible into or exchangeable for or that represent the right to
receive such ordinary shares or such depositary shares or depositary
receipts or any such substantially similar securities, except that the
foregoing restrictions shall not apply to: (x) the ADSs and the Shares
underlying such ADSs to be sold under this Agreement and (y) grants of
options and restricted shares made pursuant to the Company's employee
share incentive plan existing on the date of this Agreement, which is
described in the Pricing Prospectus and the filing of a Registration
Statement on Form S-8 by the Company with the Commission with respect to
the Ordinary Shares underlying grants made under such plan; provided,
however, that if (1) during the last 17 days of the initial Lock-Up
Period, the Company releases earnings results or announces material news
or a material event or (2) prior to the expiration of the initial Lock-Up
Period, the Company announces, or if Credit Suisse Securities (USA) LLC
determines, that it will release earnings results during the 16-day period
following the last day of the initial Lock-Up Period, then in each case
the Lock-Up Period will be automatically extended until the expiration of
the 18-day period beginning on the date of release of the earnings results
or the announcement of the material news or material event, as applicable,
unless Credit Suisse Securities (USA) LLC waives, in writing, such
extension; and the Company will provide the Representative and each
shareholder subject to the Lock-Up Period pursuant to the lock-up letters
described in Section 8(o) with prior notice of any such announcement that
gives rise to an extension of the Lock-Up Period;
(vi) During the Lock-Up Period, to cause each of its Subsidiaries
not to offer, sell, contract to sell, pledge, grant any option to
purchase, purchase any option or contract to sell, right or warrant to
purchase, make any short sale, file a registration statement with respect
to, or otherwise dispose of (including entering into any swap or other
arrangement that transfers to another, in whole or in part, any of the
economic consequence of ownership interests), except as provided hereunder
and under this Agreement: (A) any ADSs or ordinary shares or any
securities of the Company that are substantially similar to the ADSs or
ordinary shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, ADSs or ordinary shares or any such substantially similar
securities; and (B) any ordinary shares of any of the Company's
Subsidiaries or depositary shares or depositary receipts representing such
ordinary shares, including but not limited to any securities that are
convertible into or exchangeable for or that represent the right to
receive such ordinary shares or such
29
depositary shares or depositary receipts or any such substantially similar
securities, without prior written consent of Credit Suisse Securities
(USA) LLC; provided, however, that if (1) during the last 17 days of the
initial Lock-Up Period, the Company releases earnings results or announces
material news or a material event or (2) prior to the expiration of the
initial Lock-Up Period, the Company announces, or if Credit Suisse
Securities (USA) LLC determines, that it will release earnings results
during the 16-day period following the last day of the initial Lock-Up
Period, then in each case the Lock-Up Period will be automatically
extended until the expiration of the 18-day period beginning on the date
of release of the earnings results or the announcement of the material
news or material event, as applicable, unless Credit Suisse Securities
(USA) LLC waives, in writing, such extension; and the Company will provide
Credit Suisse Securities (USA) LLC and each shareholder subject to the
Lock-Up Period pursuant to the lock-up letters described in Section 8(p)
with prior notice of any such announcement that gives rise to an extension
of the Lock-Up Period;
(vii) To furnish to its shareholders within such period required by
the Exchange Act after the end of each fiscal year an annual report (in
English) (including a balance sheet and statements of income,
shareholders' equity and cash flows of the Company and its consolidated
Subsidiaries prepared in conformity with US GAAP and certified by
independent public accountants) and, as soon as practicable after the end
of each of the first three quarters of each fiscal year (beginning with
the fiscal quarter ending after the effective date of the Registration
Statement), to make available to its shareholders consolidated summary
financial information of the Company and its Subsidiaries for such quarter
in reasonable detail;
(viii) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to shareholders, and to
deliver to you (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the
Company is listed; provided, however, that the Company
may satisfy the requirements of this subsection (viii) by timely making
such reports, communications or information publicly available on its
website or the Commission's XXXXX website; and (ii) such additional
information concerning the business and financial condition of the Company
as you may from time to time reasonably request (such financial statements
to be on a consolidated basis to the extent the accounts of the Company
and its Subsidiaries are consolidated in reports furnished to its
shareholders generally or to the Commission);
(ix) To use the net proceeds received by it from the sale of the
ADSs pursuant to this Agreement in all material respects in the manner
specified in the Pricing Prospectus and the Prospectus under the caption
"Use of Proceeds" and in compliance with (x) any applicable laws, rules
and regulations of any Governmental Agency having jurisdiction over the
Company or its Subsidiaries and (y) the provisions of the constituent
documents of the Company or any of its Subsidiaries and any of the terms
or provisions of any agreements to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries
is bound; the Company will not use any of the proceeds from the offering
of the ADSs contemplated hereby to fund any operations in, to finance any
investments, projects or activities in, or to make any payments to, any
country, or to make any payments to, or finance any activities with, any
person, targeted by any of the economic sanctions promulgated by any
Executive Order issued by the President of the United States or
30
administered by the OFAC or other government administered sanctions; and
the Company will maintain and implement adequate internal controls and
procedures to monitor and audit transactions that are reasonably designed
to detect and prevent any use of the proceeds from the offering of the
ADSs contemplated hereby that is inconsistent with any of the Company's
representations and obligations under the preceding sentence;
(x) Prior to each Time of Delivery to deposit Ordinary Shares with
the Depositary in accordance with the provisions of the Deposit Agreement
and otherwise to comply with the Deposit Agreement so that ADRs evidencing
ADSs will be executed (and, if applicable, countersigned) and issued by
the Depositary against receipt of such Ordinary Shares and delivered to
the Underwriters at such Time of Delivery;
(xi) Not to (and to cause its affiliates not to) take, directly or
indirectly, any action which is designed to or which constitutes or which
would reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company or facilitate the
sale or resale of the Shares and the ADSs;
(xii) To use its best efforts to include for listing the Shares and
ADSs on the NYSE;
(xiii) To file with the Commission such information on Form 20-F as
may be required by Rule 463 under the Act;
(xiv) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the
date of this Agreement, and the Company shall at the time of filing either
pay to the Commission the filing fee for the Rule 462(b) Registration
Statement or give irrevocable instructions for the payment of such fee
pursuant to Rule 111(b) under the Act;
(xv) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trade marks, service marks and corporate logo for use on the website, if
any, operated by such Underwriter for the purpose of facilitating the
on-line offering of the ADSs (the "License"); provided, however, that the
License shall be used solely for the purpose described above, is granted
without any fee and may not be assigned or transferred;
(xvi) To indemnify and hold each of the Underwriters harmless
against any documentary, stamp or similar issuance or transfer taxes,
duties or fees and any transaction levies, commissions or brokerage
charges, including any interest and penalties, which are or may be
required to be paid in connection with the creation, allotment, issuance,
offer and distribution of the Shares and ADSs to be sold by the Company
and the execution and delivery of this Agreement;
(xvii) To comply with Rule 433(d) under the Act (without reliance on
Rule 164(b) under the Act) and with Rule 433(g) under the Act;
31
(xviii) Prior to each Time of Delivery, to issue no press release or
other communication directly or indirectly and hold no press conferences
with respect to the Company or any of its Subsidiaries, the financial
condition, results of operations, business, properties, assets, or
liabilities of the Company or any of its Subsidiaries, or the offering of
the ADSs, without your prior consent, except as required by law;
(xix) Not, at any time at or after the execution of this Agreement,
to, directly or indirectly, offer or sell any Shares or ADSs by means of
any "prospectus" (within the meaning of the Act), or use any "prospectus"
(within the meaning of the Act) in connection with the offer or sale of
the Shares or ADSs, in each case other than the Prospectus;
(xx) To furnish to you one copy for you as the Representative and
one copy for United States counsel to the Underwriters of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto, and sufficient copies of the
foregoing (other than exhibits) for distribution of a copy to each of the
other Underwriters; and
(xxi) To furnish to you as early as practicable prior to the time of
purchase and any additional time of purchase, as the case may be, but not
later than two business days prior thereto, a copy of the latest available
unaudited interim and monthly consolidated financial statements, if any,
of the Company and its subsidiaries which have been read by the Company's
independent public accountants, as stated in their letter to be furnished
pursuant to Section 8(h) hereof.
(xxii) To comply with the Xxxxxxxx-Xxxxx Act, and to use its best
efforts to cause the Company's directors and officers, in their capacities
as such, to comply with provisions of the Xxxxxxxx-Xxxxx Act.
(b) Each of the Selling Shareholders, severally and not jointly, agrees
with each of the Underwriters:
(i) To comply with the provisions of its respective Lock-Up
Agreement (as defined in Section 8(o) hereof);
(ii) Prior to each applicable Time of Delivery, to deposit, or cause
to be deposited on their behalf pursuant to the Custody Agreement,
Ordinary Shares with the Depositary in accordance with the provisions of
the Deposit Agreement and otherwise to comply with the Deposit Agreement
so that ADRs evidencing ADSs will be executed (and, if applicable,
countersigned) and issued by the Depositary against receipt of such
Ordinary Shares and delivered to the Underwriters at such Time of
Delivery;
(iii) Not to (and to cause its affiliates not to) take, directly or
indirectly, any action which is designed to or which constitutes or which
might reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company or facilitate the
sale or resale of the Shares or the ADSs, except that no warranty is made
with respect to any person that is an Underwriter;
32
(iv) To indemnify and hold each of the Underwriters harmless against
any documentary, stamp or similar issuance or transfer taxes, duties or
fees and any transaction levies, commissions or brokerage charges,
including any interest and penalties, which are or may be required to be
paid in connection with the creation, allotment, issuance, offer and
distribution of the Shares and ADSs to be sold by such Selling Shareholder
and the execution and delivery of this Agreement and the Custody
Agreement;
(v) Not, at any time at or after the execution of this Agreement and
during the Lock-Up Period, to offer or sell any Shares or ADSs by means of
any "prospectus" (within the meaning of the Act), or use any "prospectus"
(within the meaning of the Act) in connection with the offer or sale of
the Shares or ADSs, in each case other than the Prospectus;
(vi) To pay or cause to be paid all taxes, if any, on the transfer
and sale of the Shares and the ADSs being sold by such Selling
Shareholder;
(vii) Unless such Selling Shareholder no longer holds any ADSs upon
consummation of the transactions contemplated by this Agreement, until the
third anniversary of the applicable Time of Delivery, to advise you
promptly, and if requested by you, confirm such advice in writing, so long
as a prospectus is required by the Act to be delivered (whether physically
or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of ADSs by the Selling Shareholder hereunder, of
(A) any material change in the general affairs, management, financial
condition, results of operations or prospects of the Company and its
subsidiaries, which comes to the attention of such Selling Shareholder,
(B) any change in information contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus and any Issuer Free Writing
Prospectuses, if any, relating to such Selling Shareholder or (C) any new
material information relating to the Company or relating to any matter
stated in the Registration Statement, any Preliminary Prospectus, the
Prospectus and any Issuer Free Writing Prospectuses, if any, which comes
to the attention of such Selling Shareholder; and
(viii) Not to use any of the proceeds received by such Selling
Shareholder from the sale of the ADSs pursuant to this Agreement to fund
any operations in, to finance any investments, projects or activities in,
or to make any payments to, any country, or to make any payments to, or
finance any activities with, any person, targeted by any of the economic
sanctions promulgated by any Executive Order issued by the President of
the United States or administered by the OFAC or other government
administered sanctions, or in any manner that is not in compliance with
applicable laws, rules and regulations of any Governmental Agency having
jurisdiction over such Selling Shareholders including, without limitation,
the requirement for PRC residents or citizens to repatriate the net
proceeds received by such Selling Shareholders into the PRC under the
applicable regulation of the Ministry of Commerce and the State
Administration of Foreign Exchange of the PRC.
6 (a) Each of the Company and the Selling Shareholders, severally and not
jointly, represents and agrees that, without the prior consent of the
Representative, it has not made and will not make any offer relating to the
Shares and the ADSs that would constitute a "free writing prospectus" as defined
in Rule 405 under the Act; each Underwriter represents and agrees that, without
the prior consent of the Company and the Representative, it has not made and
will not make any offer relating to the Shares
33
and the ADSs that would constitute a free writing prospectus; any such free
writing prospectus the use of which has been consented to by the Company and the
Representative is listed on Schedule III attached hereto;
(b) The Company represents that it has complied and will comply with
the requirements of Rule 433 under the Act applicable to any Issuer Free Writing
Prospectus, including timely filing with the Commission or retention where
required and legending; and the Company represents that it has satisfied and
agrees that it will satisfy the conditions under Rule 433 under the Act to avoid
a requirement to file with the Commission any electronic road show; and
(c) The Company agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of which
such Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the Pricing Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representative and, if requested by the Representative,
will prepare and furnish without charge to each Underwriter an Issuer Free
Writing Prospectus or other document which will correct such conflict, statement
or omission; provided, however, that this representation covenant shall not
apply to any statements or omissions in an Issuer Free Writing Prospectus made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Representative expressly for use therein.
7 The Company covenants and agrees with each of the several Underwriters
that the Company will pay or cause to be paid (i) all the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Shares and ADSs and all other expenses in connection with
the preparation, printing, reproduction and filing of the Registration
Statement, the ADS Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus, any Issuer Free Writing Prospectus and the Prospectus and
amendments or supplements thereto, and the mailing and delivering of copies
thereof to the Underwriters and to dealers, (ii) the cost of printing or
producing any Agreement among Underwriters, this Agreement, the Deposit
Agreement, any dealer agreements, any powers of attorney, any closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the ADSs, (iii) all expenses in
connection with the qualification of the Shares and the ADSs for offering and
sale under state or foreign securities laws as provided in Section 5 hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with any Blue Sky surveys
or legal investment surveys, (iv) all fees and expenses in connection with the
application for including the ADSs for quotation on NYSE and any registration
thereof under the Exchange Act, (v) all fees and expenses in connection with any
required review by the FINRA of the terms of the sale of the Shares and the
ADSs, including the fees and disbursements of counsel for the Underwriters in
connection with such FINRA matters, (vi) the fees and disbursements of any
transfer agent or registrar for the ADSs, (vii) all the costs and expenses
relating to presentations or meetings undertaken in connection with the
marketing of the offering and sale of the ADSs to prospective investors,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations, travel, accommodation and meal
expenses, and other road show expenses incurred by the officers of the Company
any such consultants, and the cost of any aircraft chartered in connection with
the road show, (viii) the costs and expenses of qualifying the ADSs for
inclusion in the book-entry settlement system of the DTC, (ix) all expenses and
taxes arising as a result of the deposit by the Company and each of the Selling
Shareholders of the Shares with the Depositary and the issuance and
34
delivery of the ADRs evidencing ADSs in exchange therefor by the Depositary to
the Company, of the sale and delivery of the ADSs and the Shares by the Company
to or for the account of the Underwriters and of the sale and delivery of the
ADSs and the Shares by the Underwriters to each other and to the initial
purchasers thereof in the manner contemplated under this Agreement, including,
in any such case, any of the Cayman Islands income, capital gains, withholding,
transfer or other tax asserted against an Underwriter by reason of the purchase
and sale of an ADS or a Share pursuant to this Agreement, (x) the fees and
expenses of the Depositary as agreed by the Company and the Depositary and any
custodian appointed under the Deposit Agreement, other than the fees and
expenses to be paid by holders of ADRs (other than the Underwriters in
connection with the initial purchase of ADSs), (xi) the fees and expenses of the
Authorized Agent (as defined in Section 15 hereof), (xii) the cost of preparing
the ADRs, and (xiii) all other costs and expenses incident to the performance of
the Company's obligations hereunder which are not otherwise specifically
provided for in this Section.
8 The obligations of the Underwriters hereunder, as to the ADSs to be
delivered at each Time of Delivery, shall be subject, in their reasonable
discretion, to the condition that all representations and warranties and other
statements of the Company and of the Selling Shareholders herein are, at and as
of such Time of Delivery, true and correct, the condition that the Company and
the Selling Shareholders shall have performed all of their respective
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act within the applicable time period
prescribed for such filing by the rules and regulations under the Act and in
accordance with Section 5(a) hereof; all material required to be filed by the
Company pursuant to Rule 433(d) under the Act shall have been filed with the
Commission within the applicable time period prescribed for such filing by Rule
433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m.,
Washington, D.C. time, on the date of this Agreement; no stop order suspending
the effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus shall have been initiated
or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, United States counsel to the
Underwriters, shall have furnished to you such written opinion and letter, dated
such Time of Delivery, with respect to the matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Commerce & Finance Law Office, PRC counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the same matters covered in subsection (e) below as
well as such other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(d) Xxxxxxx Xxxxxxx and Xxxxxxxx LLP, United States counsel to the
Company and the Selling Shareholders, [Inspiration Partners Limited, TB Holdings
Ltd., New Horizon Keensolar Investment Co., Ltd. and Fairdeal Development Ltd.,]
shall have furnished to you their written opinion, dated such
35
Time of Delivery, in form and substance satisfactory to you, substantially to
the effect set forth in Exhibit A attached hereto;
(e) Fangda Partners, PRC counsel to the Company and the Selling
Shareholders, shall have furnished to you such written opinion or opinions,
dated such Time of Delivery, in form and substance satisfactory to you, to the
effect set forth in Exhibit B attached hereto.
(f) Xxxxxxx Xxxx & Xxxxxxx, Cayman Islands and BVI counsel for the
Company and the Selling Shareholders other than Baytree Investments (Mauritius)
Pte Ltd. shall have furnished to you their written opinion, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect set forth in
Exhibit C.
(g) The respective counsel to Baytree Investments (Mauritius) Ptd
Ltd., China Sunshine Investment Co. Ltd., the Trustees of Columbia University in
the City of New York and Bench Europe II, L.P. shall have furnished to you their
written opinions, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Exhibit D; each of O'Melveny &
Xxxxx LLP, United States counsel to Baytree Investments (Mauritius) Pte Ltd.,
and Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP, United States
counsel to Benchmark Europe II, L.P. shall have furnished to you its written
opinions, dated such Time of Delivery, in form and substance satisfactory to
you, with respect to United States federal and New York laws and to the effect
set forth in Exhibit E; the General Counsel of The Trustees of Columbia
University in the City of New York shall have furnished its written opinion
dated such Time of Delivery, in form and substance satisfactory to you, with
respect to United States federal and New York laws to the effect set forth in
Exhibit E.
(h) Xxxxxxxx Chance, counsel for the Depositary, shall have
furnished to you their written opinion, dated such Time of Delivery, in form and
substance satisfactory to you, to the effect set forth in Exhibit F.
(i) On the date of the Prospectus at a time prior to the execution
of this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent to
the date of this Agreement and also at each Time of Delivery, (i) KPMG, shall
have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex III attached hereto, and (ii) the Chief Financial Officer of the
Company shall have furnished to you an officer's certificate with respect to
certain data contained in the Preliminary Prospectus and the Pricing Prospectus,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex IV attached hereto;
(j) No Preliminary Prospectus, Pricing Prospectus, Issuer Free
Writing Prospectus or Prospectus or amendment or supplement to the Registration
Statement, the Preliminary Prospectus, the Pricing Prospectus or the Prospectus
shall have been filed to which you shall have objected in writing;
(k) (A) Neither the Company nor any of its Subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Pricing Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus, and (B) since the
respective dates as of which information is given in the Pricing Prospectus
there shall not have been any change in the share capital, short- or long-term
36
debt of the Company or any of its Subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the Company
and its Subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (A) or
(B), is in your judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(l) On or after the Applicable Time, there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on Nasdaq, the NYSE, The Stock Exchange of Hong Kong
Limited or the London Stock Exchange; (ii) a suspension or material limitation
in trading in the Company's securities on the NYSE; (iii) a general moratorium
on commercial banking activities in New York, London, Hong Kong, the PRC or the
Cayman Islands declared by the relevant authorities, or a material disruption in
commercial banking or securities settlement or clearance services in the United
States, the United Kingdom, Hong Kong, the PRC or the Cayman Islands; (iv) a
change or development involving a prospective change in taxation affecting the
Company, any of its Subsidiaries or the Shares or the ADSs or the transfer
thereof; (v) the enactment, publication, decree or other promulgation of any
statute, regulation, rule or order of any Governmental Agency materially
affecting the business or operations of the Company or its Subsidiaries; (vi)
the outbreak or escalation of hostilities or act of terrorism involving the
United States, the United Kingdom, Hong Kong, the PRC or the Cayman Islands or
the declaration by the United States, the United Kingdom, Hong Kong, the PRC or
the Cayman Islands of a national emergency or war; or (vii) the occurrence of
any other calamity or crisis or any change in financial, political or economic
conditions or currency exchange rates or controls in the United States, the
United Kingdom, Hong Kong, the PRC, the Cayman Islands or elsewhere, if the
effect of any such event specified in clauses (v), (vi) or (vii), in the sole
judgment of the Representative, makes it impracticable or inadvisable to proceed
with the public offering or the delivery of the Shares and the ADSs being
delivered at such Time of Delivery on the terms and in the manner contemplated
in the Prospectus;
(m) The ADSs to be sold by the Selling Shareholders at such Time of
Delivery shall have been duly listed, on the NYSE;
(n) The Depositary shall have furnished or caused to be furnished to
you at such Time of Delivery certificates satisfactory to you evidencing the
deposit with it of the Shares being so deposited against issuance of ADRs
evidencing the ADSs to be delivered by the Selling Shareholders at such Time of
Delivery, and the execution, countersignature (if applicable), issuance and
delivery of ADRs evidencing such ADSs pursuant to the Deposit Agreement;
(o) Each party set forth in Annex V attached hereto shall have
entered into an agreement (each a "Lock-Up Agreement") substantially in the form
of the Lock-Up Agreement attached hereto as Annex VI;
(p) The Company shall have complied with the provisions of Section
5(a)(iii) hereof with respect to the furnishing of Prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(q) The Company and each of the Selling Shareholders shall have
furnished or caused to be furnished to you at such Time of Delivery certificates
of officers of the Company and of such Selling Shareholder, respectively,
satisfactory to you as to
37
the accuracy of the representations and warranties of the Company and such
Selling Shareholder, respectively, herein at and as of such Time of Delivery, as
to the performance by the Company and such Selling Shareholder, respectively, of
all of their respective obligations hereunder to be performed at or prior to
such Time of Delivery, and as to such other matters as you may reasonably
request, including, without limitation, certificates of officers of the Company
satisfactory to you with respect to the memorandum and articles of association
and other organizational documents of the Company, all resolutions of the board
of directors of the Company and other corporate actions relating to this
Agreement and the authorization, issue and sale of the Shares and ADSs and the
incumbency and specimen signatures of signing officers, and the Company shall
have furnished certificates as to the matters set forth in subsections (a), (k),
(l) and (r) of this Section, and as to such other matters as you may reasonably
request;
(r) There shall not be any litigation, proceedings, investigations,
processes for administrative sanctions or other actions initiated or threatened
by any Governmental Agency before any Governmental Agency, in each case with due
authority, against or involving any party hereto and to the Deposit Agreement,
the Custody Agreement and the Power of Attorney, in the PRC or elsewhere, that
seeks to declare non-compliance, unlawful or illegal, under PRC laws, rules and
regulations, the issuance and sales of the Shares and ADSs, the listing and
trading of the ADSs on the NYSE or the transactions contemplated by this
Agreement, the Deposit Agreement, the Custody Agreement and the Power of
Attorney;
(s) There shall not be any adverse legislative or regulatory
developments related to the M&A Rules and Related Clarifications which in the
sole judgment of the Representative would make it inadvisable to proceed with
the public offering or the delivery of the Shares and the ADSs being delivered
at such Time of Delivery on the terms and in the manner contemplated in this
Agreement (including any such development that results in either PRC counsel to
the Company or PRC counsel to the Underwriters not being able to confirm, on the
date of the Prospectus at a time prior to the execution of this Agreement and at
such Time of Delivery, the respective opinions of such counsel, each dated as of
[-], 2007, attached as Annex VII to this Agreement); and
(t) (i) The Custody Agreement shall have been executed by each of
the Selling Shareholders or Attorney-in-Fact on behalf of the Selling
Shareholders and (ii) certificates in negotiable form representing all of the
Shares to be represented by ADSs to be sold at such Time of Delivery by each of
the Selling Shareholders shall have been placed in custody under the Custody
Agreement, duly executed and delivered by such Selling Shareholder to the
Custodian, at or prior to the date at least one business day prior to such Time
of Delivery.
9 (a) The Company and the Controlling Selling Shareholder will, jointly
and severally, indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the ADS Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, any Issuer Free Writing Prospectus or any
"issuer information" filed or required to be filed pursuant to Rule 433(d) under
the Act, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (ii) any challenge to the compliance,
legality or legitimacy of the issuance and sale of the shares and the ADSs, the
listing and trading of the ADSs on the NYSE or the transactions contemplated by
this Agreement, the Deposit Agreement, the Custody Agreement and the Power of
Attorney under PRC laws, rules and regulations or otherwise, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with
38
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that with respect to clause (i) of this paragraph,
the Company and the Controlling Selling Shareholder shall not be liable in any
such case to the extent, but only to the extent, that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through the Representative expressly for use therein; provided,
further, that the Controlling Selling Shareholder shall not be liable under this
Section 9(a) for any losses, claims, damages or liabilities in excess of the
proceeds (before deducting underwriting discounts and commissions and any
offering expenses) to be received by the Controlling Selling Shareholder from
the sale of ADSs hereunder.
(b) Each of the Selling Shareholders other than the Controlling
Selling Shareholder will severally and not jointly indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
ADS Registration Statement, any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus, or any amendment or supplement thereto, any Issuer Free
Writing Prospectus or any "issuer information" filed or required to be filed
pursuant to Rule 433(d) under the Act, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred, in each case to the extent
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, the ADS Registration Statement,
any Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
such amendment or supplement, or any Issuer Free Writing Prospectus or any
"issuer information" filed or required to be filed pursuant to Rule 433(d) under
the Act in reliance upon and in conformity with written information furnished to
the Company or such Underwriter by such Selling Shareholder expressly for use
therein; provided, however, that such Selling Shareholders shall not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement, the ADS
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus or
the Prospectus, or any amendment or supplement thereto, or any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information
furnished to the Company or to such Selling Shareholder by an Underwriter
through the Representative expressly for use therein; provided, further, that
the liability of a Selling Shareholder pursuant to this subsection (b) shall not
exceed the proceeds (before deducting underwriting discounts and commission) and
any offering expenses) to be received by such Selling Shareholder from the sale
of ADSs hereunder.
(c) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company and each Selling Shareholder against any losses,
claims, damages or liabilities to which the Company or such Selling Shareholder
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the ADS Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the
39
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the ADS Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus or the Prospectus, or any amendment or supplement thereto, or
any Issuer Free Writing Prospectus in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through the
Representative expressly for use therein; and will reimburse the Company and
each Selling Shareholder for any legal or other expenses reasonably incurred by
the Company or such Selling Shareholder in connection with investigating or
defending any such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under subsection
(a), (b), or (c) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to act, by or
on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b), or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand (it being understood that, for purposes of this subsection (e), any
benefits received by any of the Selling Shareholders shall also be deemed to
have been received by the Company) and the Underwriters on the other from the
offering of the ADSs. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (d) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Selling
Shareholders on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling Shareholders
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the
40
table on the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or any Selling
Shareholder on the one hand or the Underwriters on the other and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, each of the Selling
Shareholders and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this subsection (e) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (e). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (e),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the ADSs underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint. The Selling Shareholders' obligations in
this subsection (e) to contribute are several and not joint, and no Selling
Shareholder shall be required to contribute pursuant to this subsection (e) any
amount in excess of the proceeds (before deducting underwriting discounts and
commissions and any offering expenses) to be received by Selling Shareholder
from the sale of ADSs hereunder.
(f) The obligations of the Company and the Selling Shareholders
under this Section 9 shall be in addition to any liability which the Company and
the respective Selling Shareholders may otherwise have and shall extend, upon
the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act and to each broker-dealer affiliate of
any Underwriter; and the obligations of the Underwriters under this Section 9
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and any Selling Shareholder and to each
person, if any, who controls the Company or any Selling Shareholder within the
meaning of the Act.
10 (a) If any Underwriter shall default in its obligation to purchase
the ADSs which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such ADSs on the terms contained herein. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such ADSs, then the Company and the Selling Shareholders shall be entitled to a
further period of thirty-six hours within which to procure another party or
other parties satisfactory to you to purchase such ADSs on such terms. In the
event that, within the respective prescribed periods, you notify the Company and
the Selling Shareholders that you have so arranged for the purchase of such
ADSs, or the Company and the Selling Shareholders notify you that they have so
arranged for the purchase of such ADSs, you or the Company and the Selling
Shareholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect whatever changes may thereby be
made necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any
41
person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such ADSs.
(b) If, after giving effect to any arrangements for the purchase of
the ADSs of a defaulting Underwriter or Underwriters by you, the Company and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the ADSs to be purchased at such Time of Delivery, then
the Company and the Selling Shareholders shall have the right to require each
non-defaulting Underwriter to purchase the number of ADSs which such Underwriter
agreed to purchase hereunder at such Time of Delivery and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the number of ADSs which such Underwriter agreed to purchase hereunder) of the
ADSs of such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the ADSs of a defaulting Underwriter or Underwriters by you, the Company and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased exceeds one-eleventh of the aggregate
number of all the ADSs to be purchased at such Time of Delivery, or if the
Company and the Selling Shareholders shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase ADSs of
a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase,
and of the Company and the Selling Shareholders to sell, the Optional ADSs)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Shareholders, except for the expenses to
be borne by the Company and the Selling Shareholders and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements in
Sections 9 and 16 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
11 The respective indemnities and contribution provisions in Section 9,
and the agreements, representations, warranties and other statements of the
Company, the Selling Shareholders and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any of the Selling Shareholders, or any officer or director or controlling
person of the Company, or any controlling person of any Selling Shareholder, and
shall survive delivery of and payment for the ADSs.
12 (a) This Agreement shall become effective when the parties hereto have
executed and delivered this Agreement.
(b) If the Representative elects to terminate this Agreement as
provided in this Section 12, the Company, the Selling Shareholders and each
other Underwriter shall be notified promptly in writing.
(c) If this Agreement shall be terminated pursuant to Section 10
hereof, neither the Company nor any of the Selling Shareholders shall then be
under any liability to any Underwriter except as provided in Sections 7, 9 and
16 hereof; but, if for any other reason, any ADSs are not delivered by or on
behalf of the Selling Shareholders as provided herein, the Company and the
Controlling Selling Shareholders will, upon the occurrence of any failure to
complete the sale and delivery of the ADSs, promptly (and, in any event, not
later than 30 days), jointly and severally, and each of the Selling Shareholders
other than the Controlling Selling Shareholder will, severally and not jointly,
reimburse the
42
Underwriters through you for all out-of-pocket expenses approved in writing by
you, including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery of the
ADSs not so delivered, but the Company and the Selling Shareholders shall then
be under no further liability to any Underwriter in respect of the ADSs not so
delivered except as provided in Sections 7, 9 and 16 hereof.
13 In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you. All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the Representative at 68th Floor,
Xxxxxx Kong Center, 0 Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx, facsimile number: (852)
2978-0440, Attention: Legal Department; if to the Company shall be delivered or
sent by mail, telex or facsimile transmission to Yingli Green Energy Holding
Company Limited, No. 3055 Middle Fuxing Road Baoding 071051, People's Republic
of China, Attention: Zongwei Li; if to any Selling Shareholder shall be
delivered or sent by mail, telex or facsimile transmission to such Selling
Shareholder c/o Yingli Green Energy Holding Company Limited, No. 3055 Middle
Fuxing Road Baoding 071051, People's Republic of China, Attention: Zongwei Li;
provided, however, that any notice to an Underwriter pursuant to Section 9(d)
hereof shall be delivered or sent by mail, telex or facsimile transmission to
such Underwriter at its address set forth in its Underwriters' Questionnaire, or
telex constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
14 This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Shareholders and, to the
extent provided in Sections 9 and 11 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Shareholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the ADSs from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
15 Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company or the Selling Shareholders brought by
any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any State or federal court in the Borough of Manhattan, The City
of New York, New York (each a "New York Court"), (ii) waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such proceeding and (iii) submits to the
exclusive jurisdiction of such courts in any such suit, action or proceeding.
Each of the Company and the Selling Shareholders has appointed Law Debenture
Corporate Services Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its
authorized agent (the "Authorized Agent") upon whom process may be served in any
such action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. Each of the Company and the
Selling Shareholders represents and warrants that the Authorized Agent has
agreed to act as such agent for service of process and agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company and the Selling Shareholders, as the case may be.
43
16 In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Shareholders, as
the case may be, will indemnify each Underwriter against any loss incurred by
such Underwriter as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (ii) the rate of exchange
at which an Underwriter is able to purchase United States dollars with the
amount of the judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and the Selling Shareholders and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
17 Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18 Each of the Company and the Selling Shareholders acknowledges and
agrees that (i) the purchase and sale of the ADSs pursuant to this Agreement is
an arm's-length commercial transaction between the Company and such Selling
Shareholders, on the one hand, and the several Underwriters, on the other, (ii)
in connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company or any Selling Shareholder, (iii) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Company or such Selling
Shareholder with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company or any Selling Shareholder on other matters) or
any other obligation to the Company or such Selling Shareholder except the
obligations expressly set forth in this Agreement and (iv) each of the Company
and the Selling Shareholders has consulted its own legal and financial advisors
to the extent it deemed appropriate. Each of the Company and the Selling
Shareholders agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company or any Selling Shareholder, in
connection with such transaction or the process leading thereto.
19 This Agreement constitutes the entire agreement among the parties and
supersedes all prior agreements and understandings (whether written or oral)
among the Company, the Selling Shareholders and the Underwriters, or any of
them, with respect to the subject matter hereof.
20 This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
21 Each of the Company, the Selling Shareholders and the Underwriters
irrevocably waives, to the fullest extent permitted by law, any and all rights
to trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
22 This Agreement may be executed by any one or more of the parties hereto
in any number of counterparts, each of which shall be deemed to be an original,
but all such counterparts shall together constitute one and the same instrument.
23 Notwithstanding anything herein to the contrary, each of the Company
and the Selling Shareholders is authorized to disclose to any persons the U.S.
Federal and State income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax
analyses) provided to the Company and the Selling Shareholders relating to that
treatment and structure, without the Underwriters imposing any limitation of any
kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the
extent necessary to enable any person to comply with securities laws. For this
purpose, "tax structure" is limited to any facts that may be relevant to that
treatment.
44
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Shareholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
If the foregoing is in accordance with your understanding, please sign and
return to us [6] counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement among each of the Underwriters, the Company and
the Selling Shareholders. It is understood that your acceptance of this letter
on behalf of each of the Underwriters is pursuant to the authority set forth in
a form of Agreement among Underwriters, the form of which shall be submitted to
the Company and the Selling Shareholders for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
45
Very truly yours,
Yingli Green Energy Holding Company Limited
By: ___________________________________
Name:
Title:
The Selling Shareholders named
in Schedule II attached hereto
By: ___________________________________
Name:
Title:
As Attorney-in-Fact acting on behalf of
each of the Selling Shareholders named
in Schedule II attached hereto
Accepted as of the date hereof on behalf of each of the Underwriters
Credit Suisse Securities (USA) LLC
By: ________________________
Name:
Title:
Xxxxxxx Xxxxx (Asia) L.L.C.
By: ________________________
Name:
Title:
Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated
By: ________________________
Name:
Title:
46
SCHEDULE I
Number of
Optional ADSs
to be
Purchased if
Total Number of Maximum
Firm ADSs to be Option
Underwriter Purchased Exercised
---------------- -------------
Credit Suisse Securities (USA) LLC..................
Xxxxxxx Sachs (Asia) L.L.C.......................... [-] [-]
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated..
Xxxxx Xxxxxxx & Co.................................. [-] [-]
[-] ................................................ [-] [-]
[-] ................................................ [-] [-]
---------------- -------------
Total [-] [-]
================ =============
SCH I
SCHEDULE II
Number of
Optional ADSs to
Total Number of be Sold if
Firm ADSs to be Maximum Option
Sold Exercised
--------------- ----------------
The Selling Shareholders:
[Yingli Power Holding Company Ltd.].............. [-] [-]
[Baytree Investments (Mauritius) [-] [-]
Pte Ltd.].....................................
[Inspiration Partners]........................... [-] [-]
[TB Holdings Ltd.]............................... [-] [-]
[Fairdeal Development Ltd.]...................... [-] [-]
[New Horizon Keensolar Investment Co., Ltd.]..... [-] [-]
[China Sunshine Investment Co. Ltd.]............. [-] [-]
[PCM Direct Capital Fund]........................ [-] [-]
[The Trustees of Columbia University in the City [-] [-]
of New York]..................................
[Benchmark Europe II, L.P.]...................... [-] [-]
--------------- ----------------
Total [-] [-]
=============== ================
SCH II
SCHEDULE III
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure
Package: [-]
(b) Materials other than the Pricing Prospectus that comprise the Pricing
Disclosure Package: [-]
SCH III
ANNEX I
FORM CUSTODY AGREEMENT
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
ORDINARY SHARES
(par value US$0.01 per share)
CUSTODY AGREEMENT
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
NO. 3055 MIDDLE FUXING ROAD
BAODING 071051, PEOPLE'S REPUBLIC OF CHINA
Ladies and Gentlemen:
There are delivered to you as Custodian herewith certificates (the
"Certificates") representing the number of issued and outstanding ordinary
shares (the "Deposited Shares") of Yingli Green Energy Holding Company Limited,
an exempted company incorporated in the Cayman Islands (the "Company"), by each
of the undersigned selling shareholders (the "Sellers") set forth in Annex I
hereto. These Certificates are to be held by you as Custodian for the account of
the Sellers and are to be released by you solely in accordance with this Custody
Agreement.
The Sellers have also agreed to deliver to you herewith as Custodian (a)
if acting as a trustee or in any other fiduciary or representative capacity,
duly certified copies of each trust instrument, will, letters testamentary or
other instrument pursuant to which it is authorized to execute and perform this
Custody Agreement and the Underwriting Agreement (as defined below), (b) if a
partnership, a certificate of action taken by its general partner and extracts
of any applicable provisions of its partnership agreement authorizing it to
execute and perform this Custody Agreement and the Underwriting Agreement, (c)
if a corporation, duly certified resolutions of its Board of Directors [and
extracts of any applicable provisions of its certificate of incorporation and
bylaws] authorizing it to execute and perform this Custody Agreement and the
Underwriting Agreement and (d) if a limited liability company, extracts of any
applicable provisions of its limited liability company agreement (and applicable
provision of the organizational documents or partnership or limited liability
company agreement(s) of its manager(s) or managing member(s). The Sellers agree
to deliver to the Attorney-in-Fact (as defined below) or to you such additional
documentation as you, the Attorney-in-Fact, the Representative (as defined
below) or your or either of their respective counsel may reasonably request to
effectuate or confirm compliance with any of the provisions hereof or of the
Underwriting Agreement, all of the foregoing to be in form and substance
satisfactory in all respects to the Attorney-in-Fact and you.
Prior to or concurrently with the execution and delivery of this Custody
Agreement, each of the Sellers has executed an irrevocable power of attorney
(the "Power of Attorney"),
ANNEX I1
the form of which has been furnished to you, to Zongwei Li, or his duly
designated substitutes (the "Attorney-in-Fact"), authorizing such
Attorney-in-Fact to sell from the number of shares represented by the
Certificates that number of the Deposited Shares as specified with respect to
such Seller in Annex I hereto, and for that purpose to enter into and perform an
underwriting agreement (the "Underwriting Agreement"), substantially in the form
which has been furnished to you, among the Company, Selling Shareholders (as
defined in the Underwriting Agreement) including the Sellers, and Representative
(as defined in the Underwriting Agreement) of the several underwriters named
therein.
You are authorized and directed to hold the Deposited Shares in your
custody, and prior to each Time of Delivery specified in the Underwriting
Agreement at which a Seller is selling any Shares of which you shall have been
given prior notice, and upon the instructions of the Seller, you are to take all
necessary action to cause the transfer agent (the "Transfer Agent") and
registrar (the "Registrar") for the Ordinary Shares to prepare and countersign a
certificate or certificates (which may be aggregated with such certificates in
respect of the other Sellers) representing the Ordinary Shares registered in
such names and denominations as the Representative shall have instructed you. At
each Time of Delivery under the Underwriting Agreement, you are, upon the
instructions of the Attorney-in-Fact, (i) to take all necessary action to cause
the Transfer Agent and Registrar to cause the Ordinary Shares represented by the
American depositary shares ("ADSs") to be sold at such Time of Delivery pursuant
to the Underwriting Agreement to be transferred upon the books of the Company
into such names and in such denominations as the Representative shall have
instructed you and to exchange the certificates representing such Ordinary
Shares registered in such names and in such denominations as the Representative
shall have instructed you, (ii) to pay all transfer taxes (if any) necessary in
connection with the transfer of such Ordinary Shares as aforesaid, (iii) to
surrender the Certificates representing the Deposited Shares to XX Xxxxxx Xxxxx
Bank, N.A., as depositary (the "Depositary") under the deposit agreement, dated
on or about June 6, 2007, among the Company, the Depositary and holders from
time to time of the American depositary receipts ("ADRs") issued by the
Depositary thereunder, evidencing ADSs representing the Ordinary Shares, (iv) to
deliver such ADRs to the Transfer Agent or the Registrar, for the accounts of
the several Underwriters, against receipt from the Representative of payment for
such ADSs representing the Ordinary Shares as provided in the Underwriting
Agreement, (v) to give receipt for such payment and to deposit such payment to
your account as Custodian, (vi) to draw upon such account to pay such fees and
expenses as you may be instructed to pay by the Attorney-in-Fact and (vii) after
deducting such fees and expenses from the amount received by you as payment for
the ADSs representing the Ordinary Shares sold at such Time of Delivery to
distribute the balance in accordance with the instructions you shall have
received from the Attorney-in-Fact prior to such Time of Delivery. Promptly
after such Time of Delivery, you shall return to each Seller new certificates
(which you shall have obtained from the Transfer Agent and which shall be
accompanied by appropriate stock powers), representing the number of Ordinary
Shares, if any, which are in excess of the total number of the Ordinary Shares
represented by the ADSs sold and to be sold at any subsequent Time of Delivery
by such Seller to the Underwriters.
If the Underwriting Agreement shall not be executed and delivered on or
prior to March 31, 2008 after the date of this Custody Agreement then, upon the
written request of the Sellers to you, you are to return to the Sellers, or as
the Sellers may otherwise direct, the Certificates representing the Deposited
Shares then on deposit and received by you on behalf of the Sellers pursuant to
this Custody Agreement, and this Custody Agreement shall forthwith terminate.
ANNEX II 2
Under the terms of the Power of Attorney, the authority conferred thereby
is granted and conferred subject to and in consideration of the interests of the
Company, the Underwriters and the other Sellers and, except as set forth in the
previous paragraph, is an agency coupled with an interest and is irrevocable and
not subject to termination by the Sellers or by operation of law, whether by the
death or incapacity of the Sellers or any executor or trustee, the termination
of any estate or trust or by the dissolution or liquidation of any corporation,
partnership or limited liability company or by the occurrence of any other
event, [and the obligations of the Sellers under the Underwriting Agreement
similarly are not subject to termination]. Accordingly, the Deposited Shares
represented by the Certificates deposited with you pursuant to this Custody
Agreement and your authority under this Custody Agreement are subject to the
interests of the Company, the Underwriters and the other Sellers, and this
Custody Agreement and your authority hereunder shall be irrevocable and not
subject to termination by the Sellers or by operation of law, whether by the
death or incapacity of the Sellers or any executor or trustee, the termination
of any estate or trust or by the dissolution or liquidation of any corporation,
partnership or limited liability company or by the occurrence of any other
event. If any of the Sellers or any such executor or trustee should die or
become incapacitated, or if any such estate or trust should be terminated, or if
any such corporation, partnership or limited liability company should be
dissolved or liquidated, or if any other such event should occur before the
delivery of the Deposited Shares to be sold by the Sellers under the
Underwriting Agreement, the Certificates representing the Deposited Shares shall
be delivered by or on behalf of the Sellers in accordance with the terms and
conditions of the Underwriting Agreement and this Custody Agreement, and actions
taken by you hereunder or by the Attorney-in-Fact pursuant to the Power of
Attorney shall be as valid as if such death, incapacity, termination,
dissolution, liquidation or other event had not occurred, regardless of whether
or not you or the Attorney-in-Fact shall have received notice of such death,
incapacity, termination, dissolution, liquidation or other event.
Until payment of the purchase price for the Deposited Shares to be sold by
the Sellers to the Underwriters has been made as provided in the Underwriting
Agreement, the Sellers shall, except as otherwise specifically provided herein,
have all the rights of ownership of such Deposited Shares represented by the
Certificates deposited on behalf of the Sellers.
You shall be entitled to act and rely upon any statement, request, notice
or instruction respecting this Custody Agreement given to you by the
Attorney-in-Fact; provided, however, that any statement or notice to you with
respect to each Time of Delivery under the Underwriting Agreement, or with
respect to the noneffectiveness or termination of the Underwriting Agreement, or
advising that the Underwriting Agreement has not been executed and delivered,
shall have been confirmed in writing to you by the Representative.
It is understood that you assume no responsibility or liability to any
person other than to deal with the Certificates deposited with you and the
proceeds from the sale of the Deposited Shares represented thereby, all in
accordance with the provisions of this Custody Agreement, and the Sellers agree,
severally and not jointly, to indemnify you and hold you harmless with respect
to anything done by you in good faith in accordance with the foregoing
instructions.
Each of the Sellers have carefully reviewed the representations,
warranties, statements and agreements to be made by such Seller as Selling
Shareholders in the Underwriting Agreement, and each of the Sellers hereby
makes, at and as of the date of this
ANNEX II 3
Custody Agreement, with and to you each of the representations, warranties and
agreements to be made by the such Seller as Selling Shareholders as set forth in
the Underwriting Agreement which has been furnished to you, and such
representations, warranties and agreements are incorporated by reference herein
in their entirety.
The foregoing representations, warranties and agreements are made for the
benefit of, and may be relied upon by, you as the Custodian, the other Selling
shareholders, the Attorney-in-Fact, the Underwriters and their Representative
and counsel, the Company and its counsel and counsel for the Selling
Shareholders, and may be specifically relied upon by Xxxxxxxx & Xxxxxxxx LLP,
counsel to the Underwriters, Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the
Company and Yingli Power Holding Company Limited, and the respective counsels
for the Selling Shareholders for purposes of the opinions to be delivered by
them pursuant to the Underwriting Agreement.
[The Sellers agree to honor and perform all its obligations and covenants
under the Underwriting Agreement including those relating to indemnification of
the Underwriters under Section 9 of the Underwriting Agreement.]
No party may assign any of its rights or obligations under this Custody
Agreement without the written consent of all the other parties, which consent
may be withheld in the reasonable discretion of the party whose consent is
sought.
[Notwithstanding any other provisions contained herein, the
representations, warranties and agreements of the Sellers are several and not
joint.]
This Custody Agreement may be modified only by a written amendment signed
by all parties hereto, and no waiver of any provision hereof shall be effective
unless expressed in a writing signed by the party to be charged.
This Custody Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.
[Signature page follows]
ANNEX II 4
Please acknowledge your acceptance hereof as Custodian and receipt of the
Certificates deposited by executing and returning one of the enclosed copies
hereof to the undersigned.
Dated: ___________, 2007
Very truly yours,
________________________________
By: ____________________________
Name: Zongwei Li
Title: Attorney-in-Fact
on behalf of the Sellers
ANNEX I 5
ANNEX I
Deposited Shares:
_______________ Ordinary Shares by [Brytree Investment (Mauritius) Pte Ltd.]
_______________ Ordinary Shares by [Inspiration Partners Limited]
_______________ Ordinary Shares by [TB Holdings Ltd.]
_______________ Ordinary Shares by [Fairdeal Development Ltd.]
_______________ Ordinary Shares by [New Horizon Keensolar Investment Co., Ltd.]
_______________ Ordinary Shares by [China Sunshine Investment Co. Ltd.]
_______________ Ordinary Shares by [PCM Direct Capital Fund]
_______________ Ordinary Shares by [The Trustee of Columbia University in the
City of New York]
_______________ Ordinary Shares by [Benchmark Europo II, L.P.]
Deposited Shares deposited by [Brytree Investment (Mauritius) Pte Ltd.]:
Number of Shares
Serial Numbers of Represented by Each
Certificates: Certificate:
______________________ ____________________
______________________ ____________________
Deposited Shares deposited by [Inspiration Partners Limited]:
Number of Shares
Serial Numbers of Represented by Each
Certificates: Certificate:
______________________ ____________________
______________________ ____________________
Deposited Shares deposited by [TB Holdings Ltd.]:
ANNEX I 6
Number of Shares
Serial Numbers of Represented by Each
Certificates: Certificate:
______________________ ____________________
______________________ ____________________
Deposited Shares deposited by [Fairdeal Development Ltd.]:
Number of Shares
Serial Numbers of Represented by Each
Certificates: Certificate:
______________________ ____________________
______________________ ____________________
Deposited Shares deposited by [New Horizon Keensolar Investment Co., Ltd.]:
Number of Shares
Serial Numbers of Represented by Each
Certificates: Certificate:
______________________ ____________________
______________________ ____________________
Deposited Shares deposited by [China Sunshine Investment Co. Ltd.]:
Number of Shares
Serial Numbers of Represented by Each
Certificates: Certificate:
______________________ ____________________
______________________ ____________________
Deposited Shares deposited by [Daedalus Holdings, L.L.C.]:
Number of Shares
Serial Numbers of Represented by Each
Certificates: Certificate:
______________________ ____________________
______________________ ____________________
______________________ ____________________
______________________ ____________________
ANNEX II 7
Deposited Shares deposited by [PCM Direct Capital Fund]:
Number of Shares
Serial Numbers of Represented by Each
Certificates: Certificate:
______________________ ____________________
______________________ ____________________
Deposited Shares deposited by [The Trustee of Columbia University in New York]:
Number of Shares
Serial Numbers of Represented by Each
Certificates: Certificate:
______________________ ____________________
______________________ ____________________
Deposited Shares deposited by [Benchmark Europe II, L.P.]:
Number of Shares
Serial Numbers of Represented by Each
Certificates: Certificate:
______________________ ____________________
______________________ ____________________
ANNEX II 8
ACKNOWLEDGEMENT AND RECEIPT
Yingli Green Energy Holding Company Limited, as Custodian, acknowledges
acceptance of the duties of Custodian under the foregoing Custody Agreement and
receipt of the Certificates representing the shares referred to therein.
Dated: ___________, 2007
Yingli Green Energy Holding Company
Limited, as Custodian
By: ______________________
Name:
Title:
ANNEX II 9
ANNEX II
FORM OF POWER OF ATTORNEY
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
AMERICAN DEPOSITARY SHARES REPRESENTING ORDINARY SHARES
(par value US$0.01 per share)
IRREVOCABLE POWER OF ATTORNEY OF SELLING SHAREHOLDER
The undersigned is a shareholder of Yingli Green Energy Holding Company
Limited, an exempted company incorporated in the Cayman Islands (the "Company").
In connection with the public offering of the American Depositary Shares
("ADSs"), each representing one ordinary share, par value US$0.01 per share
("Ordinary Shares"), of the Company (the "Offering"), the undersigned
understands that the undersigned and certain other shareholders of the Company
(the undersigned and such other shareholders being hereinafter referred to as
the "Selling Shareholders") propose to sell Ordinary Shares of the Company, in
the form of ADSs, to the several underwriters (the "Underwriters") named in the
Underwriting Agreement (as defined below), represented by Credit Suisse
Securities (USA) LLC, Xxxxxxx Xxxxx (Asia) L.L.C. and Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated (the "Representatives"), and that the Underwriters
propose to offer such ADSs to the public. The undersigned also understands that,
in connection with the public offering pursuant to the Underwriting Agreement,
the Company has filed a Registration Statement (the "Registration Statement")
with the United States Securities and Exchange Commission (the "Commission") to
register under the Securities Act of 1933, as amended (the "1933 Act"), the
Ordinary Shares to be sold in the form of ADSs by the Selling Shareholders.
1. In connection with the foregoing, the undersigned hereby irrevocably
appoints Zongwei Li, as the attorney-in-fact ("Attorney") of the undersigned,
and agrees that the Attorney, may also act as the attorney-in-fact for any other
Selling Shareholder, with full power and authority in the name of, and for and
on behalf of, the undersigned:
(a) to do all things necessary to sell, assign, transfer and deliver
to the Underwriters up to the number (the "Maximum Number") of Ordinary
Shares set forth opposite the name of the undersigned at the end of this
Power of Attorney pursuant to the Underwriting Agreement (in either
certificated or book-entry form) in the form of ADSs;
(b) for the purpose of effecting such sale, to negotiate, execute,
deliver and perform the undersigned's obligations under (i) an
underwriting agreement (the "Underwriting Agreement"), among the Company,
the Selling Shareholders and the Representative, as representative of the
several Underwriters named therein (including the purchase price per ADS
to be paid by the Underwriters and the number (or method of determining
the number) of ADSs to be sold by the undersigned) as may be approved in
the sole discretion of the Attorney, such approval to be conclusively
evidenced by the execution and delivery of the Underwriting Agreement
by the Attorney; and (ii) a custody agreement (the "Custody Agreement"),
pursuant to which Ordinary Shares may be deposited with the Company, as
custodian (the "Custodian").
ANNEX II 1
(c) to execute and deliver any amendments, modifications or
supplements to the Underwriting Agreement and the Custody Agreement, to
amend, modify or supplement any of the terms thereof including, without
limitation, the terms of the offering, provided, however, that no such
amendment shall increase the number of the ADSs to be sold by the
undersigned to more than the Maximum Number in the aggregate;
(d) to give such orders or instructions to the Custodian or any
other person as the Attorney may determine, including, without limitation,
orders or instructions for the following: (i) the transfer on the books of
the Company of the Ordinary Shares underlying the ADSs, or on the records
of the transfer agent, if applicable, in order to effect the sale to the
Underwriters, (ii) the payment, out of the proceeds of such sale, of any
expenses that are to be borne by the undersigned in connection with the
offer, sale and delivery of the ADSs or any transfer taxes payable in
connection with the transfer of the ADSs to the Underwriters, (iii) the
delivery to or for the account of the Underwriters of the Ordinary Shares
underlying the ADSs, (iv) the transmission to or as directed by the
undersigned of the proceeds from the sale of the ADSs (after deducting all
amounts payable by the undersigned pursuant to this Power of Attorney and
the Underwriting Agreement), and (v) the return to the undersigned of new
certificates representing the excess, if any, of the number of the
Ordinary Shares over the number of the Ordinary Shares underlying the ADSs
sold to the Underwriters as specified in the Underwriting Agreement; to
incur or authorize the incurrence of any necessary or appropriate expense
in connection with the sale of the ADSs and to determine the amount of any
transfer taxes;
(e) to join the Company in withdrawing the Registration Statement if
the Company should desire to withdraw such registration;
(f) to retain legal counsel in connection with any and all matters
referred to herein (which counsel may, but need not be, counsel for the
Company);
(g) to appoint an agent for service of process in the United States;
(h) to agree upon the allocation and to arrange payment therefor of
the expenses of the Offering (including, without limitation, the fees and
expenses of the Custodian and counsel referred to above) among the
Company, the Underwriters and the Selling Shareholders, including the
undersigned;
(i) to authorize the appropriate book-entries, representing the
Ordinary Shares underlying the ADSs to be sold by the undersigned, if
applicable;
(j) to endorse with the registered seal of the undersigned on behalf
of the undersigned the certificate(s) representing the Ordinary Shares
underlying the ADSs, if applicable, to be sold by the undersigned, or a
transfer form or transfer forms attached to such certificate(s); and
(k) to make, execute, acknowledge and deliver all other contracts,
orders, receipts, notices, requests, instructions, certificates, letters
and other writings, including communications to the Commission (including
a request or requests for acceleration of the effective date of the
Registration Statement) and state securities law authorities, any
amendments to the Underwriting Agreement, the Custody
ANNEX II 2
Agreement or any agreement with the Company with regard to expenses, and
certificates and other documents required to be delivered by or on behalf
of the undersigned pursuant to the Underwriting Agreement or the Custody
Agreement, and specifically to execute on behalf of the undersigned stock
powers and transfer instructions relating to the Ordinary Shares
underlying the ADSs to be sold by the undersigned, and in general to do
all things and to take all action which the Attorney may consider
necessary or proper in connection with, or to carry out and comply with,
all terms and conditions of the Underwriting Agreement and the Custody
Agreement and the aforesaid sale of ADSs to the several Underwriters.
2. The undersigned hereby makes, at and as of the date of this Power of
Attorney, with and to the several Underwriters, each of the representations,
warranties, covenants and agreements of the undersigned as a Selling Shareholder
set forth in the Underwriting Agreement, and all such representations,
warranties, covenants and agreements are incorporated by reference herein in
their entirety (the representations, warranties and agreements being subject,
however, to the exception that orders or other authorizations that may be
required under the 1933 Act in connection with the purchase and distribution by
the Underwriters of the ADSs to be sold by the undersigned have not yet been
obtained).
The undersigned further:
(a) represents and warrants to, and agrees with, the several
Underwriters that this Power of Attorney has been duly executed and
delivered by or on behalf of the undersigned and constitutes valid and
binding agreements of the undersigned in accordance with their respective
terms; and
(b) (i) confirms to the several Underwriters the accuracy of the
information concerning the undersigned and the undersigned's shareholding
in the Company as set forth in the Registration Statement and Pricing
Prospectus (as defined in the Underwriting Agreement), dated ____, 2007,
under the caption "Principal and Selling Shareholders", a copy of which is
publicly available on XXXXX, (ii) also confirms to the several
Underwriters the accuracy of the information concerning the undersigned
contained or to be contained in any selling shareholder's questionnaire or
other written document furnished by the undersigned to the Company for
purposes of the Registration Statement or any prospectus (preliminary or
final) contained therein or filed pursuant to Rule 424 under the 1933 Act
or in any amendment or supplement thereto (including any documents
incorporated by reference therein), and (iii) agrees with the Company and
the several Underwriters immediately to notify the Company and promptly
(but in any event within two business days thereafter) to confirm the same
in writing if, during the period or at the date(s) referred to in
paragraph 4 hereof, there should be any change affecting the accuracy of
the above-mentioned information, or if any subsequent version of such
section of the prospectus delivered to the undersigned should be
inaccurate, and (iv) agrees with the Company and the several Underwriters
that for all purposes of the representations, warranties, covenants and
agreements incorporated by reference herein from the Underwriting
Agreement, delivery of this Power of Attorney and the statements contained
herein constitute (and in the absence of any such notification as is
referred to in subclause (iii) given prior to the date on which the
Underwriting Agreement is executed and delivered by the undersigned will
constitute on a continuing basis) written information furnished by the
undersigned to the Company for use in the Registration Statement and any
such prospectus or prospectus supplement, amendment or supplement.
ANNEX II 3
3. This Power of Attorney and all authority conferred hereby are granted
and conferred subject to the interests of the Underwriters and the other Selling
Shareholders; and, in consideration of those interests and for the purpose of
completing the transactions contemplated by the Underwriting Agreement and this
Power of Attorney, this Power of Attorney and all authority conferred hereby, to
the extent enforceable by law, shall be deemed an agency coupled with an
interest and be irrevocable and not subject to termination by the undersigned or
by operation of law, whether by the death or incapacity of the undersigned or
any executor or trustee or the termination of any estate or trust or by the
dissolution or liquidation of any corporation or partnership or limited
liability company or by the occurrence of any other event, and the obligations
of the Selling Shareholder under the Underwriting Agreement similarly are not to
be subject to termination. If any such individual or any such executor or
trustee should die or become incapacitated or if any such estate or trust should
be terminated or if any such corporation or partnership or limited liability
company should be dissolved or liquidated or if any other such event should
occur before the delivery of the ADSs to be sold by the undersigned under the
Underwriting Agreement, such ADSs shall be delivered by or on behalf of the
undersigned in accordance with the terms and conditions of the Underwriting
Agreement and of the Custody Agreement, and all other actions required to be
taken under the Underwriting Agreement or the Custody Agreement shall be taken,
and actions taken by the Attorney pursuant to this Power of Attorney and by the
Custodian under the Custody Agreement shall be as valid as if such death,
incapacity, termination, dissolution, liquidation or other event had not
occurred, regardless of whether or not the Custodian or the Attorney shall have
received notice of such death, incapacity, termination, dissolution, liquidation
or other event.
Notwithstanding the foregoing, if the Underwriting Agreement is not
executed and delivered on or prior to March 31, 2008, then from and after such
date the undersigned shall have the power to revoke all authority hereby
conferred by giving written notice to each of the Attorney that this Power of
Attorney has been terminated; subject, however, to all lawful action done or
performed by the Attorney pursuant to this Power of Attorney prior to the actual
receipt of such notice.
4. The undersigned will immediately notify the Attorney, the Company and
the Representative of the occurrence of any event which shall cause the
representations and warranties contained herein not to be true and correct
during the period of the public offering of the ADSs or at each Time of Delivery
(as defined in the Underwriting Agreement) for the ADSs pursuant to the
Underwriting Agreement.
5. The undersigned ratifies all that the Attorney shall do by virtue of
and in accordance with this Power of Attorney.
6. The undersigned agrees to hold the Attorney free and harmless from any
and all loss, damage, liability or expense incurred in connection herewith,
including reasonable attorneys' fees and costs, which such Attorney may sustain
as a result of any action taken in good faith hereunder.
7. In case any provision in this Power of Attorney shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
8. If the undersigned is (i) acting as trustee or in any fiduciary or
representative capacity, the undersigned has also delivered duly certified
copies of each trust agreement, will, letters testamentary or other instrument
pursuant to which the undersigned is authorized to act as a Selling Shareholder;
(ii) a corporation, the undersigned has also delivered or prior
ANNEX II 4
to the closing date of the Offering will deliver (A) duly certified resolutions
of its board of directors authorizing it to enter into this Power of Attorney,
the Underwriting Agreement and duly certified copies of such corporation's
memorandum of association, articles of association, by-laws, certificate of
incorporation or other organizational documents or (B) an officer's certificate
attesting to the authority of the signatories; (iii) a partnership, the
undersigned has also delivered extracts of any applicable provisions of its
partnership agreement (and applicable provisions of the organizational documents
or partnership agreement(s) of the general partner(s) of such partnership)
authorizing such partnership to enter into this Power of Attorney and the
Underwriting Agreement; (iv) a limited liability company, the undersigned has
also delivered extracts of any applicable provisions of its limited liability
company agreement (and applicable provisions of the organizational documents or
partnership or limited liability company agreement(s) of the manager(s) or
managing member(s) of such limited liability company) authorizing such limited
liability company to enter into this Power of Attorney and the Underwriting
Agreement; or (v) any other type of entity, the undersigned has also delivered
extracts and certified copies of similar documents authorizing such entity to
enter into this Power of Attorney and the Underwriting Agreement.
9. The undersigned agrees to deliver such additional documentation
(including additional copies of the documentation referred to in the preceding
paragraph) as you, the Attorney, the Company or the Representative or any of
their respective counsel may reasonably request to effectuate or confirm
compliance with any of the provisions hereof or of the Underwriting Agreement,
all of the foregoing to be in form and substance reasonably satisfactory in all
respects to the party requesting such documentation.
10. This Power of Attorney shall be governed by, and construed in
accordance with, the laws of the State of New York.
ANNEX II 5
Dated: , 2007
Maximum number of ADSs to be sold:
_________________ ADSs
Signature of Selling Shareholder?:
__________________________________
[Insert Full Name of Selling Shareholder]
By: ____________________________
Name:
Title:
NOTE: SELLING SHAREHOLDER'S SIGNATURE(S) ON THIS POWER OF ATTORNEY MUST BE
CERTIFIED BY ZONGWEI LI, AN OFFICER OF THE COMPANY.
Signature(s) certified by
By: ____________________________
Name:
_________________________
You should sign in exactly the same manner as the Ordinary Shares of the Company
owned by you are registered and execute a separate Power of Attorney for each
different form in which shares are registered.
ANNEX II 6
ANNEX III
FORM OF COMFORT LETTER
Pursuant to Section 8(i) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Pricing Prospectus, the Prospectus or the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the related
published rules and regulations thereunder; and, if applicable, they
have made a review in accordance with standards established by the
Public Company Accounting Oversight Board (United States) of the
unaudited consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or
condensed financial statements derived from audited financial
statements of the Company for the periods specified in such letter, as
indicated in their reports thereon, copies of which have been
separately furnished to the representative of the Underwriters (the
"Representative");
(iii)They have made a review in accordance with standards
established by the Public Company Accounting Oversight Board (United
States) of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Pricing Prospectus and the Prospectus as indicated in
their reports thereon copies of which have been separately furnished to
the Representative and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations, nothing came to their attention that cause them
to believe that the unaudited condensed consolidated financial
statements do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related published
rules and regulations;
(iv) They have compared the information in the Pricing Prospectus
and the Prospectus under selected captions with the disclosure
requirements of Regulation S-K and on the basis of limited procedures
specified in such letter nothing came to their attention as a result of
the foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Items 8 and 11of Form 20-F and Regulation
S-K;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Pricing Prospectus and the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for financial and
accounting matters and such other inquiries and procedures as may be
specified in such letter, nothing came to their attention that caused
them to believe that:
Exhibit F 1
(A) (i) the unaudited consolidated statements of
income, consolidated balance sheets and consolidated
statements of cash flows included in the Pricing Prospectus
and the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published rules and regulations, or (ii)
any material modifications should be made to the unaudited
condensed consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included in the Pricing Prospectus and the Prospectus for
them to be in conformity with generally accepted accounting
principles;
(B) any other unaudited income statement data and
balance sheet items included in the Pricing Prospectus and
the Prospectus do not agree with the corresponding items in
the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited
data and items were not determined on a basis substantially
consistent with the basis for the corresponding amounts in
the audited consolidated financial statements included in
the Pricing Prospectus and the Prospectus;
(C) the unaudited financial statements which were not
included in the Pricing Prospectus and the Prospectus but
from which were derived any unaudited condensed financial
statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in
the Pricing Prospectus and the Prospectus and referred to in
clause (B) were not determined on a basis substantially
consistent with the basis for the audited consolidated
financial statements included in the Pricing Prospectus and
the Prospectus;
(D) any unaudited pro forma consolidated condensed
financial statements included in the Pricing Prospectus and
the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or
the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those
statements;
(E) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in
each case which were outstanding on the date of the latest
financial statements included in the Pricing Prospectus and
the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any
decreases in consolidated net current assets or
shareholders' equity or other items specified by the
Representative, or any increases in any items specified by
the Representative, in each case as compared with amounts
shown in the latest balance sheet included in the Pricing
Prospectus and the Prospectus, except in each case for
changes, increases or decreases which the Pricing Prospectus
and the Prospectus disclose have occurred or may occur or
which are described in such letter; and
(F) for the period from the date of the latest
financial statements included in the Pricing Prospectus and
the Prospectus to the specified date referred to in clause
(E) there were any decreases in consolidated net revenues or
operating profit or the total or per share amounts of
consolidated net income or other items specified by the
Representative, or any increases in any items specified by
the Representative, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representative, except in each case for decreases or
increases which the Pricing Prospectus and the Prospectus
disclose have occurred or may occur or which are described
in such letter; and
Exhibit F 2
(vi) In addition to the examination referred to in their
report(s) included in the Pricing Prospectus and the Prospectus and the
limited procedures, inspection of minute books, inquiries and other
procedures referred to in paragraph (iii) above, they have carried out
certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to
certain amounts, percentages and financial information specified by the
Representative, which are derived from the general accounting records
of the Company and its subsidiaries, which appear in the Pricing
Prospectus and the Prospectus, or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the
Representative, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement.
Exhibit F 3
