Exhibit 10.32
SHARE ISSUANCE AND REPURCHASE AGREEMENT
Dated as of [______], 2008
Between
SOLARFUN POWER HOLDINGS CO., LTD. (the "ISSUER"),
and
XXXXXX XXXXXXX & CO. INTERNATIONAL PLC (the "DEALER")
WHEREAS, the Issuer is offering its [_____]% Convertible Senior Notes due
January [_____], 2018 (the "CONVERTIBLE NOTES") by means of a private placement;
WHEREAS, the Issuer is issuing ADSs pursuant to this Agreement to enable
the Dealer and its affiliates to facilitate transactions by which investors in
the Convertible Notes may hedge their investments;
WHEREAS, the Issuer has determined that the entry into this Agreement is in
its best interests as a means to facilitate the offer and sale of the
Convertible Notes on terms more favorable to it than it could have otherwise
obtained; and
WHEREAS, this AGREEMENT sets forth the terms and conditions under which the
Issuer shall issue ADSs to the Dealer.
NOW THEREFORE, the parties hereto agree as follows:
Section 1. Certain Definitions. The following capitalized terms shall
have the following meanings:
"ADSS" means American Depositary Shares of the Issuer, each representing
five Ordinary Shares, or any other security, assets or other consideration
(including Cash) into which the ADSs shall be exchanged or converted, determined
as provided in Section [__] of the Indenture, as a result of any change to the
Deposit Agreement or any merger, consolidation, other business combination,
reorganization, reclassification, recapitalization or other corporate action
(including, without limitation, a reorganization in bankruptcy).
"BUSINESS DAY" means a day on which regular trading occurs in the principal
trading market for the ADSs.
"CASH" means any coin or currency of the United States as at the time shall
be legal tender for payment of public and private debts.
"CLEARING ORGANIZATION" means The Depository Trust Company, or, if agreed
to by the Dealer and the Issuer, such other Securities Intermediary at which the
Dealer and the Issuer maintain accounts.
"CLOSING PRICE" on any day means the closing sale price per ADS (or if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one, the average of the average bid and the average ask prices) on
that date as reported on the Nasdaq or other principal U.S. securities exchange
on which the ADSs are traded. If the ADSs are not listed for trading on a United
States national or regional securities exchange on the relevant date, the
Closing Price will be a price determined by the Dealer in a commercially
reasonable fashion. The Closing Price will be determined without reference to
extended or after hours trading.
"CUTOFF TIME" shall mean 10:00 a.m. (New York time), or such other time on
a Business Day as shall be agreed by the parties.
"DEPOSIT AGREEMENT" means the Deposit Agreement, dated as of December 19,
2006, among the Issuer, the Depositary, and all owners and beneficial owners
from time to time of the ADRs (as defined therein), as amended or supplemented
from time to time.
"DEPOSITARY" means The Bank of New York and its successors under the
Deposit Agreement.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"INDENTURE" means the indenture for the Convertible Notes dated as of
[______], 2008 between the Issuer and The Bank of New York, as trustee.
"INITIAL ISSUANCE DATE" means [______], 2008.
"ISSUANCE DATE" means each date Purchased ADSs are issued to the Dealer
pursuant to and in accordance with Section 2 hereof.
"MARKET VALUE" on any day means, with respect to any ADSs, the most recent
Closing Price of the ADSs prior to such day.
"MAXIMUM NUMBER OF OUTSTANDING PURCHASED ADSS" means [_______] ADSs;
provided that the Maximum Number of Outstanding Purchased ADSs shall be
increased by the number of Purchased ADSs issued upon exercise by the Dealer of
its right to purchase additional ADSs pursuant to Section 2 hereof. The Maximum
Number of Outstanding Purchased ADSs shall be subject to the following
adjustments:
(a) If the Issuer issues its Ordinary Shares as a dividend, or
distribution on Ordinary Shares (including an Ordinary Share bonus or as a
result of the capitalization of profits or reserves) or effects an Ordinary
Share split or Ordinary Share combination or if there is an amendment to
the Deposit Agreement and, as a result of any such event, the number of
outstanding ADSs is increased or decreased, the Maximum Number of
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Outstanding Purchased ADSs shall, effective as of the effective date of any
such event, be proportionally increased or decreased, as the case may be.
(b) In the event of (i) any reclassification of the Ordinary Shares;
(ii) a consolidation, merger or combination involving the Issuer; or (iii)
a sale or conveyance to another Person of all or substantially all of the
Issuer's property and assets, in which, in each case, holders of
outstanding Ordinary Shares (including Ordinary Shares represented by ADSs)
would be entitled to receive Cash, securities or other property for their
Ordinary Shares (including Ordinary Shares represented by ADSs), the
Maximum Number of Outstanding Purchased ADSs shall be deemed to be a number
of units of Reference Property equal to the Maximum Number of Outstanding
Purchased ADSs immediately prior to the effective date of the relevant
event described in clause (i), (ii) or (iii) above. For this purpose, each
unit of Reference Property shall consist of the amount of Reference
Property, determined in accordance with Section [ ] of the Indenture,
received per ADS in the relevant event described in clause (i), (ii) or
(iii) above.
(c) Upon any repurchase for cancellation of ADSs pursuant to Section
3(a), the Maximum Number of Outstanding Purchased ADSs shall be reduced by
the number of ADSs repurchased by the Issuer from the Dealer.
"NUMBER OF OUTSTANDING PURCHASED ADSS" means, at any time, the number of
Purchased ADSs, less the number of Purchased ADSs (or other ADSs), if any, sold
by the Dealer to the Issuer for repurchase for cancellation pursuant to this
Agreement. Notwithstanding anything herein to the contrary, in no event shall
the Number of Outstanding Purchased ADSs at any time exceed the Maximum Number
of Outstanding Purchased ADSs at such time. If an event described in clause (a)
or (b) of the definition of Maximum Number of Outstanding Purchased ADSs occurs,
the Number of Outstanding Purchased ADSs shall be adjusted in a manner
consistent with any adjustments required under such clauses.
"ORDINARY SHARES" means the ordinary shares of the Issuer with a par value
of US$0.0001 per ordinary share, or any other security, assets or other
consideration (including Cash) into which the ordinary shares shall be exchanged
or converted, determined as provided in Section [__] of the Indenture, as a
result of any merger, consolidation, other business combination, reorganization,
reclassification, recapitalization or other corporate action (including, without
limitation, a reorganization in bankruptcy).
"PERSON" means an individual, a company, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
"PURCHASED ADSS" means the ADSs issued to the Dealer pursuant to and in
accordance with Section 2 hereof.
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"REFERENCE PROPERTY" has the meaning given to such term in Section [__] of
the Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES INTERMEDIARY" means a "securities intermediary" as defined by
Section 8-102(a)(14) of the UCC.
"UCC" means the Uniform Commercial Code as in effect in the State of New
York on the date hereof and as it may be amended from time to time.
"UNDERWRITING AGREEMENT" means the Underwriting Agreement dated as of the
date hereof among the Issuer, the Dealer and Xxxxxx Xxxxxxx & Co. Incorporated.
Section 2. Issuance of ADSs; Payment for Purchased ADSs.
(a) Subject to the terms and conditions of this Agreement, the Issuer
shall issue to the Dealer on the Initial Issuance Date [_______] ADSs,
against payment therefor pursuant to subsection (c) hereof. In addition,
the Dealer shall have the right, exercisable on or before the thirtieth day
following the date of this Agreement, by notice to the Issuer given in
accordance with Section 13 hereof, to purchase up to an additional [______]
ADSs, against payment therefor pursuant to subsection (c) hereof.
(b) The Issuer shall issue the Purchased ADSs to the Dealer at or
before the Cutoff Time on any Issuance Date. Issuance of the Purchased ADSs
to the Dealer shall be made in the manner set forth under Section 10 below.
(c) The Dealer shall pay to the Issuer USD0.0005 per Purchased ADSs
(the "PAYMENT AMOUNT"). The Payment Amount shall be paid by the Dealer on
or before the time of issuance of the Purchased ADSs pursuant to Section
2(b) on a delivery-versus-payment basis through the facilities of the
Clearing Organization.
Section 3. Repurchase for Cancellation of Purchased ADSs by the
Issuer.
(a) Subject to compliance with applicable law, the Issuer shall be
entitled to repurchase for cancellation from the Dealer any or all of the
Purchased ADSs (or a number of other ADSs equal to or less than the Number
of Outstanding Purchased ADSs) on any Business Day following the date on
which the entire principal amount of Convertible Notes ceases to be
outstanding (whether as a result of conversion, redemption, repurchase,
cancellation or otherwise), by giving three Business Days written notice to
the Dealer, for USD0.0005 per ADS payable by the Issuer to the Dealer.
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(b) If the Issuer gives written notice to the Dealer requiring it to
sell all of the Purchased ADSs (or a number of other ADSs equal to the
Number of Outstanding Purchased ADSs) to the Issuer for repurchase for
cancellation upon the occurrence of a Default as set forth in Section 8,
the Purchased ADSs (or other ADSs) shall, subject to compliance with
applicable law, be repurchased for cancellation by the Issuer from the
Dealer for USD0.0005 per ADS payable by the Issuer to the Dealer, no later
than the third Business Day following the date of such written notice.
(c) Subject to compliance with applicable law, the Dealer shall be
entitled to require the Issuer to repurchase for cancellation for USD0.0005
per ADS any or all of the Purchased ADSs (or a number of ADSs equal to or
less than the Number of Outstanding Purchased ADSs) at any time on any
Business Day by giving three Business Days written notice to the Issuer.
(d) The Dealer shall sell the Purchased ADSs (or other ADSs) before
the Cutoff Time on the day such repurchase for cancellation is required,
subject to compliance with applicable law, to be made. Sale of Purchased
ADSs (or other ADSs) to the Issuer shall be made in the manner set forth
under Section 10 below.
(e) The Issuer's right to repurchase ADSs pursuant to clause (a) or
(b) above shall expire one month after the maturity date of the Convertible
Notes.
(f) Notwithstanding the foregoing, if the Dealer is unable, after
using commercially reasonable efforts, to borrow or purchase the ADSs that
the Dealer is required to sell for repurchase for cancellation to the
Issuer pursuant to clause (a) or (b) above or Section 8, including, without
limitation, because the Dealer determines in its reasonable judgment that
it is commercially impracticable to make such borrows or purchases, then
(i) the Dealer may delay sale for repurchase for cancellation some or all
of the ADSs required to be sold for repurchase for cancellation for up to
twenty Business Days so that the Dealer could effect borrows or purchases
of such ADSs and (ii) if after such period the Dealer is still unable to
borrow or purchase the ADSs that the Dealer is required to sell for
repurchase for cancellation to the Issuer, the Dealer and the Issuer agree
to negotiate in good faith to allow the Dealer to continue to delay sale
for repurchase for cancellation of some or all of the ADSs required to be
sold for repurchase for cancellation by the Dealer so that the Dealer could
effect borrows or purchases of such ADSs.
Section 4. Distributions.
(a) If at any time the Issuer pays a Cash dividend or makes a Cash
distribution in respect of the ADSs (in liquidation or otherwise), the
Dealer shall pay to the Issuer, within three Business Days after the
payment of such dividend or distribution, an amount in Cash equal to the
product of (i) the
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amount per ADS of such dividend or distribution and (ii) the Number of
Outstanding Purchased ADSs.
(b) If at any time the Issuer makes a dividend or distribution in
respect of the ADSs (in liquidation or otherwise) in property or
securities, including any options, warrants, rights or privileges in
respect of securities (other than a dividend or distribution of Ordinary
Shares or ADSs, but including any options, warrants, rights or privileges
exercisable for, convertible into or exchangeable for Ordinary Shares or
ADSs) (a "NON-CASH DISTRIBUTION"), the Dealer shall deliver to the Issuer
(whether or not the Dealer is a holder of any or all of the Purchased ADSs)
in kind, within three Business Days after the date of such Non-Cash
Distribution, the property or securities distributed in an amount equal to
the product of (i) the amount per ADS of such Non-Cash Distribution and
(ii) the Number of Outstanding Purchased ADSs. Notwithstanding the
foregoing, if the Dealer is unable, after making commercially reasonable
efforts, to acquire all or a portion of the Non-Cash Distribution payable
to the Issuer pursuant to the preceding sentence within two Business Days
of the date of such Non-Cash Distribution, the Dealer may instead pay to
the Issuer, in Cash, the value of the portion of the Non-Cash Distribution
the Dealer was unable to acquire. The value of such portion shall be
determined in good faith by the Dealer and the Issuer.
(c) The Issuer represents to the Dealer that, subject to notice
otherwise as set forth in the next sentence, any distributions paid on the
ADSs, to the extent such distributions constitute dividends for U.S.
federal income tax purposes, will qualify as foreign source dividends for
U.S. federal income tax purposes within the meaning of Section 862 of the
Internal Revenue Code. If, at any time during a period in which this
Agreement is in effect, such dividends would not qualify as foreign source
dividends, the Issuer shall notify the Dealer of such change in facts as
soon as practicable.
(d) The Issuer acknowledges that the Dealer intends to rely upon the
representation in clause (c) in determining the extent, if any, to which
the Dealer is obligated to make any deduction or withholding of present or
future taxes, levies, imposts, duties, charges, assessments or fees of any
nature (including interest, penalties and additions thereto) that are
imposed by any government or other taxing authority ("TAXES") with respect
to any payment by the Dealer under this Agreement. On the basis of such
reliance and assuming no notice is made pursuant to the second sentence of
clause (c), the Dealer will make each payment described in clauses (a) or
(b) without withholding or deduction for or on account of any Taxes. The
previous sentence shall not apply if, at any time during a period in which
this Agreement is in effect, the Dealer concludes in its reasonable
judgment that such withholding or deduction is necessary or appropriate to
protect the Dealer from potential withholding tax liability. In that case,
the Dealer shall notify the Issuer of its intent to make such withholding
or deduction as soon
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as practicable. The Dealer shall have no obligation to pay any additional
amounts in respect of such withholding or deduction to the Issuer.
Section 5. Rights in Respect of Purchased ADSs.
Subject to the terms of this Agreement, the Dealer shall have all of the
incidents of ownership in respect of all Purchased ADSs, including the right to
transfer the Purchased ADSs to others.
Section 6. Representations and Warranties.
(a) Each of the Dealer and the Issuer represents and warrants to the
other that:
(i) it has full power to execute and deliver this Agreement, to
enter into the transactions contemplated hereby and to perform its
obligations hereunder;
(ii) it has taken all necessary action to authorize such
execution, delivery and performance;
(iii) this Agreement constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms; and
(iv) the execution, delivery and performance of this Agreement
does not and will not violate, contravene, or constitute a default
under, (A) its certificate of incorporation, bylaws or other governing
documents, (B) any laws, rules or regulations of any governmental
authority to which it is subject, (C) any contracts, agreements or
instrument to which it is a party or (D) any judgment, injunction,
order or decree by which it is bound.
(b) The Issuer represents and warrants to the Dealer, as of the date
hereof and as of each Issuance Date, that the Purchased ADSs (including the
Ordinary Shares represented by the Purchased ADSs) have been duly
authorized and, upon the issuance and delivery of the Purchased ADSs to the
Dealer or to the order of the Dealer in accordance with the terms and
conditions hereof, and subject to the contemporaneous or prior receipt of
the Payment Amount by the Issuer, will be validly issued, fully paid and
nonassessable and the holders of the ADSs (including the Ordinary Shares
represented by the ADSs) have no preemptive rights with respect to the
Purchased ADSs (or the Ordinary Shares represented by the Purchased ADSs).
(c) The Issuer represents and warrants to the Dealer, as of the date
hereof and as of each Issuance Date, that the ADSs are listed on the NASDAQ
National Market (the "NASDAQ"). The Issuer represents and
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warrants to the Dealer, as of each Issuance Date, that the Purchased ADSs
have been approved for listing on the NASDAQ, subject to official notice of
issuance.
(d) The Issuer represents and warrants to the Dealer, as of the date
hereof and as of each Issuance Date, that it is solvent and able to pay its
debts as they come due, with assets having a fair value greater than
liabilities and with capital sufficient to carry on the business in which
it engages through its wholly-owned operating subsidiaries.
(e) The Issuer represents and warrants to the Dealer that it is an
"accredited investor" (as defined in Regulation D under the Securities Act)
and is entering into the transactions contemplated by this Agreement for
its own account and not with a view to the distribution or resale of its
rights under this Agreement except pursuant to an exemption from the
registration requirements of the Securities Act.
(f) The representations and warranties of the Dealer and the Issuer
under this Section 6 shall remain in full force and effect at all times
during the term of this Agreement and shall survive the termination for any
reason of this Agreement.
Section 7. Covenants. The Dealer covenants and agrees with the Issuer
that all Purchased ADSs will initially be sold by it or its affiliates as
contemplated by the Underwriting Agreement.
Section 8. Events of Default.
(a) If either of the following events occur (each, a "DEFAULT"), then,
subject to compliance with applicable law, the Dealer, upon written notice
from the Issuer, shall be required to sell all of the Purchased ADSs (or a
number of other ADSs equal to the Number of Outstanding Purchased ADSs) to
the Issuer for repurchase for cancellation for USD0.0005 per ADS, as
provided in Section 3(b):
(i) the filing by or on behalf of the Dealer of a voluntary
petition or an answer seeking reorganization, arrangement,
readjustment of its debts or for any other relief under any
bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution, winding-up or liquidation or
similar act or law, of any state, federal or other applicable foreign
jurisdictions, now or hereafter existing ("BANKRUPTCY LAW"), or any
action by the Dealer for, or consent or acquiescence to, the
appointment of a receiver trustee or other custodian of the Dealer, or
of all or a substantial part of its property; or the making by the
Dealer of a general assignment for the benefit of creditors; or the
admission by the Dealer in writing of its inability to pay its debts
as they become due; or
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(ii) the filing of any involuntary petition against the Dealer in
bankruptcy or seeking reorganization, arrangement, readjustment of its
debts or for any other relief under any Bankruptcy Law and an order
for relief by a court having jurisdiction in the premises shall have
been issued or entered therein; or any other similar relief shall be
granted under any applicable federal or state law or law of any other
applicable foreign jurisdictions; or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee or other officer having similar
powers over the Dealer or over all or a part of its property shall
have been entered; or the involuntary appointment of an interim
receiver, trustee or other custodian of the Dealer or of all or a
substantial part of its property; or the issuance of a warrant of
attachment, execution or similar process against any substantial part
of the property of the Dealer; and continuance of any such event for
30 consecutive calendar days unless dismissed, bonded to the
satisfaction of the court having jurisdiction in the premises or
discharged.
Section 9. Remedies.
(a) Notwithstanding anything to the contrary herein, if the Dealer is
required to sell Purchased ADSs (or other ADSs) to the Issuer for
repurchase, subject to compliance with applicable law, for cancellation
pursuant to Section 3(a), Section 3(b) or Section 8 and, at the time such
requirement arises, the purchase of ADSs in an amount equal to the number
of Purchased ADSs (or other ADSs) so required to be sold shall (i) be
prohibited by any law, rules or regulation of any governmental authority to
which it is or would be subject, (ii) violate, or would upon such purchase
likely violate, any order or prohibition of any court, tribunal or other
governmental authority or (iii) require the prior consent of any court,
tribunal or governmental authority prior to any such repurchase (each of
(i), (ii) and (iii), a ("LEGAL OBSTACLE"), then, in each case, the Dealer
shall immediately notify the Issuer of the Legal Obstacle and the basis
therefor, whereupon the Dealer's obligations under Section 3(a), Section
3(b) or Section 8 shall be suspended until such time as no Legal Obstacle
with respect to such obligations shall exist (a "REPURCHASE SUSPENSION").
If any Repurchase Suspension continues for more than five Business Days,
then on the fifth such Business Day the Issuer shall have the right,
exercisable in its sole discretion, to require the Dealer to pay to the
Issuer, no later than three Business Days following written notice from the
Issuer, an amount in Cash equal to (x) the aggregate Market Value as of the
date of such notice of the number of ADSs otherwise required to be sold
less (y) USD0.0005 multiplied by the number of ADSs referred to in (x),
whereupon the Dealer's obligation to sell the specified number of ADSs to
the Issuer for repurchase for cancellation shall be automatically
extinguished.
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(b) In the case of a breach by the Issuer of any of its obligations
under this Agreement, the Dealer may exercise any rights which it has under
law.
Section 10. Issuance of ADSs; Transfer of Cash and Securities.
(a) All issuances of Purchased ADSs to the Dealer or repurchases for
cancellation of Purchased ADSs by the Issuer from the Dealer hereunder
shall be made by the crediting by a Clearing Organization of such financial
assets to the transferee's "securities account" (within the meaning of
Section 8-501 of the UCC) maintained with such Clearing Organization (or a
participant therein). In every transfer of "financial assets" (within the
meaning of Section 8-102 of the UCC) hereunder, the transferor shall take
all steps necessary (a) to effect a delivery to the transferee under
Section 8-301 of the UCC, or to cause the creation of a security
entitlement in favor of the transferee under Section 8-501 of the UCC, (b)
to enable the transferee to obtain "control" (within the meaning of Section
8-106 of the UCC), and (c) to provide the transferee with comparable rights
under any applicable foreign law or regulation.
(b) All transfers of Cash hereunder to the Dealer or the Issuer shall
be by wire transfer in immediately available, freely transferable funds.
(c) A transfer of securities or Cash may be effected under this
Section 10 on any day except a day on which a Clearing Organization or wire
transfer system is closed, if the facilities of such Clearing Organization
or wire transfer system are required to effect such transfer.
Section 11. Indemnities.
(a) The Issuer hereby agrees to indemnify and hold harmless the Dealer
and its affiliates and its former, present and future directors, officers,
employees and other agents and representatives from and against any and all
liabilities, judgments, claims, settlements, losses, damages, fees, liens,
taxes, penalties, obligations and expenses incurred or suffered by any such
person or entity directly or indirectly arising from, by reason of, or in
connection with, (i) any breach by the Issuer of any of its representations
or warranties contained in Section 6 or Section 4(c) or (ii) any breach by
the Issuer of any of its covenants or agreements in this Agreement.
(b) In case any claim or litigation which might give rise to any
obligation of the Issuer under this Section 11 (the "INDEMNIFYING PARTY")
shall come to the attention of the party seeking indemnification hereunder
(the "INDEMNIFIED PARTY"), the Indemnified Party shall promptly notify the
Indemnifying Party in writing of the existence and amount thereof; provided
that the failure of the Indemnified Party to give such notice shall not
adversely affect the right of the Indemnified Party to indemnification
under
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this Agreement, except to the extent the Indemnifying Party is materially
prejudiced thereby. The Indemnifying Party shall promptly notify the
Indemnified Party in writing if it accepts such claim or litigation as
being within its indemnification obligations under this Section 11. Such
response shall be delivered no later than 30 days after the initial
notification from the Indemnified Party; provided that if the Indemnifying
Party reasonably cannot respond to such notice within 30 days, the
Indemnifying Party shall respond to the Indemnified Party as soon
thereafter as reasonably possible.
Section 12. Termination of Agreement.
This Agreement and the obligations of the parties hereunder shall terminate on
the earlier of (i) the date that is one month after the maturity date of the
Convertible Notes and (ii) the date that the Dealer has completed or satisfied
all of its obligations hereunder. Unless otherwise agreed by the Dealer and the
Issuer, the provisions of Section 11 shall survive the termination of this
Agreement.
Section 13. Notices.
(a) All notices and other communications hereunder shall be in writing
and shall be deemed to have been duly given when received.
(b) All such notices and other communications shall be directed to the
following address:
(i) If to the Dealer:
Xxxxxx Xxxxxxx & Co. International PLC
[address]
Attn: [______]
Telephone: [______]
Facsimile No.: [______]
(ii) If to the Issuer:
Solarfun Power Holdings Co., Ltd.
000 Xxxxxxx Xxxx
Xxxxxx, Xxxxxxx Xxxxxxxx 000000
People's Republic of China
Attn: Chief Executive Officer
Tel: 0000-000-0000 5762
Fax: 0000-000-0000 0557
(c) In the case of any party, at such other address as may be
designated by written notice to the other parties.
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Section 14. Governing Law; Submission to Jurisdiction; Severability;
Assignment.
(a) This Agreement and all disputes arising therefrom and related
thereto shall be governed by and construed in accordance with the laws of
the State of New York without reference to choice of law doctrine and each
party hereto submits to the exclusive jurisdiction of U.S. Federal and New
York state courts sitting in the Borough of Manhattan, New York City in
connection with all proceedings arising out of or relating to this
Agreement.
(b) To the extent permitted by law, the unenforceability or invalidity
of any provision or provisions of this Agreement shall not render any other
provision or provisions herein contained unenforceable or invalid.
(c) The parties to this Agreement hereby irrevocably and
unconditionally waive any and all right to trial by jury in any legal
proceeding arising out of or related to this Agreement or the transactions
contemplated hereby. Each party (i) certifies that no representative, agent
or attorney of the other party has represented, expressly or otherwise,
that such other party would not, in the event of such a suit, action or
proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that
it and the other party have been induced to enter into this Agreement by,
among other things, the mutual waivers and certifications in this Section.
(d) This constitutes the entire agreement and understanding among the
parties with respect to the subject matter hereof and supersedes all oral
communications and prior writings with respect thereto.
(e) The rights and duties of the Dealer under this Agreement may not
be assigned or transferred by the Dealer without the prior written consent
of the Issuer, such consent not to be unreasonably withheld; provided that
the Dealer may assign or transfer any of its rights or duties hereunder to
the Dealer's ultimate parent entity or any directly or indirectly
wholly-owned subsidiary of the Dealer's ultimate parent entity (a
"PERMITTED TRANSFEREE") without the prior written consent of the Issuer.
(f) The rights and duties of the Issuer under this Agreement may not
be assigned or transferred by the Issuer without the prior written consent
of the Dealer, such consent not to be unreasonably withheld; provided that
without the consent of the Dealer, the Issuer may assign or transfer any of
its rights or duties hereunder to any directly or indirectly wholly-owned
subsidiary of the Issuer.
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Section 15. Counterparts. This Agreement may be executed in any
number of counterparts, and all such counterparts taken together shall be
deemed to constitute one and the same agreement.
Section 16. Equity Rights.
(a) The Dealer acknowledges and agrees that this Agreement is not
intended to convey to the Dealer rights with respect to the transaction
contemplated hereby that are senior to the claims of common shareholders in
a winding up of the Issuer; provided, however, that nothing herein shall
limit or shall be deemed to limit the Dealer's right to pursue remedies in
the event of a breach by the Issuer of its obligations and agreements with
respect to this Agreement.
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IN WITNESS WHEREOF, the parties hereto to have executed this Share Issuance
and Repurchase Agreement as of the date and year first above written.
SOLARFUN POWER HOLDINGS CO., LTD.
By:
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Name:
Title:
XXXXXX XXXXXXX & CO. INTERNATIONAL PLC
By:
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Name:
Title:
14
