Exhibit 4.6
THIS REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") is made as of June 27,
2006, by and among (i) Solarfun Power Holdings Co., Ltd., an exempted company
incorporated and validly existing with limited liability under the laws of the
Cayman Islands (the "COMPANY"), (ii) the existing shareholders of the Company as
set forth in EXHIBIT A hereto (the "EXISTING SHAREHOLDERS"), (iii) Citigroup
Venture Capital International Growth Partnership, L.P. and Citigroup Venture
Capital International Co-Investment, L.P., each a limited partnership organized
under the laws of the Cayman Islands (together, "CVCI"), (iv) Hony Capital II
L.P., ("HONY") and LC Fund III L.P. ("LC"), each a limited partnership organized
under the laws of the Cayman Islands (Hony and LC together, "LEGEND"), (v)
Xxxxxxx Xxxxxx Haram, a Lebanese citizen (Passport No.: 2145190), (vi) Rasheed
Yar Khan, an Indian citizen (Passport No.: Z1710012), (vii) Good Energies
Investments Limited, a company organized under the laws of Jersey, ("GOOD
ENERGIES", and together with CVCI, Legend, Xxxxxxx Xxxxxx Haram and Rasheed Yar
Khan collectively the "INVESTORS" and individually an "INVESTOR"), and (viii)
any other Persons who shall later become signatories to this Agreement
(collectively with the Existing Shareholders and the Investors, the
"SHAREHOLDERS").
RECITALS
A. The Company, Yonghua Solar Power Investment Holding Ltd., Xxxxxxx Xx
(CHINESE CHARACTERS) and the Investors have entered into a Series A Convertible
Preference Shares Purchase Agreement, dated as of June 6, 2006 (the "PURCHASE
AGREEMENT"), providing for the issuance and sale by the Company, and the
purchase by the Investors, of Series A Convertible Preference Shares (the
"PREFERRED SHARES") of the Company;
B. The Company, the Existing Shareholders and the Investors have entered
into a Shareholders Agreement, dated as of June 27, 2006 (the "SHAREHOLDERS
AGREEMENT"), regarding the management of the Company, the transfer of the Shares
of the Company and certain other rights and obligations of the parties thereof
as set forth therein;
C. In order to induce the Investors to purchase the Preferred Shares
pursuant to the Purchase Agreement, this Agreement is entered into to set forth
certain terms and conditions concerning the Investors' registration rights, as
more precisely described herein; and
D. It is a condition to the closing of the transactions contemplated under
the Purchase Agreement (the "CLOSING") that the Parties shall have executed this
Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual promises,
covenants and agreements of the Parties contained herein, the Parties agree as
follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms have
the following respective meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with such Person (including any Subsidiary) and "AFFILIATES" shall have
correlative meaning. For the purpose of this definition, the term "CONTROL"
(including with correlative meanings, the terms "CONTROLLING", "CONTROLLED
BY" and "UNDER COMMON CONTROL WITH"), as used with respect
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to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or by
contract or otherwise.
"AGREEMENT" has the meaning set forth in the preamble to this
Agreement.
"BLUE SKY" means the statutes of any state regulating the sale of
corporate securities within that state.
"BOARD" means the board of directors of the Company.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday or other
day on which banks are required or authorized to be closed in either the
PRC or the Hong Kong Special Administrative Region.
"COMMISSION" means the United States Securities and Exchange
Commission.
"COMPANY" has the meaning set forth in the preamble to this Agreement.
"DEMAND REGISTRATION" has the meaning set forth in Section 3.1 of this
Agreement.
"DAMAGES" has the meaning set forth in Section 8.1 of this Agreement.
"EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder, all as from time to time in effect.
"EXISTING SHAREHOLDERS" has the meaning set forth in the preamble to
this Agreement.
"FORM F-3" means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the Commission which permits inclusion or
incorporation of substantial information by reference to other documents
filed by the Company with the Commission.
"GOVERNMENTAL OR REGULATORY AUTHORITY" means any applicable State,
federal provincial, county and local court, tribunal, arbitrator,
authority, agency, commission, official or other instrumentality of any
jurisdiction in which a Person conducts business or operations.
"HOLDER" means the Investors and any other holder of Registrable
Securities (including any Permitted Transferees of any Investor) entitled
to the rights, and bound by the obligations under this Agreement, in
accordance with Section 6.1.
"INITIAL PUBLIC OFFERING" means the first Public Offering of Equity
Securities of a Person upon the consummation of which such securities are
listed on an internationally recognized securities exchange.
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"INITIATING HOLDER" has the meaning set forth in Section 3.1 of this
Agreement.
"INVESTOR" has the meaning set forth in the preamble to this
Agreement.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"ORDINARY SHARES" means the ordinary share of the Company.
"PARTIES" means collectively the Company, the Existing Shareholders,
the Investors and any Person who becomes a party to this Agreement. Each of
the Parties shall be referred to as a "PARTY".
"PERSON" means any natural person, corporation, limited liability
company, general partnership, limited partnership, proprietorship, other
business organization, trust, union, association or Governmental or
Regulatory Authority.
"PRC" or "CHINA" means the People's Republic of China, but solely for
the purposes of this Agreement excluding the Hong Kong Special
Administrative Region, Macau Special Administrative Region and the island
of Taiwan.
"PREFERRED SHARES" has the meaning set forth in the recitals to this
Agreement.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary Prospectus, any free-writing
Prospectus, and any such Prospectus as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities and by all other amendments and
supplements to such Prospectus, including post-effective amendments, and in
each case including all material incorporated by reference therein.
"PUBLIC OFFERING" means, in the case of an offering in the United
States, an underwritten public offering of Equity Securities of a Person
pursuant to an effective registration statement under the U.S. Securities
Act of 1933, as amended, and, in the case of an offering in any other
jurisdiction, a widely distributed underwritten offering of Equity
Securities of a Person in which both retail and institutional investors are
eligible to buy in accordance with the securities laws of such
jurisdiction.
"PURCHASE AGREEMENT" has the meaning set forth in the recitals to this
Agreement.
"QUALIFYING IPO" means an Initial Public Offering of Ordinary Shares
which satisfies the following requirements: (i) an underwritten Initial
Public Offering on the main board of one or more of the following
internationally recognized exchanges: the New York Stock Exchange, the
NASDAQ National Market, the Hong Kong Stock Exchange, the Frankfurt Stock
Exchange and the London Stock Exchange; (ii) the public float following
such an offering shall equal or exceed 20% of the proposed market
capitalization of the Company; (iii) Ordinary Shares of the Company shall
be widely distributed and meet all requirements of the relevant exchanges;
and (iv) the offering size of the Initial Public Offering is at least
US$150 million.
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"REGISTRATION" means a registration effected by preparing and filing a
Registration Statement and the declaration or ordering of the effectiveness
of that Registration Statement, and the terms "REGISTER" and "REGISTERED"
have meanings correlative with the foregoing.
"REGISTRABLE SECURITIES" means (i) Ordinary Shares issued or issuable
upon conversion of the Preferred Shares, (ii) Ordinary Shares or any other
securities of the Company issued as a dividend or other distribution with
respect to, or in exchange for, or in replacement of, the Preferred Shares,
and (iii) all other Ordinary Shares which may be from time to time acquired
by a Holder after the date hereof.
"REGISTRATION EXPENSES" means all expenses, other than underwriting
discounts and commissions, incurred by the Company in complying with
Sections 3 or 4 of this Agreement, including, without limitation, all
Registration, qualification, and filing fees, printing expenses, fees and
disbursements of counsels for the Company, reasonable fees and
disbursements of one special counsel for all Holders (if different from
counsels to the Company), Blue Sky fees and expenses, and the expense of
any special audits incident to or required by any Registration.
"REGISTRATION STATEMENT" means a registration statement prepared on
Forms X-0, X-0, X-0, F-1, F-2 or F-3 under the Securities Act, or on any
comparable form in connection with registration in a jurisdiction other
than the United States.
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated
thereunder, all as from time to time in effect.
"SELLING EXPENSES" means all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities pursuant to
this Agreement.
"SHAREHOLDERS" has the meaning set forth in the preamble to this
Agreement.
"SHAREHOLDERS AGREEMENT" the meaning set forth in the recitals to this
Agreement
"SHARES" means the Ordinary Shares and the Preferred Shares.
"UNDERWRITERS' REPRESENTATIVE" has the meaning set forth in Section
3.5(b) of this Agreement.
Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Shareholders Agreement.
2. REGISTRATION RIGHTS; APPLICABILITY OF RIGHTS. The Holders shall be
entitled to the following rights with respect to any potential public offering
of Ordinary Shares in the United States and shall be entitled to any analogous
or equivalent rights with respect to any other offering of shares in any other
jurisdiction pursuant to which the Company undertakes to publicly offer or list
such securities for trading on a recognized securities exchange.
3. DEMAND REGISTRATION.
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3.1. Request for Registration on Form Other Than Form F-3. On and
after the earlier of (i) the second anniversary of the date of this Agreement or
(ii) six (6) months after the Registration Statement with respect to the
Company's Initial Public Offering filed by the Company becomes effective, if the
Company receives from any of CVCI, Legend or Good Energies (such Holder or
Holders referred to as the "INITIATING HOLDER") a request in writing that the
Company effect any Registration with respect to the Registrable Securities held
by such Initiating Holder then outstanding on a form other than Form F-3 (or any
comparable form for a Registration for an offering in a jurisdiction other than
the United States), including without limitation for the purposes of effecting
an Initial Public Offering of securities of the Company, subject to the terms of
this Agreement, the Company shall (i) within ten (10) days of receipt of such
written request, give written notice of the proposed Registration to all other
Holders, and (ii) as soon as practicable, use its best efforts to effect
Registration of those Registrable Securities ("DEMAND REGISTRATION") which the
Company has been so requested to Register, together with all other Registrable
Securities which the Company has been requested to Register by holders thereof
by written request given to the Company within twenty (20) days after receiving
written notice from the Company, subject to limitations of this Section 3. The
Company shall not be obligated to take any action to effect any Registration
pursuant to this Section 3.1 (x) after the Company has effected three (3)
Registrations pursuant to this Section 3.1 and such Registrations have been
declared or ordered effective (and has not been subject to a "stop order" or
otherwise withdrawn); (y) after the Company has effected one Registration
pursuant to this Section 3.1 during any nine (9)-month period; or (z) if the
Initiating Holder proposes to dispose of shares of Registrable Securities that
may be immediately Registered on Form F-3 pursuant to a request made pursuant to
Section 3.2; provided that for purposes of Subsections (x) and (y) above a
Registration effected for the purposes of an Initial Public Offering of
securities of the Company pursuant to the Holders' demand registration rights
hereunder shall not be counted as one Registration pursuant to this Section 3.1.
The substantive provisions of Section 3.5 shall be applicable to the
Registration initiated under this Section 3.1.
3.2. Request for Registration on Form F-3. If any Holder requests in
writing that the Company file a Registration Statement on Form F-3 (or any
comparable form for a Registration in a jurisdiction other than the United
States) for a public offering of shares of Registrable Securities, the
reasonably anticipated aggregate price to the public of which would not be less
than Two Hundred Thousand U.S. Dollars (US$200,000), and the Company is a
registrant entitled to use Form F-3 (or any comparable form for a Registration
for an offering in a jurisdiction other than the United States) to register the
Registrable Securities, the Company shall (i) within ten (10) days of receipt of
such written request, give written notice of the proposed Registration to all
other Holders, and (ii) use its best efforts to cause those Registrable
Securities which the Company has been so requested to be Registered, together
with all other Registrable Securities which the Company has been requested to
Register by holders thereof by written request given to the Company within
twenty (20) days after written notice from the Company, for the offering on that
form and to cause those Registrable Securities to be qualified in jurisdictions
as the Holder or Holders may reasonably request, subject to limitations of this
Section 3. The substantive provisions of Section 3.5 shall be applicable to each
Registration initiated under this Section 3.2.
3.3. Right of Deferral. Notwithstanding the foregoing, the Company
shall not be obligated to file a Registration Statement pursuant to this Section
3:
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(a) within one hundred eighty (180) days after the effective date of
any Registration Statement pertaining to the securities of the
Company (other than a registration of securities in a Rule 145
transaction or with respect to an employee benefit plan); or
(b) if the Company furnishes to those Holders a certificate signed by
the chief executive officer or chairman of the board of the
Company stating that in the good faith judgment of the Board it
would be seriously detrimental to the Company or its shareholders
for a Registration Statement to be filed in the near future, then
the Company's obligation to use its best efforts to file a
Registration Statement shall be deferred for a period not to
exceed ninety (90) days from the receipt of the request to file
the registration by that Holder; provided, that the Company shall
not exercise the right to delay a request contained in this
Section 3.3(b) more than once in any twelve (12)-month period,
and provided further, that during such ninety (90)-day period,
the Company shall not file a Registration Statement with respect
to any public offering of securities of the Company.
3.4. Registration of Other Securities in Demand Registration. Any
Registration Statement filed pursuant to the request of the Holders under this
Section 3 may, subject to the provisions of Section 3.5, include securities of
the Company other than Registrable Securities. If the Company, officers or
directors of the Company holding securities other than the Registrable
Securities, or holders of securities other than the Registrable Securities,
request inclusion of other securities of the Company held thereby in the
Registration, the Initiating Holders, to the extent they deem advisable, may, in
their sole discretion, on behalf of all Holders, offer to any or all of the
Company, those officers or directors, and the holders of securities other than
the Registrable Securities, that their securities be included in the
underwriting and may condition that offer on the acceptance by those Persons of
the terms of this Section 3. If, however, the number of shares so included
exceeds the number of shares of Registrable Securities included by all Holders,
the Registration shall be treated as governed by Section 4 of this Agreement
rather than this Section 3, and it shall not count as a Registration for
purposes of this Section 3.
3.5. Underwriting in Demand Registration.
(a) Notice of Underwriting. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by
means of an underwriting, they shall so advise the Company as a
part of their request made pursuant to this Section 3, and the
Company shall include that information in the written notice
referred to in Section 3.1 or 3.2 of this Agreement, as
applicable. The right of any Holder to Registration pursuant to
this Section 3 shall be conditioned upon such Holder's agreement
to participate in the underwriting and the inclusion of that
Holder's Registrable Securities in the underwriting to the extent
provided herein.
(b) Selection of underwriter in Demand Registration. The Company
shall (together with all Holders proposing to distribute their
securities through the underwriting) enter into an underwriting
agreement in customary form with the underwriter or, if more than
one, the lead underwriter acting as the representative of the
underwriters (the "UNDERWRITERS' REPRESENTATIVE")
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selected for the underwriting by the Holders of a majority of the
Registrable Securities to be Registered in the proposed offering;
provided that any such underwriting agreement shall not impair
the indemnification rights of the Holders under Section 8.1; and
provided further that the representations and warranties given
by, and other agreement on the part of, the Company to and for
the benefit of the underwriter(s) shall also be made to and for
the benefit of the Holders, and provided further that the Company
shall ensure that no underwriter(s) requires any Holder to make
any representations or warranties to, or agreement with, any
underwriter(s) in a Registration other than customary
representations, warranties and agreements relating to such
Holder's title to the Registrable Securities and authority to
enter into the underwriting agreement and any other
representation required by applicable law.
(c) Marketing Limitation in Demand Registration. Notwithstanding any
other provision of this Section 3, in the event the Underwriters'
Representative advises the Company in writing that market factors
(including, without limitation, the aggregate number of Ordinary
Shares requested to be Registered, the general condition of the
market, and the status of the Persons proposing to sell
securities pursuant to the Registration) require a limitation of
the number of shares to be underwritten, then the Company shall
so advise all Holders of Registrable Securities that would
otherwise be underwritten pursuant hereto, and the number of
shares of Registrable Securities that may be included in the
Registration and underwriting shall be allocated among all
Holders of such Registrable Securities on a pro rata basis based
on the number of Registrable Securities held by all such selling
Holders (including the Initiating Holders) at the time of filing
the Registration Statement, provided, however, that the number of
shares of Registrable Securities to be included in any such
underwriting held by Holders shall not be reduced unless all
other securities of the Company are first entirely excluded from
the underwriting. For purposes of the preceding sentence
concerning apportionment, for any selling Holder of Registrable
Securities that is a venture capital fund, partnership or
corporation, the affiliated venture capital funds, partners,
retired partners and shareholders of such Holder, or the estates
and family members of any such partners and retired partners and
any trusts for the benefit of any of the foregoing persons shall
be deemed to be a single "selling Holder," and any pro rata
reduction with respect to such "selling Holder" shall be based
upon the aggregate amount of Registrable Securities owned by all
such related entities and individuals. In no event shall the
number of the Registrable Securities included in any such
underwriting be reduced to less than forty (40%) of the numbers
of the Registrable Securities requested to be included. Any
Registrable Securities or other securities excluded from the
underwriting by reason of this Section 3.5(c) shall be withdrawn
from the Registration. To facilitate the allocation of shares in
accordance with the foregoing, the Company or the underwriters
may round the number of shares allocated to any Holder to the
nearest 100 shares.
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(d) Right of Withdrawal in Demand Registration. If any Holder of
Registrable Securities disapproves of the terms of the
underwriting, such Holder may elect to withdraw therefrom by
written notice to the Company and the Underwriters'
Representative proposing to distribute their securities through
the underwriting, delivered at least fifteen (15) days prior to
the effective date of the Registration Statement. The securities
so withdrawn shall also be withdrawn from the Registration
Statement.
3.6. Other Securities Laws in Demand Registration. In the event of any
Registration pursuant to this Section 3, the Company shall exercise its best
efforts to Register and qualify the securities covered by the Registration
Statement under the securities laws of any other jurisdictions as shall be
reasonably appropriate for the distribution of the securities, except for any
particular jurisdiction (other than the United States or any jurisdiction on
which the Registrable Securities are being proposed to be listed) in which the
Company would be required solely as a result of such Registration to execute a
general consent to service of process in effecting such Registration,
qualification, or compliance, unless the Company is already subject to service
in such jurisdiction.
4. UNLIMITED PIGGYBACK REGISTRATION.
4.1. Notice of Piggyback Registration and Inclusion of Registrable
Securities. Subject to the terms of this Agreement, if the Company decides to
Register any of its Ordinary Shares (either for its own account, for the account
of a security holder or both), the Company shall (a) promptly give each Holder
written notice thereof (which shall include a list of the jurisdictions in which
the Company intends to attempt to qualify those securities under the applicable
Blue Sky or other securities laws), and (b) include in that Registration (and
any related qualification under Blue Sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request delivered to the Company by any Holder within twenty (20) days
after delivery of the written notice from the Company.
4.2. Underwriting in Piggyback Registration.
(a) Notice of Underwriting in Piggyback Registration. If the
Registration of which the Company gives notice is for a
Registered Public Offering, the Company shall so advise the
Holders as a part of the written notice given pursuant to Section
4.1. In this event, the right of any Holder to Registration shall
be conditioned upon such Holder's agreement to participate in the
underwriting and the inclusion of that Holder's Registrable
Securities in the underwriting, to the extent provided in this
Section 4. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company and
the other holders distributing their securities through the
underwriting) enter into an underwriting agreement in customary
form with the Underwriters' Representative for such offering;
provided that any such underwriting agreement shall not impair
the indemnification rights of the Holders under Section 8.1; and
provided further that the representations and warranties given
by, and other agreement on the part of, the Company to and for
the benefit of the underwriter(s) shall also be made to and for
the benefit of the Holders, and provided further that the Company
shall ensure that no
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underwriter(s) requires any Holder to make any representations or
warranties to, or agreement with, any underwriter(s) in a
Registration other than customary representations, warranties and
agreements relating to such Holder's title to the Registrable
Securities and authority to enter into the underwriting
agreement.
(b) Marketing Limitation in Piggyback Registration. In the event the
Underwriters' Representative advises the Holders seeking
Registration of Registrable Securities pursuant to this Section 4
in writing that market factors (including, without limitation,
the aggregate number of Ordinary Shares requested to be
Registered, the general condition of the market, and the status
of the Persons proposing to sell securities pursuant to the
Registration) require a limitation of the number of shares to be
underwritten, the Underwriters' Representative (subject to the
allocation priority set forth in Section 4.2(c)) may:
(i) in the case of a Registered Initial Public Offering, exclude
some or all Registrable Securities from the Registration and
underwriting; and
(ii) in the case of any Registered Public Offering subsequent to
the Initial Public Offering, limit the number of shares of
Registrable Securities to be included in the Registration
and underwriting, to not less than thirty (30%) of the
securities included in the Registration.
(c) Allocation of Shares in Piggyback Registration. In the event that
the Underwriters' Representative limits the number of shares to
be included in a Registration pursuant to Section 4.2(b), the
number of Registrable Securities to be included in the
Registration shall be allocated, FIRST, to the Company; SECOND,
to all Holders requesting inclusion of their respective
Registrable Securities in such Registration Statement on a pro
rata basis based on the number of Registrable Securities held by
all such selling Holders at the time of filing the Registration
Statement; and THIRD, to any other shareholders of the Company
requesting inclusion of their shares in the Registration,
provided, however, that the number of Registrable Securities to
be included in any such underwriting held by the Holders shall
not be reduced unless all shares that are not Registrable
Securities are first entirely excluded from the underwriting. For
purposes of the preceding sentence concerning apportionment, for
any selling Holder of Registrable Securities that is a venture
capital fund, partnership or corporation, the affiliated venture
capital funds, partners, retired partners and shareholders of
such Holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of
any of the foregoing persons shall be deemed to be a single
"selling Holder," and any pro rata reduction with respect to such
"selling Holder" shall be based upon the aggregate amount of
Registrable Securities owned by all such related entities and
individuals. For any Registration subsequent to an Initial Public
Offering, the number of shares that may be included in the
Registration and underwriting under this Section 4.2(c) shall not
be reduced to less than
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thirty (30%) of the aggregate securities included in the
Registration. No Registrable Securities or other securities
excluded from the underwriting by reason of this Section 4.2(c)
shall be included in the Registration Statement.
(d) Withdrawal in Piggyback Registration. If any Holder disapproves
of the terms of any underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the
Underwriters' Representative delivered at least fifteen (15) days
prior to the effective date of the Registration Statement. Any
Registrable Securities or other securities excluded or withdrawn
from the underwriting shall be withdrawn from the Registration.
(e) Right to Terminate Registration. The Company shall have the right
to terminate or withdraw any Registration initiated by it under
this Section 4 prior to the effectiveness of such Registration
whether or not any Holder has elected to include securities in
such registration. The Registration Expenses of such withdrawn
Registration shall be borne by the Company in accordance with
Section 5 hereof.
5. EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with each of the Registrations pursuant to Section 3.1 and unlimited
Registrations pursuant to Sections 3.2 and 4, shall be borne by the Company. All
Selling Expenses shall be borne by the holders of the securities Registered pro
rata on the basis of the number of securities so Registered.
6. ASSIGNABILITY OF REGISTRATION RIGHTS; TERMINATION OF REGISTRATION
RIGHTS; LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS
6.1. Assignability of Registration Rights. The rights to cause the
Company to Register securities granted under Section 3 and 4 of this Agreement
shall be assignable by an Investor to any Investor or any Permitted Transferee
of such Investor in accordance with the terms of the Shareholders Agreement. No
other party may assign, delegate or otherwise transfer any of its rights or
obligations under this Agreement without the written consent of the Company and
the Investors.
6.2. Termination of Registration Rights. The rights to cause the
Company to Register securities granted under Sections 3 and 4 of this Agreement
and to receive notices pursuant to Section 3 of this Agreement, shall terminate,
with respect to each Holder, on the later of: (a) the date seven (7) years after
the Closing, and (b) the date five (5) years after the closing of a Qualifying
IPO.
6.3. Subsequent Registration Rights. After the date of this Agreement,
the Company shall not, without the prior written consent of the Holders of a
majority of the Registrable Securities then outstanding, enter into any
agreement with any holder or prospective holder of any securities of the Company
that would grant such holder registration rights.
7. REGISTRATION PROCEDURES AND OBLIGATIONS. Whenever required under this
Agreement to effect the Registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
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(a) (i) prepare and file a Registration Statement with the Commission
which (x) shall be on Form F-1 or Form F-3 (or any successors to
such forms), if available, (y) shall be available for the sale or
exchange of the Registrable Securities in accordance with the
intended method or methods of distribution by the selling Holders
thereof, and (z) shall comply as to form with the requirements of
the applicable form and include all financial statements required
by the Commission to be filed therewith and all other information
reasonably requested by the Underwriters' Representative to be
included therein, (ii) use its best efforts to cause such
Registration Statement to become effective and remain effective
for up to 120 days or, if earlier, until the Holder or Holders
have completed the distribution thereto, (iii) use best efforts
not to take any action that would cause a Registration Statement
to contain a material misstatement or omission or to be not
effective and usable for resale of the Registrable Securities
during the period that such Registration Statement is required to
be effective and usable, and (iv) cause each Registration
Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of such Registration
Statement, amendment or supplement (x) to comply in all material
respects with any requirements of the Securities Act and (y) not
to contain any 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;
(b) subject to Section 7(a), prepare and file with the Commission
such amendments and post-effective amendments to each such
Registration Statement, as may be necessary to keep such
Registration Statement effective for the applicable period; cause
each such Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act; and comply with
the provisions of the Securities Act with respect to the
disposition of all securities covered by each Registration
Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders
thereof, as set forth in such registration statement;
(c) furnish to each Holder for which the Registrable Securities are
being registered and to each underwriter of an underwritten
offering of the Registrable Securities, if any, without charge,
as many copies of each Prospectus, including, without limitation,
each preliminary Prospectus, each free-writing Prospectus and any
amendment or supplement thereto and such other documents as such
Holder or underwriter may reasonably request in order to
facilitate the public sale or other disposition of the
Registrable Securities; the Company hereby consents to the use of
the Prospectus, including, without limitation, each preliminary
Prospectus and each free-writing Prospectus, by each Holder for
which the Registrable Securities are being registered and each
underwriter of an underwritten offering of the Registrable
Securities, if any, in connection with the offering and sale of
the Registrable Securities covered by the Prospectus or the
preliminary Prospectus or the free-writing Prospectus, as
applicable;
11
(d) (i) use its best efforts to register or qualify the Registrable
Securities, no later than the time the applicable Registration
Statement is declared effective by the Commission, under all
applicable state securities or Blue Sky laws of such
jurisdictions as each underwriter, if any, or any Holder having
Registrable Securities covered by a Registration Statement, shall
reasonably request; (ii) use its best efforts to keep each such
registration or qualification effective during the period such
Registration Statement is required to be kept effective; and
(iii) do any and all other acts and things which may be necessary
or advisable to enable each such underwriter, if any, and any
such Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities the registration of
which such Holder is requesting; provided, however, that the
Company shall not be obligated to qualify to do business or to a
file a general consent to service of process in any such state or
jurisdiction, unless the Company is already subject to service in
such jurisdiction and except as may be required by the Securities
Act or the listing rules of the relevant stock exchange on which
the Registrable Securities are being proposed to be listed;
(e) notify each Holder for which the Registrable Securities are being
registered promptly, and, if requested by such Holder, confirm
such advice in writing, (i) when a Registration Statement has
become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of the issuance by the
Commission or any state securities authority of any stop order,
injunction or other order or requirement suspending the
effectiveness of a Registration Statement or the initiation of
any proceedings for that purpose, (iii) if, between the effective
date of a Registration Statement and the closing of any sale of
securities covered thereby pursuant to any agreement to which the
Company is a party, the representations and warranties of the
Company contained in such agreement cease to be true and correct
in all material respects or if the Company receives any
notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, and (iv) of the
happening of any event during the period a Registration Statement
is effective as a result of which such Registration Statement or
the related Prospectus contains any untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(f) furnish counsels for each such underwriter, if any, and for the
Holders for which the Registrable Securities are being
registered, copies of any request by the Commission or any state
securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional
information;
(g) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the
earliest possible time;
12
(h) upon request, furnish to the Underwriters' Representative of a
Public Offering of the Registrable Securities, if any, without
charge, at least one signed copy of each Registration Statement
and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by
reference and all exhibits; and furnish to each Holder for which
the Registrable Securities are being registered, without charge,
at least one conformed copy of each Registration Statement and
any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto, unless
requested);
(i) cooperate with the selling Holders of the Registrable Securities
and the Underwriters' Representative of a Public Offering of the
Registrable Securities, if any, to facilitate the timely
preparation and delivery of certificates representing the
Registrable Securities to be sold and not bearing any restrictive
legends; and enable such Registrable Securities to be in such
denominations (consistent with the provisions of the governing
documents thereof) and registered in such names as the selling
Holders or the Underwriters' Representative of a Public Offering
of the Registrable Securities, if any, may reasonably request at
least seven (7) days prior to any sale of the Registrable
Securities;
(j) upon the occurrence of any event contemplated by paragraph
(e)(iv) of this Section, use best efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the
related Prospectus, or any document incorporated therein by
reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any 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;
(k) enter into customary agreements (including, in the case of a
Public Offering, underwriting agreements in customary form, and
including provisions with respect to indemnification and
contribution in customary form and consistent with the provisions
relating to indemnification and contribution contained herein)
and take all other customary and appropriate actions in order to
expedite or facilitate the disposition of such Registrable
Securities and in connection therewith:
(i) make such representations and warranties to the selling
Holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in similar
underwritten offerings;
(ii) obtain opinions of counsels to the Company and updates
thereof (which counsels and opinions (in form, scope and
substance) shall be reasonably satisfactory to the
Underwriters' Representative, if any, and the majority
Holders of the Registrable Securities being sold) addressed
to each selling Holder and the underwriters, if any,
13
covering the matters customarily covered in opinions
requested in similar underwritten offerings and such other
matters as may be reasonably requested by such Holders and
underwriters;
(iii) obtain "comfort" letters and updates thereof from the
Company's independent certified public accountants
addressed to the selling Holders of the Registrable
Securities, if permissible, and the underwriters, if any,
which letters shall be customary in form and shall cover
matters of the type customarily covered in "comfort"
letters to underwriters in connection with firm commitment
underwritten offerings;
(iv) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with
the selling Holders providing for, among other things, the
appointment of such representative as agent for the selling
Holders for the purpose of soliciting purchases of the
Registrable Securities, which agreement shall be customary
in form, substance and scope and shall contain customary
representations, warranties and covenants; and
(v) deliver such customary documents and certificates as may be
reasonably requested by the majority Holders of the
Registrable Securities being sold or by the Underwriters'
Representative, if any.
The above shall be done (i) at the effectiveness of such
Registration Statement (and each post-effective amendment
thereto) in connection with any registration, and (ii) at each
closing under any underwriting or similar agreement as and to the
extent required thereunder;
(l) make available for inspection by representatives of the selling
Holders of the Registrable Securities and any underwriters
participating in any disposition pursuant to a Registration
Statement and any counsel or accountant retained by such Holders
or underwriters, all relevant financial and other records,
pertinent corporate documents and properties of the Company and
cause the respective officers, directors and employees of the
Company to supply all information reasonably requested by any
such representative, underwriter, counsel or accountant in
connection with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a
Prospectus, provide copies of such document to the selling
Holders of the Registrable Securities and to counsel to such
Holders and to the underwriter or underwriters of a Public
Offering of the Registrable Securities, if any; fairly consider
such reasonable changes in any such document prior to or after
the filing thereof as the counsel to the Holders or the
underwriter or the underwriters may request and not file any such
document in a form to which the majority Holders of the
Registrable Securities being registered or any underwriter shall
reasonably object; and
14
make such of the representatives of the Company as shall be
reasonably requested by the Holders for which the Registrable
Securities are being registered or any underwriter available for
discussion of such document; (ii) within a reasonable time prior
to the filing of any document which is to be incorporated by
reference into a Registration Statement or a Prospectus, provide
copies of such document to counsel for the selling Holders;
fairly consider such reasonable changes in such document prior to
or after the filing thereof as counsel for such Holders or such
underwriter shall request; and make such of the representatives
of the Company as shall be reasonably requested by such counsel
available for discussion of such document;
(n) cause all Registrable Securities to be qualified for inclusion in
or listed on The New York Stock Exchange or any securities
exchange or the NASDAQ National Market on which securities of the
same class issued by the Company are then so qualified or listed
if so requested by the majority Holders of the Registrable
Securities covered by a Registration Statement, or if so
requested by the underwriter or underwriters of a Public Offering
of the Registrable Securities, if any;
(o) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, including making
available to its security holders an earnings statement covering
at least 12 months which shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder;
(p) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by
any underwriter in an underwritten offering; and
(q) use all reasonable efforts to facilitate the distribution and
sale of any Registrable Securities to be offered pursuant to this
Agreement, including without limitation by making road show
presentations, holding meetings with potential investors and
taking such other actions as shall be requested by the majority
Holders of the Registrable Securities covered by a Registration
Statement or the lead managing underwriter of an underwritten
offering.
Each selling Holder of the Registrable Securities as to which any
Registration is being effected pursuant to this Agreement agrees, as a
condition to the Registration obligations with respect to such Holder
provided herein, to furnish to the Company such information regarding
such Holder required to be included in the Registration Statement, the
ownership of the Registrable Securities by such Holder and the
proposed distribution by such Holder of such Registrable Securities as
the Company may from time to time reasonably request in writing.
8. INDEMNIFICATION.
8.1. Company's Indemnification of Holders. To the extent permitted by
law, the Company shall indemnify each Holder, each of its officers, directors,
partners, agents, legal
15
counsel for the Holders, and each Person controlling that Holder within the
meaning of the Securities Act, with respect to which Registration,
qualification, or compliance of the Registrable Securities has been effected
pursuant to this Agreement, and each underwriter, if any, and each of its
officers, directors, partners, agents and each Person who controls any
underwriter within the meaning of the Securities Act against all claims, losses,
damages, liabilities, or actions in respect thereof (collectively, "DAMAGES") to
the extent the Damages arise out of or are based upon any untrue statement (or
alleged untrue statement) of a material fact contained in any Registration
Statement, Prospectus or other document incident to any Registration,
qualification, or compliance, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary in order to
make the statements made therein (in the case of a Prospectus, in light of the
circumstances under which they were made) not misleading, or any violation by
the Company (or alleged violation) of any rule or regulation promulgated under
the Securities Act, Exchange Act, applicable Blue Sky laws, or other applicable
laws in the jurisdiction other than the United States in which the Registration
occurred, applicable to the Company and relating to action or inaction required
of the Company in connection with any Registration, qualification, or
compliance; and the Company shall reimburse each such Holder, each underwriter,
each of their respective officers, directors, partners, agents, legal counsels,
and each Person who controls any Holder or underwriter, for any legal and any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability, or action; provided, however, that the
indemnity contained in this Section 8.1 shall not apply to amounts paid in
settlement of any Damages if settlement is effected without the consent of the
Company (which consent shall not unreasonably be withheld); and provided,
further, that the Company will not be liable in any case to the extent that any
Damages arise out of or are based upon any untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in that Registration
Statement, prospectus, or other document in reliance upon and in conformity with
written information furnished to the Company by a Holder or underwriter, if any,
and stated to be specifically for use in connection with the offering of
securities of the Company.
8.2. Holder's Indemnification of Company. To the extent permitted by
law, each Holder shall, if the Registrable Securities held by that Holder are
included in the securities as to which Registration, qualification or,
compliance is being effected pursuant to this Agreement, indemnify the Company,
each of its directors and officers, each legal counsel and independent
accountant of the Company, each underwriter, if any, of the Company's securities
covered by the Registration Statement, each Person who controls the Company or
underwriter within the meaning of the Securities Act, and each other Holder
selling securities under such Registration, each of its such other Holder's,
officers, directors, and constituent partners, and each Person controlling the
other Holder, against all Damages arising out of or based upon any untrue
statement (or alleged untrue statement) of a material fact contained in such
Registration Statement, prospectus, or other document incident to any
Registration, qualification or compliance, or any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary in
order to make the statements made therein (in the case of a Prospectus, in light
of the circumstances under which they were made) not misleading, or any
violation (or alleged violation) by the Holder of any rule or regulation
promulgated under the Securities Act, Exchange Act, applicable Blue Sky laws, or
other applicable laws in the jurisdiction other than the United States in which
the Registration occurred, applicable to the Holder and relating to action or
inaction required of the Holder in connection with any Registration,
qualification, or compliance, and shall reimburse the Company, those Holders,
directors, officers, partners, Persons, law and accounting firms, underwriters
or control Persons for any legal and any other expenses reasonably incurred in
connection with investigating or defending any claim, loss, damage, liability,
or action, in each case to the extent,
16
but only to the extent, that the untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in that Registration Statement,
prospectus, or other document in reliance upon and in conformity with written
information furnished to the Company by that Holder and stated to be
specifically for use in connection with the offering of securities of the
Company, provided, however, that the indemnity contained in this Section 8.2
shall not apply to amounts paid in settlement of any Damages if settlement is
effected without the consent of that Holder (which consent shall not be
unreasonably withheld) and provided, further, that each Holder's liability under
this Section 7.2 shall not exceed the Holder's proceeds (less underwriting
discounts and selling commissions) from the offering of securities made in
connection with that Registration.
8.3. Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any
action, the indemnified party shall, if a claim is to be made against an
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof and generally summarize the action. The
indemnifying party shall have the right to participate in and to assume the
defense of that claim; provided, however, that the indemnifying party shall be
entitled to select counsel for the defense of the claim with the approval of any
parties entitled to indemnification, which approval shall not be unreasonably
withheld; provided further, however, that if either party reasonably determines
that there may be a conflict between the position of the Company and the
Shareholders in conducting the defense of the action, suit, or proceeding by
reason of recognized claims for indemnity under this Section 8, then counsel for
that party shall be entitled to conduct the defense to the extent reasonably
determined by counsel to be necessary to protect the interests of that party.
The failure to notify an indemnifying party promptly of the commencement of any
action, if prejudicial to the ability of the indemnifying party to defend the
action, shall relieve the indemnifying party, to the extent so prejudiced, of
any liability to the indemnified party under this Section 8, but the omission to
notify the indemnifying party shall not relieve the party of any liability that
the party may have to any indemnified party otherwise than under this Section 8.
8.4. Contribution. If the indemnification provided for in this Section
8 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any Damages, then the indemnifying party, in
lieu of indemnifying the indemnified party hereunder, shall contribute to the
amount paid or payable by the indemnified party as a result of those Damages in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and of the indemnified party, on the other
hand, in connection with the statements or omissions that resulted in Damages as
well as any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying or the indemnified party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
the statement or omission.
8.5. Conflicts. Notwithstanding the foregoing, to the extent that
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
8.6. Survival of Obligations. The obligations of the Company and
Holders under this Section 8 shall survive the completion of any offering of the
Registrable Securities in a Registration Statement under this Agreement or
otherwise.
17
9. LOCK-UP. Each Holder hereby agrees that, if requested by the Company and
the Underwriters' Representative (if any) in connection with the Company's
initial public offering, the Holder shall not sell, make any short sale of,
loan, grant any option for the purchase of, or otherwise transfer or dispose of
any Registrable Securities or other securities of the Company without the prior
written consent of the Company and the Underwriters' Representative for such
period of time (not to exceed 180 days) following the effective date of a
Registration Statement of the Company filed under the Securities Act (or other
applicable law in a jurisdiction other than the United States in which a
Registration occurred) as may be requested by the Underwriters' Representative;
provided, that, each Holder will agree to such lock-up period only if all
executive officers and directors of the Company and all other holders of at
least one percent (1%) of the Company's voting securities enter into similar
agreements. For avoidance of doubt, no Existing Shareholder may sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise transfer
or dispose of any securities of the Company from the date of closing of a
Qualifying IPO until twelve (12) months thereafter, unless otherwise approved by
CVCI, Legend and Good Energies in writing. Notwithstanding anything herein to
the contrary, the foregoing provision contained in this Section 9 shall not
restrict Citigroup Inc. and its Affiliates from engaging in any brokerage,
investment advisory, financial advisory, anti-raid advisory, merger advisory,
financing, asset management, trading, market making, arbitrage and other similar
activities conducted in the ordinary course of its or its Affiliates' business,
so long as such activities are not conducted in respect of the Registrable
Securities (or by virtue of a short position undertaken to benefit from the
cover of the Registrable Securities, or the issuance of a derivative security
designed to benefit from the value of the Registrable Securities) of the Company
directly owned by Citigroup Inc.
10. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to
Holders the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the Commission that may at any time permit a Holder
to sell securities of the Company to the public without Registration or pursuant
to a Registration on Form F-3, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144, at all times after 90 days
after the effective date of the first Registration Statement
filed by the Company for the offering of its securities to the
public;
(b) take all reasonable action, including the voluntary Registration
of its Ordinary Shares under Section 7 of the Exchange Act,
necessary to enable the Holders to utilize Form F-3 for the sale
of their Registrable Securities, such action to be taken as soon
as practicable after the end of the fiscal year in which the
first Registration Statement filed by the Company for the
offering of its securities to the general public is declared
effective;
(c) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and
the Exchange Act;
(d) furnish to any Holder, so long as the Holder owns any Registrable
Securities, promptly upon request (i) a written statement by the
Company that it has complied with the reporting requirements of
Rule 144 (at any
18
time after 90 days after the effective date of the first
Registration Statement filed by the Company), the Securities Act,
and the Exchange Act (at any time after it has become subject to
those reporting requirements), or that it qualifies as a
registrant whose securities may be resold pursuant to Form F-3
(at any time after it so qualifies); (ii) a copy of the most
recent annual or quarterly report of the Company and any other
reports and documents filed by the Company; and (iii) any other
information as may be reasonably requested in availing any Holder
of any rule or regulation of the Commission which permits the
selling of any securities without Registration or pursuant to
that form; and
(e) for a Registration in a jurisdiction other than the United
States, take actions similar to those set forth in paragraphs
(a), (b), (c) and (d) of this Section 10 with a view to making,
available to Holders the benefits of the corresponding provision
or provisions of that jurisdiction's securities laws.
11. COMPLIANCE WITH XXXXXXXX-XXXXX ACT. The Company covenants that it will
fully comply with all the requirements of the United States Xxxxxxxx-Xxxxx Act
of 2002, as amended, and any rules and regulations thereunder adopted from time
to time by the Commission and any other applicable laws, in each case to the
extent applicable to the Company.
12. MISCELLANEOUS.
12.1. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
12.2. Dispute Resolution Forum.
(a) If there is any dispute, claim or controversy arising from,
related to or in connection with this Agreement, or the breach, termination or
invalidity hereof, the Parties shall first attempt to resolve such dispute,
controversy or claim through friendly consultations. If the dispute, claim or
controversy is not resolved through friendly consultations within thirty days
after a Party has delivered a written notice to another Party requesting the
commencement of consultation, then the dispute, claim or controversy shall be
finally settled by arbitration conducted by the International Chamber of
Commerce (the "ICC") in accordance with the Arbitration Rules of the ICC then in
effect and as may be amended by the rest of this Section 12.2 (the "RULES").
There shall be three arbitrators of whom the Investors, on the other hand, and
the Company and the Existing Shareholders, on the other hand, shall each
nominate one (1) in accordance with the Rules. The two named arbitrators shall
nominate the third arbitrator within thirty (30) days of the nomination of the
second arbitrator. If any arbitrator has not been named within the time limits
specified in the Rules, such appointment shall be made by the International
Court of Arbitration of the ICC upon the written request of either Party within
thirty days of such request. The arbitration shall be held and the award shall
be rendered in Singapore. The arbitration proceeding shall be conducted and the
award shall be rendered in the English language. Each Party shall cooperate in
good faith to expedite (to the maximum extent practicable) the conduct of any
arbitral proceedings commenced under this Agreement.
(b) The award shall be final and binding upon the Parties, and shall
be the exclusive remedy between the Parties regarding any claims, counterclaims,
issues, or accountings
19
presented to the arbitral tribunal. To the fullest extent allowed by applicable
Law, each Party hereby waives any right to appeal such award. Judgment upon the
award may be entered in any court having jurisdiction thereof, and for purposes
of enforcing any arbitral award made hereunder, each Party irrevocably submits
to the jurisdiction of any court sitting where any of such Party's material
assets may be found. Any arbitration proceedings, decisions or awards rendered
hereunder shall be governed by the United Nations Convention on the Recognition
and Enforcement of Foreign Arbitral Awards of June 10, 1958, as amended, and the
Parties agree that any award rendered hereunder shall not be deemed a domestic
arbitration under the laws of any jurisdiction.
(c) By agreeing to arbitration, the Parties do not intend to deprive
any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral
attachment or other order in aid of arbitration proceedings and the enforcement
of any award.
(d) The costs of the arbitration, as defined in the Rules, shall be
allocated between the Parties by the arbitrators and shall be set forth in the
arbitral award. Any amounts subject to the dispute, controversy or claim that
are ultimately awarded to a Party under this Section 12.2 shall bear interest at
the rate of six percent per annum from the earlier of (i) the date of the
request for arbitration and (ii) the date such amount would have become due and
owing but for the dispute, controversy or claim until the date the arbitral
award is paid in full.
12.3. Specific Performance. Each Party hereby acknowledges that the
remedies at law of the other Parties for a breach or threatened breach of this
Agreement would be inadequate and, in recognition of this fact, any Party,
without posting any bond, and in addition to all other remedies that may be
available, shall be entitled in accordance with Section 12.2(c) to seek
equitable relief in the form of specific performance, injunctions or any other
equitable remedy.
12.4. Counterparts and Facsimile Execution. This Agreement may be
executed in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. Any
counterpart or other signature delivered by facsimile shall be deemed for all
purposes as being a good and valid execution and delivery of this Agreement by
that party.
12.5. Headings. The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
12.6. Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given only if
delivered personally or by facsimile transmission or mailed (first class postage
prepaid) to the parties at the following addresses or facsimile numbers:
If to the Investors, to:
Citigroup Venture Capital International Growth Partnership, L.P.
c/o Citigroup Venture Capital International Asia Pacific Limited
00/X, Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
20
Facsimile No.: (000) 0000-0000
Attn: Xxxxxxx Xxxxx and Xxxxxxx Xxx
Citigroup Venture Capital International Co-Investment, L.P.
c/o Citigroup Venture Capital International Asia Pacific Limited
00/X, Xxx Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxx, Xxxxxxx
Xxxx Xxxx
Facsimile No.: (000) 0000-0000
Attn: Xxxxxxx Xxxxx and Xxxxxxx Xxx
Hony Capital II L.P.
7F, Tower A, Raycom Info Tech Park
Xx. 0 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx, XXX 000000
Facsimile No.: x00 (00) 0000-0000
Attn: Xxxx Xxxxxx
LC Fund III L.P.
x/x Xxxxxx Xxxxxxx Xxxxxxx,
00xx Xxxxx, Xxxxx X,
Raycom Info. Tech Center,
No. 2 Ke Xxx Xxxx Xxx Xx,
Xxxxx Xxxx Cun Xxxxxxx Xxxxxxxx,
Xxxxxxx 000000, Xxxxx.
Facsimile No.: x00 (00) 0000-0000
Attn: Xx. Xxx Xxxxx
with a courtesy copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
3007 Xxxxxxxx Xxxxx
00 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Facsimile No.: x000-0000-0000
Attn: Xxxxxx Sun, Esq.
If to Good Energies, to:
Good Energies Investments Limited
0 Xxxx Xxxxxx, Xx. Xxxxxx
Xxxxxx, Xxxxxxx Xxxxxxx
XX0 0XX
Facsimile No.: 44 1534 754 510
21
Attn: Xxxx Xxxxxxx
with a courtesy copy to:
Linklaters
Xxxx 00
Xxxxx 00 China World Tower 1
No. 1 Xxxx Xxx Men Wai Avenue
Beijing, PRC
Facsimile No.: x00 (00) 0000-0000
Attn: Xxxx Xxxx and Xxxxxx Xxxxx
If to the Existing Shareholders, to:
Yonghua Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Attn: Xxxxxxx Xx (CHINESE CHARACTERS)
WHF Investment Co., Ltd
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Attn: Xxxxxx Xxxx (CHINESE CHARACTERS)
Yongqiang Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
Attn: Rongqiang Cui (CHINESE CHARACTERS)
Yongliang Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
Attn: Yongliang Gu (CHINESE CHARACTERS)
Yongfa Solar Power Investment Holding Ltd.
22
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Attn: Xxxxxxx Xx (CHINESE CHARACTERS)
Yongxing Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Attn: Xxxxxxx Xxxx (CHINESE CHARACTERS)
Yongguan Solar Power Investment Holding Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (000) 0000-0000
Attn: Xxxxxx Xxxx (CHINESE CHARACTERS)
Forever-Brightness Investments Limited
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
Attn: Min Cao (CHINESE CHARACTERS)
If to the Company, to:
Solarfun Power Holdings Co., Ltd.
Xx. 000 Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
XXX
Xxxxxxxxx No.: x00 (00) 0000-0000
Attn: Xx. Xxx Min (CHINESE CHARACTERS)
with a courtesy copy to:
Shearman & Sterling LLP
2318 China World Tower 1
Xx. 0 Xxxx Xxx Xxx Xxx Xxxxxx
Xxxxxxx, XXX 000000
Facsimile No.: x00 (00) 0000-0000
23
Attn: Xxxx Seem, Esq.
All such notices, requests and other communications will (a) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (b) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon on the date of transmission with
receipt of a transmittal confirmation, and (c) if delivered by mail in the
manner described above to the address as provided in this Section, be deemed
given on the fourth (4th) Business Day following the date of deposit with such
courier service, or such earlier delivery date as may be confirmed in writing to
the sender by such courier service (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice, request or other communication is to be delivered pursuant
to this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other party hereto.
12.7. Amendment of Agreement. Any provision of this Agreement may be
amended only by a written instrument signed by the Company and by persons
holding not less than 75% of the Registrable Securities (calculated on an
as-converted basis).
12.8. Severability. In case any provision of this Agreement shall be
invalid, illegal, or unenforceable, the validity, legality, and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
12.9. Entire Agreement; Successors and Assigns. This Agreement
constitutes the entire contract among the Company and the Shareholders relative
to the subject matter of this Agreement. Any previous agreement, whether written
or oral, between the Company and any Shareholder concerning the subject matter
of this agreement or registration rights is superseded by this Agreement.
Subject to the exceptions specifically set forth in this Agreement, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective executors, administrators, heirs, successor, and permitted
assigns of the parties.
[Signatures follow on the next page.]
24
IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement as of the day and year first above written.
EXISTING SHAREHOLDERS:
YONGHUA SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Xxxxxxx Xx
-------------------------------------
Name: Xxxxxxx Xx (CHINESE CHARACTERS)
Title: Director
WHF INVESTMENT CO., LTD.
By: /s/: YONGQIANG SOLAR POWER INVESTMENT
HOLDING LTD.
-------------------------------------
Name: Xxxxxx Xxxx (CHINESE CHARACTERS)
Title: Director
YONGQIANG SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Rongqiang Cui
-------------------------------------
Name: Rongqiang Cui (CHINESE CHARACTERS)
Title: Director
YONGLIANG SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Yongliang Gu
-------------------------------------
Name: Yongliang Gu (CHINESE CHARACTERS)
Title: Director
Signature Pages to the Registration Rights Agreement
YONGFA SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Xxxxxxx Xx
-------------------------------------
Name: Xxxxxxx Xx (CHINESE CHARACTERS)
Title: Director
YONGXING SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx (CHINESE CHARACTERS)
Title: Director
YONGGUAN SOLAR POWER INVESTMENT
HOLDING LTD.
By: /s/: Xxxxxx Xxxx
-------------------------------------
Name: Xxxxxx Xxxx (CHINESE CHARACTERS)
Title: Director
FOREVER-BRIGHTNESS INVESTMENTS
LIMITED
By: /s/: Min Cao
-------------------------------------
Name: Min Cao (CHINESE CHARACTERS)
Title: Director
Signature Pages to the Registration Rights Agreement
INVESTORS:
CITIGROUP VENTURE CAPITAL
INTERNATIONAL GROWTH PARTNERSHIP,
L.P.
By: CITIGROUP VENTURE CAPITAL
INTERNATIONAL PARTNERSHIP G.P.
LIMITED, as General Partner
By: /s/: Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
CITIGROUP VENTURE CAPITAL
INTERNATIONAL CO-INVESTMENT, L.P.
By: CITIGROUP VENTURE CAPITAL
INTERNATIONAL PARTNERSHIP G.P.
LIMITED, as General Partner
By: /s/: Xxxxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director
HONY CAPITAL II, L.P.
By: /s/ Xxxxxx Xxxx
-------------------------------------
Name:
Title:
LC FUND III, L.P.
By: /s/ Xxxxx Xxx
-------------------------------------
Name:
Title:
Signature Pages to the Registration Rights Agreement
XXXXXXX XXXXXX HARAM
By: /s/ Xxxxxxx Xxxxxx Haram
-------------------------------------
RASHEED YAR KHAN
By: /s/ Rasheed Yar Khan
-------------------------------------
GOOD ENERGIES INVESTMENTS LIMITED
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name:
Title: Director
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Name:
Title: Director
THE COMPANY:
SOLARFUN POWER HOLDINGS CO., LTD.
By: /s/ Xxxxxxx Xx
-------------------------------------
Name:
Title:
Signature Pages to the Registration Rights Agreement
EXECUTION COPY
SOLARFUN POWER HOLDINGS CO., LTD.
REGISTRATION RIGHTS AGREEMENT
JUNE 27, 2006
