SUPPLEMENTAL AGREEMENT TO THE DEPOSIT AGREEMENT
Exhibit A(3)
SUPPLEMENTAL AGREEMENT TO THE DEPOSIT AGREEMENT
This Supplemental Agreement, dated as of February 3, 2009 (as amended, supplemented or
otherwise modified from time to time, this “Agreement”) between Yingli Green Energy Holding
Company Limited and its successors (the “Company”), JPMORGAN CHASE BANK, N.A., as
depositary under the Deposit Agreement (as defined below) and hereunder (the “Depositary”)
and all holders (the “Holders”) from time to time of American Depositary Receipts (the
“ADRs”) issued under the Deposit Agreement evidencing American Depositary Shares (the
“ADSs”) representing deposited Shares (as defined in the Deposit Agreement).
W I T N E S S E T H
WHEREAS, the Company and RBC Dexia Corporate Services Hong Kong Limited, as Rights Agent, have
on October 17, 2007, entered into a Rights Agreement, which is amended by an Amendment No. 1 to the
Rights Agreement dated as of June 2, 2008 between the Company and the Rights Agent (as amended, the
“Rights Agreement”), and upon the terms and subject to the conditions set forth therein the
Company agrees to distribute one ordinary share purchase right (a “Right”) for each
ordinary share of the Company, par value US$0.01 per share (the “Ordinary Share”), outstanding as
of the close of business on October 26, 2007 (the “Record Date”) and to issue one Right
(subject to adjustment as provided in the Rights Agreement) with respect to each Ordinary Share
that shall become outstanding between the Record Date and the earlier of the Distribution Date and
the Expiration Date (as such terms are defined in the Rights Agreement), each Right representing
the right to purchase one Ordinary Share.
WHEREAS, the Company, the Depositary and the Holders are parties to the Deposit Agreement
dated as of June 13, 2007 among the Company, the Depositary and all Holders from time to time of
ADRs issued thereunder (the “Deposit Agreement”) which provides in paragraph (10) of the form of
ADR thereof, among other things, for the distribution of rights to the Holders at the request of
the Company and upon compliance with applicable laws; and
WHEREAS, the parties hereto agree to enter into this Agreement in connection with the Rights
Agreement.
NOW THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby agree as follows:
Section 1. Certain Definitions. Capitalized terms used herein but not otherwise defined shall
have the meanings ascribed to them in the Deposit Agreement.
Section 2. Distribution of Summary of Rights. To the extent required by the terms of the
Deposit Agreement, the Depositary will send a copy of a Summary of Rights, in substantially the form of
Exhibit A hereto (the “Summary of Rights”) to each Holder of the ADRs as of the close of
business on the Record Date, at the address of such Holder shown in the ADR Register by
first-class, postage-prepaid mail.
Section 3. ADR Provision. Certificated ADRs issued after the date of this Agreement but
prior to the earlier of the Distribution Date and the Expiration Date shall have impressed on, printed on,
written on or otherwise affixed to them the following provisions:
“The Ordinary Share(s) underlying this ADR are entitled to certain
rights as set forth in a Rights Agreement between Yingli Green Energy
Holding Company Limited and RBC Dexia Corporate Services Hong Kong
Limited, as Rights Agent, dated as of October 17, 2007, as the same
may be amended, supplemented or otherwise modified from time to time
(the “Rights Agreement”), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at
the principal executive offices of Yingli Green Energy Holding
Company Limited. Yingli Green Energy Holding Company Limited will
mail to the Holder of this ADR a copy of the Rights Agreement without
charge after receipt of a written request therefor. Under certain
circumstances, as set forth in the Rights Agreement, Rights (as
defined in the Rights Agreement”) owned by or transferred to any
Person who is or becomes an Acquiring Person (as defined in the
Rights Agreement) and certain transferees thereof will become null
and void and will no longer be transferable.”
Section 4. Rights Agency Agreement. The Company and the Depositary hereby agree that at such
time as the Depositary receives a Rights Certificate from the Company, the Company and the
Depositary shall use their reasonable efforts to enter into a Rights Agency Agreement in form and
substance acceptable to each of the Company and the Depositary. The Depositary will distribute
copies of any written communication from the Company (or English translations or summaries
thereof), including written communications relating to the procedures, if any, with respect to the
exercise of the rights by holders of the ADRs, which are both received by the Custodian or its
nominee as a holder of Deposited Securities and made generally available to the holders of
Deposited Securities.
It is anticipated that pursuant to any such Rights Agency Agreement, the Company would, upon
the Distribution Date (as defined in the Rights Agreement), appoint the Depositary as ADS Rights
Agent to perform the duties set forth therein, which Rights Agency Agreement shall, among other
things, include a requirement that, subject to receipt of the legal opinions of U.S. and Cayman
Islands counsel to the Company in form and substance acceptable to the Depositary and such other
requirements set forth in such Rights Agency Agreement, the Depositary shall distribute to Holders
entitled thereto such validly issued instruments representing such rights along with (a) such
information as is contained in such Rights Certificate and any other written notice provided by the
Company, (b) a notice stating that each such Holder will, subject to any applicable provisions of
U.S. and Cayman Islands laws, rules and regulations, be entitled to instruct the Depositary as to
the exercise of the Rights, if any, pertaining to the Deposited Securities represented by the ADSs
evidenced by such Holder’s ADRs and (c) the manner in which such warrants or other instruments
representing such rights may be exercised.
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Section 5. The Deposit Agreement. This Agreement is supplemental to the Deposit Agreement, the
provisions of which are incorporated herein by reference and deemed to be a part hereof. Unless otherwise
specifically provided in this Agreement, all provisions of the Deposit Agreement shall remain effective.
To the extent required under the Securities Act of 1933, as amended, the parties hereto agree to file a
Form F-6 to register additional ADSs.
Section 6. Miscellaneous. This Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and shall not give any legal or
equitable right, remedy or claim whatsoever to any other person. The Holders and owners of ADRs
from time to time shall be parties to this Agreement and shall be bound by all of the provisions
hereof. If any such provision is invalid, illegal or unenforceable in any respect, the remaining
provisions shall in no way be affected thereby. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall constitute one
instrument.
Section 7. Governing Law. This Agreement shall be interpreted and all rights hereunder and
provisions hereof shall be governed by the laws of the State of New York.
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IN WITNESS WHEREOF, YINGLI GREEN ENERGY HOLDING COMPANY LIMITED and JPMORGAN CHASE BANK, N.A.
have duly executed this Agreement as of the day and year first above set forth and all Holders of
ADRs shall become parties hereto upon acceptance by them of ADRs issued in accordance with the
terms hereof.
| YINGLI GREEN ENERGY HOLDING COMPANY LIMITED |
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| By: | ||||
| Name: | Xxxxxxxxx Xxxx | |||
| Title: | Chief Executive Officer | |||
| JPMORGAN CHASE BANK, N.A.
|
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| By: | ||||
| Name: | ||||
| Title: | ||||
SIGNATURE PAGE TO THE SUPPLEMENTAL AGREEMENT
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EXHIBIT A
The following Summary Has Been Prepared by Yingli Green Energy Holding Company Limited. JPMorgan
Chase Bank, N.A. has not reviewed or verified the contents hereof or of the Rights Agreement
described herein and accepts no responsibility for either.
UNDER CERTAIN CIRCUMSTANCES, AS SET FORTH IN THE RIGHTS AGREEMENT, RIGHTS OWNED BY OR
TRANSFERRED TO ANY PERSON WHO IS OR BECOMES AN ACQUIRING PERSON (AS DEFINED IN THE RIGHTS
AGREEMENT) AND CERTAIN TRANSFEREES THEREOF WILL BECOME NULL AND VOID AND WILL NO LONGER BE
TRANSFERABLE.
SUMMARY OF RIGHTS
February 3, 2009
On October 17, 2007, the Board of Directors of Yingli Green Energy Holding Company Limited, a
Cayman Islands company (the “Company”), authorized the distribution of one ordinary share
purchase right (a “Right”) for each outstanding Ordinary Share, par value US$0.01 per
share, of the Company (the “Ordinary Share”). The distribution will be made on October 17,
2007, to the shareholders of record as of the close of business on October 26, 2007 (the
“Record Date”). Each Right entitles the registered holder to purchase from the Company one
Ordinary Share at a price of US$95.00 per Ordinary Share (as the same may be adjusted, the
“Purchase Price”). The description and terms of the Rights are set forth in a Rights
Agreement, dated as of October 17, 2007 (as the same may be amended from time to time, the
“Rights Agreement”), between the Company and RBC Dexia Corporate Services Hong Kong
Limited, as Rights Agent (the “Rights Agent”).
Until the close of business on the earlier of (i) the tenth day after the first date of a
public announcement that a person (other than an Exempted Entity (as defined below)) or group of
affiliated or associated persons (an “Acquiring Person”) has acquired beneficial ownership
of 15% or more of the Ordinary Shares then outstanding or (ii) the tenth business day (or such
later date as may be determined by action of the Board of Directors prior to such time as any
person or group of affiliated persons becomes an Acquiring Person) after the date of commencement
of, or the first public announcement of an intention to commence, a tender offer or exchange offer
the consummation of which would result in the beneficial ownership by a person (other than an
Exempted Entity) or group of 15% or more of the Ordinary Shares then outstanding (the earlier of
such dates being herein referred to as the “Distribution Date”), the Rights will be
evidenced by the Ordinary Shares represented by certificates for Ordinary Shares outstanding as of
the Record Date, together with a copy of the summary of rights disseminated in connection with the
original distribution of Rights.
“Exempted Entity” shall mean (1) the Company, (2) any Subsidiary (as defined in the
Rights Agreement) of the Company (in the case of subclauses (1) and (2) including, without
limitation, in its fiduciary capacity), (3) any entity or trustee holding Ordinary Shares for or
pursuant to the terms of any employee benefit plan of the Company or of any Subsidiary of the
Company or for the purpose of funding any such plan or funding other employee benefits for
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employees of the Company or of any Subsidiary of the Company, (4) any Yingli Power Entity (as
defined in the Rights Agreement); provided, however, that any Yingli Power Entity
shall only be deemed to be an Exempted Entity for so long as it beneficially owns no more than
46.42% of the outstanding Ordinary Shares; and provided, further, that any Yingli
Power Entity shall cease to be an Exempted Entity as of the date that it ceases to beneficially own
15% or more of Ordinary Shares then outstanding and (5) any Tianwei Baobian Entity (as defined in
the Rights Agreement) with respect to the Ordinary Shares Tianwei Baobian may obtain pursuant to
its Subscription Right or from a Yingli Power Entity; provided, however, that any
Tianwei Baobian Entity shall only be deemed to be an Exempted Entity for so long as it beneficially
owns no more than 26.78% of the outstanding Ordinary Shares (excluding any Ordinary Shares as to
which it acquires Beneficial Ownership from a Yingli Power Entity); and provided,
further, that any Tianwei Baobian Entity shall cease to be an Exempted Entity as of the
date that it ceases to beneficially own 15% or more of Ordinary Shares then outstanding.
The Rights Agreement provides that, until the Distribution Date (or earlier redemption or
expiration of the Rights), the Rights will be transferable only in connection with the transfer of
Ordinary Shares. Until the Distribution Date (or earlier redemption or expiration of the Rights),
the surrender for transfer of any certificates for Ordinary Shares outstanding as of the Record
Date, even without a notation incorporating the Rights Agreement by reference or a copy of this
Summary of Rights, will also constitute the transfer of the Rights associated with the Ordinary
Shares represented by such certificate. As soon as practicable following the Distribution Date,
separate certificates evidencing the Rights (“Right Certificates”) will be mailed to
holders of record of the Ordinary Shares as of the close of business on the Distribution Date and
such separate Right Certificates alone will evidence the Rights.
The Rights are not exercisable until the Distribution Date. The Rights will expire on October
17, 2017 (the “Final Expiration Date”), unless the Final Expiration Date is extended or
unless the Rights are earlier redeemed or exchanged by the Company, in each case as described
below. The Rights Agreement is effective as of October 17, 2007. After the Distribution Date, the
holders of the American depositary receipts will be informed as to the procedures, if any, with
respect to the exercise of the rights by such holders.
In the event that any person or group of affiliated or associated persons becomes an Acquiring
Person, each holder of a Right, other than Rights beneficially owned by the Acquiring Person (which
will thereupon become void), will thereafter have the right to receive upon exercise of a Right and
payment of the Purchase Price, that number of Ordinary Shares having a market value of two times
the Purchase Price.
In the event that, after a person or group has become an Acquiring Person, the Company is
acquired in a amalgamation, merger, scheme of arrangement or other business combination transaction
or 50% or more of its consolidated assets or earning power are sold, proper provision will be made
so that each holder of a Right (other than Rights beneficially owned by an Acquiring Person which
will have become void) will thereafter have the right to receive, upon the exercise thereof at the
then-current exercise price of the Right, that number of ordinary shares of the person with whom
the Company has engaged in the foregoing transaction (or its
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parent), which number of shares at the time of such transaction will have a market value of two times
the Purchase Price.
At any time after any person or group becomes an Acquiring Person and prior to the acquisition
by such person or group of 50% or more of the outstanding Ordinary Shares or the occurrence of an
event described in the prior paragraph, the Board of Directors of the Company may exchange the
Rights (other than Rights owned by such person or group which will have become void), in whole or
in part, at an exchange ratio of one Ordinary Share per Right (subject to adjustment). Rights
holders may be liable to meet a call for payment of the par value of Ordinary Shares if so
determined by the Board of Directors.
The Purchase Price payable, and the number of Ordinary Shares or other securities or property
issuable, upon exercise of the Rights are subject to adjustment from time to time to prevent
dilution (i) in the event of a share dividend on, or a subdivision, consolidation or
reclassification of, the Ordinary Shares, (ii) upon the grant to holders of the Ordinary Shares of
certain rights or warrants to subscribe for or purchase Ordinary Shares at a price, or securities
convertible into Ordinary Shares with a conversion price, less than the then-current market price
of the Ordinary Shares or (iii) upon the distribution to holders of the Ordinary Shares of
evidences of indebtedness or assets (excluding regular quarterly cash dividends or dividends
payable in Ordinary Shares) or of subscription rights or warrants (other than those referred to
above).
With certain exceptions, no adjustment in the Purchase Price will be required until cumulative
adjustments require an adjustment of at least 1% in such Purchase Price. No fractional Ordinary
Shares will be issued and, in lieu thereof, an adjustment in cash will be made based on the market
price of the Ordinary Shares on the last trading day prior to the date of exercise.
At any time prior to the time an Acquiring Person becomes such, the Board of Directors of the
Company may redeem the Rights in whole, but not in part, at a price of US$0.01 per Right (the
“Redemption Price”). The redemption of the Rights may be made effective at such time, on
such basis and with such conditions as the Board of Directors in its sole discretion may establish.
Immediately upon any redemption of the Rights, the right to exercise the Rights will terminate and
the only right of the holders of Rights will be to receive the Redemption Price.
For so long as the Rights are then redeemable, the Company may, except with respect to the
Redemption Price, amend the Rights Agreement in any manner. After the Rights are no longer
redeemable, the Company may, except with respect to the Redemption Price, amend the Rights
Agreement in any manner that does not adversely affect the interests of holders of the Rights.
Until a Right is exercised or exchanged, the holder thereof, as such, will have no rights as a
shareholder of the Company, including, without limitation, the right to vote or to receive dividends.
A copy of the Rights Agreement has been filed with the Securities and Exchange Commission as
an Exhibit to a Registration Statement on Form 8-A dated October 17, 2007. A copy of the Rights
Agreement is available free of charge from the Company. This summary
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description of the Rights does not purport to be complete and is qualified in its entirety by reference to
the Rights Agreement, as the same may be amended from time to time, which is hereby incorporated herein by
reference.
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