EXHIBIT 4.5
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of October 3, 2006 (this "Agreement"), among
Xxxxx Xxxxxxx Xx ("Founder"), ATS Automation Tooling Systems Inc., an Ontario
corporation ("ATS"), HSBC HAV 2 (III) Limited ("HSBC"), JAFCO Asia Technology
Fund II (Barbados) Limited ("JAFCO", and together with HSBC, the "Initial
Investors"), Canadian Solar Inc., a Canadian corporation ("CSI" or the
"Company"), and CSI Solartronics Co., Ltd., CSI Solar Technologies Inc. and CSI
Solar Manufacturing Inc. (collectively, the "PRC Subsidiaries").
WHEREAS the Founder, the Initial Investors, the Company and the PRC
Subsidiaries entered into an investment agreement dated as of November 30, 2005
(the "Investment Agreement") to govern certain aspects of the affairs of the
Company, a true and complete copy of which is attached hereto as Exhibit A.
WHEREAS, pursuant to a share transfer agreement dated as of September 15,
2006 (the "Share Transfer Agreement") among the Founder, ATS and the Company,
the Founder is transferring 800,171 common shares of the Company, representing
approximately 8% of the share capital of CSI on a fully-diluted basis, to ATS.
WHEREAS, pursuant to the Investment Agreement, ATS is required to enter
into this Agreement as a condition of the Company approving the above-noted
transfer of common shares from the Founder to ATS.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions and References. As used in this Agreement, and unless the
context requires a different meaning or otherwise defined herein, all defined
terms shall have the meanings ascribed thereto in the Investment Agreement. All
references to Clauses herein shall be to the corresponding clauses in the
Investment Agreement.
ARTICLE II
TRANSFER OF COMMON SHARES
2.1 Transfer of Common Shares. All parties hereto acknowledge and consent
to the transfer of 800,171 Common Shares from the Founder to ATS pursuant to the
Share Transfer Agreement, and waive any and all rights that they may be entitled
to under the Investment Agreement with respect to the transfer of such Common
Shares.
2.
ARTICLE III
ACKNOWLEDGEMENT, CONFIRMATION AND AGREEMENT
ATS hereby acknowledges and agrees to be bound by the Investment Agreement
to the extent set forth herein, and all other parties hereto confirm and agree
as follows:
3.1 Transfers of Equity Securities (Clause 4 of the Investment Agreement).
(a) ATS shall not, directly or indirectly, effect or facilitate a Transfer
of all or any portion of its Equity Securities or other interest in the Company
before the completion of a Qualified IPO unless (i) the prior written consent of
all Investors is obtained or (ii) ATS has complied with the provisions of
Clauses 4.3 (Right of First Refusal) and 4.5 (Non-Exercise of Rights) of the
Investment Agreement in the manner set forth herein.
(b) ATS hereby grants to the Investors a right of first refusal as set
forth in Clause 4.3 of the Investment Agreement, with all necessary
modifications thereto as may be necessary to give proper effect to the grant of
such right herein provided for.
(c) The Founder hereby grants to ATS a right of co-sale as set forth in
Clause 4.4 of the Investment Agreement, with all necessary modifications thereto
as may be necessary to give effect to the grant of such right herein provided
for.
(d) None of the restrictions and/or requirements contained in Clauses 4.1
to 4.6 of the Investment Agreement (to the extent applicable to ATS as provided
for in this Agreement) shall apply to any Transfer by ATS to any of its
Affiliates or to Photowatt Technologies Inc. or any of its Affiliates; and all
rights of ATS hereunder shall enure for the benefit of any such transferee when
such transferee signs a Joinder Agreement pursuant to which it undertakes to be
bound by the provisions of the Investment Agreement and this Agreement as if it
was ATS.
(e) All parties agree that in the event that the Initial Investors no
longer hold any Equity Securities, ATS shall then be entitled to the benefits of
all of the rights of the Investors set forth in Clauses 4.1 to 4.6 of the
Investment Agreement and in furtherance thereof, ATS shall upon the occurrence
of such event be deemed to be the "Investor" for purposes of those Clauses. Upon
the occurrence of such event, the rights set out in sections 3.1(a), 3.1(b),
3.1(c) and 3.1(f) hereof shall terminate and be of no further force and effect.
(f) ATS hereby grants to the Founder a first right of negotiation as set
forth in Clause 4.6 of the Investment Agreement, the effectiveness of such right
being subject to section 3.1(b) hereof.
3.2 Pre-emptive Rights (Clause 5 of the Investment Agreement). The Company
hereby grants to ATS the pre-emptive rights as set forth in Clause 5 of the
Investment Agreement as if ATS is deemed to be an "Investor" for purposes of
that Clause.
3.
3.3 Undertakings after First Completion (Clause 6 of the Investment
Agreement). ATS hereby acknowledges and agrees that the Group may effect a
reorganization for purposes of achieving an IPO as set forth in Clause 6.1 of
the Investment Agreement and may effect a share split, subdivision or share
combination of the Common Shares which does not result in any change in the
proportional ownership of the Common Shares owned by the Shareholders, provided
that ATS is deemed to be an "Investor" for purposes of Clause 6.1(C) (Tax
Indemnity on a Reorganization) of the Investment Agreement. In addition, ATS is
deemed to be an "Investor" for purposes of Clauses 6.2 to 6.10 of the Investment
Agreement.
3.4 Directors and Management (Clause 7 of the Investment Agreement). All
parties agree that ATS shall be entitled to nominate one individual to the Board
as a Director in the event that: (i) a Qualified IPO is not completed on or
before March 31, 2007; and (ii) HSBC no longer has a right to nominate an
individual to the Board, and upon the occurrence of such events, ATS shall have
the same rights that each "Investor" has pursuant to Clause 7 of the Investment
Agreement and ATS is deemed to be an "Investor" for purposes of that Clause. In
addition, ATS shall be entitled to the "Observer" right as set forth in Clause
7.3(D) of the Investment Agreement from the date hereof until the earlier of:
(i) ATS (or its permitted transferee) no longer holds any Equity Securities, or
(ii) completion of a Qualified IPO.
3.5 Reserved Matters (Clause 9 of the Investment Agreement). All parties
agree that in the event that the Initial Investors no longer hold any Equity
Securities, each of the reserved matters set out in Clause 9 of the Investment
Agreement shall then require the consent of ATS and in furtherance thereof, ATS
shall upon the occurrence of such event be deemed to be the "Investor" for
purposes of that Clause.
3.6 Information Rights (Clause 10 of the Investment Agreement). The Company
shall supply to ATS all such information that each of the Investors is entitled
to pursuant to Clause 10 of the Investment Agreement and ATS is deemed to be an
"Investor" for purposes of that Clause, provided that in respect of Clause 10.1
of the Investment Agreement, the financial statements may be prepared in
accordance with U.S. GAAP or IAS.
3.7 Joinder Agreement. Any Joinder Agreement to be signed by any Person
shall be satisfactory to ATS. For greater certainty, any Transfer pursuant to
Clause 4.6 of the Investment Agreement is conditional upon such transferee(s)
executing a Joinder Agreement
3.8 General. ATS acknowledges and confirms that all terms of the Investment
Agreement applicable to all Shareholders and/or all Parties shall apply to ATS
as a Shareholder of the Company or Party to the Investment Agreement, including
for the avoidance of doubt, the announcements and confidentiality provisions of
Clause 12 of the Investment Agreement (subject to ATS being deemed to be an
Investor for purposes therein and to ATS being entitled to make such disclosure
about the Company as considered desirable to comply with Applicable Law, to
effect any Transfer in accordance with the Investment Agreement and in
connection with the Photowatt Technologies Inc. F-1 Registration Statement) and
the termination provisions of Clause 13 of the Investment Agreement. In
addition, for greater certainty, at no time shall the Founder be considered the
4.
"Investor" for purposes of the Investment Agreement, including upon any direct
or indirect Transfer by an Investor to the Founder.
ARTICLE IV
MISCELLANEOUS
4.1 Other Terms and Provisions.. Unless otherwise varied or provided for in
this Agreement, all other terms and provisions of the Investment Agreement
remain in full force and effect, unamended.
4.2 Successors and Assigns; Third Party Beneficiaries. This Agreement shall
inure to the benefit of and be binding upon the successors and permitted assigns
of the parties hereto.
4.3 Notices. All parties agree that the notice requirements set forth in
Clause 20 of the Investment Agreement shall apply to ATS whose address is set
forth below.
Address: 000 xxxxx Xxx Xxxx
Xxxxxxxxx, Xxxxxxx X0X 0X0
Fax Number: 000-000-0000
Attention: Chief Financial Officer
4.4 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
4.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF HONG KONG.
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5.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement on the date first written above.
The Common Seal of ) /s/
ATS AUTOMATION TOOLING SYSTEMS INC. ) Vice President Treasurer
was affixed hereto ) /s/
in the presence of:- /s/ ) Vice President CFO
The Common Seal of )
CANADIAN SOLAR INC. ) /s/
was affixed hereto ) /s/
in the presence of:- )
SIGNED by )
for and on behalf of )
HSBC HAV2 (III) LIMITED ) /s/
in the presence of:- /s/ )
SIGNED by )
for and on behalf of )
JAFCO ASIA TECHNOLOGY FUND II )
(BARBADOS) LIMITED ) /s/
in the presence of:- /s/ )
SIGNED, SEALED and DELIVERED )
as a Deed by ) /s/
QU XXXX XXX )
in the presence of:- ) /s/
6.
The Seal of )
("CHINESE CHARACTERS") )
(CSI SOLARTRONICS CO., LTD.) ) /s/
was affixed hereto )
in the presence of:- ) /s/
The Seal of )
("CHINESE CHARACTERS") )
(CSI SOLAR TECHNOLOGIES INC.) ) /s/
was affixed hereto )
in the presence of:- ) /s/
The Seal of )
("CHINESE CHARACTERS") )
(CSI SOLAR MANUFACTURING INC.) ) /s/
was affixed hereto )
in the presence of:- ) /s/
7.
EXHIBIT A
INVESTMENT AGREEMENT
[See exhibit 4.3]
