Exhibit 1.1
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
____________ AMERICAN DEPOSITARY SHARES
REPRESENTING
____________ ORDINARY SHARES
(PAR VALUE US$0.01 PER SHARE)
----------
UNDERWRITING AGREEMENT
___________, 2007
Xxxxxxx Xxxxx (Asia) L.L.C.,
00xx Xxxxx, Xxxxxx Xxxx Xxxxxx,
0 Xxxxx'x Xxxx Xxxxxxx,
Xxxx Xxxx
UBS AG,
52/F, 2 International Finance Centre,
0 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxx Xxxx
As Representatives of the several Underwriters
named in Schedule I attached hereto.
Ladies and Gentlemen:
Yingli Green Energy Holding Company Limited, an exempted company
incorporated in the Cayman Islands (the "Company"), proposes, subject to the
terms and conditions stated herein, to issue and sell to the Underwriters named
in Schedule I attached hereto (the "Underwriters") an aggregate of _________
American Depositary Shares representing _________ ordinary shares, par value
US$0.01 per share (the "Ordinary Shares"), of the Company and, at the election
of the Underwriters, up to _________ additional American Depositary Shares
representing _________ Ordinary Shares , and the shareholders of the Company
named in Schedule II attached hereto (the "Selling Shareholders"), propose,
subject to the terms and conditions stated herein, to sell to the Underwriters
an aggregate of _________ American Depositary Shares representing _________
Ordinary Shares and, at the election of the Underwriters, up to _________
additional American Depositary Shares representing _________ Ordinary Shares.
The aggregate of _________ American Depositary Shares representing _________
Ordinary Shares to be sold by the Company and the Selling Shareholders is herein
called the "Firm ADSs", and the aggregate of _________ American Depositary
Shares representing _________ additional Ordinary Shares to be sold by the
Company and the Selling Shareholders is herein called the "Optional ADSs". The
Firm ADSs and the Optional ADSs that the Underwriters elect to purchase pursuant
to Section 2 hereof are herein collectively called the "ADSs". The Ordinary
Shares represented by the Firm ADSs are hereinafter called the "Firm Shares" and
the Ordinary Shares represented by the Optional ADSs are hereinafter called the
"Optional Shares", and the Firm Shares and the Optional Shares are herein
collectively called the "Shares".
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The ADSs are to be issued pursuant to a deposit agreement (the "Deposit
Agreement"), to be dated as of _________, 2007, among the Company, XX Xxxxxx
Xxxxx Bank N.A., as depositary (the "Depositary"), and holders from time to time
of the American Depositary Receipts (the "ADRs") issued by the Depositary and
evidencing the ADSs. Each ADS will initially represent the right to receive
_________ Ordinary Shares deposited pursuant to the Deposit Agreement.
The Company hereby acknowledges that, as part of the proposed offering of
the ADSs, it has requested Xxxxx Xxxxxxx & Co. to administer a directed share
program (the "Directed Share Program") under which up to _________ Firm ADSs, or
3% of the ADSs to be purchased by the Underwriters (the "Reserved ADSs"), shall
be reserved for purchase at the initial public offering price by certain of the
Company's officers, directors, employees and consultants and other persons
having a relationship with the Company as designated by the Company (the
"Directed Share Participants") as part of the distribution of the ADSs by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. (the "NASD") and all other applicable laws, rules and regulations.
The number of ADSs available for sale to the general public will be reduced to
the extent that Directed Share Participants purchase Reserved ADSs. The
Underwriters may offer any Reserved ADSs not purchased by Directed Share
Participants to the general public on the same basis as the other ADSs being
issued and sold hereunder. The Company has supplied Xxxxx Xxxxxxx & Co. with the
names, addresses and telephone numbers of the individuals or other entities
which the Company has designated to be the Directed Share Participants. It is
understood that any number of those so designated to participate in the Directed
Share Program may decline to do so.
It is understood by all the parties that the Underwriters are offering ADSs
in the United States and internationally outside of the People's Republic of
China (the "PRC"), which, for purposes of this Agreement only, excludes Taiwan,
The Hong Kong Special Administrative Region and The Macau Special Administrative
Region.
1. (a) The Company and Yingli Power Holding Company Limited (hereinafter
referred to as the "Controlling Selling Shareholder"), jointly and severally,
represents and warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form F-1 (File No. 333-142851)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the U.S. Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of
the other Underwriters, have been declared effective by the Commission
in such form; other than a registration statement, if any, increasing
the size of the offering (a "Rule 462(b) Registration Statement"),
filed pursuant to Rule 462(b) under the U.S. Securities Act of 1933,
as amended (the "Act"), which became effective or will become
effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission;
and no stop order suspending the effectiveness of the Initial
Registration Statement, any post-effective amendment thereto or the
Rule 462(b) Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or, to the Company's
knowledge after due inquiry, threatened by the Commission (any
preliminary prospectus included in the Initial Registration Statement
or filed with the Commission pursuant to Rule 424(a) of the rules and
regulations of the Commission under the Act is hereinafter called a
"Preliminary Prospectus"; the various parts of the Initial
Registration Statement and the Rule 462(b) Registration Statement, if
any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A
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under the Act to be part of the Initial Registration Statement at the
time it was declared effective, each as amended at the time such part
of the Initial Registration Statement became effective or such part of
the Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the
"Registration Statement"; the Preliminary Prospectus relating to the
Shares and the ADSs that was included in the Registration Statement,
dated [date of the red xxxxxxx], is hereinafter called the "Pricing
Prospectus"; such final prospectus, in the form first filed pursuant
to Rule 424(b) under the Act, is hereinafter called the "Prospectus";
and any "issuer free writing prospectus" as defined in Rule 433 under
the Act relating to the Shares and the ADSs is hereinafter called an
"Issuer Free Writing Prospectus");
(ii) No order preventing or suspending the use of any Preliminary
Prospectus or any Issuer Free Writing Prospectus has been issued by
the Commission, and each Preliminary Prospectus, at the time of filing
thereof, conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission thereunder, and
did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(iii) For the purposes of this Agreement, the "Applicable Time"
is ___:___ __ (New York City time) on the date of this Agreement; the
Pricing Prospectus as supplemented by those Issuer Free Writing
Prospectuses and other documents listed in Schedule III (b) attached
hereto, taken together (collectively, the "Pricing Disclosure
Package") as of the Applicable Time, did not include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and each
Issuer Free Writing Prospectus listed on Schedule III attached hereto
does not conflict with the information contained in the Registration
Statement, the Pricing Prospectus or the Prospectus and each such
Issuer Free Writing Prospectus, as supplemented by and taken together
with the Pricing Disclosure Package as of the Applicable Time, did not
include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to statements or omissions made in an Issuer Free Writing
Prospectus in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter through the
Representatives expressly for use therein;
(iv) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or
the Prospectus will conform, in all material respects to the
requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus and
any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representatives expressly for use therein;
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(v) A registration statement on Form F-6 (File No. 333-142852) in
respect of the ADSs has been filed with the Commission; such
registration statement in the form heretofore delivered to you and,
excluding exhibits, to you for each of the other Underwriters, has
been declared effective by the Commission in such form; no other
document with respect to such registration statement has heretofore
been filed with the Commission; no stop order suspending the
effectiveness of such registration statement has been issued and no
proceeding for that purpose has been initiated or, to the Company's
knowledge after due inquiry, threatened by the Commission (the various
parts of such registration statement, including all exhibits thereto,
each as amended at the time such part of the registration statement
became effective, being hereinafter called the "ADS Registration
Statement"); and the ADS Registration Statement when it became
effective conformed, and any further amendments thereto will conform,
in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not, as of the
applicable effective date, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vi) A registration statement on Form 8-A (File No. 001-33469) in
respect of the registration of the Shares and the ADSs under the U.S.
Securities Exchange Act of 1934, as amended (the "Exchange Act"), has
been filed with the Commission; such registration statement in the
form heretofore delivered to you and, excluding exhibits, to you for
each of the other Underwriters, has been declared effective by the
Commission in such form; no other document with respect to such
registration statement has heretofore been filed with the Commission;
no stop order suspending the effectiveness of such registration
statement has been issued and no proceeding for that purpose has been
initiated or, to the Company's knowledge after due inquiry, threatened
by the Commission (the various parts of such registration statement,
including all exhibits thereto, each as amended at the time such part
of the registration statement became effective, being hereinafter
called the "Form 8-A Registration Statement"); and the Form 8-A
Registration Statement when it became effective conformed, and any
further amendments thereto will conform, in all material respects to
the requirements of the Exchange Act and the rules and regulations of
the Commission thereunder, and did not and will not, as of the
applicable effective date, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vii) Neither the Company nor any of its Subsidiaries (as defined
in Clause 1a(viii) below) has sustained since the date of the latest
audited financial statements included in the Pricing Prospectus any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Pricing Prospectus;
and, since the respective dates as of which information is given in
the Registration Statement and the Pricing Prospectus, there has not
been any change in the share capital, short-term debt or long-term
debt of the Company or any of its Subsidiaries (as defined in Clause
1a(viii) below) or any other material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position,
shareholders' equity, or results of operations of the Company and its
Subsidiaries (as defined in Clause 1a(viii) below), taken as a whole
(a "Material Adverse Effect"), otherwise than as set forth or
contemplated in the Pricing Prospectus;
(viii) The Company has been duly incorporated and is validly
existing as a company in good standing under the laws of the Cayman
Islands, with power and authority
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(corporate and other) to own, lease and operate its properties and
conduct its business as described in the Pricing Prospectus, and has
been duly qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each of Baoding Tianwei Yingli
New Energy Resources Co., Ltd. ("Tianwei Yingli"), Chengdu Yingli New
Energy Resources Co., Ltd. ("Chengdu Yingli"), Tibet Tianwei Yingli
New Energy Resources Co., Ltd. ("Tibet Yingli"), Baoding Yingli
Guangfu Co., Ltd. ("Yingli Guangfu") and Tibet Keguang Industries and
Trading Co., Ltd. ("Tibet Keguang", and together with Tianwei Yingli,
Tibet Yingli and Yingli Guangfu, the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the PRC, with power and authority (corporate or
other) to own, lease and operate its properties and conduct its
business as described in the Pricing Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no liability or disability by
reason of the failure to be so qualified in any such jurisdiction that
would not reasonably be expected to have a Material Adverse Effect;
(ix) As of the date of this Agreement, except for Tianwei Yingli,
the Company has no other subsidiaries; as of the date of this
Agreement, except for Chengdu Yingli, Tibet Yingli and Yingli Guangfu,
Tianwei Yingli has no other subsidiaries and Tianwei Yingli does not
own or control, directly or indirectly, any equity or other ownership
interest in any corporation, partnership, joint venture or any other
person; as of the date of this Agreement, except for Tibet Keguang,
Chengdu Yingli, Tibet Yingli and Yingli Guangfu have no other
subsidiaries and, except that Tibet Yingli holds 640,000 shares in
Tibet Rhodiola Pharmaceutical Holding Company and 460,000 in Tibet
Hebang Electrical Source Technology Co., Ltd., Chengdu Yingli, Tibet
Yingli and Yingli Guangfu do not own or control, directly or
indirectly, any equity or other ownership interest in any corporation,
partnership, joint venture or any other person;
(x) Each of the Company and its Subsidiaries has good and
marketable title to all personal property owned by it, and has good
and valid title to all real property or the beneficial interests in
and the right to transfer, lease and mortgage the land use rights and
building ownership rights over all of the real properties as owned by
it, in each case free and clear of all liens, charges, encumbrances,
and defects, except such as are described in the Pricing Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property
by each of the Company and its Subsidiaries; each lease to which any
of the Company or its Subsidiaries is a party, is legal, valid,
binding and enforceable in accordance with its terms and, to the best
of its knowledge, against the other parties thereto, and no material
default (or event which with notice or lapse of time, or both, would
constitute a default) by the Company or any of its Subsidiaries has
occurred and is continuing under any such lease; the use of any
premises occupied by the Company or any of its Subsidiaries is in
accordance with that provided for the lease, land use rights, tenancy,
license, concession or agreement of whatsoever nature relating to such
occupation and the relevant above entity has observed and performed
the terms and conditions thereof on the part of the tenant to be
observed and performed; and none of the Company and any of its
Subsidiaries has received any claim for liabilities in respect of any
properties previously occupied by it or in which it owned
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or held any interests, including without limitation, leasehold
premises assigned, surrendered or otherwise disposed of.
(xi) Except as described in the Pricing Prospectus, the Company
and its Subsidiaries maintain insurance covering their respective
properties and product liabilities as the Company and its Subsidiaries
reasonably deem adequate in accordance with customary industry
practice; such insurance insures against such losses and risks to an
extent which is adequate to protect the Company and its Subsidiaries
and their respective businesses; all such insurance is fully in force
on the date hereof and will be fully in force at the time of purchase
and each additional time of purchase, if any; neither the Company nor
any of its Subsidiaries has reason to believe that it will not be able
to renew any such insurance as and when such insurance expires; and
there is no material insurance claim made by or against the Company or
any of its Subsidiaries, pending, to the knowledge of the Company
after due inquiry, threatened or outstanding and no facts or
circumstances exist which would reasonably be expected to give rise to
any such claim and all due premiums in respect thereof have been paid;
(xii) None of the Company and any of its Subsidiaries has sent or
received any communication regarding termination of, or intent not to
renew, any of the contracts or agreements referred to or described in
the Pricing Prospectus, the Prospectus or any Issuer Free Writing
Prospectus, or referred to or described in, or filed as an exhibit to,
the Registration Statement, and no such termination or non-renewal has
been threatened by the Company or any of its Subsidiaries or, to the
Company's knowledge after due inquiry, any other party to any such
contract or agreement;
(xiii) The Company and its Subsidiaries have all necessary
licenses, franchises, concessions, consents, authorizations,
approvals, orders, certificates and permits of and from, and has made
all declarations and filings with, all governmental agencies to own,
lease, license and use its properties and assets and conduct its
business in the manner described in the Pricing Prospectus, except
where the lack of which would not, individually or in the aggregate,
have a Material Adverse Effect, and such licenses, franchises,
concessions, consents, authorizations, approvals, orders, certificates
or permits contain no material restrictions or conditions not
described in the Pricing Prospectus; and except as described in the
Pricing Prospectus, neither the Company nor any of its Subsidiaries
has a reasonable basis to believe that any regulatory body is
considering modifying, suspending or revoking any such licenses,
consents, authorizations, approvals, orders, certificates or permits,
and the Company and its Subsidiaries are in compliance with the
provisions of all such licenses, consents, authorizations, approvals,
orders, certificates or permits, except where the lack of which would
not, individually or in the aggregate, have a Material Adverse Effect;
(xiv) Neither the Company nor any of its Subsidiaries is (A) in
breach of or in default under any laws, regulations, rules, orders,
decrees, guidelines or notices of the PRC, the Cayman Islands or any
other jurisdiction where it was incorporated or operates, (B) in
breach of or in default under any approval, consent, waiver,
authorization, exemption, permission, endorsement or license granted
by any court or governmental agency or body or any stock exchange
authorities ("Governmental Agency") in the PRC, the Cayman Islands, or
any other jurisdiction where it was incorporated or operates, (C) in
violation of its constituent documents or (D) in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound,
except, with respect to (D), where any
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default would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(xv) The Company has an authorized and paid-in capitalization as
set forth in the Pricing Prospectus, and all of the issued share
capital of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and all of the issued
Ordinary Shares conform in all material respects to the description of
the Ordinary Shares contained in the Pricing Prospectus; and all of
the issued share capital of each of the Subsidiaries of the Company
have been duly and validly authorized and issued, and are fully paid
and non-assessable; the Company duly and validly owns the equity
interest of Tianwei Yingli in the percentage set forth in the Pricing
Prospectus under the caption "Restructuring -- Our Shareholding and
Corporate Structure", free and clear of all liens, encumbrances,
equities or claims (other than the pledge of the equity interest of
Tianwei Yingli to DB Trustees (Hong Kong) Limited in connection with
the issuance and sale of mandatory redeemable bonds and mandatory
convertible bonds to Yingli Power Holding Company Limited); other than
the share capital of Tianwei Yingli, the Company does not own,
directly or indirectly, any shares of stock or any other equity
interests or long-term debt securities of any corporation, firm,
partnership, joint venture, association or other entity; Tianwei
Yingli duly and validly owns the equity interest of Chengdu Yingli,
Tibet Yingli and Yingli Guangfu in the percentages set forth in the
Pricing Prospectus under the caption "Restructuring -- Our
Shareholding and Corporate Structure", free and clear of all liens,
encumbrances, equities or claims; Tibet Yingli duly and validly owns
the equity interest of Tibet Keguang in the percentage set forth in
the Pricing Prospectus under the caption "Restructuring -- Our
Shareholding and Corporate Structure", free and clear of all liens,
encumbrances, equities or claims; the holders of outstanding Ordinary
Shares are not entitled to preemptive or other rights to acquire the
Shares or the ADSs; there are no outstanding securities convertible
into or exchangeable for, or warrants, rights or options to purchase
from the Company, or obligations of the Company to issue, Ordinary
Shares or any other class of share capital of the Company except as
set forth in the Pricing Prospectus under the captions
"Capitalization", "Restructuring", "Management -- 2006 Equity
Incentive Plan", "Principal and Selling Shareholders", "Description of
Share Capital" and "Related Party Transactions"; the Shares, when
issued and delivered against payment therefor, may be freely deposited
by the Company and the Selling Shareholders with the Depositary
against issuance of ADRs evidencing ADSs; the ADSs, when issued and
delivered against payment thereof, will be freely transferable by the
Company and the Selling Shareholders to or for the account of the
several Underwriters and to the extent described in the Pricing
Prospectus the initial purchasers thereof; and there are no
restrictions on subsequent transfers of the ADSs except as described
in the Pricing Prospectus under the captions "Description of Share
Capital", "Description of American Depositary Shares" and "Shares
Eligible for Future Sale"; there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or options
to purchase from Tianwei Yingli, or obligation of Tianwei Yingli to
issue equity shares or other class of capital stock of Tianwei Yingli,
except as set forth in the Pricing Prospectus under the caption
"Restructuring";
(xvi) Except as described in the Registration Statement
(excluding the exhibits thereto), the Pricing Prospectus and the
Prospectus, (A) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any Ordinary
Shares or shares of any other share capital of or other equity
interests in the Company or Tianwei Yingli and (B) no person has the
right to act as an underwriter or as a financial advisor to the
Company in connection with the offer and sale of the ADSs;
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(xvii) The Shares to be issued underlying the ADSs to be sold by
the Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and fully paid and
non-assessable and will conform in all material respects to the
description of the Ordinary Shares contained in the Prospectus;
(xviii) All of the ordinary shares issuable upon the mandatory
conversion of the outstanding Preferred Shares (the "Preferred Stock")
or mandatory conversion of the outstanding convertible bonds (the
"Convertible Bonds") as described in the Pricing Prospectus have been
duly authorized and reserved for issuance;
(xix) Except as disclosed in the Pricing Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the
Company to include such securities in the securities registered
pursuant to the Registration Statement, the ADS Registration Statement
or in any securities being registered pursuant to any other
registration statement filed by the Company under the Act;
(xx) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency,
reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(xxi) The Deposit Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency,
reorganization and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles; and
upon issuance by the Depositary of ADRs evidencing ADSs and the
deposit of Shares in respect thereof in accordance with the provisions
of the Deposit Agreement, such ADRs will be duly and validly issued
and the persons in whose names the ADRs are registered will be
entitled to the rights specified therein and in the Deposit Agreement;
and the Deposit Agreement and the ADRs conform in all material
respects to the descriptions thereof contained in the Prospectus;
(xxii) All dividends and other distributions declared and payable
on the share capital of the Company may under the current laws and
regulations of the Cayman Islands be paid to the Depositary, and all
such dividends and other distributions will not be subject to
withholding or other taxes under the laws and regulations of the
Cayman Islands and are otherwise free and clear of any other tax,
withholding or deduction in the Cayman Islands and without the
necessity of obtaining any consents, approvals, authorizations,
orders, registrations, clearances or qualifications of or with any
Governmental Agency having jurisdiction over the Company or any of its
Subsidiaries or any of their respective properties (hereinafter
referred to as "Governmental Authorizations") in the Cayman Islands;
(xxiii) Tianwei Yingli is currently not prohibited, directly or
indirectly, from paying any dividends or other distributions to the
Company, except as disclosed in the Pricing Prospectus; other than as
set forth in the Pricing Prospectus, dividends declared with respect
to after-tax retained earnings on the equity interests of Tianwei
Yingli may under the current laws and regulations of the PRC be paid
to the Company in U.S. dollars, and all such dividends and other
distributions will not be subject to withholding or other taxes under
the laws and regulations of the PRC and are otherwise free and clear
of any other
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tax, withholding or deduction in the PRC, and without the necessity of
obtaining any Governmental Authorization in the PRC;
(xxiv) The issue and sale of the Shares to be sold by the Company
hereunder and the deposit of the Shares being deposited with the
Depositary against issuance of the ADRs evidencing the ADSs and the
compliance by the Company with all of the provisions of this Agreement
and the Deposit Agreement and the consummation of the transactions
herein and therein contemplated will not (A) conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or any of its Subsidiaries is a party or by which the Company or any
of its Subsidiaries is bound or to which any of the property or assets
of the Company or any of its Subsidiaries is subject, (B) result in
any violation of the provisions of the constituent documents of the
Company or any of its Subsidiaries or (C) result in any violation of
any statute or any order, rule or regulation of any Governmental
Agency having jurisdiction over the Company or any of its Subsidiaries
or any of their properties or assets;
(xxv) No consent, approval, authorization, order, registration,
clearance or qualification of or with any Governmental Agency is
required for the issue and sale of the Shares or the ADSs, for the
deposit of the Shares being deposited with the Depositary against
issuance of ADRs evidencing the ADSs to be delivered or the
consummation by the Company of the transactions contemplated by this
Agreement and the Deposit Agreement, except (A) the registration under
the Act of the Shares and the ADSs and listing of the ADSs on the New
York Stock Exchange ("NYSE"), (B) such Governmental Authorizations as
have been duly obtained and are in full force and effect and copies of
which have been furnished to you, (C) such Governmental Authorizations
as may be required under state securities or Blue Sky laws or any laws
of jurisdictions outside the Cayman Islands and the United States in
connection with the purchase and distribution of the Shares and ADSs
by or for the respective accounts of the several Underwriters and (D)
such Government Authorizations as disclosed in the Pricing Prospectus;
(xxvi) The ADSs have been approved for listing on the NYSE,
subject to notice of issuance;
(xxvii) Neither the Company nor any of its Subsidiaries is
engaged in any trading activities involving commodity contracts or
other trading contracts which are not currently traded on a securities
or commodities exchange and for which the market value cannot be
determined;
(xxviii) No stamp or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable
by or on behalf of the Underwriters to the government of the Cayman
Islands or the PRC, or any political subdivision or taxing authority
thereof or therein in connection with: (A) the deposit with the
Depositary of the Shares by the Company and Selling Shareholders
against the issuance of ADRs evidencing the ADSs, (B) the sale and
delivery by the Company and Selling Shareholders of the Shares and the
ADSs to or for the respective accounts of the several Underwriters or
(C) the sale and delivery by the Underwriters of the Shares and the
ADSs to the initial purchasers thereof in the manner contemplated by
this Agreement;
(xxix) Neither the Company nor any of its Subsidiaries has taken,
directly or indirectly, any action which was designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares and the ADSs;
9
(xxx) The statements set forth in the Pricing Prospectus under
the captions "Description of Share Capital" and "Description of
American Depositary Shares", insofar as they purport to constitute a
summary of the terms of the Ordinary Shares and ADSs, respectively,
and under the captions "Taxation", and "Underwriting", insofar as they
purport to describe the provisions of the laws and documents referred
to therein, are accurate , complete and fair summaries regarding the
matters described therein in all material respects;
(xxxi) The statements set forth in the Pricing Prospectus under
the caption "Restructuring", insofar as they purport to describe the
events, transactions and documents referred to therein, are accurate,
complete and fair summaries regarding the matters described therein in
all material respects;
(xxxii) Other than as set forth in the Pricing Prospectus, there
are no legal, arbitration, administrative or governmental proceedings
(including, without limitation, governmental investigations or
inquiries) pending to which the Company or any of its Subsidiaries or
the Company's directors and executive officers is a party or of which
any property of the Company or any of its Subsidiaries is the subject
(A) that, if determined adversely to the Company or any of its
Subsidiaries or the Company's directors and executive officers, would,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, or (B) that are required to be described in
the Pricing Prospectus and are not so described; and except as set
forth in the Pricing Prospectus, to the Company's knowledge after due
inquiry, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(xxxiii) The Company is not and, after giving effect to the
offering and sale of the Shares and ADSs and the application of the
proceeds thereof, will not be an "investment company", as such term is
defined in the U.S. Investment Company Act of 1940, as amended (the
"Investment Company Act");
(xxxiv) Each of this Agreement and the Deposit Agreement is in
proper form to be enforceable against the Company in accordance with
its terms; to ensure the legality, validity, enforceability or
admissibility into evidence in the Cayman Islands of this Agreement or
the Deposit Agreement, it is not necessary that this Agreement or the
Deposit Agreement be filed or recorded with any court or other
authority in the Cayman Islands or that any stamp or similar tax in
the Cayman Islands be paid on or in respect of this Agreement, the
Deposit Agreement or any other documents to be furnished hereunder;
(xxxv) The Registration Statement, the Pricing Prospectus, the
Prospectus, any Issuer Free Writing Prospectus, the Form 8-A
Registration Statement and the ADS Registration Statement and the
filing of the Registration Statement, the Pricing Prospectus, the
Prospectus, any Issuer Free Writing Prospectus, the Form 8-A
Registration Statement and the ADS Registration Statement with the
Commission have been duly authorized by and on behalf of the Company,
and the Registration Statement, the Form 8-A Registration Statement
and the ADS Registration Statement have been duly executed pursuant to
such authorization by and on behalf of the Company;
(xxxvi) Except as described in the Pricing Prospectus, in each
case, (A) each of the Company and its Subsidiaries owns, possesses,
licenses or has other rights to use the patents and patent
applications, copyrights, trademarks, service marks, trade names,
Internet domain names, technology, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary rights) and other
intellectual property necessary or used in any material respect to
conduct their business in the manner in which
10
it is being conducted and in the manner in which it is contemplated as
set forth in the Pricing Prospectus (collectively, the "Intellectual
Property"); (B) all copyrights owned or licensed by the Company or any
of its Subsidiaries are enforceable or valid; (C) neither the Company
nor any of its Subsidiaries has received any notice of violation or
conflict with (and neither the Company nor any of its Subsidiaries
knows of any basis for violation or conflict with) rights of others
with respect to the Intellectual Property; (D) there are no pending,
to the Company's knowledge after due inquiry, or threatened actions,
suits, proceedings or claims by others that allege the Company or any
of its Subsidiaries is infringing any Intellectual Property or other
proprietary right, except where the actions, suits, proceedings or
claims would not, individually or in the aggregate, have a Material
Adverse Effect; (E) the discoveries, inventions, products or processes
of the Company and its Subsidiaries referenced in the Pricing
Prospectus do not violate or conflict with any intellectual property
or proprietary right of any third person, or any discovery, invention,
product or process that is the subject of a patent application filed
by any third person; and (F) the Company and its Subsidiaries are not
in breach of, and have complied in all material respects with the
terms of, any license or other agreement relating to the Intellectual
Property, except where such breach would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect;
and there are no contracts or other documents related to the
Intellectual Property required to be described in or filed as an
exhibit to the Registration Statement other than those described in or
filed as an exhibit to the Registration Statement;
(xxxvii) The Company is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1297(a) of the United States
Internal Revenue Code of 1986, as amended, for the taxable year 2006,
and is not likely to become a PFIC in the future;
(xxxviii) Except as described in the Registration Statement and
the Pricing Prospectus, the Company has not sold, issued or
distributed any shares during the six-month period preceding the date
hereof, including any sales pursuant to Rule 144A, Regulation D or
Regulation S promulgated under the Act, other than shares issued
pursuant to employee benefit plans, qualified share option plans or
other employee compensation plans or pursuant to outstanding options,
rights or warrants;
(xxxix) The Company is a "foreign private issuer" within the
meaning of Rule 405 under the Act;
(xl) KPMG, who have certified certain financial statements of the
Company and its Subsidiaries, are independent public accountants of
the Company as required by the Act and the rules and regulations of
the Commission thereunder and are independent in accordance with the
requirements of the United States Public Company Accounting Oversight
Board;
(xli) Except as described in the Pricing Prospectus, no material
indebtedness (actual or contingent) and no material contract or
arrangement is outstanding between the Company or any of its
Subsidiaries and any director or executive officer of the Company or
any of its Subsidiaries or any person connected with such director or
executive officer (including his/her spouse, infant children, any
company or undertaking in which he/she holds a controlling interest);
and there are no material relationships or transactions between the
Company or any of its Subsidiaries on the one hand and its affiliates,
officers and directors or their shareholders, customers or suppliers
on the other hand except as disclosed in the Pricing Prospectus;
11
(xlii) The Company [and its Subsidiaries] maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that: (A) transactions are executed in accordance with
management's general or specific authorizations; (B) transactions are
recorded as necessary to permit preparation of financial statements of
the Company and its Subsidiaries in conformity with generally accepted
accounting principles in the United States ("US GAAP"); (C) access to
assets is permitted only in accordance with management's general or
specific authorization; (D) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
actions are taken with respect to any differences; and (E) the Company
[and its Subsidiaries] have made and kept books, records and accounts
which, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of assets of such entity;
(xliii) Except as described in the Pricing Prospectus, the
Company has established and maintains and evaluates a system of
internal control over financial reporting (as such term is defined in
Rule 13a-15(f) of the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed by the
Company's principal executive officer and principal financial officer,
or under their supervision, to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with US GAAP;
all material weaknesses, if any, in internal controls have been
identified to the Company's independent auditors; since the date of
the latest audited financial statements included in the Prospectus,
there has been no change in the Company's internal control over
financial reporting or in other factors that could significantly
affect internal controls, including any corrective actions with regard
to significant deficiencies and material weaknesses, and, except as
described in the Pricing Prospectus, the Company's independent
accountants have not notified the Company of any "reportable
conditions" (as that term is defined under standards established by
the American Institute of Certified Public Accountants) in the
Company's internal accounting controls, or other weaknesses or
deficiencies in the design or operation of the Company's internal
accounting controls, that have materially affected, or are reasonably
likely to materially affect, the Company's internal control over
financial reporting, or could adversely affect the Company's ability
to record, process, summarize and report financial data consistent
with the assertions of the Company's management in the financial
statements; and the Company has taken all necessary actions to ensure
that, upon and at all times after the filing of the Registration
Statement, the Company and its Subsidiaries and their respective
officers and directors, in their capacities as such, will be in
compliance in all material respects with the applicable provisions of
the Xxxxxxxx-Xxxxx Act of 2002 (the "Xxxxxxxx-Xxxxx Act") and the
rules and regulations promulgated thereunder. The Company has
established and maintains and evaluates disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) of the Exchange
Act) that comply with the requirements of the Exchange Act, such
disclosure controls and procedures have been designed to ensure that
material information relating to the Company and its Subsidiaries is
made known to the Company's principal executive officer and principal
financial officer by others within those entities; and such disclosure
controls and procedures are effective to perform the functions for
which they were established;
(xliv) The statements set forth in the Pricing Prospectus under
the caption "Management's Discussion and Analysis of Financial
Condition and Results of Operation --Control and Procedures" insofar
as they purport to describe the internal control of the Company and
its Subsidiaries are true, accurate, complete and fair summaries in
all material respects;
12
(xlv) Except as described in the Pricing Prospectus, neither the
Company nor any of its Subsidiaries has any material obligation to
provide retirement, healthcare, death or disability benefits to any of
the present or past employees of the Company or any of its
Subsidiaries, or to any other person;
(xlvi) No material labor dispute, work stoppage, slow-down or
other conflict with the employees of the Company or any of its
Subsidiaries exists or is threatened;
(xlvii) The section entitled "Management's Discussion and
Analysis of Financial Condition and Results of Operations -- Critical
Accounting Policies" in the Pricing Prospectus truly, accurately and
completely in all material respects describes: (A) accounting policies
which the Company believes are the most important in the portrayal of
the Company and Tianwei Yingli's financial condition and results of
operations and which require management's most difficult, subjective
or complex judgments ("Critical Accounting Policies"); (B) judgments
and uncertainties affecting the application of Critical Accounting
Policies; and (C) the likelihood that materially different amounts
would be reported under different conditions or using different
assumptions; and the Company's Board of Directors and management have
reviewed and agreed with the selection, application and disclosure of
Critical Accounting Policies and have consulted with its legal counsel
and independent accountants with regard to such disclosure;
(xlviii) Since the date of the latest audited financial
statements included in the Pricing Prospectus, neither the Company nor
any of its Subsidiaries has: (A) entered into or assumed any contract,
(B) incurred or agreed to incur any liability (including any
contingent liability) or other obligation, (C) acquired or disposed of
or agreed to acquire or dispose of any business or any other asset or
(D) assumed or acquired or agreed to assume or acquire any liabilities
(including contingent liabilities), that would, in any of clauses (A)
through (D) above, be material to the Company and its Subsidiaries and
that are not otherwise described in the Pricing Prospectus;
(xlix) The section entitled "Management's Discussion and Analysis
of Financial Condition and Results of Operations -- Liquidity and
Capital Resources" in the Pricing Prospectus accurately and fully
describes: (A) all material trends, demands, commitments, events,
uncertainties and risks, and the potential effects thereof, that the
Company believes would materially affect liquidity and are reasonably
likely to occur; and (B) all off-balance sheet transactions,
arrangements, and obligations, including, without limitation,
relationships with unconsolidated entities that are contractually
limited to narrow activities that facilitate the transfer of or access
to assets by the Company or any of its Subsidiaries, such as
structured finance entities and special purpose entities
(collectively, "off-balance sheet arrangements") that are reasonably
likely to have a material effect on the liquidity of the Company or
any of its Subsidiaries or the availability thereof or the
requirements of the Company or any of its Subsidiaries for capital
resources;
(l) Except as set forth in the Pricing Prospectus, none of the
Company and any of its Subsidiaries is engaged in any material
transactions with its directors, officers, management, shareholders,
or any other affiliate, including any persons who formerly held
positions as directors, officers, managers and/or shareholders, on
terms that are not available from unrelated third parties on an
arm's-length basis;
(li) No holder of any of the Shares or the ADSs after the
consummation of the transactions contemplated by this Agreement or the
Deposit Agreement is or will be subject to any personal liability in
respect of any liability of the Company by virtue only of its holding
of any such Shares or ADSs; and except as set forth in the Pricing
Prospectus, there are
13
no limitations on the rights of holders of the Shares or the ADSs to
hold, vote or transfer their securities;
(lii) The audited consolidated annual financial statements (and
the notes thereto) of the Company and Tianwei Yingli, respectively,
included in the Pricing Prospectus fairly present in all material
respects the consolidated financial position of the Company and
Tianwei Yingli as of the dates specified and the consolidated results
of operations and changes in consolidated financial position of the
Company and Tianwei Yingli for the periods specified, and such
financial statements have been prepared in conformity with US GAAP
applied on a consistent basis throughout the periods presented thereby
(other than as described therein); The unaudited condensed
consolidated interim financial statements as of and for the quarter
ended March 31, 2006 and 2007 respectively, and the related notes
thereto included in the Pricing Prospectus fairly present in all
material respects the financial position of the Company and its
Subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods
specified, and such financial statements have been prepared in
conformity with the US GAAP applied on a consistent basis throughout
the periods covered thereby; the unaudited consolidated interim
financial statements as of and for the period ended March 31, 2006 and
2007, respectively, have been reviewed by the Company's independent
accountants in accordance with Statement of Auditing Standards No.
100;
(liii) Under the laws of the Cayman Islands, each holder of ADRs
evidencing ADSs issued pursuant to the Deposit Agreement shall be
entitled, subject to the Deposit Agreement, to seek enforcement of its
rights through the Depositary or its nominee registered as
representative of the holders of the ADRs in a direct suit, action or
proceeding against the Company;
(liv) All amounts payable by the Company in respect of the ADRs
evidencing the ADSs or the underlying Shares shall be made free and
clear of and without deduction for or on account of any taxes imposed,
assessed or levied by the Cayman Islands or any authority thereof or
therein (except such income taxes as may otherwise be imposed by the
Cayman Islands on payments hereunder to an Underwriter whose net
income is subject to tax by the Cayman Islands or withholding, if any,
with respect to any such income tax) nor are any taxes imposed in the
Cayman Islands on, or by virtue of the execution or delivery of, such
documents;
(lv) The Company has paid all taxes required to be paid through
the date hereof and all returns, reports or filings which ought to
have been made by or in respect of the Company and its Subsidiaries
for taxation purposes as required by the law of the jurisdictions
where the Company and its Subsidiaries are incorporated, managed or
engage in business have been made and all such returns are correct and
on a proper basis in all material respects and are not the subject of
any dispute with the relevant tax, revenue or other appropriate
authorities except where such dispute would not reasonably be expected
to have a Material Adverse Effect; all taxes and other assessments of
a similar nature (whether imposed directly or through withholding)
including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such authorities have been paid
in full; the provisions included in the audited consolidated financial
statements as set out in the Pricing Prospectus included appropriate
provisions required under US GAAP for all taxation in respect of
accounting periods ended on or before the accounting reference date to
which such audited accounts relate for which the Company was then or
might reasonably be expected thereafter to become or have become
liable; and neither the
14
Company or any of its Subsidiaries has received written notice of any
material tax deficiency with respect to the Company or any of its
Subsidiaries;
(lvi) The Company has provided or made available to you true,
correct, and complete copies of all documentation pertaining to any
extension of credit in the form of a personal loan made, directly or
indirectly, by the Company or any of its Subsidiaries to any director
or executive officer of the Company or any of its Subsidiaries; and
since [December 31, 2006], none of the Company or its Subsidiaries
has, directly or indirectly, including through any of its
Subsidiaries: (A) extended credit, arranged to extend credit, or
renewed any extension of credit, in the form of a personal loan, to or
for any director or executive officer of the Company, or to or for any
family member or affiliate of any director or executive officer of the
Company; or (B) made any material modification, including any renewal
thereof, to any term of any personal loan to any director or executive
officer of the Company or any of its Subsidiaries, or any family
member or affiliate of any director or executive officer, which loan
was outstanding on [December 31, 2006], that (x) is outstanding on the
date hereof and (y) constitutes a violation of any applicable law or
regulation;
(lvii) Any statistical and market-related data included in the
Pricing Prospectus and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent for the use of such data from
such sources to the extent required;
(lviii) The application of the net proceeds from the offering of
ADSs, as described in the Prospectus, will not (A) contravene any
provision of any current and applicable laws or the current
constituent documents of the Company or any of its Subsidiaries, (B)
contravene the terms or provisions of, or constitute a default under,
any material indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument currently binding upon the
Company or any of its Subsidiaries or (C) contravene or violate the
terms or provisions of any Governmental Authorization applicable to
the Company or any of its Subsidiaries;
(lix) There are no contracts, agreements or understandings
between the Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a brokerage
commission, finder's fee or other like payment in connection with the
issuance and sale of the ADSs;
(lx) The choice of law set forth in Section 15 hereof as the
governing law of this Agreement is a valid choice of law and would be
recognized and given effect to in any action brought before a court of
competent jurisdiction in the Cayman Islands, except for those laws
(i) which such court considers to be procedural in nature, (ii) which
are revenue or penal laws or (iii) the application of which would be
inconsistent with public policy, as such term is interpreted under the
laws of the Cayman Islands. The courts of the Cayman Islands would
recognize as a valid judgment, a final and conclusive judgment in
personam obtained in U.S. courts against the Company based upon this
Agreement under which a sum of money is payable (other than a sum of
money payable in respect of multiple damages, taxes or other charges
of a like nature or in respect of a fine or other penalty) and would
give a judgment based thereon provided that (a) such courts had proper
jurisdiction over the parties subject to such judgment; (b) such
courts did not contravene the rules of natural justice of the Cayman
Islands; (c) such judgment was not obtained by fraud; (d) the
enforcement of the judgment would not be contrary to the public policy
of the Cayman Islands; (e) no new admissible evidence relevant to the
action is submitted prior to the rendering of the judgment by the
courts of the Cayman Islands; and (f) there is due
15
compliance with the correct procedures under the laws of the Cayman
Islands; under the laws of the PRC, the choice of law provisions set
forth in Section 15 hereof will be recognized by the courts of the PRC
and any judgment obtained in any New York Court (as defined in Section
8(d) hereof) arising out of or in relation to the obligations of the
Company under this Agreement will be recognized in PRC courts subject
to the applicable provisions of the Civil Procedure Law of the PRC
relating to the enforceability of foreign judgments;
(lxi) None of the Company, any of its Subsidiaries, and any
director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its Subsidiaries, has used
any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expenses relating to a political activity; made any
direct or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; violated or is
in violation of any provision of the U.S. Foreign Corrupt Practices
Act of 1977; or made any unlawful bribe, payoff, influence payment,
kickback, payment or rebate;
(lxii) Except as disclosed in the Pricing Prospectus, the events
and transactions described in the Pricing Prospectus under the caption
"Restructuring" (the "Restructuring in the Pricing Prospectus") and
any other events, transactions and steps in connection with or as
contemplated by the Restructuring in the Pricing Prospectus
(including, without limitation, the registration with the State
Administration of Foreign Exchange or its local counterparts and the
approval by the Ministry of Commerce, the State Administration of
Industry and Commerce or their respective local counterparts following
the repatriation of foreign exchange back into the PRC) (the "Related
Restructuring", and collectively with the Restructuring in the Pricing
Prospectus, the "Restructuring") have been completed and effected
prior to the date hereof and constitute binding and irrevocable
transactions completed by the parties to (A) the Share Purchase
Agreement, dated August 25, 2006, by and between the Company and
Baoding Yingli Group Co., Ltd. ("Yingli Group"), (B) the Joint Venture
Contract, dated August 25, 2006, by and between Tianwei Yingli and
Baoding Tianwei Baobian Electric Co., Ltd., as amended, and (C) any
other documents set forth or referred to in the Pricing Prospectus
under the caption "Restructuring" (collectively, the "Restructuring
Documents"); each of the Restructuring Documents has been effected
prior to the date hereof in compliance with all applicable national,
provincial, municipal and local laws, and constitutes a binding
transaction completed by the parties to the Restructuring Documents;
each of the Restructuring Documents has been duly authorized, executed
and delivered by the Company, Yingli Power Holding Company Ltd.
("Yingli Power"), Yingli Group or Tianwei Yingli that is a party to
such document prior to the date hereof and each Restructuring Document
constitutes a valid and legally binding document of the Company,
Yingli Power, Yingli Group or Tianwei Yingli that is a party and such
document is enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization and similar
laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(lxiii) The Restructuring (including, without limitation, the
increase of the registered capital of Tianwei Yingli from XXX 00
million to XXX 000 million, Yingli Group's increase of its equity
interest in Tianwei Yingli from 49% to 51% and the transfer of 51%
equity interest in Tianwei Yingli by Yingli Group to the Company) and
the Restructuring Documents and the consummation thereof and the
execution and the delivery by the Company, Yingli Group or Tianwei
Yingli, as the case may be, of each Restructuring Document to which it
is a party and the performance of their respective obligations
thereunder does not (A) contravene any provision of applicable law or
statute, rule or regulation of any Governmental Agency having
jurisdiction over the Company, Yingli
16
Power, Yingli Group, Tianwei Yingli or any of their subsidiaries or
any of their properties (including but not limited to the Ministry of
Commerce, the China Securities Regulatory Commission, the State
Administration of Industry and Commerce, the National Development and
Reform Commission, the State-owned Asset Administration Commission,
the State Tax Bureau and the State Administration of Foreign Exchange
of the PRC, the Hebei Provincial Office of Commerce, the Hebei
Provincial Administration of Industry and Commerce, the Hebei
Provincial Development and Reform Commission, the Hebei State-owned
Asset Administration Commission, the Hebei Provincial State Tax
Bureau, the Hebei Provincial Local Tax Bureau, the Hebei Provincial
Administration of Foreign Exchange, the Baoding Municipal Government,
the Baoding City Administration of Industry and Commerce, the Baoding
City State-owned Asset Administration Commission, the Baoding State
Tax Bureau, the Baoding City Local Tax Bureau, the Baoding City
Administration of Foreign Exchange), (B) contravene the articles of
association, business license or other constituent documents of the
Company, Yingli Power, Yingli Group, Tianwei Yingli or any of their
subsidiaries, or (C) conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any license, indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument to which the Company, Yingli
Power, Yingli Group, Tianwei Yingli or any of their subsidiaries is a
party or by which the Company, Yingli Power, Yingli Group, Tianwei
Yingli or any of their subsidiaries is bound or to which any of their
property or assets is subject, except, with respect to (C), where such
conflict, breach, violation or default would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect;
(lxiv) Except as disclosed in the Pricing Prospectus, all
Governmental Authorizations required in all jurisdictions in
connection with the Restructuring and the Restructuring Documents and
the execution, delivery and performance of the Restructuring Documents
have been made or unconditionally obtained in writing (including,
without limitation (i) all actions necessary for the approval of the
Restructuring and the Restructuring Documents by any governmental
agency and (ii) the consent of third parties under joint venture
agreements, bank loans, guarantees and other contracts material to the
Company, Yingli Power, Yingli Group and Tianwei Yingli taken as a
whole, if the consent of such third parties is necessary to be
obtained), and no such consent, approval, authorization, order,
registration, filing or qualification has been withdrawn or revoked or
is subject to any condition precedent which has not been fulfilled or
performed;
(lxv) Other than the Restructuring Documents, there are no other
material documents or agreements, written or oral, that have been
entered into by the Company, Tianwei Yingli, Yingli Power, Yingli
Group or any of their respective subsidiaries in connection with the
Restructuring which have not been previously provided, or made
available, to the Underwriters and, to the extent material to the
Company, Tianwei Yingli, Yingli Power, Yingli Group or any of their
subsidiaries, disclosed in the Pricing Prospectus;
(lxvi) Except as disclosed in the Pricing Prospectus, each of the
Company and its affiliates that were incorporated outside of the PRC
has taken, or is in the process of taking, reasonable steps to comply
with, and to ensure compliance by each of its shareholders, option
holders, directors, officers, employees and Directed Share
Participants that is, or is directly or indirectly owned or controlled
by, a PRC resident or citizen with, any applicable rules and
regulations of the relevant PRC government agencies (including but not
limited to the Ministry of Commerce, the National Development and
Reform Commission and the State Administration of Foreign Exchange)
relating to overseas investment by PRC residents and citizens or
overseas listing by offshore special purpose vehicles controlled
directly or indirectly by PRC companies and individuals, such
17
as the Company (the "PRC Overseas Investment and Listing
Regulations"), including, without limitation, requesting each
shareholder, option holder, director, officer, employee and Directed
Share Participant that is, or is directly or indirectly owned or
controlled by, a PRC resident or citizen to complete any registration
and other procedures required under applicable PRC Overseas Investment
and Listing Regulations;
(lxvii) (i) None of the Company or its Subsidiaries, affiliates,
employees, agents and directors and officers: (a) does or plans to
conduct or otherwise get involved with any business with or involving
the government of, or any person or project located in, any country
targeted by any of the economic sanctions promulgated by any Executive
Order issued by the President of the United States or administered by
the United States Treasury Department's Office of Foreign Assets
Control (the "OFAC"); (b) supports or facilitates or plans to support
or facilitate or otherwise get involved with any such business or
project; (ii) the Company is not controlled (within the meaning of the
Executive Orders or regulations promulgating such economic sanctions
or the laws authorizing such promulgation) by any such government or
person; (iii) the proceeds from the offering of the ADSs contemplated
hereby will not be used to fund any operations in, to finance any
investments, projects or activities in, or to make any payments to,
any country targeted by any of such economic sanctions, or to make any
payments to, or finance any activities with, any person so targeted or
any person in a country so targeted; and (iv) the Company maintains
and has implemented adequate internal controls and procedures to
monitor and audit transactions that are reasonably designed to detect
and prevent any use of the proceeds from the offering of the ADSs
contemplated hereby that is inconsistent with any of the Company's
representations and obligations under clause (iii) of this paragraph
or in the Pricing Prospectus;
(lxviii) None of the Company or its Subsidiaries, affiliates,
employees, agents and directors and officers does any business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes;
(lxix) The Company and its Subsidiaries and their respective
properties, assets and operations are in compliance with, and the
Company and each of its Subsidiaries hold all permits, authorizations
and approvals required under Environmental Law (as defined below)
except where the lack of which, individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect;
there are no past, present or reasonably anticipated future events,
conditions, circumstances, activities, practices, actions, omissions
or plans that could reasonably be expected to give rise to any
material costs or liabilities to the Company or any of its
Subsidiaries under, or to interfere with or prevent compliance by the
Company or any Subsidiary with, Environmental Law except as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; neither the Company nor any of its
Subsidiaries (A) is the subject of any investigation, (B) has received
any notice or claim, (C) is a party to or affected by any pending or,
to the Company's knowledge after due inquiry, threatened action, suit
or proceeding, (D) is bound by any judgment, decree or order or (E)
has entered into any agreement, in each case relating to any alleged
violation of any Environmental Law or any actual or alleged release
or, to the Company's knowledge after due inquiry, threatened release
or cleanup at any location of any Hazardous Materials (as defined
below) (as used herein, "Environmental Law" means any national,
provincial, municipal or other local or foreign law, statute,
ordinance, rule, regulation, order, notice, directive, decree,
judgment, injunction, permit, license, authorization or other binding
requirement, or common law, relating to health, safety or the
protection, cleanup or restoration of the environment or natural
resources, including those relating to the distribution, processing,
generation,
18
treatment, storage, disposal, transportation, other handling or
release or threatened release of Hazardous Materials, and "Hazardous
Materials" means any material (including, without limitation,
pollutants, contaminants, hazardous or toxic substances or wastes)
that is regulated by or may give rise to liability under any
Environmental Law);
(lxx) Neither the Company nor any of its Subsidiaries has entered
into any memorandum of understanding, letter of intent, definitive
agreement or any similar agreements with respect to a merger or
consolidation or a material acquisition or disposition of assets,
technologies, business units or businesses;
(lxxi) There are no affiliations or associations between any
member of the NASD and the Company; except as described in the
Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus, the Pricing Prospectus and the Prospectus,
there are no affiliations or associations between (A) any member of
the NASD and (B) any of the Company's officers, directors or 5% or
greater security holders or any beneficial owner of the Company's
unregistered equity securities that were acquired at any time on or
after the 180th day immediately preceding the date the Registration
Statement was initially filed with the Commission;
(lxxii) The Registration Statement, each Preliminary Prospectus,
the Pricing Prospectus, the Prospectus and each Issuer Free Writing
Prospectus comply, and any further amendments or supplements thereto
will comply, with any applicable laws or regulations of any
jurisdiction in which any Preliminary Prospectus, the Pricing
Prospectus, the Prospectus or any Issuer Free Writing Prospectus is
distributed in connection with the Directed Share Program; and no
Governmental Authorization, other than those heretofore obtained, is
required in connection with the offering of the Reserved ADSs in any
jurisdiction where the Reserved ADSs are being offered;
(lxxiii) The Company has not offered, or caused the Underwriters
to offer, ADSs to any person pursuant to the Directed Share Program
with the intent to influence unlawfully (i) a customer or supplier of
the Company or any of its Subsidiaries to alter the customer's or
supplier's level or type of business with the Company or any of its
Subsidiaries, or (ii) a trade journalist or publication to write or
publish favorable information about the Company or any of its
Subsidiaries or any of their respective products or services;
(lxxiv) There are no business relationships or related-party
transactions involving the Company or any of its Subsidiaries or any
other person required to be described in the Registration Statement,
each Preliminary Prospectus, the Pricing Prospectus or the Prospectus
which have not been described as required;
(lxxv) Each "forward-looking statement" (within the meaning of
Section 27A of the Act or Section 21E of the Exchange Act) contained
in the Registration Statement, each Preliminary Prospectus, the
Pricing Prospectus, the Prospectus and each Issuer Free Writing
Prospectus, if any, has been made or reaffirmed with a reasonable
basis and in good faith.
(lxxvi) Except as disclosed in the Pricing Prospectus, (A) the
Restructuring and the Restructuring Documents have been effected prior
to the date hereof in compliance with the Rules on Mergers and
Acquisitions of Domestic Enterprises by Foreign Investors jointly
promulgated by the Ministry of Commerce, the State Asset
Administration Commission, the State Tax Bureau, the State
Administration of Industry and Commerce, the China Securities
Regulatory Commission and the State Administration of Foreign Exchange
of the PRC on August 8, 2006 (the "M&A Rules") and any official
clarifications guidance, interpretations or implementation rules in
connection with or related to the M&A Rules
19
(collectively, the "M&A Rules and Related Clarifications"); (B) (i)
the Restructuring and the Restructuring Documents and the consummation
thereof and the execution and the delivery by the Company, Yingli
Group, Yingli Power or Tianwei Yingli, as the case may be, of each
Restructuring Document to which it is a party and the performance of
their respective obligations thereunder and (ii) the issuance and sale
of the Shares and the ADSs, the listing and trading of the ADSs on the
NYSE and the consummation of the transactions contemplated by this
Agreement, the Deposit Agreement [and the Power of Attorney] did not,
does not and will not contravene any provision of the M&A Rules and
Related Clarifications; and (C) all consents, approvals,
authorizations, orders, registrations, filings and qualifications
required under the M&A Rules and Related Clarifications in connection
with (i) the Restructuring and the Restructuring Documents and the
execution, delivery and performance of the Restructuring Documents and
(ii) the issuance and sale of the Shares and the ADSs, the listing and
trading of the ADSs on the NYSE and the consummation of the
transactions contemplated by this Agreement, the Deposit Agreement
[and the Power of Attorney] have been made or unconditionally obtained
in writing, including, without limitation, all actions necessary for
the approval of the Restructuring, the Restructuring Documents, the
issuance and sale of the Shares and the ADSs, the listing and trading
of the ADSs on the NYSE and the consummation of the transactions
contemplated by this Agreement, the Deposit Agreement [and the Power
of Attorney] by any governmental agency under the M&A Rules and
Related Clarifications, and no such consent, approval, authorization,
order, registration, filing or qualification has been withdrawn or
revoked or is subject to any condition precedent which has not been
fulfilled or performed; and
(lxxvii) The statements set forth in the Pricing Prospectus under
the captions "Risk Factors -- Risks Related to Doing Business in China
-- Our failure to obtain the prior approval of the China Securities
Regulatory Commission of the listing and trading of our ADSs on the
NYSE could significantly delay this offering or could have a material
adverse effect on our and Tianwei Yingli's business, results of
operations, reputation and trading price of our ADSs, and may also
create uncertainties for this offering" and "PRC Government
Regulations -- Regulation of Overseas Listings" are fair and accurate
summaries of the matters described therein, and nothing has been
omitted from such summaries which would make the same misleading in
any material respect.
In addition, any certificate signed by any officer of the Company or any of
its Subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the ADSs shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each of the Underwriters.
(b) Each of the Selling Shareholders, severally and not jointly,
represents and warrants as to and in respect of itself to, and agrees with, each
of the Underwriters and the Company that:
(i) Such Selling Shareholder, if an entity, has been duly
organized and is validly existing as a company or a limited
partnership, as the case may be, in good standing in its jurisdiction
of formation;
(ii) All Governmental Authorizations required for the deposit of
the Shares being deposited by such Selling Shareholder with the
Depositary against issuance of the ADRs evidencing the ADSs to be
delivered at each Time of Delivery (as defined in Section 4 hereof),
for the sale and delivery of the ADSs to be sold by such Selling
Shareholder hereunder and for the execution and delivery by such
Selling Shareholder of this Agreement [and the Power of Attorney]
hereinafter referred to, and for the sale and delivery of the ADSs to
be sold by such Selling Shareholder hereunder, have been obtained; and
20
such Selling Shareholder has full right, power and authority to enter
into this Agreement [and the Power of Attorney] and to sell, assign,
transfer and deliver the ADSs to be sold by such Selling Shareholder
hereunder;
(iii) The sale of the ADSs to be sold by such Selling Shareholder
hereunder, the deposit of the Shares by such Selling Shareholder with
the Depositary against issuance of the ADRs evidencing the ADSs to be
delivered by such Selling Shareholder at each Time of Delivery and the
compliance by such Selling Shareholder with all of the provisions of
this Agreement, the Deposit Agreement [and the Power of Attorney] and
the consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any
material statute, indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which such Selling Shareholder is
a party or by which such Selling Shareholder is bound, or to which any
of the property or assets of such Selling Shareholder is subject, nor
will such action result in any violation of the provisions of the
constituent documents of such Selling Shareholder if such Selling
Shareholder is a corporation, the partnership agreement of such
Selling Shareholder if such Selling Shareholder is a partnership or
any statute or any order, rule or regulation of any Governmental
Agency having jurisdiction over such Selling Shareholder or the
property of such Selling Shareholder;
(iv) There are no affiliations or associations between any member
of the NASD and such Selling Shareholder, except as described in the
Registration Statement (excluding the exhibits thereto), each
Preliminary Prospectus, the Pricing Prospectus and the Prospectus;
none of the proceeds received by such Selling Shareholder from the
sale of the Shares and ADSs to be sold by such Selling Shareholder
hereunder will be paid to a member of the NASD or any affiliate of (or
person "associated with," as such terms are used in the Rules of the
NASD) such member;
(v) Such Selling Shareholder has, and immediately prior to each
Time of Delivery such Selling Shareholder will have, good and valid
title to the Shares to be represented by the ADSs to be sold by such
Selling Shareholder hereunder at such Time of Delivery, free and clear
of all liens, encumbrances, equities or claims; and, upon delivery of
the ADSs representing such Shares and payment therefor pursuant
hereto, good and valid title to such ADSs, free and clear of all
liens, encumbrances, equities or claims, will pass to the several
Underwriters;
(vi) Neither such Selling Shareholder nor any of its affiliates,
nor any person acting on its or their behalf has taken or will take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares or the ADSs,
except that no representation or warranty is made with respect to any
person that is an Underwriter;
(vii) The sale of the Shares to be sold by such Selling
Shareholder pursuant to this Agreement is not prompted by any material
information concerning the Company or any of its Subsidiaries which is
not set forth in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus, the Pricing Prospectus and the
Prospectus;
(viii) Such Selling Shareholder has not, prior to the execution
of this Agreement, offered or sold any Shares by means of any
"prospectus" (within the meaning of the Act), or used any "prospectus"
(within the meaning of the Act) in connection with the offer or sale
of
21
the Shares and ADSs, in each case other than the then most recent
Preliminary Prospectus;
(ix) The Registration Statement, any Preliminary Prospectus, the
Pricing Prospectus and the Prospectus complied and, as then amended or
supplemented, will comply with all applicable provisions of the Act
and the rules and regulations of the Commission thereunder; the
Registration Statement, as it relates to the Selling Shareholder, did
not, as of its effective time, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; at
no time during the period that begins on the earlier of the date of
such Preliminary Prospectus and the date such Preliminary Prospectus
was filed with the Commission and ends at the time of purchase did or
will any Preliminary Prospectus, as then amended or supplemented, as
such Preliminary Prospectus relates to such Selling Shareholder,
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and at no time during such period did or will any Preliminary
Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Issuer Free Writing
Prospectuses, if any, in each case as they relate to the Selling
Shareholder, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and at no time during the period that begins on the
earlier of the date of the Prospectus and the date the Prospectus is
filed with the Commission and ends at the later of the time of
purchase, the latest additional time of purchase, if any, and the end
of the period during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with any sale of ADSs
did or will the Prospectus, as then amended or supplemented, as the
Prospectus relates to such Selling Shareholder, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; and at no
time during the period that begins on the date of such Issuer Free
Writing Prospectus and ends at the time of purchase did or will any
Issuer Free Writing Prospectus, as such Issuer Free Writing Prospectus
relates to such Selling Shareholder, include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading, provided, however, this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to such Selling Shareholder by an Underwriter through the
Representatives expressly for use therein;
(x) The ADSs to be sold by such Selling Shareholder, when issued
and delivered against payment therefor, will be freely transferable by
the Selling Shareholders to or for the account of the several
Underwriters and the initial purchasers thereof; and there are no
restrictions on subsequent transfers of such ADSs under the laws of
the Cayman Islands, the PRC or the United States except as described
in the Pricing Prospectus under the captions "Description of Share
Capital", "Description of American Depositary Shares" and "Shares
Eligible for Future Sale";
(xi) No stamp or other issuance or transfer taxes or duties and
no capital gains, income, withholding or other taxes are payable by or
on behalf of the Underwriters to the government of the Cayman Islands,
the British Virgin Islands (the "BVI") or the PRC, or any political
subdivision or taxing authority thereof or therein in connection with
(A) the deposit with the Depositary of the Shares by such Selling
Shareholder against the issuance of
22
ADRs evidencing the ADSs to be sold by such Selling Shareholder, (B)
the sale and delivery by such Selling Shareholder of the Shares and
the ADSs to be sold by such Selling Shareholder to or for the
respective accounts of the Underwriters or (C) the sale and delivery
by the Underwriters of the Shares and such ADSs to the initial
purchasers thereof;
(xii) All amounts payable by such Selling Shareholder under this
Agreement shall be made free and clear of and without deduction for or
on account of any taxes imposed, assessed or levied by the Cayman
Islands, the BVI or the PRC or any authority thereof or therein, nor
are any taxes imposed in the Cayman Islands, the BVI or the PRC on, or
by virtue of the execution of this Agreement or the sale and delivery
of the Shares and ADSs;
(xiii) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder and is
enforceable against such Selling Shareholder in accordance with its
terms, subject, as to enforceability, to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles; and to ensure the legality, validity,
enforceability or admissibility into evidence in the Cayman Islands,
the BVI or the PRC of this Agreement, it is not necessary that this
Agreement be filed or recorded with any court or other authority in
the Cayman Islands, the BVI or the PRC or that any stamp or similar
tax in the Cayman Islands, the BVI or the PRC be paid on or in respect
of this Agreement or any other documents to be furnished hereunder;
(xiv) Other than this Agreement, there are no contracts,
agreements or understandings between such Selling Shareholder and any
person that would give rise to a valid claim against such Selling
Shareholder or any Underwriter for a brokerage commission, finder's
fee or other like payment in connection with the offer and sale of the
Shares and the ADSs;
(xv) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder will deliver to you prior to or
at the First Time of Delivery (as hereinafter defined) a properly
completed and executed United States Treasury Department Form W-8BEN
(or other applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(xvi) [Such Selling Shareholder has duly executed and delivered a
[Power of Attorney (the "Power of Attorney")] in the form set forth in
Annex I attached hereto, appointing the persons indicated in Schedule
II attached hereto, and each of them, as such Selling Shareholder's
attorneys-in-fact (the "Attorneys-in-Fact") with authority to execute
and deliver this Agreement on behalf of such Selling Shareholder, to
determine the purchase price to be paid by the Underwriters to the
Selling Shareholders as provided in Section 2 hereof, to authorize the
delivery of the Shares and ADSs to be sold by such Selling Shareholder
hereunder and otherwise to act on behalf of such Selling Shareholder
in connection with the transactions contemplated by this Agreement;
(xvii) The appointment by such Selling Shareholder of the
Attorneys-in-Fact by the Power of Attorney, are to that extent
irrevocable; the obligations of the Selling Shareholders hereunder
shall not be terminated by operation of law, whether by the death or
incapacity of any individual Selling Shareholder or, in the case of an
estate or trust, by the death or incapacity of any executor or trustee
or the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership or
corporation, or by the occurrence of any other event; if any
individual Selling Shareholder or
23
any such executor or trustee should die or become incapacitated, or if
any such estate or trust should be terminated, or if any such
partnership or corporation should be dissolved, or if any other such
event should occur, before the delivery of the Shares and ADSs
hereunder, certificates representing the Shares and ADSs shall be
delivered by or on behalf of the Selling Shareholders in accordance
with the terms and conditions of this Agreement; and actions taken by
the Attorneys-in-Fact pursuant to the Powers of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or other
event had not occurred, regardless of whether or not the
Attorneys-in-Fact, shall have received notice of such death,
incapacity, termination, dissolution or other event; and]
(xviii) (i) Neither such Selling Shareholder nor any of its
subsidiaries, affiliates, employees, agents and directors and
officers: (a) does or plans to conduct or otherwise get involved with
any business with or involving the government of, or any person or
project located in, any country targeted by any of the economic
sanctions promulgated by any Executive Order issued by the President
of the United States or administered by OFAC; (b) supports or
facilitates or plans to support or facilitate or otherwise get
involved with any such business or project; (ii) such Selling
Shareholder is not controlled (within the meaning of the Executive
Orders or regulations promulgating such economic sanctions or the laws
authorizing such promulgation) by any such government or person; and
(iii) the proceeds received by such Selling Shareholder from the sale
of ADSs pursuant to this Agreement will not be used to fund any
operations in, to finance any investments, projects or activities in,
or to make any payments to, any country targeted by any of such
economic sanctions, or to make any payments to, or finance any
activities with, any person so targeted or any person in a country so
targeted; and (iv) such Selling Shareholder maintains and has
implemented adequate internal controls and procedures to monitor and
audit transactions that are reasonably designed to detect and prevent
any use of the proceeds from the offering of the ADSs contemplated
hereby that is inconsistent with any of the Company's representations
and obligations under clause (iii) of this paragraph or in the Pricing
Prospectus; and
(xix) Neither such Selling Shareholder nor any of its
subsidiaries, affiliates, employees, agents and directors and officers
does any business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes.
In addition, any certificate signed by any Selling Shareholders (or, with
respect to any Selling Shareholder that is not an individual, any officer of
such Selling Shareholder or of any of such Selling Shareholder's subsidiaries)
or by any representative of the Selling Shareholders and delivered to the
Underwriters or counsel for the Underwriters in connection with the offering of
the ADSs shall be deemed to be a representation and warranty by such Selling
Shareholder, as to matters covered thereby, to each of the Underwriters.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each Selling Shareholder agree, severally and not jointly, to sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company and each of the Selling Shareholders, at a
purchase price per ADS of US$____, the number of Firm ADSs (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying the
aggregate number of Firm ADSs to be sold by the Company and each of the Selling
Shareholders as set forth opposite their respective names in Schedule II
attached hereto by a fraction, the numerator of which is the aggregate number of
Firm ADSs to be purchased by such Underwriter as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
aggregate number of Firm ADSs to be purchased by all of the Underwriters from
the Company and all of the Selling Shareholders hereunder and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional ADSs as provided below,
24
the Company and each Selling Shareholder agree, severally and not jointly, to
sell to each of the Underwriters, and each of the Underwriters agrees, severally
and not jointly, to purchase from the Company and each of the Selling
Shareholders, at the purchase price per ADS set forth in clause (a) of this
Section 2, that portion of the number of Optional ADSs as to which such election
shall have been exercised (to be adjusted by you so as to eliminate fractional
shares) determined by multiplying such number of Optional ADSs by a fraction,
the numerator of which is the maximum number of Optional ADSs which such
Underwriter is entitled to purchase as set forth opposite the name of such
Underwriter in Schedule I attached hereto and the denominator of which is the
maximum number of Optional ADSs that all of the Underwriters are entitled to
purchase hereunder.
The Company and each Selling Shareholder, as and to the extent indicated in
Schedule II attached hereto, hereby grant, severally and not jointly, to the
Underwriters the right to purchase at their election up to _________ Optional
ADSs, at the purchase price per ADS set forth in the paragraph above, for the
sole purpose of covering sales of shares in excess of the number of Firm ADSs.
Any such election to purchase Optional ADSs shall be made in proportion to the
maximum number of Optional ADSs to be sold by the Company and each Selling
Shareholder as set forth in Schedule II attached hereto initially with respect
to the Optional ADSs to be sold by the Company and then among the Selling
Shareholders in proportion to the maximum number of Optional ADSs to be sold by
each Selling Shareholder as set forth in Schedule II attached hereto. Any such
election to purchase Optional ADSs may be exercised only by written notice from
you to the Company, given within a period of 30 calendar days after the date of
this Agreement and setting forth the aggregate number of Optional ADSs to be
purchased and the date on which such Optional ADSs are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you, the Selling Shareholders and the
Company otherwise agree in writing, earlier than two or later than ten business
days after the date of such notice.
3. Upon the authorization by you of the release of the Firm ADSs, the
several Underwriters propose to offer the Firm ADSs for sale upon the terms and
conditions set forth in the Prospectus.
4. (a) The ADSs to be purchased by each Underwriter hereunder, in book
entry form, and in such authorized denominations and registered in such names as
the Representatives may request upon at least forty-eight hours' notice to the
Company and the Selling Shareholders prior to a Time of Delivery (as defined
below) (the "Notification Time"), shall be delivered by or on behalf of the
Company and the Selling Shareholders to the Representatives, through the
facilities of The Depository Trust Company ("DTC"), for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the purchase
price therefor by wire transfer of Federal (same-day) funds to the account(s)
specified by the Company and the Selling Shareholders to the Representatives at
least forty-eight hours in advance of such Time of Delivery. The Company and the
Selling Shareholders will cause the certificates representing the ADSs to be
made available for checking at least twenty-four hours prior to the Time of
Delivery with respect thereto at the office of DTC or its designated custodian
(the "Designated Office"). The time and date of such delivery and payment shall
be, with respect to the Firm ADSs, 9:30 a.m., New York City time, on __________,
2007 or such other time and date as the Representatives and the Company may
agree upon in writing, and, with respect to the Optional ADSs, 9:30 a.m., New
York City time, on the date specified by the Representatives in the written
notice given by the Representatives of the Underwriters' election to purchase
such Optional ADSs, or such other time and date as the Representatives and the
Company may agree upon in writing. Such time and date for delivery of the Firm
ADSs is herein called the "First Time of Delivery", such time and date for
delivery of the Optional ADSs, if not the First Time of Delivery, is herein
called the "Second Time of Delivery", and each such time and date for delivery
is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto
25
pursuant to Section 8 hereof, including the cross-receipt for the ADSs and any
additional documents requested by the Underwriters pursuant to Section 8(r)
hereof, will be delivered at the offices of Xxxxxxxx & Xxxxxxxx LLP, Suite 501,
World Trade Tower One, Xx. 0 Xxxxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx (the "Closing
Location"), and the ADSs will be delivered as specified in Section (a) above,
all at such Time of Delivery. A meeting will be held at the Closing Location at
4:00 p.m., Beijing time, on the New York Business Day next preceding such Time
of Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 4, "New York Business Day" shall mean
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in New York are generally authorized or obligated by law or
executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or the Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement
has been filed or becomes effective or any amendment or supplement to
the Prospectus has been filed and to furnish you copies thereof; to
file promptly all material required to be filed by the Company with
the Commission pursuant to Rule 433(d) under the Act; to advise you,
promptly after it receives notice thereof, of the issuance by the
Commission of any stop order or of any order preventing or suspending
the use of any Preliminary Prospectus or other prospectus in respect
of the ADSs, of the suspension of the qualification of the ADSs for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Issuer
Free Writing Prospectus or for additional information; in the event of
such request for amendment or supplement, to provide you and your
counsel copies of any proposed amendment or supplement for review and
comment a reasonable amount of time prior to any proposed filing and
to file no such amendment or supplement unless approved by you; and,
in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
other prospectus or suspending any such qualification, promptly to use
its best efforts to obtain the withdrawal of such order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the ADSs for offering and sale under the
securities laws of such jurisdictions as you may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to
complete the distribution of the ADSs, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, to furnish the Underwriters with written and electronic
copies of the Prospectus in New York City in such quantities as you
may reasonably request, and, if the delivery of a prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is
required at any time prior to
26
the expiration of nine months after the time of issue of the
Prospectus in connection with the offering or sale of the ADSs and if
at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus (or in
lieu thereof, the notice referred to in Rule 173(a) under the Act) is
delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon
your request to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many written and electronic copies
as you may from time to time reasonably request of an amended
Prospectus or a supplement to the Prospectus which will correct such
statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus (or in lieu thereof,
the notice referred to in Rule 173(a) under the Act) in connection
with sales of any of the ADSs at any time nine months or more after
the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such
Underwriter as many written and electronic copies as you may request
of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(iv) To make generally available to its security holders as soon
as practicable, but in any event not later than sixteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) under the Act), a consolidated earnings statement of the
Company and its Subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(v) During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus (the "Lock-Up Period"), without your prior written consent,
not to offer, sell, contract to sell, pledge, grant any option to
purchase, purchase any option or contract to sell, right or warrant to
purchase, make any short sale, file a registration statement with
respect to, or otherwise dispose of (including entering into any swap
or other arrangement that transfers to another, in whole or in part,
any of the economic consequence of ownership interests), except as
provided hereunder, (A) any ADSs or ordinary shares or securities of
the Company that are substantially similar to the ADSs or ordinary
shares, including but not limited to any options or warrants to
purchase ordinary shares or any securities that are convertible into
or exchangeable for, or that represent the right to receive, ADSs or
ordinary shares or any such substantially similar securities; and (B)
any ordinary shares of Company's Subsidiaries or depositary shares or
depositary receipts representing such ordinary shares, including but
not limited to any securities that are convertible into or
exchangeable for or that represent the right to receive such ordinary
shares or such depositary shares or depositary receipts or any such
substantially similar securities, except that the foregoing
restrictions shall not apply to: (x) the ADSs and the Ordinary Shares
underlying such ADSs to be sold under this Agreement and (y) grants of
options and restricted shares made pursuant to the Company's employee
share incentive plan existing on the date of this Agreement, which is
described in the Pricing Prospectus and the filing of a Registration
Statement on Form S-8 by the Company with the Commission with respect
to the Ordinary Shares underlying grants made under such plan;
provided, however, that if (1) during the last 17 days of the initial
Lock-Up Period, the Company releases earnings results or announces
material news or a material event or (2) prior to the expiration of
the initial Lock-Up Period, the Company announces, or if the
Representatives determine, that it will release earnings results
during the 16-day
27
period following the last day of the initial Lock-Up Period, then in
each case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of
the earnings results or the announcement of the material news or
material event, as applicable, unless the Representatives waive, in
writing, such extension; and the Company will provide the
Representatives and each shareholder subject to the Lock-Up Period
pursuant to the lock-up letters described in Section 8(o) with prior
notice of any such announcement that gives rise to an extension of the
Lock-Up Period;
(vi) During the Lock-Up Period, to cause each of its Subsidiaries
not to offer, sell, contract to sell, pledge, grant any option to
purchase, purchase any option or contract to sell, right or warrant to
purchase, make any short sale, file a registration statement with
respect to, or otherwise dispose of (including entering into any swap
or other arrangement that transfers to another, in whole or in part,
any of the economic consequence of ownership interests), except as
provided hereunder and under this Agreement: (A) any ADSs or ordinary
shares or any securities of the Company that are substantially similar
to the ADSs or ordinary shares, including but not limited to any
securities that are convertible into or exchangeable for, or that
represent the right to receive, ADSs or ordinary shares or any such
substantially similar securities; and (B) any ordinary shares of any
of the Company's Subsidiaries or depositary shares or depositary
receipts representing such ordinary shares, including but not limited
to any securities that are convertible into or exchangeable for or
that represent the right to receive such ordinary shares or such
depositary shares or depositary receipts or any such substantially
similar securities, without your prior written consent; provided,
however, that if (1) during the last 17 days of the initial Lock-Up
Period, the Company releases earnings results or announces material
news or a material event or (2) prior to the expiration of the initial
Lock-Up Period, the Company announces, or if the Representatives
determine, that it will release earnings results during the 16-day
period following the last day of the initial Lock-Up Period, then in
each case the Lock-Up Period will be automatically extended until the
expiration of the 18-day period beginning on the date of release of
the earnings results or the announcement of the material news or
material event, as applicable, unless the Representatives waive, in
writing, such extension; and the Company will provide the
Representatives and each shareholder subject to the Lock-Up Period
pursuant to the lock-up letters described in Section 8(o) with prior
notice of any such announcement that gives rise to an extension of the
Lock-Up Period;
(vii) To furnish to its shareholders within such period required
by the Exchange Act after the end of each fiscal year an annual report
(in English) (including a balance sheet and statements of income,
shareholders' equity and cash flows of the Company and its
consolidated Subsidiaries prepared in conformity with US GAAP and
certified by independent public accountants) and, as soon as
practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), to make available to
its shareholders consolidated summary financial information of the
Company and its Subsidiaries for such quarter in reasonable detail;
(viii) During a period of three years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to shareholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; provided, however, that the
Company may satisfy the requirements of this subsection (viii) by
timely making such reports, communications or information publicly
available on its
28
website or the Commission's XXXXX website; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such
financial statements to be on a consolidated basis to the extent the
accounts of the Company and its Subsidiaries are consolidated in
reports furnished to its shareholders generally or to the Commission);
(ix) To use the net proceeds received by it from the sale of the
ADSs pursuant to this Agreement in all material respects in the manner
specified in the Pricing Prospectus and the Prospectus under the
caption "Use of Proceeds" and in compliance with (x) any applicable
laws, rules and regulations of any Governmental Agency having
jurisdiction over the Company or its Subsidiaries and (y) the
provisions of the constituent documents of the Company or any of its
Subsidiaries and any of the terms or provisions of any agreements to
which the Company or any of its Subsidiaries is a party or by which
the Company or any of its Subsidiaries is bound; the Company will not
use any of the proceeds from the offering of the ADSs contemplated
hereby to fund any operations in, to finance any investments, projects
or activities in, or to make any payments to, any country, or to make
any payments to, or finance any activities with, any person, targeted
by any of the economic sanctions promulgated by any Executive Order
issued by the President of the United States or administered by the
OFAC; and the Company will maintain and implement adequate internal
controls and procedures to monitor and audit transactions that are
reasonably designed to detect and prevent any use of the proceeds from
the offering of the ADSs contemplated hereby that is inconsistent with
any of the Company's representations and obligations under the
preceding sentence;
(x) Prior to each Time of Delivery to deposit Ordinary Shares
with the Depositary in accordance with the provisions of the Deposit
Agreement and otherwise to comply with the Deposit Agreement so that
ADRs evidencing ADSs will be executed (and, if applicable,
countersigned) and issued by the Depositary against receipt of such
Ordinary Shares and delivered to the Underwriters at such Time of
Delivery;
(xi) Not to (and to cause its affiliates not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which would reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company or
facilitate the sale or resale of the Shares and the ADSs;
(xii) To use its best efforts to include for listing the Shares
and ADSs on the NYSE;
(xiii) To file with the Commission such information on Form 20-F
as may be required by Rule 463 under the Act;
(xiv) If the Company elects to rely upon Rule 462(b), the Company
shall file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement, and the Company shall at the time of
filing either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act;
(xv) Upon request of any Underwriter, to furnish, or cause to be
furnished, to such Underwriter an electronic version of the Company's
trade marks, service marks and corporate logo for use on the website,
if any, operated by such Underwriter for the purpose of facilitating
the on-line offering of the ADSs (the "License"); provided, however,
that the License shall be used solely for the purpose described above,
is granted without any fee and may not be assigned or transferred;
29
(xvi) To indemnify and hold each of the Underwriters harmless
against any documentary, stamp or similar issuance or transfer taxes,
duties or fees and any transaction levies, commissions or brokerage
charges, including any interest and penalties, which are or may be
required to be paid in connection with the creation, allotment,
issuance, offer and distribution of the Shares and ADSs to be sold by
the Company and the execution and delivery of this Agreement and the
Deposit Agreement;
(xvii) To comply with Rule 433(d) under the Act (without reliance
on Rule 164(b) under the Act) and with Rule 433(g) under the Act;
(xviii) Prior to each Time of Delivery, to issue no press release
or other communication directly or indirectly and hold no press
conferences with respect to the Company or any of its Subsidiaries,
the financial condition, results of operations, business, properties,
assets, or liabilities of the Company or any of its Subsidiaries, or
the offering of the ADSs, without your prior consent;
(xix) Prior to or concurrently with the First Time of Delivery,
to effect the conversion of all of the shares of Preferred Stock into
ordinary shares and to ensure that all such ordinary shares are duly
authorized, validly issued and fully paid and non-assessable prior to
or concurrently with the First Time of Delivery;
(xx) Not, at any time at or after the execution of this
Agreement, to, directly or indirectly, offer or sell any Shares or
ADSs by means of any "prospectus" (within the meaning of the Act), or
use any "prospectus" (within the meaning of the Act) in connection
with the offer or sale of the Shares or ADSs, in each case other than
the Prospectus;
(xxi) To furnish to you one copy for each Representative and one
copy for United States counsel to the Underwriters of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and sufficient
copies of the foregoing (other than exhibits) for distribution of a
copy to each of the other Underwriters; and
(xxii) To furnish to you as early as practicable prior to the
time of purchase and any additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and its subsidiaries which have
been read by the Company's independent public accountants, as stated
in their letter to be furnished pursuant to Section 8(h) hereof.
(b) Each of the Selling Shareholders severally agrees with each of
the Underwriters:
(i) During the Lock-Up Period, such Selling Shareholder will not
offer, without your prior written consent, sell, contract to sell,
pledge, grant any option to purchase, purchase any option or contract
to sell, right or warrant to purchase, make any short sale, file a
registration statement with respect to, or otherwise dispose of
(including entering into any swap or other arrangement that transfers
to another, in whole or in part, any of the economic consequence of
ownership interests), except as provided hereunder and under this
Agreement: (A) any ADSs or ordinary shares or any securities of the
Company that are substantially similar to the ADSs or Ordinary Shares,
including but not limited to any securities that are convertible into
or exchangeable for, or that represent the right to receive, ADSs or
ordinary shares or any such substantially similar securities; and (B)
any ordinary shares of any of the Company's Subsidiaries or depositary
shares or depositary receipts representing such ordinary shares,
including but not limited to any securities that
30
are convertible into or exchangeable for or that represent the right
to receive such ordinary shares or such depositary shares or
depositary receipts or any such substantially similar securities,
except that the foregoing restrictions shall not apply to (x) a bona
fide gift by an individual to a donee, provided that such donee agrees
to be bound in writing by the same restrictions set forth therein or
(y) a sale or transfer by an entity to an affiliate or another entity
whose owners, beneficiaries or limited partners, as the case may be,
are drawn solely from a group consisting of the signatory of such
Selling Shareholder to the relevant Lock-Up Agreement (as defined in
Section 8(o) hereof) and immediate family members of such signatory,
provided that such sale or transfer is not a disposition for value and
that such transferee agrees to be bound in writing by the same
restrictions set forth therein; provided, however, that if (1) during
the last 17 days of the initial Lock-Up Period, the Company releases
earnings results or announces material news or a material event or (2)
prior to the expiration of the initial Lock-Up Period, the Company
announces, or if the Representatives determine, that it will release
earnings results during the 16-day period following the last day of
the initial Lock-Up Period, then in each case the Lock-Up Period will
be automatically extended until the expiration of the 18-day period
beginning on the date of release of the earnings results or the
announcement of the material news or material event, as applicable,
unless the Representatives waive, in writing, such extension; and the
Company will provide the Representatives and each shareholder subject
to the Lock-Up Period pursuant to the lock-up letters described in
Section 8(o) with prior notice of any such announcement that gives
rise to an extension of the Lock-Up Period;
(ii) Prior to each Time of Delivery, to deposit, or cause to be
deposited on their behalf, Ordinary Shares with the Depositary in
accordance with the provisions of the Deposit Agreement and otherwise
to comply with the Deposit Agreement so that ADRs evidencing ADSs will
be executed (and, if applicable, countersigned) and issued by the
Depositary against receipt of such Ordinary Shares and delivered to
the Underwriters at such Time of Delivery;
(iii) Not to (and to cause its affiliates not to) take, directly
or indirectly, any action which is designed to or which constitutes or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company or
facilitate the sale or resale of the Shares or the ADSs, except that
no warranty is made with respect to any person that is an Underwriter;
(iv) To indemnify and hold each of the Underwriters harmless
against any documentary, stamp or similar issuance or transfer taxes,
duties or fees and any transaction levies, commissions or brokerage
charges, including any interest and penalties, which are or may be
required to be paid in connection with the creation, allotment,
issuance, offer and distribution of the Shares and ADSs to be sold by
such Selling Shareholder and the execution and delivery of this
Agreement;
(v) Not, at any time at or after the execution of this Agreement,
to offer or sell any Shares or ADSs by means of any "prospectus"
(within the meaning of the Act), or use any "prospectus" (within the
meaning of the Act) in connection with the offer or sale of the Shares
or ADSs, in each case other than the Prospectus;
(vi) To pay or cause to be paid all taxes, if any, on the
transfer and sale of the Shares and the ADSs being sold by such
Selling Shareholder;
(vii) To advise you promptly, and if requested by you, confirm
such advice in writing, so long as a prospectus is required by the Act
to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any
31
sale of ADSs, of (A) any material change in the general affairs,
management, financial condition, results of operations or prospects of
the Company and its subsidiaries, (B) any change in information
contained in the Registration Statement, any Preliminary Prospectus,
the Prospectus and any Issuer Free Writing Prospectuses, if any,
relating to such Selling Shareholder or (C) any new material
information relating to the Company or relating to any matter stated
in the Registration Statement, any Preliminary Prospectus, the
Prospectus and any Issuer Free Writing Prospectuses, if any, which
comes to the attention of such Selling Shareholder; and
(viii) Not to use any of the proceeds received by such Selling
Shareholder from the sale of the ADSs pursuant to this Agreement to
fund any operations in, to finance any investments, projects or
activities in, or to make any payments to, any country, or to make any
payments to, or finance any activities with, any person, targeted by
any of the economic sanctions promulgated by any Executive Order
issued by the President of the United States or administered by the
OFAC, or in any manner that is not in compliance with applicable laws,
rules and regulations of any Governmental Agency having jurisdiction
over such Selling Shareholders including, without limitation, the
requirement for PRC residents or citizens to repatriate the net
proceeds received by such Selling Shareholders into the PRC under the
applicable regulation of the Ministry of Commerce and the State
Administration of Foreign Exchange of the PRC.
6. (a) The Company represents and agrees that, without the prior consent
of the Representatives, it has not made and will not make any offer relating to
the Shares and the ADSs that would constitute a "free writing prospectus" as
defined in Rule 405 under the Act; each Underwriter represents and agrees that,
without the prior consent of the Company and the Representatives, it has not
made and will not make any offer relating to the Shares and the ADSs that would
constitute a free writing prospectus; any such free writing prospectus the use
of which has been consented to by the Company and the Representatives is listed
on Schedule III attached hereto;
(b) The Company has complied and will comply with the requirements of
Rule 433 under the Act applicable to any Issuer Free Writing Prospectus,
including timely filing with the Commission or retention where required and
legending; and the Company represents that it has satisfied and agrees that it
will satisfy the conditions under Rule 433 under the Act to avoid a requirement
to file with the Commission any electronic road show; and
(c) The Company agrees that if at any time following issuance of an
Issuer Free Writing Prospectus any event occurred or occurs as a result of which
such Issuer Free Writing Prospectus would conflict with the information in the
Registration Statement, the Pricing Prospectus or the Prospectus or would
include an untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in light of the
circumstances then prevailing, not misleading, the Company will give prompt
notice thereof to the Representatives and, if requested by the Representatives,
will prepare and furnish without charge to each Underwriter an Issuer Free
Writing Prospectus or other document which will correct such conflict, statement
or omission; provided, however, that this representation and warranty shall not
apply to any statements or omissions in an Issuer Free Writing Prospectus made
in reliance upon and in conformity with information furnished in writing to the
Company by an Underwriter through Representatives expressly for use therein.
7. [The Company and the Controlling Selling Shareholder, jointly and
severally, covenant and agree with each of the several Underwriters that the
Company and such Selling Shareholder will pay or cause to be paid (i) all the
fees, disbursements and expenses of the Company's counsel and accountants
32
in connection with the registration of the Shares and ADSs and all other
expenses in connection with the preparation, printing, reproduction and filing
of the Registration Statement, the ADS Registration Statement, the Form 8
Registration Statement, any Preliminary Prospectus, the Pricing Prospectus, any
Issuer Free Writing Prospectus and the Prospectus and amendments or supplements
thereto, and the mailing and delivering of copies thereof to the Underwriters
and to dealers, (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Deposit Agreement, any dealer agreements, any
powers of attorney, any closing documents (including compilations thereof) and
any other documents in connection with the offering, purchase, sale and delivery
of the ADSs, (iii) all expenses in connection with the qualification of the
Shares and the ADSs for offering and sale under state or foreign securities laws
as provided in Section 5 hereof, including the fees and disbursements of counsel
for the Underwriters in connection with such qualification and in connection
with any Blue Sky surveys or legal investment surveys, (iv) all fees and
expenses in connection with the application for including the ADSs for quotation
on NYSE and any registration thereof under the Exchange Act, (v) all fees and
expenses in connection with any required review by the NASD of the terms of the
sale of the Shares and the ADSs, including the fees and disbursements of counsel
for the Underwriters in connection with such NASD matters, (vi) the fees and
disbursements of any transfer agent or registrar for the ADSs, (vii) all the
costs and expenses relating to presentations or meetings undertaken in
connection with the marketing of the offering and sale of the ADSs to
prospective investors, including, without limitation, expenses associated with
the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations, travel,
accommodation and meal expenses, and other road show expenses incurred by the
officers of the Company any such consultants, and the cost of any aircraft
chartered in connection with the road show, (viii) the costs and expenses of
qualifying the ADSs for inclusion in the book-entry settlement system of the
DTC, (ix) all expenses and taxes arising as a result of the deposit by the
Company and each of the Selling Shareholders of the Shares with the Depositary
and the issuance and delivery of the ADRs evidencing ADSs in exchange therefor
by the Depositary to the Company, of the sale and delivery of the ADSs and the
Shares by the Company to or for the account of the Underwriters and of the sale
and delivery of the ADSs and the Shares by the Underwriters to each other and to
the initial purchasers thereof in the manner contemplated under this Agreement,
including, in any such case, any of the Cayman Islands income, capital gains,
withholding, transfer or other tax asserted against an Underwriter by reason of
the purchase and sale of an ADS or a Share pursuant to this Agreement, (x) the
fees and expenses of the Depositary as agreed by the Company and the Depositary
and any custodian appointed under the Deposit Agreement, other than the fees and
expenses to be paid by holders of ADRs (other than the Underwriters in
connection with the initial purchase of ADSs), (xi) the fees and expenses of the
Authorized Agent (as defined in Section 15 hereof), (xii) the cost of preparing
the ADRs, and (xiii) all other costs and expenses incident to the performance of
the Company's obligations hereunder which are not otherwise specifically
provided for in this Section.]
8. The obligations of the Underwriters hereunder, as to the ADSs to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Shareholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Shareholders shall have performed all of their respective obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) under the Act within the applicable time period prescribed for
such filing by the rules and regulations under the Act and in accordance with
Section 5(a) hereof; all material required to be filed by the Company pursuant
to Rule 433(d) under the Act shall have been filed with the Commission within
the applicable time period prescribed for such filing by Rule 433; if the
Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m., Washington,
33
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; no stop order suspending or preventing the use of
the Prospectus or any Issuer Free Writing Prospectus shall have been initiated
or threatened by the Commission; and all requests for additional information on
the part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Xxxxxxxx & Xxxxxxxx LLP, United States counsel to the
Underwriters, shall have furnished to you such written opinion and letter, dated
such Time of Delivery, with respect to the matters as you may reasonably
request, and such counsel shall have received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) Commerce & Finance Law Office, PRC counsel for the Underwriters,
shall have furnished to you such written opinion or opinions, dated such Time of
Delivery, with respect to the same matters covered in subsection (e) below as
well as such other related matters as you may reasonably request, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(d) _____________________, United States counsel to the Company and
the Selling Shareholders, shall have furnished to you their written opinion,
dated such Time of Delivery, in form and substance satisfactory to you,
substantially to the effect set forth in Exhibit A attached hereto;
(e) Fangda Partners, PRC counsel to the Company and the Selling
Shareholders, shall have furnished to you such written opinion or opinions,
dated such Time of Delivery, in form and substance satisfactory to you, to the
effect set forth in Exhibit B attached hereto.
(f) Xxxxxxx Xxxx & Xxxxxxx, Cayman Islands and BVI counsel for the
Company and the Selling Shareholders respectively, shall have furnished to you
their written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Exhibit C.
(g) Xxxxxxxx Chance, counsel for the Depositary, shall have furnished
to you their written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect set forth in Exhibit D.
(h) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, KPMG, shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you, to the effect set forth in
Annex II attached hereto;
(i) No Preliminary Prospectus, Pricing Prospectus, Issuer Free Writing
Prospectus or Prospectus or amendment or supplement to the Registration
Statement, the Preliminary Prospectus, the Pricing Prospectus or the Prospectus
shall have been filed to which you shall have objected in writing;
(j) (A) Neither the Company nor any of its Subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Pricing Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Pricing Prospectus, and (B) since the
respective dates as of which information is given in the Pricing Prospectus
there shall not have been any change in the share capital, short- or long-term
debt of the Company or any of its Subsidiaries or any change, or any development
involving a prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of the Company
and its Subsidiaries, otherwise than as set forth or contemplated in the Pricing
Prospectus, the effect of which, in any such case described in clause (A) or
(B), is in your judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the
34
delivery of the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus;
(k) All outstanding shares of Preferred Stock and Convertible Bonds
shall have been converted into ordinary shares in accordance with the terms of
the Preferred Stock;
(l) On or after the Applicable Time, there shall not have occurred any
of the following: (i) a suspension or material limitation in trading in
securities generally on Nasdaq, the NYSE, The Stock Exchange of Hong Kong
Limited or the London Stock Exchange; (ii) a suspension or material limitation
in trading in the Company's securities on the NYSE; (iii) a general moratorium
on commercial banking activities in New York, London, Hong Kong, the PRC or the
Cayman Islands declared by the relevant authorities, or a material disruption in
commercial banking or securities settlement or clearance services in the United
States, the United Kingdom, Hong Kong, the PRC or the Cayman Islands; (iv) a
change or development involving a prospective change in taxation affecting the
Company, any of its Subsidiaries or the Shares or the ADSs or the transfer
thereof; (v) the enactment, publication, decree or other promulgation of any
statute, regulation, rule or order of any Governmental Agency materially
affecting the business or operations of the Company or its Subsidiaries; (vi)
the outbreak or escalation of hostilities or act of terrorism involving the
United States, the United Kingdom, Hong Kong, the PRC or the Cayman Islands or
the declaration by the United States, the United Kingdom, Hong Kong, the PRC or
the Cayman Islands of a national emergency or war; or (vii) the occurrence of
any other calamity or crisis or any change in financial, political or economic
conditions or currency exchange rates or controls in the United States, the
United Kingdom, Hong Kong, the PRC, the Cayman Islands or elsewhere, if the
effect of any such event specified in clauses (v), (vi) or (vii), in the sole
judgment of the Representatives, makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares and the ADSs
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(m) The ADSs to be sold by the Company and the Selling Shareholders at
such Time of Delivery shall have been duly approved, subject to official notice
of issuance, for listing on the NYSE;
(n) The Depositary shall have furnished or caused to be furnished to
you at such Time of Delivery certificates satisfactory to you evidencing the
deposit with it of the Shares being so deposited against issuance of ADRs
evidencing the ADSs to be delivered by the Company and the Selling Shareholders
at such Time of Delivery, and the execution, countersignature (if applicable),
issuance and delivery of ADRs evidencing such ADSs pursuant to the Deposit
Agreement;
(o) Each party set forth in Annex III attached hereto shall have
entered into an agreement (each a "Lock-Up Agreement") whereby during the period
beginning from the date hereof and continuing to and including the date 180 days
after the date of the Prospectus, such party shall not, except as provided
hereunder offer, sell, contract to sell, pledge, grant any option to purchase,
purchase any option or contract to sell, right or warrant to purchase, make any
short sale, file a registration statement with respect to, or otherwise dispose
of (including entering into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequence of ownership
interests): (A) any ADSs or ordinary shares or any securities of the Company
that are substantially similar to the ADSs or ordinary shares, including but not
limited to any securities that are convertible into or exchangeable for, or that
represent the right to receive, ADSs or ordinary shares or any such
substantially similar securities; and (B) any ordinary shares of any of the
Company's Subsidiaries or depositary shares or depositary receipts representing
such ordinary shares, including but not limited to any securities that are
convertible into or exchangeable for or that represent the right to receive such
ordinary shares or such depositary shares or depositary receipts or any such
substantially similar securities (in each case other than pursuant to a transfer
to an affiliate, provided that such transfer is not a disposition for value and
such affiliate agrees to be bound in writing by the restrictions set forth
therein), without your prior written consent, except for ADSs and shares of
Common Stock represented thereby being sold hereunder (a form of such Lock-Up
Agreement is attached as Annex IV attached hereto);
35
(p) The Company shall have complied with the provisions of Section
5(a)(iii) hereof with respect to the furnishing of Prospectuses on the New York
Business Day next succeeding the date of this Agreement;
(q) At the First Time of Delivery, the Chief Financial Officer of the
Company shall have furnished to you an officer's certificate, dated the date of
delivery thereof, in form and substance satisfactory to you, to the effect set
forth in Annex V attached hereto;
(r) The Company and the Selling Shareholders shall have furnished or
caused to be furnished to you at such Time of Delivery certificates of officers
of the Company and of the Selling Shareholders, respectively, satisfactory to
you as to the accuracy of the representations and warranties of the Company and
the Selling Shareholders, respectively, herein at and as of such Time of
Delivery, as to the performance by the Company and the Selling Shareholders of
all of their respective obligations hereunder to be performed at or prior to
such Time of Delivery, and as to such other matters as you may reasonably
request, including, without limitation, certificates of officers of the Company
satisfactory to you with respect to the memorandum and articles of association
and other organizational documents of the Company, all resolutions of the board
of directors of the Company and other corporate actions relating to this
Agreement and the authorization, issue and sale of the Shares and ADSs and the
incumbency and specimen signatures of signing officers, and the Company and the
Selling Shareholders shall have furnished or caused to be furnished certificates
as to the matters set forth in subsections (a), (j), (k) and (s) of this
Section, and as to such other matters as you may reasonably request;
(s) There shall not be any litigation, proceedings, investigations,
processes for administrative sanctions or other actions initiated or threatened
by any Governmental Agency before any Governmental Agency, in each case with due
authority, against or involving any party hereto, in the PRC or elsewhere, that
seeks to declare non-compliance, unlawful or illegal, under PRC laws, rules and
regulations, the issuance and sales of the Shares and ADSs, the listing and
trading of the ADSs on the NYSE or the transactions contemplated by this
Agreement, the Deposit Agreement [and the Power of Attorney]; and
(t) There shall not be any adverse legislative or regulatory
developments related to the M&A Rules and Related Clarifications which in the
sole judgment of the Representatives would make it inadvisable to proceed with
the public offering or the delivery of the Shares and the ADSs being delivered
at such Time of Delivery on the terms and in the manner contemplated in this
Agreement (including any such development that results in either PRC counsel to
the Company or PRC counsel to the Underwriters not being able to confirm, on the
date of the Prospectus at a time prior to the execution of this Agreement and at
such Time of Delivery, the respective opinions of such counsel, dated as of
[___] and [___], attached as Annex [___] to this Agreement).
9. (a) The Company and the Controlling Selling Shareholder will, jointly
and severally, indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon (i) an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the ADS Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, any Issuer Free Writing Prospectus or any
"issuer information" filed or required to be filed pursuant to Rule 433(d) under
the Act, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) the Directed Share Program, or (iii)
any challenge to the compliance, legality or legitimacy of the issuance and sale
of the shares and the ADSs, the listing and trading of the ADSs on the NYSE or
the transactions contemplated by this Agreement, the Deposit Agreement [and the
Power of Attorney] under PRC laws, rules and regulations or otherwise, and will
36
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that (x) with
respect to clause (i) of this paragraph, the Company and the Controlling Selling
Shareholder shall not be liable in any such case to the extent, but only to the
extent, that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the ADS Registration Statement, any
Preliminary Prospectus, the Pricing Prospectus or the Prospectus, or any
amendment or supplement thereto, or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use therein
and (y) with respect to clause (ii) of this paragraph, the Company and the
Controlling Selling Shareholder shall not be liable insofar as such loss,
damage, expense, liability or claim is finally judicially determined to have
resulted from the gross negligence or willful misconduct of the Underwriters in
conducting the Directed Share Program; provided, further, that the Controlling
Selling Shareholder shall not be liable under this Section 9(a) for any losses,
claims, damages or liabilities in excess of the proceeds (before deducting
underwriting discounts and commissions and any offering expenses) to be received
by the Controlling Selling Shareholder from the sale of ADSs hereunder.
[(b) Without limitation of and in addition to its obligations under
the other paragraphs of this Section 9, the Company agrees to indemnify, defend
and hold harmless Xxxxx Xxxxxxx & Co. (the "DSP Underwriter") and its partners,
directors and officers, and any person who controls the DSP Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the DSP Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim (i) arises out of or
is based upon (x) any of the matters referred to in clauses (i) through (iii) of
Section 9(a) hereof, or (y) any untrue statement or alleged untrue statement of
a material fact contained in any material prepared by or on behalf or with the
consent of the Company for distribution to Directed Share Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) is or was caused
by the failure of any Directed Share Participant to pay for and accept delivery
of Reserved Shares that the Directed Share Participant has agreed to purchase;
or (iii) otherwise arises out of or is based upon the Directed Share Program;
provided, however, that the Company shall not be responsible under this clause
(iii) for any loss, damage, expense, liability or claim that is finally
judicially determined to have resulted from the gross negligence or willful
misconduct of the DSP Underwriter in conducting the Directed Share Program.
Section 9(f) shall apply equally to any action brought against the DSP
Underwriter or any such person in respect of which indemnity may be sought
against the Company pursuant to the immediately preceding sentence, except that
the Company shall be liable for the expenses of one separate counsel (in
addition to any local counsel) for the DSP Underwriter and any such person,
separate and in addition to counsel for the persons who may seek indemnification
pursuant to Section 9(a) in any such action.]
(c) Each of the Selling Shareholders other than the Controlling
Selling Shareholder will severally and not jointly indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the
ADS Registration Statement, any Preliminary Prospectus, the Pricing Prospectus
or the Prospectus, or any amendment or supplement thereto, any Issuer Free
Writing Prospectus or any "issuer information" filed or required to be filed
pursuant to Rule 433(d) under the Act, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each
37
Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such action or
claim as such expenses are incurred, in each case to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any such amendment or
supplement, or any Issuer Free Writing Prospectus or any "issuer information"
filed or required to be filed pursuant to Rule 433(d) under the Act in reliance
upon and in conformity with written information furnished to the Company or such
Underwriter by such Selling Shareholder expressly for use therein; provided,
however, that such Selling Shareholders shall not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, the ADS Registration
Statement, any Preliminary Prospectus, the Pricing Prospectus or the Prospectus,
or any amendment or supplement thereto, or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the
Company by an Underwriter through the Representatives expressly for use therein.
(d) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company and each Selling Shareholder against any losses, claims,
damages or liabilities to which the Company or such Selling Shareholder become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in the Registration Statement, the ADS Registration Statement, any Preliminary
Prospectus, the Pricing Prospectus or the Prospectus, or any amendment or
supplement thereto, or any Issuer Free Writing Prospectus in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company and each Selling Shareholder for any legal or other
expenses reasonably incurred by the Company or such Selling Shareholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(e) Promptly after receipt by an indemnified party under subsection
(a), (b), (c) or (d) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (which shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim) unless such settlement, compromise or
judgment (i)
38
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of
any indemnified party.
(f) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b), (c) or (d) above in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other from the offering of the ADSs. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (e) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the Selling Shareholders bear to the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or any Selling Shareholder on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, each of the
Selling Shareholders and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (f) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (f). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to above in this
subsection (f) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this subsection (f),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the ADSs underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (f) to contribute are several in proportion to their respective
underwriting obligations and not joint. The Selling Shareholders' obligations in
this subsection (f) to contribute are several and not joint, and no Selling
Shareholder shall be required to contribute pursuant to this subsection (f) any
amount in excess of the proceeds (before deducting underwriting discounts and
commissions and any offering expenses) to be received by Selling Shareholder
from the sale of ADSs hereunder.
(g) The obligations of the Company and the Selling Shareholders under
this Section 9 shall be in addition to any liability which the Company and the
respective Selling Shareholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act and to each broker-dealer affiliate of any
Underwriter; and the obligations of the Underwriters under this Section 9 shall
be in addition to any liability which the
39
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company) and any Selling Shareholder and to
each person, if any, who controls the Company or any Selling Shareholder within
the meaning of the Act.
10. (a) If any Underwriter shall default in its obligation to purchase the
ADSs which it has agreed to purchase hereunder at a Time of Delivery, you may in
your discretion arrange for you or another party or other parties to purchase
such ADSs on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such ADSs,
then the Company and the Selling Shareholders shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such ADSs on such terms. In the event
that, within the respective prescribed periods, you notify the Company and the
Selling Shareholders that you have so arranged for the purchase of such ADSs, or
the Company and the Selling Shareholders notify you that they have so arranged
for the purchase of such ADSs, you or the Company and the Selling Shareholders
shall have the right to postpone such Time of Delivery for a period of not more
than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Prospectus, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments or supplements to the Registration Statement or the Prospectus which
in your opinion may thereby be made necessary. The term "Underwriter" as used in
this Agreement shall include any person substituted under this Section with like
effect as if such person had originally been a party to this Agreement with
respect to such ADSs.
(b) If, after giving effect to any arrangements for the purchase of
the ADSs of a defaulting Underwriter or Underwriters by you, the Company and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased does not exceed one-eleventh of the
aggregate number of all the ADSs to be purchased at such Time of Delivery, then
the Company and the Selling Shareholders shall have the right to require each
non-defaulting Underwriter to purchase the number of ADSs which such Underwriter
agreed to purchase hereunder at such Time of Delivery and, in addition, to
require each non-defaulting Underwriter to purchase its pro rata share (based on
the number of ADSs which such Underwriter agreed to purchase hereunder) of the
ADSs of such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of
the ADSs of a defaulting Underwriter or Underwriters by you, the Company and the
Selling Shareholders as provided in subsection (a) above, the aggregate number
of such ADSs which remains unpurchased exceeds one-eleventh of the aggregate
number of all the ADSs to be purchased at such Time of Delivery, or if the
Company and the Selling Shareholders shall not exercise the right described in
subsection (b) above to require non-defaulting Underwriters to purchase ADSs of
a defaulting Underwriter or Underwriters, then this Agreement (or, with respect
to the Second Time of Delivery, the obligations of the Underwriters to purchase,
and of the Company and the Selling Shareholders to sell, the Optional ADSs)
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or the Selling Shareholders, except for the expenses to
be borne by the Company and the Selling Shareholders and the Underwriters as
provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
11. The respective indemnities and contribution provisions in Section 9,
and the agreements, representations, warranties and other statements of the
Company, the Selling Shareholders and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any
40
statement as to the results thereof) made by or on behalf of any Underwriter or
any controlling person of any Underwriter, or the Company, or any of the Selling
Shareholders, or any officer or director or controlling person of the Company,
or any controlling person of any Selling Shareholder, and shall survive delivery
of and payment for the ADSs.
12. (a) This Agreement shall become effective when the parties hereto have
executed and delivered this Agreement.
(b) If the Representatives elect to terminate this Agreement as
provided in this Section 12, the Company, the Selling Shareholders and each
other Underwriter shall be notified promptly in writing.
(c) If this Agreement shall be terminated pursuant to Section 10
hereof, neither the Company nor any of the Selling Shareholders shall then be
under any liability to any Underwriter except as provided in Sections 7 and 9
hereof; but, if for any other reason, any ADSs are not delivered by or on behalf
of the Company and the Selling Shareholders as provided herein, the Company and
the Controlling Selling Shareholders will, upon the occurrence of any failure to
complete the sale and delivery of the ADSs, promptly (and, in any event, not
later than 30 days), jointly and severally, and each of the Selling Shareholders
other than the Controlling Selling Shareholder will, severally and not jointly,
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the ADSs not so delivered, but the Company and the Selling
Shareholders shall then be under no further liability to any Underwriter in
respect of the ADSs not so delivered except as provided in Sections 7 and 9
hereof.
13. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you. All statements, requests, notices and agreements hereunder shall
be in writing, and if to the Underwriters shall be delivered or sent by mail,
telex or facsimile transmission to you as the Representatives at, in the case of
Xxxxxxx Xxxxx (Asia) L.L.C., 00xx Xxxxx, Xxxxxx Xxxx Xxxxxx, 0 Xxxxx'x Xxxx
Xxxxxxx, Xxxx Xxxx, facsimile number: (000) 0000-0000, Attention: Legal
Department and in the case of UBS AG, 52/F, 2 International Finance Centre, 0
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx, facsimile number: (000) 0000-0000,
Attention: Legal Department; if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to Yingli Green Energy Holding Company
Limited, No. 3055 Middle Fuxing Road Boading 071051, People's Republic of China,
Attention: [____]; if to any Selling Shareholder shall be delivered or sent by
mail, telex or facsimile transmission to such Selling Shareholder [Insert
address of the Selling Shareholder(s), Attention: [_____]; provided, however,
that any notice to an Underwriter pursuant to Section 9(e) hereof shall be
delivered or sent by mail, telex or facsimile transmission to such Underwriter
at its address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the Company
by you upon request. Any such statements, requests, notices or agreements shall
take effect upon receipt thereof.
14. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Shareholders and, to the
extent provided in Sections 9 and 11 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Shareholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the ADSs from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
41
15. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company [or the Selling Shareholder] brought by
any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any State or federal court in the Borough of Manhattan, The City
of New York, New York (each a "New York Court"), (ii) waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such proceeding and (iii) submits to the
exclusive jurisdiction of such courts in any such suit, action or proceeding.
Each of the Company and the Selling Shareholders has appointed Law Debenture
Corporate Services Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as its
authorized agent (the "Authorized Agent") upon whom process may be served in any
such action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. Each of the Company and the
Selling Shareholders represents and warrants that the Authorized Agent has
agreed to act as such agent for service of process and agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company and the Selling Shareholders, as the case may be.
16. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Shareholders, as
the case may be, will indemnify each Underwriter against any loss incurred by
such Underwriter as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (ii) the rate of exchange
at which an Underwriter is able to purchase United States dollars with the
amount of the judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and the Selling Shareholders and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
17. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
18. Each of the Company and the Selling Shareholders acknowledges and
agrees that (i) the purchase and sale of the ADSs pursuant to this Agreement is
an arm's-length commercial transaction between the Company and such Selling
Shareholders, on the one hand, and the several Underwriters, on the other, (ii)
in connection therewith and with the process leading to such transaction each
Underwriter is acting solely as a principal and not the agent or fiduciary of
the Company or any Selling Shareholder, (iii) no Underwriter has assumed an
advisory or fiduciary responsibility in favor of the Company or such Selling
Shareholder with respect to the offering contemplated hereby or the process
leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company or any Selling Shareholder on other matters) or
any other obligation to the Company or such Selling Shareholder except the
obligations expressly set forth in this Agreement and (iv) each of the Company
and the Selling Shareholders has consulted its own legal and financial advisors
to the extent it deemed appropriate. Each of the Company and the Selling
Shareholders agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company or any Selling Shareholder, in
connection with such transaction or the process leading thereto.
42
19. This Agreement constitutes the entire agreement among the parties and
supersedes all prior agreements and understandings (whether written or oral)
among the Company, the Selling Shareholders and the Underwriters, or any of
them, with respect to the subject matter hereof.
20. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
21. Each of the Company, the Selling Shareholders and the Underwriters
irrevocably waives, to the fullest extent permitted by law, any and all rights
to trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
22. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
23. Notwithstanding anything herein to the contrary, each of the Company
and the Selling Shareholders is authorized to disclose to any persons the U.S.
Federal and State income tax treatment and tax structure of the potential
transaction and all materials of any kind (including tax opinions and other tax
analyses) provided to the Company and the Selling Shareholders relating to that
treatment and structure, without the Underwriters imposing any limitation of any
kind. However, any information relating to the tax treatment and tax structure
shall remain confidential (and the foregoing sentence shall not apply) to the
extent necessary to enable any person to comply with securities laws. For this
purpose, "tax structure" is limited to any facts that may be relevant to that
treatment.
[Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Shareholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Shareholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.]
If the foregoing is in accordance with your understanding, please sign and
return to us [six] counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and the Selling Shareholders. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is pursuant to the authority set
forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Shareholders for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
43
Very truly yours,
Yingli Green Energy Holding Company Limited
By:
---------------------------------------
Name:
Title:
The Selling Shareholders named
in Schedule II attached hereto
By:
---------------------------------------
Name:
Title:
[As Attorney-in-Fact acting on behalf of
each of the Selling Shareholders named
in Schedule II attached hereto]
Accepted as of the date hereof on behalf of each of the Underwriters
Xxxxxxx Xxxxx (Asia) L.L.C.
By:
---------------------------
Name:
Title:
UBS AG
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title
44
SCHEDULE I
NUMBER OF
OPTIONAL ADSS
TO BE
PURCHASED IF
TOTAL NUMBER OF MAXIMUM
FIRM ADSS TO BE OPTION
UNDERWRITER PURCHASED EXERCISED
----------- --------------- -------------
Xxxxxxx Sachs (Asia) L.L.C........................................
UBS AG .......................................................
Xxxxx Xxxxxxx & Co. ..............................................
CIBC World Market Corp. ..........................................
[Names of other Underwriters].....................................
--------------- -------------
Total
=============== =============
SCH I
SCHEDULE II
NUMBER OF
OPTIONAL ADSS TO
TOTAL NUMBER OF BE SOLD IF
FIRM ADSS TO BE MAXIMUM OPTION
SOLD EXERCISED
--------------- ----------------
The Company ......................................................
The Selling Shareholders:
[INSERT NAMES]................................................
TOTAL
SCH-II
SCHEDULE III
(a) Issuer Free Writing Prospectuses not included in the Pricing Disclosure
Package: [___]
(b) Materials other than the Pricing Prospectus that comprise the Pricing
Disclosure Package: [___]
SCH III
ANNEX I
[FORM OF POWER OF ATTORNEY]
YINGLI GREEN ENERGY HOLDING COMPANY LTD.
AMERICAN DEPOSITARY SHARES REPRESENTING ORDINARY SHARES
(par value US$0.01 per share)
IRREVOCABLE POWER OF ATTORNEY OF SELLING SHAREHOLDER
[The undersigned is a shareholder of Yingli Green Energy Holding Company Ltd.,
an exempted company incorporated in the Cayman Islands (the "Company"). In
connection with the initial public offering of the American Depositary Shares
("ADSs"), each representing one ordinary share, par value US$0.01 per share
("Ordinary Shares"), of the Company (the "Offering"), the undersigned
understands that the undersigned and certain other shareholders of the Company
(the undersigned and such other shareholders being hereinafter referred to as
the "Selling Shareholders") propose to sell Ordinary Shares of the Company, in
the form of ADSs, to the several underwriters (the "Underwriters") named in the
Underwriting Agreement (as defined below), represented by Xxxxxxx Xxxxx (Asia)
L.L.C. and UBS AG (the "Representatives"), and that the Underwriters propose to
offer such ADSs to the public. The undersigned also understands that, in
connection with the public offering pursuant to the Underwriting Agreement, the
Company has filed a Registration Statement (the "Registration Statement") with
the United States Securities and Exchange Commission (the "Commission") to
register under the Securities Act of 1933, as amended (the "1933 Act"), the
Ordinary Shares to be sold in the form of ADSs by the Selling Shareholders.
1. In connection with the foregoing, the undersigned hereby irrevocably
appoints [___] and [___], and either of them acting alone, as the
attorneys-in-fact (collectively, the "Attorneys" and individually, an
"attorney") of the undersigned, and agrees that the Attorneys, or either of them
acting alone, may also act as the attorneys-in-fact for any other Selling
Shareholder, with full power and authority in the name of, and for and on behalf
of, the undersigned:
(a) to do all things necessary to sell, assign, transfer and deliver
to the Underwriters up to the number (the "Maximum Number") of ADSs set
forth opposite the name of the undersigned at the end of this Power of
Attorney pursuant to the Underwriting Agreement;
(b) for the purpose of effecting such sale, to negotiate, execute,
deliver and perform the undersigned's obligations under (1) an underwriting
agreement (the "Underwriting Agreement") among the Company, the Selling
Shareholders and the Representatives, as representatives of the several
Underwriters named therein, (including the purchase price per ADS to be
paid by the Underwriters and the number (or method of determining the
number) of ADSs to be sold by the undersigned) as may be approved in the
sole discretion of the Attorneys, or either of them acting alone, such
approval to be conclusively evidenced by the execution and delivery of
ANNEX I - 1 -
the Underwriting Agreement by the Attorneys, or either of them acting alone
[; and (2) an engagement letter, dated [___], 2007 (the "Engagement
Letter"), among the Company, the Selling Shareholders and the
Representatives].
(c) to execute and deliver any amendments, modifications or
supplements to the Underwriting Agreement and Engagement Letter, to amend,
modify or supplement any of the terms thereof including, without
limitation, the terms of the offering, provided, however that no such
amendment shall increase the number of the ADSs to be sold by the
undersigned to more than the Maximum Number in the aggregate;
(d) to take any and all steps deemed necessary by the Attorneys, or
either of them acting alone, in connection with the sale of the ADSs with
respect to (i) the transfer on the books of the Company of the Ordinary
Shares underlying the ADSs, or on the records of the transfer agent, if
applicable, in order to effect the sale to the Underwriters, (ii) the
payment, out of the proceeds of such sale, of any expenses that are to be
borne by the undersigned in connection with the offer, sale and delivery of
the ADSs or any transfer taxes payable in connection with the transfer of
the ADSs to the Underwriters, and (iii) the transmission to or as directed
by the undersigned of the proceeds from the sale of the ADSs (after
deducting all amounts payable by the undersigned pursuant to this Power of
Attorney, the Underwriting Agreement [and the Engagement Letter]) and the
return to the undersigned of new certificates representing the excess, if
any, of the number of the Ordinary Shares over the number of the Ordinary
Shares underlying the ADSs sold to the Underwriters; to incur or authorize
the incurrence of any necessary or appropriate expense in connection with
the sale of the ADSs and to determine the amount of any transfer taxes;
(e) to join the Company in withdrawing the Registration Statement if
the Company should desire to withdraw such registration;
(f) to retain legal counsel in connection with any and all matters
referred to herein (which counsel may, but need not be, counsel for the
Company);
(g) to appoint an agent for service of process in the United States;
(h) to agree upon the allocation and to arrange payment therefor of
the expenses of the Offering (including, without limitation, the fees and
expenses of counsel referred to above) among the Company, the Underwriters
and the Selling Shareholders, including the undersigned;
(i) to authorize the appropriate book-entries, representing the
Ordinary Shares underlying the ADSs to be sold by the undersigned, if
applicable;
(j) to endorse with the registered seal of the undersigned on behalf
of the undersigned the certificate(s) representing the Ordinary Shares
underlying the ADSs, if applicable, to be sold by the undersigned, or a
transfer form or transfer forms attached to such certificate(s); and
(k) to make, execute, acknowledge and deliver all other contracts,
orders, receipts, notices, requests, instructions, certificates, letters
and other writings, including communications to the Commission (including a
request or requests for acceleration of the effective date of the
Registration Statement) and state securities law authorities, any
amendments to the Underwriting Agreement, the Engagement Letter or any
agreement with the Company with regard to expenses, and certificates and
other documents required to be delivered by or on behalf of the undersigned
ANNEX I - 2 -
pursuant to the Underwriting Agreement [or the Engagement Letter], and
specifically to execute on behalf of the undersigned stock powers and
transfer instructions relating to the Ordinary Shares underlying the ADSs
to be sold by the undersigned, and in general to do all things and to take
all action which the Attorneys, or either of them acting alone, may
consider necessary or proper in connection with, or to carry out and comply
with, all terms and conditions of the Underwriting Agreement [and the
Engagement Letter] and the aforesaid sale of ADSs to the several
Underwriters.
2. The undersigned hereby makes, at and as of the date of this Power of
Attorney, with and to the several Underwriters, each of the representations,
warranties, covenants and agreements of the undersigned as a Selling Shareholder
set forth in the Underwriting Agreement, and all such representations,
warranties, covenants and agreements are incorporated by reference herein in
their entirety (the representations, warranties and agreements being subject,
however, to the exception that orders or other authorizations that may be
required under the 1933 Act in connection with the purchase and distribution by
the Underwriters of the ADSs to be sold by the undersigned have not yet been
obtained).
The undersigned further:
(a) represents and warrants to, and agrees with, the several
Underwriters that this Power of Attorney and the Engagement Letter have
been duly executed and delivered by or on behalf of the undersigned and
constitute valid and binding agreements of the undersigned in accordance
with their respective terms; and
(b) (i) confirms to the several Underwriters the accuracy of the
information concerning the undersigned and the undersigned's shareholding
in the Company as set forth in the Registration Statement and Pricing
Prospectus (as defined in the Underwriting Agreement), dated [___], under
the caption "Principal and Selling Shareholders", a copy of which is
publicly available on XXXXX, (ii) also confirms to the several Underwriters
the accuracy of the information concerning the undersigned contained or to
be contained in any selling shareholder's questionnaire or other written
document furnished by the undersigned to the Company for purposes of the
Registration Statement or any prospectus (preliminary or final) contained
therein or filed pursuant to Rule 424 under the 1933 Act or in any
amendment or supplement thereto (including any documents incorporated by
reference therein), and (iii) agrees with the Company and the several
Underwriters immediately to notify the Company and promptly (but in any
event within two business days thereafter) to confirm the same in writing
if, during the period or at the date(s) referred to in paragraph 4 hereof,
there should be any change affecting the accuracy of the above-mentioned
information, or if any subsequent version of such section of the prospectus
delivered to the undersigned should be inaccurate, and (iv) agrees with the
Company and the several Underwriters that for all purposes of the
representations, warranties, covenants and agreements incorporated by
reference herein from the Underwriting Agreement, delivery of this Power of
Attorney and the statements contained herein constitute (and in the absence
of any such notification as is referred to in subclause (iii) given prior
to the date on which the Underwriting Agreement is executed and delivered
by the undersigned will constitute on a continuing basis) written
information furnished by the undersigned to the Company for use in the
Registration Statement and any such prospectus or prospectus supplement,
amendment or supplement.
3. This Power of Attorney and all authority conferred hereby are granted
and conferred subject to the interests of the Underwriters and the other Selling
Shareholders; and,
ANNEX I - 3 -
in consideration of those interests and for the purpose of completing the
transactions contemplated by the Underwriting Agreement and this Power of
Attorney, this Power of Attorney and all authority conferred hereby, to the
extent enforceable by law, shall be deemed an agency coupled with an interest
and be irrevocable and not subject to termination by the undersigned or by
operation of law, whether by the death or incapacity of the undersigned or any
executor or trustee or the termination of any estate or trust or by the
dissolution or liquidation of any corporation or partnership or by the
occurrence of any other event, and the obligations of the Selling Shareholder
under the Underwriting Agreement similarly are not to be subject to termination.
If any such individual or any such executor or trustee should die or become
incapacitated or if any such estate or trust should be terminated or if any such
corporation or partnership should be dissolved or liquidated or if any other
such event should occur before the delivery of the ADSs to be sold by the
undersigned under the Underwriting Agreement, such ADSs shall be delivered by or
on behalf of the undersigned in accordance with the terms and conditions of the
Underwriting Agreement, and all other actions required to be taken under the
Underwriting Agreement shall be taken, and actions taken by the Attorneys, or
either of them acting alone, pursuant to this Power of Attorney shall be as
valid as if such death, incapacity, termination, dissolution, liquidation or
other event had not occurred, regardless of whether or not the Attorneys, or
either of them acting alone, shall have received notice of such death,
incapacity, termination, dissolution, liquidation or other event.
Notwithstanding the foregoing, if the Underwriting Agreement is not
executed and delivered on or prior to [____], 2007 then from and after such date
the undersigned shall have the power to revoke all authority hereby conferred by
giving written notice to each of the Attorneys that this Power of Attorney has
been terminated; subject, however, to all lawful action done or performed by the
Attorneys or either one of them, pursuant to this Power of Attorney prior to the
actual receipt of such notice.
4. The undersigned will immediately notify the Attorneys, the Company and
the Representatives of the occurrence of any event which shall cause the
representations and warranties contained herein not to be true and correct
during the period of the public offering of the ADSs or at each Time of Delivery
(as defined in the Underwriting Agreement) for the ADSs pursuant to the
Underwriting Agreement.
5. The undersigned ratifies all that the Attorneys shall do by virtue of
and in accordance with this Power of Attorney. All actions may be taken by
either of the Attorneys alone. In the event that any statement, request, notice
or instruction given by one Attorney shall be inconsistent with that given by
another, any such statement, request, notice or instruction from [___] shall
prevail.
6. The undersigned agrees to hold the Attorneys, jointly and severally,
free and harmless from any and all loss, damage, liability or expense incurred
in connection herewith, including reasonable attorneys' fees and costs, which
they, or either of them acting alone, may sustain as a result of any action
taken in good faith hereunder.
7. In case any provision in this Power of Attorney shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
8. If the undersigned is (i) acting as trustee or in any fiduciary or
representative capacity, the undersigned has also delivered duly certified
copies of each trust agreement, will, letters testamentary or other instrument
pursuant to which the undersigned is authorized to act as a Selling Shareholder;
(ii) a corporation, the undersigned has also delivered or prior
ANNEX I - 4 -
to the closing date of the Offering will deliver (A) duly certified resolutions
of its board of directors authorizing it to enter into this Power of Attorney,
the Underwriting Agreement and the Engagement Letter and duly certified copies
of such corporation's memorandum of association, articles of association,
by-laws, certificate of incorporation or other organizational documents or (B)
an officer's certificate attesting to the authority of the signatories; (iii) a
partnership, the undersigned has also delivered extracts of any applicable
provisions of its partnership or limited liability company agreement (and
applicable provisions of the organizational documents or partnership
agreement(s) of the general partner(s) of such partnership) authorizing such
partnership to enter into this Power of Attorney, the Underwriting Agreement
[and the Engagement Letter]; (iv) a limited liability company, the undersigned
has also delivered extracts of any applicable provisions of its limited
liability company agreement (and applicable provisions of the organizational
documents or partnership or limited liability company agreement(s) of the
manager(s) or managing member(s) of such limited liability company) authorizing
such limited liability company to enter into this Power of Attorney, the
Underwriting Agreement and the Engagement Letter; or (v) any other type of
entity, the undersigned has also delivered extracts and certified copies of
similar documents authorizing such entity to enter into this Power of Attorney,
the Underwriting Agreement and the Engagement Letter.
9. The undersigned agrees to deliver such additional documentation
(including additional copies of the documentation referred to in the preceding
paragraph) as you, the Attorney, the Company or the Representatives or any of
their respective counsel may reasonably request to effectuate or confirm
compliance with any of the provisions hereof or of the Underwriting Agreement,
all of the foregoing to be in form and substance reasonably satisfactory in all
respects to the party requesting such documentation.
10. This Power of Attorney shall be governed by, and construed in
accordance with, the laws of the State of New York.]
ANNEX I - 5 -
Dated: _______________
Maximum number of ADSs to be sold:
_____________ ADSs
Signature of Selling Shareholder:
__________________________________
[Insert Full Name of Selling Shareholder]
By:____________________________
Name:
Title:
NOTE: SELLING SHAREHOLDER'S SIGNATURE(S) ON THIS POWER OF ATTORNEY MUST BE
CERTIFIED BY [-], AN OFFICER OF THE COMPANY.
Signature(s) certified by
By:____________________________
Name: [____]
______________________
You should sign in exactly the same manner as the Ordinary Shares of the
Company owned by you are registered and execute a separate Power of Attorney
for each different form in which shares are registered.
ANNEX I - 6 -
ANNEX II
[FORM OF COMFORT LETTER]
Pursuant to Section 8(h) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company and its subsidiaries within the meaning of the Act and the
applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus as
indicated in their reports thereon, copies of which have been separately
furnished to the Representatives, and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations,
nothing came to their attention that causes them to believe that the
unaudited condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations;
(iv) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 8 and 11 of Form 20-F and
Regulation S-K;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and its subsidiaries since the date of the
latest audited financial statements included in the Prospectus, inquiries
of officials of the Company and its subsidiaries responsible for financial
and accounting matters
ANNEX II - 1 -
and such other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) (i) the unaudited consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the Act and
the related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus for them to be in
conformity with generally accepted accounting principles;
(B) any other unaudited income statement data and balance sheet
items included in the Prospectus do not agree with the corresponding
items in the unaudited consolidated financial statements from which
such data and items were derived, and any such unaudited data and
items were not determined on a basis substantially consistent with the
basis for the corresponding amounts in the audited consolidated
financial statements included in the Prospectus;
(C) the unaudited financial statements which were not included in
the Prospectus but from which were derived any unaudited condensed
financial statements referred to in clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in clause (B) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(E) as of a specified date not more than five days prior to the
date of such letter, there have been any changes in the consolidated
capital stock (other than issuances of capital stock upon exercise of
options and stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities, in each case
which were outstanding on the date of the latest financial statements
included in the Prospectus) or any increase in the consolidated
long-term debt of the Company and its subsidiaries, or any decreases
in consolidated net current assets or shareholders' equity or other
items specified by the Representatives, or any increases in any items
specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus to the specified date referred
to in clause (E),
ANNEX II - 2 -
there were any decreases in consolidated net revenues or operating
profit or the total or per share amounts of consolidated net income or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with
the comparable period of the preceding year and with any other period
of corresponding length specified by the Representatives, except in
each case for decreases or increases which the Prospectus discloses
have occurred or may occur or which are described in such letter; and
(vi) In addition to the examination referred to in their report(s) included
in the Prospectus and the limited procedures, inspection of minute books,
inquiries and other procedures referred to in paragraph (iii) above, they have
carried out certain specified procedures, not constituting an examination in
accordance with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the Representatives,
which are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus, or in Part II of, or in exhibits
and schedules to, the Registration Statement specified by the Representatives,
and have compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have found
them to be in agreement.
ANNEX II - 3 -
ANNEX III
PARTIES TO EXECUTE LOCK-UP AGREEMENT
[INSERT NAMES]
ANNEX III - 1 -
ANNEX IV
FORM OF LOCK-UP AGREEMENT
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
LOCK-UP AGREEMENT
___________, 2007
Xxxxxxx Xxxxx (Asia) L.L.C.,
00xx Xxxxx, Xxxxxx Xxxx Xxxxxx,
0 Xxxxx'x Xxxx Xxxxxxx,
Xxxx Xxxx
UBS AG,
52/F, 2 International Finance Centre,
0 Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxx Xxxx
As Representatives of the several Underwriters named in Schedule I attached
hereto.
Re: Yingli Green Energy Holding Company Limited
-------------------------------------------
Ladies and Gentlemen:
The undersigned understands that you, as representative (the
"Representative"), proposes to enter into an underwriting agreement, on behalf
of the several underwriters named in Schedule I to such agreement (collectively,
the "Underwriters"), with Yingli Green Energy Holding Company Ltd., a company
incorporated in the Cayman Islands (the "Company"), [and the selling
shareholders (the "Selling Shareholders")] and certain other parties named in
such agreement, providing for a public offering of American Depositary Shares
("ADSs") representing ordinary shares of the Company, par value US$0.01 per
share, pursuant to a Registration Statement on Form F-1 (File No. 333-142851)
and a Registration Statement on Form F-6 (File No. 333-142852) to be filed with
the U.S. Securities and Exchange Commission (the "SEC").
In consideration of the agreement by the Underwriter to offer and sell the
ADSs, and of other good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the undersigned agrees that, during the period
beginning from the date of the final Prospectus covering the public offering of
the ADSs and continuing to and including the date 180 days after the date of
such final Prospectus (the "Lock-Up Period"), the undersigned will not, without
your prior written consent, offer, sell, contract to sell, pledge, grant any
option to purchase, purchase any option or contract to sell, right or warrant to
purchase, make any short sale, file a registration statement with respect to, or
otherwise dispose of (including entering into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequence of
ownership interests): (A) any ADSs or ordinary shares or any securities of the
Company that are substantially similar to the ADSs or ordinary shares, including
but not limited to any securities that are convertible into or exchangeable for,
or that represent the right to receive, ADSs or ordinary shares or any such
substantially similar securities; and (B) any ordinary shares of the Company's
Subsidiaries or controlled affiliates or depositary shares or depositary
receipts representing such ordinary shares, including but not limited to any
securities that are convertible into or exchangeable for or that
ANNEX IV - 1 -
represent the right to receive such ordinary shares or such depositary shares or
depositary receipts or any such substantially similar securities, whether now
owned or hereinafter acquired, owned directly by the undersigned (including
holding as a custodian) or with respect to which the undersigned has beneficial
ownership within the rules and regulations of the SEC, except that the foregoing
restrictions shall not apply to (x) a bona fide gift by an individual to a
donee, provided that such donee agrees to be bound in writing by the same
restrictions set forth herein or (y) a sale or transfer by an entity to an
affiliate or another entity whose owners, beneficiaries or limited partners, as
the case may be, are drawn solely from a group consisting of the undersigned and
immediate family members of the undersigned, provided that such sale or transfer
is not a disposition for value and that such transferee agrees to be bound in
writing by the same restrictions set forth herein; provided, however, that if
(1) during the last 17 days of the initial Lock-Up Period, the Company releases
earnings results or announces material news or a material event or (2) prior to
the expiration of the initial Lock-Up Period, the Company announces, or if the
Representatives determine, that it will release earnings results during the
16-day period following the last day of the initial Lock-Up Period, then in each
case the Lock-Up Period will be automatically extended until the expiration of
the 18-day period beginning on the date of release of the earnings results or
the announcement of the material news or material event, as applicable, unless
the Representatives waive, in writing, such extension. The undersigned
understands that the Company will provide the Representatives and the
undersigned with prior notice of any such announcement that gives rise to an
extension of the Lock-Up Period.
The undersigned understands that the Company, the Selling Shareholders and
the Underwriters are relying upon this Lock-Up Agreement in proceeding toward
consummation of the offering. The undersigned further understands that this
Lock-Up Agreement is irrevocable and shall be binding upon the undersigned's
heirs, legal representatives, successors, and assigns.
This Lock-Up Agreement shall terminate upon the expiration of the Lock-Up
Period or in the event that there is no delivery of, and payment for, the ADSs
pursuant to the underwriting agreement, upon 3 days' prior written notice of
such non-delivery and non-payment given by the undersigned to you.
Very truly yours,
-------------------------------
Exact Name of Shareholder
-------------------------------
Authorized Signature
-------------------------------
Title
ANNEX IV - 2 -
ANNEX V
[FORM OF OFFICER'S CERTIFICATE]
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
OFFICERS' CERTIFICATE
I, ________________, Chief Financial Officer of Yingli Green Energy Holding
Company Ltd., an exempted company incorporated in the Cayman Islands (the
"Company") pursuant to Section 8(r) of the Underwriting Agreement, dated [____],
2007, among the Company [, the Selling Shareholders named in the Schedule II
thereto], Xxxxxxx Xxxxx (Asia) L.L.C. and UBS AG as Representatives of the
several Underwriters named in Schedule I thereto, hereby certify to Xxxxxxx
Sachs (Asia) L.L.C. and UBS AG, as Representative of the several Underwriters,
in connection with the Registration Statement on Form F-1 (File No. 333-142851
as amended or supplemented (the "Registration Statement") filed by the Company
with the U.S. Securities and Exchange Commission under the U.S. Securities Act
of 1933, as amended, that:
1. I have reviewed (i) Tianwei Yingli's selected historical consolidated
financial information as of and for the years ended December 31, 2002 and 2003
(collectively, the "Selected 2002 and 2003 Financial Information of Tianwei
Yingli") included in the Registration Statement under the caption "Selected
Consolidated Financial Information" and (ii) Tianwei Yingli's unaudited
consolidated financial statements as of and for the years ended December 31,
2002 and 2003 (the "2002 and 2003 Financial Statements of Tianwei Yingli").
2. To the best of my knowledge after due inquiry, the Selected 2002 and
2003 Financial Information of Tianwei Yingli are: (i) true and correct in all
material respects, and (ii) derived from the 2002 and 2003 Financial Statements
of Tianwei Yingli, which have been derived from Tianwei Yingli's accounting
records and prepared in conformity with generally accepted accounting principles
in the United States applied on a basis substantially consistent with Tianwei
Yingli's audited consolidated financial statements included in the Registration
Statement.
4. (i) For the period from [_____] to the date of this certificate, there
have not been any decreases in [consolidated revenue or in the total or per
share amount of profit before taxation or of net income], as compared to the
corresponding period in the preceding year; (ii) at the date of this
certificate, there have not been any material changes in [issued share capital,
increase in long-term debt] or decreases in [net current assets or shareholders'
equity] of Tianwei Yingli compared with amounts shown in the Tianwei Yingli's
[-] condensed consolidated balance sheet; and (iii) each of the figures
identified in the attached copy of the Pricing Prospectus has been derived from
Tianwei Yingli's accounting and business records and is a true and accurate
measurement of the data it is intended to represent.
5. For the period from [_____] to the date of this certificate, there have
not been any decreases in [consolidated revenue or in the total or per share
amount of profit before taxation or of net income], as compared to the
corresponding period in the preceding year; (ii) at the date of this
certificate, there have not been any material changes in [issued share capital,
increase in long-term debt] or decreases in [net current assets or shareholders'
equity] of the Company compared with amounts shown in the Company's [_____]
condensed consolidated balance sheet; and (iii) each of the figures identified
in the attached copy of the Pricing Prospectus has been derived from the
Company's accounting and business records and is a true and accurate measurement
of the data it is intended to represent.
ANNEX V - 1 -
This Officers' Certificate is being delivered to the Representatives to
assist them and the Underwriters in conducting and documenting their
investigations of the affairs of the Company and its Subsidiaries in connection
with the offering of the securities covered by the Registration Statement.
ANNEX V - 2 -
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated as of: [_____], 2007
-----------------------------------
Name: [_____]
Title: Chief Financial Officer
ANNEX V - 3 -
EXHIBIT A
FORM OF THE COMPANY'S US COUNSEL OPINION
(i) The statements made in the Prospectus under the caption "Description of
American Depositary Shares", insofar as they purport to constitute summaries of
the terms of the ADSs, the ADRs and the Deposit Agreement, constitute accurate
summaries of such provisions in all material respects.
(ii) The statements made in the Prospectus under the caption "Taxation
--United States Federal Income Taxation", insofar as they purport to constitute
summaries of matters of U.S. federal tax law and regulations or legal
conclusions with respect thereto, constitute accurate summaries of the matters
described therein in all material respects.
(iii) The Underwriting Agreement has been duly executed and delivered by
the Company [and the Selling Shareholders] in accordance with the law of the
State of New York.
(iv) [The Custody Agreement has been duly executed and delivered by the
Selling Shareholders in accordance with the law of the State of New York.]
(v) The Deposit Agreement has been duly executed and delivered by the
Company in accordance with the law of the State of New York and, assuming that
the Deposit Agreement is the valid and legally binding obligation of the
Depositary, constitutes a valid and legally binding obligation of the Company
enforceable against the Company in accordance with its terms.
(vi) Assuming due authorization, execution, issuance and delivery by the
Depositary of the ADRs evidencing the ADSs against the deposit of the Shares in
accordance with the provisions of the Deposit Agreement and payment therefor in
accordance with the Underwriting Agreement, such ADRs will be duly and validly
issued, and persons in whose names such ADRs are registered will be entitled to
the rights specified therein and in the Deposit Agreement.
(vii) Assuming the validity of such actions under Cayman Islands law, under
the law of the State of New York relating to personal jurisdiction, the Company
[and the Selling Shareholders] has, pursuant to the Underwriting Agreement,
validly and irrevocably submitted to the personal jurisdiction of the New York
state or U.S. federal courts located in the Borough of Manhattan, The City of
New York, New York in any action arising out of or relating to the Underwriting
Agreement, has, to the extent permitted by applicable law, validly and
irrevocably waived any objection to the venue of a proceeding in any such court,
and has validly and irrevocably appointed Law Debenture Corporate Services Inc.,
currently located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its
authorized service of process agent for the purposes described in the
Underwriting Agreement, and service of process effected on such agent will be
effective to confer in the manner set forth in Section 15 of the Underwriting
Agreement and will be effective to confer valid personal jurisdiction over the
Company [and the Selling Shareholders].
(viii) Assuming the validity of such actions under Cayman Islands law,
under the law of the State of New York relating to personal jurisdiction, the
Company has, pursuant to the Deposit Agreement, validly and irrevocably
submitted to the personal jurisdiction of the New York state or U.S. federal
courts located in the Borough of Manhattan, The City of New York, New York in
any action or proceeding arising out of or relating to the Deposit Agreement,
and has validly and irrevocably appointed Law Debenture Corporate Services Inc.,
currently located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its
authorized service of process agent for the purposes described in the Deposit
Agreement; and service of process effected in the manner set forth in Section 20
of the Deposit Agreement will be effective to confer valid personal jurisdiction
over the Company in connection with any such action or proceeding.
(ix) No consent, approval, authorization, order, registration or
qualification of or with any U.S. federal or New York state governmental agency
or body, or to our knowledge, any U.S. federal or New
Exhibit A - 1 -
York state court is required for the issuance by the Company of the Shares to be
represented by the ADSs, the deposit of the Shares and the issuance of the ADRs
pursuant to the Deposit Agreement, the sale of the ADSs and the compliance by
the Company with the provisions of the Deposit Agreement and the Underwriting
Agreement, except for the registration under the Securities Act and the Exchange
Act of the Shares and the ADSs, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the ADSs by
the Underwriters.
(x) [No consent, approval, authorization, order, registration or
qualification of or with any U.S. federal or New York state governmental agency
or body, or to our knowledge, any U.S. federal or New York state court is
required for the deposit of the Shares and the issuance of the ADRs pursuant to
the Deposit Agreement, the sale of the ADSs and the compliance by the Selling
Shareholders with the provisions of the Underwriting Agreement and the Custody
Agreements, except for the registration under the Securities Act and the
Exchange Act of the Shares and the ADSs, and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and distribution of
the ADSs by the Underwriters.]
(xi) Each of the Registration Statement and the ADS Registration Statement
has become effective under the Securities Act; the Prospectus was filed on
[_____], 2007 pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Securities Act; and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued or
proceeding for that purpose has been instituted or threatened by the Commission.
(xii) The Company is not an "investment company" within the meaning of and
subject to regulation under the U.S. Investment Company Act of 1940, as amended.
(xiii) Each of the Registration Statement, as of the date it became
effective under the Securities Act, the Prospectus, as of its date, and the ADS
Registration Statement, as of the date it became effective under the Securities
Act, appeared, on its face, to be appropriately responsive, in all material
respects, to the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, except that in each case we express no
view with respect to the financial statements or other financial or statistical
data contained in or omitted from the Registration Statement, the Prospectus or
the ADS Registration Statement; and (ii) nothing has come to our attention that
causes us to believe that (a) either the Registration Statement or the ADS
Registration Statement, as of the respective date it became effective under the
Securities Act, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein not misleading, (b) the [Preliminary Prospectus]
[Pricing Disclosure Package], as of the time of the pricing of the offering of
the ADSs on [_____], 2007, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that we express no belief in this clause (b) with respect to
the final pricing or distribution terms of the offering of the ADSs or
information based upon or derived therefrom, or (c) the Prospectus, as of its
date or as of the date hereof, contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that we express no belief in any of
clauses (a), (b) or (c) above with respect to the financial statements or other
financial or statistical data contained in or omitted from the Registration
Statement, the [Preliminary Prospectus] [Pricing Disclosure Package], the
Prospectus or the ADS Registration Statement.
Exhibit A - 2 -
EXHIBIT B
FORM OF THE COMPANY'S PRC COUNSEL OPINION
(i) Tianwei Yingli has been duly organized and is validly existing as a
Sino-foreign joint stock company with limited liability under the laws of the
PRC and its business license is in full force and effect; Tianwei Yingli has
been duly qualified as a foreign invested enterprise; [62.13]% of the equity
interest of Tianwei Yingli is owned by the Company, and such equity interest is
free and clear of all liens, encumbrances, equities or claims; the articles of
association, the business license and other constituent documents of Tianwei
Yingli comply with the requirements of applicable laws of the PRC and are in
full force and effect; Tianwei Yingli has full power and authority (corporate
and other) and has all consents, approvals, authorizations, orders,
registrations, clearances and qualifications of or with any Governmental Agency
having jurisdiction over Tianwei Yingli or any of its properties required for
the ownership or lease of property by it and the conduct of its business and has
the legal right and authority to own, use, lease and operate its assets and to
conduct its business in the manner presently conducted and as described in the
Prospectus;
(ii) Each of Chengdu Yingli, Tibet Yingli, Tibet Keguang has been duly
organized and is validly existing as a limited liability company under laws of
the PRC and its business license is in full force and effect; Yingli Guangfu has
been duly organized and is validly existing as a Sino-foreign joint stock
company with limited liability under the laws of the PRC and its business
license is in full force and effect; Yingli Guangfu has been duly qualified as a
foreign invested enterprise; 64% of the equity interest of Chengdu Yingli, 50%
of the equity interest of Tibet Yingli and 51% of the equity interest of Yingli
Guangfu are duly and validly owned by Tianwei Yingli and 99% of the equity
interest of Tibet Keguang are duly and validly owned by Tibet Yingli, and such
equity interests are free and clear of all liens, encumbrances, equities or
claims; the articles of association, the business license and other constituent
documents of Chengdu Yingli, Tibet Yingli, Yingli Guangfu or Tibet Keguang,
respectively, comply with the requirements of applicable laws of the PRC and are
in full force and effect; all of the issued shares of capital stock of Chengdu
Yingli, Tibet Yingli, Yingli Guangfu and Tibet Keguang have been duly and
validly authorized and issued and are fully paid and non-assessable; each of
Chengdu Yingli, Tibet Yingli, Yingli Guangfu and Tibet Keguang has full power
and authority (corporate and other) and has all consents, approvals,
authorizations, orders, registrations, clearances and qualifications of or with
any Governmental Agency having jurisdiction over Chengdu Yingli, Tibet Yingli,
Yingli Guangfu or Tibet Keguang or any of its properties required for the
ownership or lease of property by it and the conduct of its business and has the
legal right and authority to own, use, lease and operate its assets and to
conduct its business in the manner presently conducted and as described in the
Prospectus;
(iii) As of the date of this Agreement, except for Chengdu Yingli, Tibet
Yingli, Yingli Guangfu and Tibet Keguang, Tianwei Yingli has no other
subsidiaries and Tianwei Yingli does not own or control, directly or indirectly,
any equity or other ownership interest in any corporation, partnership, joint
venture or any other person;
(iv) All of the issued shares of capital stock of Tianwei Yingli have been
duly and validly authorized and issued and are fully paid and non-assessable;
Tianwei Yingli has obtained all approvals, authorizations, consents and orders,
and has made all filings and registrations, which are required under PRC laws
and regulations for the ownership interest by the Company of its equity interest
in Tianwei Yingli; and there are no outstanding rights, warrants or options to
acquire, or instruments convertible into or exchangeable for, nor any agreements
or other obligations to issue or other rights to convert any obligation into,
any equity interest in Tianwei Yingli;
(v) Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu and Tibet
Keguang and their respective subsidiaries have legal and valid title to all of
their respective properties and assets, in each
Exhibit B - 1 -
case, free and clear of liens, charges, encumbrances, equities, orders, notices,
claims, defects, options or restriction; [each of Tianwei Yingli, Chengdu
Yingli, Tibet Yingli, Yingli Guangfu and Tibet Keguang and their respective
subsidiaries has the beneficial interests in and the right to transfer, lease
and mortgage the land use rights and building ownership rights over all of the
real properties as owned by it, free and clear of all liens, charges,
encumbrances, equities, orders, notices, claims, defects, options or
restrictions; each lease to which any of Tianwei Yingli, Chengdu Yingli, Tibet
Yingli, Yingli Guangfu, Tibet Keguang or their respective subsidiaries is a
party, is legal, valid, binding and enforceable in accordance with its terms
and, to the best of its knowledge, against the other parties thereto, and no
material default (or event which with notice or lapse of time, or both, would
constitute a default) by Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli
Guangfu, Tibet Keguang or their respective subsidiaries has occurred and is
continuing under any such lease; the use of any premises occupied by Tianwei
Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu, Tibet Keguang or their
respective subsidiaries is in accordance with that provided for the lease, land
use rights, tenancy, license, concession or agreement of whatsoever nature
relating to such occupation and the relevant above entity has observed and
performed the terms and conditions thereof on the part of the tenant to be
observed and performed; and none of Tianwei Yingli, Chengdu Yingli, Tibet
Yingli, Yingli Guangfu, Tibet Keguang and their respective subsidiaries has
received any claim for liabilities in respect of any properties previously
occupied by it or in which it owned or held any interests, including without
limitation, leasehold premises assigned, surrendered or otherwise disposed of;
and, to the best of such counsel's knowledge after due inquiry, none of the
Company, Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu and Tibet
Keguang owns, operates, manages or has any other right or interest in any other
material real property of any kind, except as described in the Pricing
Prospectus;]
(vi) All Governmental Authorizations required under the laws and
regulations of the PRC in connection with the establishment of Yingli Power and
each of the overseas affiliates of Tianwei Yingli have been obtained, and none
of such Governmental Authorizations has been withdrawn or is subject to any
condition precedent which has not been fulfilled or performed;
(vii) The statements set forth in the Pricing Prospectus under the captions
"Restructuring" and "Related Party Transactions", insofar as they purport to
describe the events, transactions and documents referred to therein, are true,
accurate, complete and fair in all material respects;
(viii) The Restructuring (including, without limitation, the increase of
the registered capital of Tianwei Yingli from XXX 00 million to XXX 000 million,
Yingli Group's increase of its equity interest in Tianwei Yingli from 49% to 51%
and the transfer of 51% equity interest in Tianwei Yingli by Yingli Group to the
Company) has been completed and effected prior to the date hereof and
constitutes binding and irrevocable transactions completed by the parties to the
Restructuring Documents; each of the Restructuring Documents has been effected
prior to the date hereof in compliance with all applicable national, provincial,
municipal and local laws, and constitutes a binding transaction completed by the
parties to the Restructuring Documents; each of the Restructuring Documents has
been duly authorized, executed and delivered by the Company, Yingli Power,
Yingli Group or Tianwei Yingli that is a party to such document prior to the
date hereof and each Restructuring Document constitutes a valid and legally
binding document of the Company, Yingli Power, Yingli Group or Tianwei Yingli
that is a party and such document is enforceable in accordance with its terms,
subject, as to enforceability, to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles;
(ix) The Restructuring (including, without limitation, the increase of the
registered capital of Tianwei Yingli from XXX 00 million to XXX 000 million,
Yingli Group's increase of its equity interest in Tianwei Yingli from 49% to 51%
and the transfer of 51% equity interest in Tianwei Yingli by Yingli Group to the
Company) and the Restructuring Documents and the consummation thereof and the
execution and the delivery by the Company, Yingli Power, Yingli Group or Tianwei
Yingli, as the case may be, of each Restructuring Document to which it is a
party and the performance of their respective obligations
Exhibit B - 2 -
thereunder did not, do not and will not (A) contravene any provision of
applicable law or statute, rule or regulation of any Governmental Agency having
jurisdiction over the Company, Yingli Power, Yingli Group, Tianwei Yingli or any
of their subsidiaries or any of their properties (including but not limited to
the Ministry of Commerce, the China Securities Regulatory Commission, the State
Administration of Industry and Commerce, the National Development and Reform
Commission, the State-owned Asset Administration Commission, the State Tax
Bureau and the State Administration of Foreign Exchange of the PRC, the Hebei
Provincial Office of Commerce, the Hebei Provincial Administration of Industry
and Commerce, the Hebei Provincial Development and Reform Commission, the Hebei
State-owned Asset Administration Commission, the Hebei Provincial State Tax
Bureau, the Hebei Provincial Local Tax Bureau, the Hebei Provincial
Administration of Foreign Exchange, the Baoding Municipal Government, the
Baoding City Administration of Industry and Commerce, the Baoding City
State-owned Asset Administration Commission, the Baoding State Tax Bureau, the
Baoding City Local Tax Bureau and the Baoding City Administration of Foreign
Exchange), (B) contravene the articles of association, business license or other
constituent documents of the Company, Yingli Power, Yingli Group, Tianwei Yingli
or any of their subsidiaries, or (C) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any material license, indenture, mortgage, deed of trust, loan agreement, note,
lease or other agreement or instrument to which the Company, Yingli Power,
Yingli Group, Tianwei Yingli or any of their subsidiaries is a party or by which
the Company, Yingli Power, Yingli Group, Tianwei Yingli or any of their
subsidiaries is bound or to which any of their property or assets is subject;
(x) Except as disclosed in the Pricing Prospectus, all consents, approvals,
authorizations, orders, registrations, filings and qualifications required in
the PRC in connection with the Restructuring and the Restructuring Documents and
the execution, delivery and performance of the Restructuring Documents have been
made or unconditionally obtained in writing (including, without limitation (i)
all actions necessary for the approval of the Restructuring and the
Restructuring Documents by any government agency in the PRC and (ii) the consent
of third parties under joint venture agreements, bank loans, guarantees and
other contracts material to the Company, Yingli Power, Yingli Group and Tianwei
Yingli taken as a whole, if the consent of such third parties is necessary to be
obtained), and no such consent, approval, authorization, order, registration,
filing or qualification has been withdrawn or revoked or is subject to any
condition precedent which has not been fulfilled or performed;
(xi) Other than the Restructuring Documents, there are no other material
documents or agreements, written or oral, that have been entered into by the
Company, Tianwei Yingli, Yingli Power, Yingli Group or any of their respective
subsidiaries in connection with the Restructuring which have not been previously
provided, or made available, to the Underwriters and, to the extent material to
the Company, Tianwei Yingli, Yingli Power, Yingli Group or any of their
subsidiaries, disclosed in the Pricing Prospectus;
(xii) Yingli Power that was incorporated outside of the PRC has taken, or
is in the process of taking, reasonable steps to comply with, and to ensure
compliance by each of its shareholders, option holders, directors, officers,
employees and Directed Share Participants that is, or is directly or indirectly
owned or controlled by, a PRC resident or citizen with, any applicable rules and
regulations of the relevant PRC government agencies (including but not limited
to the Ministry of Commerce, the National Development and Reform Commission and
the State Administration of Foreign Exchange) relating to overseas investment by
PRC residents and citizens or overseas listing by offshore special purpose
vehicles controlled directly or indirectly by PRC companies and individuals,
such as Tianwei Yingli (the "PRC Overseas Investment and Listing Regulations"),
including, without limitation, requesting each shareholder, option holder,
director, officer, employee and Directed Share Participant that is, or is
directly or indirectly owned or controlled by, a PRC resident or citizen to
complete any registration and other procedures required under applicable PRC
Overseas Investment and Listing Regulations;
Exhibit B - 3 -
(xiii) Each of the Restructuring Documents is in proper legal form under
the laws of the PRC for the enforcement thereof against each of the parties
thereto in the PRC without further action by any of the parties thereto; and to
ensure the legality, validity, enforceability or admissibility in evidence of
each of the Restructuring Documents in the PRC, it is not necessary that any
such document be filed or recorded with any court or other authority in the PRC
or that any stamp or similar tax be paid on or in respect of any of the
Restructuring Documents (in the case any such stamp or tax is required, the
Company or its relevant Subsidiaries have duly paid the stamp or tax as of the
date hereof);
(xiv) Each of Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu
and Tibet Keguang has all necessary licenses, consents, authorizations,
approvals, orders, certificates and permits of and from, and has made all
declarations and filings with, all Governmental Agencies to own, lease, license
and use its properties, assets and conduct its business in the manner described
in the Prospectus and such licenses, consents, authorizations, approvals,
orders, certificates or permits contain no materially burdensome restrictions or
conditions not described in the Prospectus; except as described in the
Prospectus, none of Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu
and Tibet Keguang has any reason to believe that any regulatory body is
considering modifying, suspending or revoking any such licenses, consents,
authorizations, approvals, orders, certificates or permits and each of Tianwei
Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu and Tibet Keguang is in
compliance with the provisions of all such licenses, consents, authorizations,
approvals, orders, certificates or permits in all material respects;
(xv) Tianwei Yingli is currently not prohibited, directly or indirectly,
from paying any dividends or other distributions to the Company, except as
described in the Prospectus; all dividends and other distributions declared and
payable upon the equity interests in Tianwei Yingli may under the current laws
and regulations of the PRC be paid to the Company in Renminbi that may be
converted into U.S. dollars and freely transferred out of the PRC, and all such
dividends and other distributions are not and, except as described in the
Prospectus, will not be subject to withholding or other taxes under the laws and
regulations of the PRC and, except as described in the Prospectus, are otherwise
free and clear of any other tax, withholding or deduction in the PRC, and
without the necessity of obtaining any Governmental Authorization in the PRC;
(xvi) Neither the Company nor any of its Subsidiaries is (A) in breach of
or in default under any laws, regulations, rules, orders, decrees, guidelines or
notices of the PRC, (B) in breach of or in default under any approval, consent,
waiver, authorization, exemption, permission, endorsement or license granted by
any Governmental Agency in the PRC, (C) in violation of their respective
constituent documents, business licenses or permits or (D) in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument to which it is a party or by which it or
any of its properties may be bound;
(xvii) None of Chengdu Yingli, Tibet Yingli, Yingli Guangfu, Tibet Keguang
and their respective subsidiaries is (A) in breach of or in default under any
laws, regulations, rules, orders, decrees, guidelines or notices of the PRC, (B)
in breach of or in default under any approval, consent, waiver, authorization,
exemption, permission, endorsement or license granted by any Governmental Agency
in the PRC, (C) in violation of their respective constituent documents, business
licenses or permits or (D) in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its properties may be
bound;
(xviii) The statements in the Prospectus under ["Prospectus Summary", "Risk
Factors", "Restructuring", "Management's Discussion and Analysis of Financial
Condition and Results of Operations", "Business", "PRC Government Regulations",
"Management", "Principal and Selling Shareholders", "Related Party
Transactions", "Taxation" and "Enforcement of Civil Liabilities"] to the extent
such statements relate to matters of PRC laws or regulations or to the
provisions of documents therein
Exhibit B - 4 -
described, are true and accurate in all material respects, and nothing has been
omitted from such statements which would make the same misleading in any
material respect;
(xix) Tianwei Yingli is the exclusive owner of all right, title and
interest in and to the Intellectual Property, and the Company or Tianwei Yingli
has a valid right to use the Intellectual Property as currently used or as
currently contemplated to be used by the Company, in each case, as described in
the Prospectus; any of the Intellectual Property that was assigned by any third
party to Tianwei Yingli has been assigned solely to Tianwei Yingli, which
assignment was either recorded in and proclaimed by the PRC Intellectual
Property authorities or other foreign patent or trademark registration office,
as applicable, or has been submitted for recording in the PRC Intellectual
Property authorities or other foreign patent or trademark registration office,
as applicable; and such assignment is valid, binding and enforceable, and all
PRC governmental approvals in respect of such assignment have been obtained and
are in full force and effect;
(xx) Neither the Company nor any of its Subsidiaries is infringing,
misappropriating or violating any intellectual property right of any third party
in the PRC; and no Intellectual Property is subject to any outstanding decree,
order, injunction, judgment or ruling restricting the use of such Intellectual
Property in the PRC that would impair the validity or enforceability of such
Intellectual Property;
(xxi) No security interests or other liens have been created with respect
to any of the Intellectual Property;
(xxii) To the best knowledge of such counsel after due inquiry, there are
no outstanding guarantee or contingent payments obligations of Tianwei Yingli or
the Subsidiaries in respect of indebtedness of third parties except as disclosed
in the Prospectus;
(xxiii) No stamp or other issuance or transfer taxes or duties and no
capital gains, income, withholding or other taxes are payable by or on behalf of
the Underwriters to the government of the PRC or to any political subdivision or
taxing authority thereof or therein in connection with (a) the deposit with the
Depositary of Shares against the issuance of ADRs evidencing the ADSs, (b) the
sale and delivery by the Company [and the Selling Shareholders] of the ADSs and
the Shares to or for the respective accounts of the Underwriters or (c) the sale
and delivery outside the PRC by the Underwriters of the ADSs and the Shares to
the initial purchasers thereof in the manner contemplated herein;
(xxiv) The irrevocable submission of the Company [and each of the Selling
Shareholders] to the jurisdiction of any New York Court, the waiver by the
Company [and each of the Selling Shareholders] of any objection to the venue of
a proceeding in a New York Court, the waiver and agreement not to plead an
inconvenient forum, the waiver of sovereign immunity and the agreement of the
Company [and each of the Selling Shareholders] that this Agreement and Deposit
Agreement shall be construed in accordance with and governed by the laws of the
State of New York are legal, valid and binding under the laws of the PRC and
will be respected by PRC courts; service of process effected in the manner set
forth in this Agreement and the Deposit Agreement will be effective, insofar as
PRC law is concerned, to confer valid personal jurisdiction over the Company
[and each of the Selling Shareholders]; and any judgment obtained in a New York
Court arising out of or in relation to the obligations of the Company [and each
of the Selling Shareholders] under this Agreement and the Deposit Agreement will
be recognized in PRC courts subject to the conditions described under the
caption "Enforceability of Civil Liabilities" in the Prospectus;
(xxv) The indemnification and contribution provisions set forth in Section
9 hereof and Section [____] of the Deposit Agreement do not contravene the
public policy or laws of the PRC;
(xxvi) To the best of such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal, administrative, arbitration or
governmental proceedings pending to which the Company, Tianwei Yingli, Chengdu
Yingli, Tibet Yingli, Yingli Guangfu or Tibet Keguang is a party or of which any
property of Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu or
Tibet Keguang is the subject
Exhibit B - 5 -
which, if determined adversely to any of the Company, Tianwei Yingli, Chengdu
Yingli, Tibet Yingli, Yingli Guangfu or Tibet Keguang would individually or in
the aggregate have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of operations
of the Company, Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu or
Tibet Keguang; and, to the best of such counsel's knowledge after due inquiry,
no such proceedings are threatened or contemplated by any Governmental Agency or
threatened by others;
(xxvii) The issue and sale of the Shares and the ADSs being delivered at
such Time of Delivery and the deposit of the Shares with the Depositary against
issuance of the ADRs evidencing the ADSs to be delivered at such Time of
Delivery and the compliance by the Company with all of the provisions of this
Agreement and the Deposit Agreement, [the compliance by each of the Selling
Shareholders with all of the provisions of this Agreement and the Power of
Attorney,] and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to such counsel to which the Company, Tianwei Yingli, Chengdu Yingli, Tibet
Yingli, Yingli Guangfu or Tibet Yingli is a party or by which the Company,
Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu or Tibet Keguang is
bound or to which any of the property or assets of the Company, Tianwei Yingli,
Chengdu Yingli, Tibet Yingli, Yingli Guangfu or Tibet Keguang is subject, nor
will such action result in any violation of the provisions of the articles of
association, business license or any other constituent documents of the Company,
Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu or Tibet Keguang or
any statute or any order, rule or regulation known to such counsel of any
Governmental Agency having jurisdiction over the Company, Tianwei Yingli,
Chengdu Yingli, Tibet Yingli, Yingli Guangfu or Tibet Keguang or any of their
properties;
(xxviii) Except as disclosed in the Pricing Prospectus, no Governmental
Authorization of or with any Governmental Agency in the PRC is required for the
issue and sale of the Shares and the ADSs, the listing of the Shares and ADSs on
the NYSE, the deposit of the Shares with the Depositary against issuance of the
ADRs evidencing the ADSs to be delivered at such Time of Delivery or the
consummation of the transactions contemplated by the Underwriting Agreement, the
Deposit Agreement and the Power of Attorney; and the issue and sale of the
Shares and the ADSs being delivered at such Time of Delivery and the deposit of
the Shares with the Depositary against issuance of the ADRs evidencing the ADSs
to be delivered at such Time of Delivery and the compliance by the Company with
all of the provisions of the Underwriting Agreement and the Deposit Agreement,
[the compliance by each of the Selling Shareholders with all of the provisions
of the Underwriting Agreement and the Power of Attorney,] and the consummation
of the transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any law or statute or any order, rule or
regulation of any Governmental Agency in the PRC;
(xxix) None of Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu
or Tibet Keguang is in violation of its articles of association, business
license or any other constituent documents or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(xxx) The application of the net proceeds to be received by the Company
from the sale of ADSs as contemplated by the Prospectus will not contravene any
provision of applicable PRC law, rule or regulation, or the articles of
association, the business or other constituent documents of Tianwei Yingli or
contravene the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument binding upon Tianwei Yingli, or any judgment, order or
decree of any Governmental Agency in the PRC;
(xxxi) Although such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, they have no reason to believe that
(a) any part of the Registration Statement or any further amendment thereto
(other
Exhibit B - 6 -
than the financial statements and other financial information contained therein,
as to which such counsel need express no opinion), when such part or amendment
became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; (b) the Pricing Disclosure Package, as of the
Applicable Time and as of such Time of Delivery (other than the financial
statements and other financial information contained therein, contained any
untrue statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein), in the light of the
circumstances under which they were made, not misleading; (c) as of its date and
as of such Time of Delivery, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery (other
than the financial statements and other financial information contained therein,
as to which such counsel need express no opinion) contained or contains an
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; or (d) the ADS Registration
Statement or any further amendments thereto (other than the financial statements
and other financial information contain therein, as to which such counsel need
express no opinion), at the time the ADS Registration Statement or any further
amendment thereto became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(xxxii) The entry into, and performance or enforcement of this Agreement,
the Deposit Agreement or the Power of Attorney in accordance with its respective
terms will not subject any of the Underwriters or the Depositary to any
requirement to be licensed or otherwise qualified to do business in the PRC, nor
will any Underwriter or the Depositary be deemed to be resident, domiciled,
carrying on business through an establishment or place in the PRC or in breach
of any laws or regulations in the PRC by reason of entry into, performance or
enforcement of this Agreement, the Deposit Agreement or the Power of Attorney;
(xxxiii) Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu,
Tibet Keguang and their respective subsidiaries and their respective properties,
assets and operations are in compliance with, and Tianwei Yingli, Chengdu
Yingli, Tibet Yingli, Yingli Guangfu, Tibet Keguang and their respective
subsidiaries hold all permits, authorizations and approvals required under,
Environmental Law; there are no past, present or reasonably anticipated future
events, conditions, circumstances, activities, practices, actions, omissions or
plans that could reasonably be expected to give rise to any material costs or
liabilities to Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu,
Tibet Keguang and their respective subsidiaries under, or to interfere with or
prevent compliance by Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli
Guangfu, Tibet Keguang and their respective subsidiaries with, Environmental
Law; none of Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu, Tibet
Keguang and their respective subsidiaries (A) is the subject of any
investigation, (B) has received any notice or claim, (C) is a party to or
affected by any pending or threatened action, suit or proceeding, (D) is bound
by any judgment, decree or order or (E) has entered into any agreement, in each
case relating to any alleged violation of any Environmental Law or any actual or
alleged release or threatened release or cleanup at any location of any
Hazardous Materials;
(xxxiv) All returns, reports or filings which ought to have been made by or
in respect of Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli Guangfu,
Tibet Keguang and their respective subsidiaries for taxation purposes as
required by the law of the PRC have been made and all such returns are correct
and on a proper basis in all material respects and are not the subject of any
dispute with the relevant tax, revenue or other appropriate authorities; all
taxes and other assessments of a similar nature (whether imposed directly or
through withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such authorities have been paid
in full; and none of Tianwei Yingli, Chengdu Yingli, Tibet Yingli, Yingli
Guangfu, Tibet Keguang and their respective subsidiaries has received notice of
any tax deficiency with respect to Tianwei Yingli, Chengdu Yingli, Tibet Yingli,
Tibet Keguang or their respective subsidiaries;
Exhibit B - 7 -
[(xxxiii) [(A) Except as disclosed in the Pricing Prospectus, the
Restructuring and the Restructuring Documents have been effected prior to the
date hereof in compliance with the M&A Rules and Related Clarifications; (B) (i)
the Restructuring and the Restructuring Documents and the consummation thereof
and the execution and the delivery by the Company, Yingli Group, Yingli Power or
Tianwei Yingli, as the case may be, of each Restructuring Document to which it
is a party and the performance of their respective obligations thereunder and
(ii) the issuance and sale of the Shares and the ADSs, the listing and trading
of the ADSs on the NYSE and the consummation of the transactions contemplated by
this Agreement, the Deposit Agreement [and the Power of Attorney] did not, does
not and will not contravene any provision of the M&A Rules and Related
Clarifications; and (C) all consents, approvals, authorizations, orders,
registrations, filings and qualifications required under the M&A Rules and
Related Clarifications in connection with (i) the Restructuring and the
Restructuring Documents and the execution, delivery and performance of the
Restructuring Documents and (ii) the issuance and sale of the Shares and the
ADSs, the listing and trading of the ADSs on the NYSE and the consummation of
the transactions contemplated by this Agreement, the Deposit Agreement [and the
Power of Attorney] have been made or unconditionally obtained in writing,
including, without limitation, all actions necessary for the approval of the
Restructuring, the Restructuring Documents, the issuance and sale of the Shares
and the ADSs, the listing and trading of the ADSs on the NYSE and the
consummation of the transactions contemplated by this Agreement, the Deposit
Agreement [and the Power of Attorney] by any governmental agency under the M&A
Rules and Related Clarifications, and no such consent, approval, authorization,
order, registration, filings or qualification has been withdrawn or revoked or
is subject to any condition precedent which has not been fulfilled or
performed]; and
(xxxv) [The statements set forth in the Pricing Prospectus under the
captions ["Risk Factors -- Our failure to obtain the prior approval of the China
Securities Regulatory Commission of the listing and trading of our ADSs on the
NYSE could significantly delay this offering or could have a material adverse
effect on our and Tianwei Yingli's business, results of operations, reputation
and trading price of our ADSs, and may also create uncertainties for this
offering" and "PRC Government Regulations -- Regulation of Overseas Listings"]
are fair and accurate summaries of the matters described therein, and nothing
has been omitted from such summaries which would make the same misleading in any
material respect.]
In giving such opinion, such counsel may state that (A) with respect to all
matters of United States federal and New York State law they have relied upon
the opinions of United States counsel for the Company delivered pursuant to
paragraph (d) of this Section 8 and (B) with respect to all matters of Cayman
Islands law they have relied upon the opinions of Cayman Islands counsel for the
Company delivered pursuant to paragraph (f) of Section 8.
Exhibit B - 8 -
EXHIBIT C
FORM OF CAYMAN ISLANDS AND BVI COUNSEL OPINION
FOR THE COMPANY AND SELLING SHAREHOLDERS
(i) The Company has been duly incorporated and is validly existing as a
company in good standing under the laws of the Cayman Islands with power and
authority (corporate and other) to own its properties and conduct its business
as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
(including the Shares being delivered at such Time of Delivery) have been duly
and validly authorized and issued and are fully paid and non-assessable; the
holders of outstanding shares of capital stock of the Company are not entitled
to preemptive or other rights to acquire the ADSs to be deposited by the Company
[and the Selling Shareholders] or to be purchased from the Company [and the
Selling Shareholders] under this Agreement which have not been complied with;
the Shares to be deposited by the Company [and the Selling Shareholders] may be
freely deposited by the Company [and the Selling Shareholders] with the
Depositary against issuance of ADRs evidencing ADSs; and the ADSs and the Shares
to be sold by the Company [and the Selling Shareholders] are freely transferable
by the Company to or for the account of the several Underwriters in the manner
contemplated herein;
(iii) Yingli Power has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the BVI; and all of the issued
shares of capital stock of Yingli Power have been duly and validly authorized
and issued, are fully paid and non-assessable, and are free and clear of all
liens, encumbrances, equities or claims;
[(iv) Each of the Selling Shareholders that is an entity has been duly
incorporated and is validly existing as a company in good standing in its
jurisdiction of incorporation;]
(v) To the best of such counsel's knowledge, after having conducted a
search of the register of writs and other originating processes, and other than
as set forth in the Prospectus, there are no legal, arbitration or governmental
proceedings pending to which the Company or any of its Subsidiaries is a party
or of which any property of the Company or any of its Subsidiaries is the
subject which, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a material adverse
effect on the general affairs, management, prospects, current or future
consolidated financial position, shareholders' equity or results of operations
of the Company and its Subsidiaries, taken as a whole; and, to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated by any
Governmental Agency or threatened by others;
(vi) Each of this Agreement and the Power of Attorney has been duly
authorized, executed and delivered by the Company [and the Selling Shareholders]
and constitutes a valid and legally binding agreement of the Company [and the
Selling Shareholders] enforceable in accordance with its terms, subject, as to
enforceability, to bankruptcy, insolvency, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles;
(vii) The Deposit Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding agreement
of the Company, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, fraudulent transfer, moratorium,
reorganization and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles;
(viii) Each of this Agreement and the Deposit Agreement is in proper form
to be enforceable against the Company in the Cayman Islands in accordance with
its terms; to ensure the legality, validity,
Exhibit C - 1 -
enforceability or admissibility into evidence in the Cayman Islands of this
Agreement or the Deposit Agreement, it is not necessary that this Agreement or
the Deposit Agreement be filed or recorded with any court or other authority in
the Cayman Islands or that any stamp or similar tax in the Cayman Islands be
paid on or in respect of this Agreement, the Deposit Agreement or any other
documents to be furnished hereunder or thereunder;
(ix) The issue and sale of the Shares and the ADSs being delivered at such
Time of Delivery and the deposit of the Shares with the Depositary against
issuance of the ADSs evidencing the ADRs to be delivered at such Time of
Delivery and the compliance by the Company with all of the provisions of this
Agreement and the Deposit Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company is a party or by which the
Company is bound or to which any of the property or assets of the Company is
subject, nor will such action result in any violation of the provisions of the
constituent documents of the Company or any statute or any order, rule or
regulation known to such counsel of any Governmental Agency having jurisdiction
over the Company or any of its properties;
[(x) The sale of the ADSs to be sold by the Selling Shareholders hereunder
and the compliance by the Selling Shareholders with all of the provisions of
this Agreement and the Power of Attorney and the consummation of the
transactions herein contemplated will not conflict with or result in a breach or
violation of any terms or provisions of, or constitute a default under, any
statute, indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which a Selling Shareholder is a party or
by which a Selling Shareholder is bound, or to which any of the property or
assets of a Selling Shareholder is subject, nor will such action result in any
violation of the provisions of the constituent documents of a Selling
Shareholder or any order, rule or regulation known to such counsel of any
Governmental Agency having jurisdiction over a Selling Shareholder or the
property of a Selling Shareholder;]
(xii) No Governmental Authorization of or with any Governmental Agency in
the Cayman Islands is required for the issue and sale of the Shares and the
ADSs, the deposit of the Shares with the Depositary against issuance of the ADRs
evidencing the ADSs to be delivered at such Time of Delivery or the consummation
of the transactions contemplated by this Agreement and the Deposit Agreement;
[(xii) Immediately prior to such Time of Delivery, each Selling Shareholder
had good and valid title to the Shares and ADSs to be sold at such Time of
Delivery by such Selling Shareholder under this Agreement, free and clear of all
liens, encumbrances, equities or claims, and full right, power and authority to
sell, assign, transfer and deliver the Shares and ADSs to be sold by such
Selling Shareholder hereunder and thereunder; and, upon delivery of the ADSs
representing such Shares and payment therefor pursuant to this Agreement, good
and valid title to such ADSs, free and clear of all liens, encumbrances,
equities or claims, will be transferred to each of the several Underwriters;]
(xiv) The statements set forth in the Prospectus under the caption
"Description of Share Capital", insofar as they purport to constitute a summary
of the terms of the ordinary shares, are accurate, complete and fair;
(xv) The statements set forth in the Prospectus under the caption "Taxation
-- Cayman Islands Taxation", insofar as they purport to describe the provisions
of the laws and documents referred to therein, are accurate, complete and fair;
(xvi) No stamp or other issuance or transfer taxes or duties and no capital
gains, income, withholding or other taxes are payable by or on behalf of the
Underwriters to the Cayman Islands or to any political subdivision or taxing
authority thereof or therein in connection with (A) the deposit with the
Depositary of Shares by the Company and the Selling Shareholders against the
issuance of ADRs
Exhibit C - 2 -
evidencing the ADSs, (B) the sale and delivery by the Company of the ADSs and
the Shares to or for the respective accounts of the Underwriters or (C) the sale
and delivery outside the Cayman Islands by the Underwriters of the ADSs and the
Shares to the initial purchasers thereof in the manner contemplated herein;
(xvii) Insofar as matters of the Cayman Islands law are concerned, the
Registration Statement and the filing of the Registration Statement with the
Commission have been duly authorized by and on behalf of the Company; and the
Registration Statement has been duly executed pursuant to such authorization by
and on behalf of the Company;
(xviii) The Company's agreement [and each of the Selling Shareholders'
agreement] to the choice of law provisions set forth in Section 15 hereof will
be recognized by the courts of the Cayman Islands; the Company [and the Selling
Shareholders] can xxx and be sued in their own names under the laws of the
Cayman Islands; the irrevocable submission of the Company [and the Selling
Shareholders] to the exclusive jurisdiction of a New York Court, the waiver by
the Company [and the Selling Shareholders] of any objection to the venue of a
proceeding of a New York Court and the agreement of the Company [and the Selling
Shareholders] that this Agreement shall be governed by and construed in
accordance with the laws of the State of New York are legal, valid and binding;
service of process effected in the manner set forth in Section 15 hereof will be
effective, insofar as the law of the Cayman Islands is concerned, to confer
valid personal jurisdiction over the Company [and the Selling Shareholders]; and
judgment obtained in a New York Court arising out of or in relation to the
obligations of the Company [or a Selling Shareholder] under this Agreement would
be enforceable against the Company [or such Selling Shareholder, respectively],
in the courts of the Cayman Islands;
(xix) The indemnification and contribution provisions set forth in Section
9 hereof and Section [___] of the Deposit Agreement do not contravene the public
policy or laws of the Cayman Islands;
(xx) All dividends and other distributions declared and payable on the
shares of capital stock of the Company may under the current laws and
regulations of the Cayman Islands be paid to the Depositary and freely
transferred out of the Cayman Islands, and all such dividends and other
distributions will not be subject to withholding or other taxes under the laws
and regulations of Cayman Islands and are otherwise free and clear of any other
tax, withholding or deduction in the Cayman Islands and without the necessity of
obtaining any Governmental Authorization in the Cayman Islands; and
(xxi) The Company is not in violation of its constituent documents or in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any license, indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound; the Restructuring
does not (A) contravene any provision of applicable Cayman Islands law or
statute, rule or regulation of any Governmental Agency having jurisdiction over
the Company or any of its properties, (B) contravene the articles of
association, business license or other constituent documents of the Company, or
(C) conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any license, indenture, mortgage,
deed of trust, loan agreement, note, lease or other agreement or instrument to
which the Company is a party or by which the Company is bound or to which any of
the property or assets of the Company is subject.
In giving such opinion, such counsel may state that (A) with respect to all
matters of United States federal and New York law they have relied upon the
opinions of United States counsel for the Company delivered pursuant to
paragraph (d) of this Section 8 and (B) with respect to all matters of PRC law
they have relied upon the opinions of PRC counsel for the Company delivered
pursuant to paragraph (e) of Section 8.
Exhibit C - 3 -
EXHIBIT D
FORM OF DEPOSITARY COUNSEL OPINION
(ii) The Deposit Agreement has been duly authorized, executed and delivered
by the Depositary and constitutes a valid and binding agreement of the
Depositary enforceable against the Depositary in accordance with its terms,
except as enforcement of it may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws of general application
relating to or affecting creditors' rights and by general principles of equity;
(iii) Upon execution and delivery by the Depositary of ADRs evidencing the
ADSs against the deposit of Shares in accordance with the provisions of the
Deposit Agreement, the ADRs will be duly and validly issued and will entitle the
holders thereof to the rights specified therein and in the Deposit Agreement;
and
(iv) The ADS Registration Statement has been filed and declared effective
and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the ADS Registration Statement or any part thereof has been
issued and no proceedings for that purpose have been instituted or are pending
or contemplated under the Act and the ADS Registration Statement, and each
amendment as of their respective effective dates, complied as to form in all
material respects with the requirements of the Act and the rules and regulations
of the Commission thereunder.
Exhibit D - 1 -
