Exhibit 1.2
[FORM OF THE UNDERWRITING AGREEMENT RELATING TO THE CONVERTIBLE NOTE OFFERING]
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
ZERO COUPON CONVERTIBLE SENIOR NOTES DUE 2012
UNDERWRITING AGREEMENT
December [ ], 2007
Credit Suisse Securities (USA) LLC
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▇▇▇▇▇▇▇ Lynch, Pierce,
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4 World Financial Center
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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 US$[150]
million principal amount of zero coupon convertible senior notes, convertible
into American Depositary Shares ("ADSs"), of the Company (the "Firm Securities")
and, at the election of the Underwriters, up to an aggregate of US$[22.5]
million additional aggregate principal amount of such zero coupon convertible
senior notes (the "Optional Securities"), for sale within and outside the United
States (the "Global Offering"). The Firm Securities and the Optional Securities
that the Underwriters elect to purchase pursuant to Section 2 hereof are herein
collectively called the "Securities".
The ADSs are to be issued pursuant to a deposit agreement (the "Deposit
Agreement"), dated as of June 13, 2007, among the Company, JPMorgan Chase 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. As of the date hereof, each ADS represents the right to
receive one ordinary share, par value US$0.01 per share ("Ordinary Share") of
the Company deposited pursuant to the Deposit Agreement.
Concurrently with the Global Offering, certain selling shareholders of the
Company plan to undertake a global offering and sale of ADSs (the "ADS
Offering").
It is understood by all the parties that the Underwriters are offering the
Securities 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.
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1 (a) The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(i) A registration statement on Form F-1 (File No. 333-147223) (the
"Initial Registration Statement") in respect of the Securities and the
Ordinary Shares represented by the ADSs issuable upon conversion (as well
as the Ordinary Shares represented by the ADSs offered and sold in the
ADSs Offering) 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 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, at the time
it became or hereafter becomes effective, are hereinafter collectively
called the "Registration Statement"; the Preliminary Prospectus relating
to the Securities and the ADSs that was included in the Registration
Statement, dated [-], 2007, 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 Securities 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 Trust Indenture Act of 1939, as amended (the "Trust Indenture
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 the 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 Representative expressly for use
therein;
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(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 the
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 Representative 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 Representative expressly for use
therein;
(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 Ordinary Shares and the ADSs under the
U.S. Securities Exchange Act
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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 1(a)(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 and long-term debt or material adverse change in short-term
debt of the Company or any of its Subsidiaries 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 (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 (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; Yingli Green Energy (International)
Holding Company Ltd. ("Yingli International") has been duly incorporated
and is validly existing as a company in good standing under the laws of
the British Virgin Islands, with power and authority (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; Yingli
Green Energy Europe GmbH ("Yingli Europe") has been duly incorporated and
is validly existing as a company in good standing under the laws of the
Germany, with power and authority (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
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business and is in good standing under the laws of each other Juridiction
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 Yingli Energy (China) Company Ltd. ("Yingli
China"), Baoding Tianwei Yingli New Energy Resources Co., Ltd. ("Tianwei
Yingli"), Yingli Energy (Beijing) Co., Ltd. ("Yingli Beijing"), Chengdu
Yingli New Energy Resources Co., Ltd. ("Chengdu Yingli"), Tibet Tianwei
Yingli New Energy Resources Co., Ltd. ("Tibet Yingli"), and Tibet Keguang
Industries and Trading Co., Ltd. ("Tibet Keguang", and together with
Yingli China, Yingli Beijing, Tianwei Yingli and Tibet Yingli, 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, except 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 Yingli
International and Tianwei Yingli, the Company has no other direct
subsidiaries; as of the date of this Agreement, except for Yingli China,
Yingli Beijing and Yingli Europe, Yingli International has no other
subsidiaries; as of the date of this Agreement, Yingli China and Yingli
Beijing have no subsidiaries and do 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 Chengdu Yingli and Tibet Yingli, Tianwei Yingli has
no other subsidiaries; as of the date of this Agreement, 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 except for Baoding Dongfa Tianying New Energy Resources, Co.,
Ltd ("Dongfa Tianying"), in which Tianwei Yingli holds a 30% equity
interest; as of the date of this Agreement, except for Tibet Keguang,
Tibet Yingli has 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., Tibet
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;
(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
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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 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
6
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 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, except that the registered
capital of Yingli China has not yet been contributed; the Company duly and
validly owns the equity interest of Tianwei Yingli and Yingli
International in the percentage set forth in the Pricing Prospectus under
the caption "History and Restructuring", free and clear of all liens,
encumbrances, equities or claims; other than the share capital of Tianwei
Yingli and Yingli International, the Company does not directly own 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 Dongfa Tianying in the percentages set
forth in the Pricing Prospectus under the caption "History and
Restructuring", free and clear of all liens, encumbrances, equities or
claims; Yingli International duly and validly owns the equity interest of
Yingli China and Yingli Europe in the percentages set forth in the Pricing
Prospectus under the caption "History and Restructuring", 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 "History and
Restructuring", 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 Securities or the ADSs that may
be issued from time to time upon conversion of the Securities; 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", "History and Restructuring", "Management -
2006 Equity Incentive Plan", "Principal and Selling Shareholders",
"Description of Share Capital" and "Related Party Transactions"; the
Securities, when issued and delivered against payment thereof, will be
freely transferable by the Company 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 Securities except as described in the Pricing Prospectus
under the caption "Description of the Notes"; 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 "History
and 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 Securities, Ordinary Shares or shares of
any other share capital of or other equity interest 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 Securities;
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(xvii) The Securities have been duly authorized and, at such Time of
Delivery, when issued and delivered against payment of the purchase price
therefor pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered in accordance with the Indenture (the
"Indenture"), between the Company and Wilmington Trust Company, as trustee
(the "Trustee"), and will constitute valid and legally binding obligations
of the Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles, and the holders thereof will be entitled to the
benefits provided by the Indenture, under which they are to be issued,
which will be substantially in the form filed as an exhibit to the
Registration Statement; the Indenture has been duly authorized and duly
qualified under the Trust Indenture Act and, when executed and delivered
by the Company and the Trustee will constitute a valid and legally binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles; the Securities and the Indenture, will conform
in all material respects to the descriptions thereof in the Prospectus;
the Ordinary Shares that may be issued from time to time upon conversion
of the Securities may be freely deposited by the Company with the
Depositary against issuance of ADRs evidencing ADSs.
(xviii) 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;
(xix) 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;
(xx) 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 Ordinary 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 Pricing Prospectus and the Prospectus;
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(xxi) 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;
(xxii) Each of Tianwei Yingli and Yingli China 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, except as disclosed
in the Pricing Prospectus, all such dividends and other distributions will
not be subject to withholding or other taxes under the laws and
regulations of the PRC and, except as disclosed in the Pricing 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;
(xxiii) The issue and sale of the Securities by the Company
hereunder, the deposit of the Ordinary Shares that may be issued from time
to time upon conversion of the Securities with the Depositary against
issuance of the ADRs evidencing the ADSs, the compliance by the Company
with all of the provisions of this Agreement, the Deposit Agreement, the
Indenture and the Securities 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;
(xxiv) No consent, approval, authorization, order, registration,
clearance or qualification of or with any Governmental Agency is required
for the issue and sale of the Securities and the issuance of ADSs
(including the deposit of the Ordinary Shares with the Depositary for the
issuance of ADSs evidencing such ADSs) upon conversion of the Securities
and for the authorization, execution, delivery and performance by the
Company of this Agreement, the Indenture, the Securities and the Deposit
Agreement, except (A) the registration under the Act of the Securities and
the ADSs that may be issued upon conversion of the Securities 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 Securities
by or for the respective accounts of the several
9
Underwriters and (D) such Government Authorizations as disclosed in the
Pricing Prospectus;
(xxv) The outstanding ADSs representing the Ordinary Shares are duly
listed on the NYSE;
(xxvi) 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;
(xxvii) 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 Ordinary
Shares that may be issued upon the conversion of the Securities against
the issuance of ADRs evidencing the ADSs, (B) the sale and delivery by the
Company of the Securities to or for the respective accounts of the several
Underwriters or (C) the sale and delivery by the Underwriters of the
Securities to the initial purchasers thereof in the manner contemplated by
this Agreement;
(xxviii) 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 Securities and the ADSs;
(xxix) The statements set forth in the Pricing Prospectus under the
captions "Description of the Notes," "Description of Share Capital" and
"Description of American Depositary Shares" insofar as they purport to
constitute a summary of the terms of the Securities, 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, constitute accurate, complete and fair
summaries regarding the matters described therein in all material
respects;
(xxx) The statements set forth in the Pricing Prospectus under the
caption "History and 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;
(xxxi) 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
10
Company's knowledge after due inquiry, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(xxxii) The Company is not and, after giving effect to the
offering and sale of the Securities 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");
(xxxiii) Each of this Agreement, the Indenture, 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, the Indenture, 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 Indenture,
the Deposit Agreement or any other documents to be furnished
hereunder;
(xxxiv) The Registration Statement, the Pricing Prospectus,
the Prospectus, any Issuer Free Writing Prospectus and the ADS
Registration Statement and the filing of the Registration Statement,
the Pricing Prospectus, the Prospectus, any Issuer Free Writing
Prospectus and the ADS Registration Statement with the Commission
have been duly authorized by and on behalf of the Company, and the
Registration Statement and the ADS Registration Statement have been
duly executed pursuant to such authorization by and on behalf of the
Company;
(xxxv) 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 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
11
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;
(xxxvi) 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;
(xxxvii) 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;
(xxxviii) The Company is a "foreign private issuer" within the
meaning of Rule 405 under the Act;
(xxxix) At the time of filing the Initial Registration
Statement, the Company was not an "ineligible issuer", as defined in
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;
(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;
12
(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 the Company's internal
control over financial reporting 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇
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;
(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;
13
(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
public 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 Securities and the ADSs that may
be issued upon conversion of the Securities 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
Securities or ADSs; and except as set forth in the Pricing
Prospectus, there are no limitations on the rights of holders of the
Securities or the ADSs that may be issued upon conversion of the
Securities to hold, vote or transfer their securities;
14
(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 September 30, 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 September 30, 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 that may be issued upon conversion of the Securities 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
Securities, the ADSs that may be issued upon conversion of the
Securities or the underlying Ordinary 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
15
Company nor 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 the Securities, 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 Securities;
(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
16
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 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, to
the best knowledge of the Company after due inquiry, no 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 "History and 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, 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 ▇▇▇ ▇▇
million to ▇▇▇ ▇▇▇ million, Yingli Group's
17
increase of its equity interest in Tianwei Yingli from 49% to 51%,
the transfer of 51% equity interest in Tianwei Yingli by Yingli
Group to the Company, increase of the registered capital of Tianwei
Yingli from RMB 1,624.38 million to RMB 3,375.22 million, and the
Company's increase of its equity interest in Tianwei Yingli from
70.11% to 74.01%) 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
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 Assets Supervision and
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
18
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 and employees 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 the Company (the "PRC
Overseas Investment and Listing Regulations"), including, without
limitation, requesting each shareholder, option holder, director,
officer and employee 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, targeted
by or 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") or other
government administered sanctions; (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 Securities contemplated hereby and the ADSs
contemplated by the ADS Offering 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,
19
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, 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 Financial Industry Regulations Authority ("FINRA") and
the Company; except as described in the Registration Statement
(excluding the exhibits thereto), the Preliminary Prospectus, the
Pricing Prospectus and the Prospectus, there are no affiliations or
associations between (A) any member of the FINRA 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) 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;
(lxxiii) 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.
(lxxiv) 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
20
promulgated by the Ministry of Commerce, the State-Owned 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 (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 Securities, the Ordinary 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, the Custody Agreement (as defined in subsection (b)(xvi)
below) 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 Securities, the Ordinary 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
Indenture, the Deposit Agreement, the Custody 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 Securities, the Ordinary 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
Indenture, the Deposit Agreement, the Custody 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;
(lxxv) Since the filing of the Initial Registration Statement
with the Commission, there has been no change to the composition of
the board of directors of the Company or the composition of the
executive officers of the Company;
(lxxvi) The Company is in compliance in all material respects
with all applicable obligations and duties imposed on it by the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act; and
(lxxvii) The statements set forth in the Pricing Prospectus
under the captions "Risk Factors -- Risks Related to Doing Business
in China -- "A new PRC rule on mergers and acquisitions may subject
us to sanctions, fines and other penalties and affect our business
growth through acquisition of complementary business" and "PRC
Governmenta 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 Securities shall be deemed
to be a representation and warranty by the Company, as to matters covered
thereby, to each of the Underwriters.
21
2 Subject to the terms and conditions herein set forth, (a) the Company
agrees to sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Company at a purchase price of
[-]% the principal amount thereof (the "Purchase Price"), the principal amount
of Securities as set forth opposite their respective names in Schedule I
attached hereto and (b) in the event and to the extent that the Underwriters
shall exercise the election to purchase Optional Securities as provided below
the Company agrees, to sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company at
the Purchase Price that portion of the principal amount of Optional Securities
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractions of US$[-]) determined by multiplying such aggregate
principal amount of Optional Securities by a fraction, the numerator of which is
the maximum aggregate principal amount of Optional Securities 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 aggregate principal amount of Optional Securities that all of the
Underwriters are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to US$[-] million aggregate principal amount of Optional
Securities, at the Purchase Price for the sole purpose of covering sales of
shares in excess of the aggregate principal amount of Firm Securities. Any such
election to purchase Optional Securities 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 principal amount of
Optional Securities 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 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 Securities, the
several Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Prospectus.
4 (a) The Securities to be purchased by each Underwriter hereunder, in
book entry form, and in such authorized denominations and registered in such
names as the Representative may request upon at least forty-eight hours' notice
to the Company prior to an applicable 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 Representative, 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 to the Representative at least forty-eight hours in advance of such Time
of Delivery. The Company and the Selling Shareholders will cause the
certificates representing the Securities 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
Securities, 9:30 a.m., New York City time, on [-], 2007 or such other time and
date as the Representative and the Company may agree upon in writing, and, with
respect to the Optional Securities, 9:30 a.m., New York City time, on the date
specified by the Representative in the written notice given by the
Representative of the Underwriters' election to purchase such Optional
Securities, or such other time and date as the Representative and the Company
may agree upon in writing. Such time and date for delivery of the Firm
Securities is herein called the "First Time of Delivery", such time and date for
delivery of the Optional Securities, 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 pursuant to Section 8 hereof, including the cross-receipt
for the Securities and any additional
22
documents requested by the Underwriters pursuant to Section 8[(r)] hereof, will
be delivered at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇, ▇▇▇▇ ▇▇▇▇▇'▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ (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., Hong Kong 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 Securities, of the suspension of
the qualification of the Securities or the ADSs issuable from time
to time upon conversion of the Securities 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 Securities and the ADSs issuable
from time to time upon conversion of the Securities 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 Securities,
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
23
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 the expiration of nine months after the time of issue of
the Prospectus in connection with the offering or sale of the
Securities 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 and the
Trust Indenture 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 Securities 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 of the
Prospectus and continuing to and including the date 90 days after
the date of the Prospectus (the "Lock-Up Period"), without prior
written consent of Credit Suisse Securities (USA) LLC, 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
Secutiries, 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 Securities to be sold under this Agreement; (y)
the ADSs and the Shares underlying such ADSs to be sold under the
underwriting agreement for the ADS offering; and (z) 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
24
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 Credit Suisse Securities (USA) LLC determines, 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 Credit Suisse Securities (USA)
LLC waives, in writing, such extension; and the Company will provide
Credit Suisse Securities (USA) LLC and each shareholder subject to
the Lock-Up Period pursuant to the lock-up letters described in
Section 8(p) 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 other 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 prior written consent of the
Representative; 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 Credit Suisse Securities (USA) LLC determines, 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 Credit Suisse Securities (USA)
LLC waives, in writing, such extension; and the Company will provide
Credit Suisse Securities (USA) LLC and each shareholder subject to
the Lock-Up Period pursuant to the lock-up letters described in
Section 8(p) with prior notice of any such announcement that gives
rise to an extension of the Lock-Up Period;
(vii) To furnish to the holders of the Securities 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;
25
(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 of the Company or holders of the Securities, 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 website or the Commission's ▇▇▇▇▇ 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 Securities 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 Securities
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 or other government
administered sanctions; 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 Securities contemplated
hereby and the ADS contemplated by the ADS offering that is
inconsistent with any of the Company's representations and
obligations under the preceding sentence;
(x) Upon conversion of any Securities from time to time, to
issue Ordinary Shares in accordance with the terms of the Securities
and the provisions of the Indenture and to deposit the Ordinary
Shares so issued 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
converting holders in accordance with the terms of the Securities
and provisions of the Indenture 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 Securities;
26
(xii) To use its best efforts to include for Listing the ADSs
that may be issued from time to time upon the conversion of the
Securities on the NYSE, and to maintain such listings;
(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 Securities (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;
(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 Securities to be
sold by the Company or the issuance of ADSs upon Conversion of the
Securities and the execution and delivery of this 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 Securities, without your
prior consent;
(xix) Not, at any time at or after the execution of this
Agreement, to, directly or indirectly, offer or sell any Securities
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 Securities, in each case other than the
Prospectus;
(xx) 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
27
(xxi) 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.
(xxii) To comply with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act, and to use its
best efforts to cause the Company's directors and officers, in their
capacities as such, to comply with provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇
Act.
6 (a) The Company represents and agrees that, without the prior consent
of the Representative, it has not made and will not make any offer relating to
Securities 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 Representative, it has not made and will
not make any offer relating to the Securities 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 Representative 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 Representative and, if requested by the Representative,
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 covenant 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 Representative expressly for use therein.
7 The Company covenants and agrees with each of the several Underwriters
that it will pay or cause to be paid (i) all the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities, the Ordinary Shares and ADSs and all other
expenses in connection with the preparation, printing, reproduction and filing
of the Registration Statement, the ADS 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, the Indenture, 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 Securities and
the ADSs issuable upon conversion of the Securities, (iii) all expenses in
connection with the qualification of the and the Securities and the ADSs
issuable upon conversion of the Securities for offering and sale
28
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 FINRA of the terms of the sale of the Securities,
including the fees and disbursements of counsel for the Underwriters in
connection with such FINRA matters, (vi) the fees and disbursements of any
transfer agent or registrar for the Securities, (vii) all the costs and expenses
relating to presentations or meetings undertaken in connection with the
marketing of the offering and sale of the Securities 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 Securities 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 of the Ordinary Shares
with the Depositary and the issuance and delivery of the ADRs evidencing the
ADSs that may be issued upon conversion of the Securities in exchange therefor
by the Depositary to the Company, of the sale and delivery of the Securities by
the Company to or for the account of the Underwriters and of the sale and
delivery of the Securities 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 a Security 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, (xi) the fees and expenses of the Trustee as agreed by
the Company and the Trustee, (xii) the fees and expenses of the Authorized Agent
(as defined in Section 15 hereof), (xiii) the cost of preparing the ADRs
evidencing the ADSs that may be issued upon conversion of the Securities, (xiv)
the fees and expenses of any Trustee and any agent of any Trustee and the fees
and disbursements counsel for any Trustee in connection with any Indenture and
the Securities; and (xv) 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. [THE COMPANY AND GS TO DISCUSS THIS
CLAUSE.]
8 The obligations of the Underwriters hereunder, as to the Securities 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 herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company 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, 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;
29
(b) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ LLP, United States counsel to the
Company 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, 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) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇, Cayman Islands counsel for the Company
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) ▇▇▇▇▇▇▇▇ 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, (i) 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 III attached hereto, and (ii) the Chief Financial Officer of the
Company shall have furnished to you an officer's certificate with respect to
certain data contained in the Preliminary Prospectus and the Pricing Prospectus,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you, to the effect set forth in Annex IV 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
30
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 delivery of the Securities being delivered at such Time of Delivery on the
terms and in the manner contemplated in the Prospectus;
(k) On or after the Applicable Time, (i) no downgrading shall have
occurred in the ratings accorded to the Securities and the Company's other debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(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 Securities, the Ordinary Shares, or 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 Representative, makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Securities being
delivered at such Time of Delivery on the terms and in the manner contemplated
in the Prospectus;
(m) The ADSs issuable from time to time upon conversion of the
Securities shall have been duly approved, subject to official notice of
issuance, for listing on the NYSE;
(n) The Company 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 90 days after the date of the
Prospectus, it 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 Securities, ADSs or
ordinary shares or any securities of the Company that are substantially similar
to the Securities, 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, Securities, 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
31
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 prior written consent of the Representative, except for
the Securities and ADSs being sold hereunder and under the underwriting
agreement for the ADSs offering (a form of such Lock-Up Agreement is attached as
Annex VI attached hereto);
(o) 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;
(p) The Company shall have furnished or caused to be furnished to
you at such Time of Delivery certificates of officers of the Company,
satisfactory to you as to the accuracy of the representations and warranties of
the Company, herein at and as of such Time of Delivery, as to the performance by
the Company of all of its 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 Indenture and the authorization, issue and sale of the
Securities and the incumbency and specimen signatures of signing officers, and
the Company shall have furnished certificates as to the matters set forth in
subsections (a), (j), (l) and (q) of this Section, and as to such other matters
as you may reasonably request;
(q) 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 and to the Deposit Agreement,
the Indenture, the Custody Agreement and the Power of Attorney, 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 Securities and ADSs,
the listing and trading of the ADSs on the NYSE or the transactions contemplated
by this Agreement, the Indenture, the Deposit Agreement, the Custody Agreement
and the Power of Attorney;
(r) [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 Representative would make it inadvisable to proceed with
the public offering or the delivery of the Securities 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, each dated as of
[-], 2007, attached as Annex VII to this Agreement);]
9 (a) The Company will 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, or (ii) any challenge
to the compliance, legality or legitimacy of the issuance and sale of the
Securities, the Ordinary
32
Shares and the ADSs, the listing and trading of the ADSs on the NYSE or the
transactions contemplated by this Agreement, the Custody Agreement and the Power
of Attorney under PRC laws, rules and regulations or otherwise, and will
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 with
respect to clause (i) of this paragraph, the Company 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 Representative expressly for use therein.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company becomes 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 Representative expressly for use
therein; and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) 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) 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.
33
(d) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) 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 on the one hand and the Underwriters
on the other from the offering of the Securities to which such loss, claim,
damage or liability (or actions in respect thereof) relates. 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 (c) 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 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 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 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 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 and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subsection (d) 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 (d). 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 (d) 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 (d),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities 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 (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company 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 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 to each person, if any, who controls the Company within the
meaning of the Act.
10 (a) If any Underwriter shall default in its obligation to purchase
the Securities 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 Securities on the terms contained herein. If within thirty-six
34
hours after such default by any Underwriter you do not arrange for the purchase
of such Securities, then the Company 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 Securities on such terms. In the event
that, within the respective prescribed periods, you notify the Company that you
have so arranged for the purchase of such Securities, or the Company notifies
you that it has so arranged for the purchase of such Securities, you or the
Company 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 Securities.
(a) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by you or the Company
as provided in subsection (a) above, the aggregate principal amount of the
Securities which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of the Securities to be purchased at such Time of
Delivery, then the Company shall have the right to require each non-defaulting
Underwriter to purchase an aggregate principal amount of the Securities 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 aggregate principal amount of the Securities which such
Underwriter agreed to purchase hereunder) of the aggregate principal amount of
the Securities 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.
(b) If, after giving effect to any arrangements for the purchase of
the Securities of a defaulting Underwriter or Underwriters by you or the Company
as provided in subsection (a) above, the aggregate principal amount of such
Securities which remains unpurchased exceeds one-eleventh of the aggregate
principal amount of such Securities to be purchased at such Time of Delivery, or
if the Company shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Securities 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 to sell, the Optional Securities) shall thereupon terminate, without
liability on the part of any non-defaulting Underwriter or the Company, except
for the expenses to be borne by the Company and the Underwriters as provided in
Section 7 hereof and the indemnity and contribution agreements in Sections 9 and
16 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, 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 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 officer or director or
controlling person of the Company and shall survive delivery of and payment for
the Securities.
12 (a) This Agreement shall become effective when the parties hereto have
executed and delivered this Agreement.
35
(b) If the Representative elect to terminate this Agreement as
provided in this Section 12, the Company and each other Underwriter shall be
notified promptly in writing.
(c) If this Agreement shall be terminated pursuant to Section 10
hereof, the Company shall not be under any liability to any Underwriter except
as provided in Sections 7, 9 and 16 hereof; but, if for any other reason, any
Securities are not delivered by or on behalf of the Company as provided herein,
the Company will, upon the occurrence of any failure to complete the sale and
delivery of the Securities, promptly (and, in any event, not later than 30 days)
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 Securities not so delivered, but the Company shall then be under
no further liability to any Underwriter in respect of the Securities not so
delivered except as provided in Sections 7, 9 and 16 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 Representative at 68th Floor,
▇▇▇▇▇▇ Kong Center, ▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, facsimile number: (852)
2978-0440, 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 Baoding 071051, People's Republic
of China, Attention: Zongwei Li; provided, however, that any notice to an
Underwriter pursuant to Section 9(d) 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 and the Company 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, 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
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
15 Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company 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. The Company has appointed Law
Debenture Corporate Services Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
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. The Company 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
36
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.
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, 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 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 The Company acknowledges and agrees that (i) the purchase and sale of
the Securities pursuant to this Agreement is an arm's-length commercial
transaction between the Company 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, (iii) no Underwriter has assumed an advisory or
fiduciary responsibility in favor of the Company 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 on other matters)
or any other obligation to the Company except the obligations expressly set
forth in this Agreement and (iv) the Company has consulted its own legal and
financial advisors to the extent it deemed appropriate. The Company 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 in connection with such transaction or the process leading thereto.
19 This Agreement constitutes the entire agreement among the parties and
supersedes all prior agreements and understandings (whether written or oral)
between the Company and the Underwriters 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 parties hereto 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, the Company is
authorized to disclose to any persons the U.S. Federal and State income tax
treatment and tax structure of the potential transaction
37
and all materials of any kind (including tax opinions and other tax analyses)
provided to the Company 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.
If the foregoing is in accordance with your understanding, please sign and
return to us [6] 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 and the Company.
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 for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
38
Very truly yours,
Yingli Green Energy Holding Company Limited
By:
-----------------------------------------
Name:
Title:
Accepted as of the date hereof on behalf of each of the Underwriters
Credit Suisse Securities (USA) LLC
By:
--------------------------
Name:
Title:
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C.
By:
--------------------------
Name:
Title:
▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
By:
--------------------------
Name:
Title:
39
SCHEDULE I
AGGREGATE
PRINCIPAL
AMOUNT OF
SECURITIES TO BE
AGGREGATE PURCHASED IF
PRINCIPAL AMOUNT MAXIMUM
OF SECURITIES TO BE OPTION
UNDERWRITER PURCHASED EXERCISED
------------------- ----------------
Credit Suisse Securities (USA)
LLC.............................
▇▇▇▇▇▇▇ Sachs (Asia) L.L.C...... $[-] $[-]
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇... $[-] $[-]
& ▇▇▇▇▇ Incorporated
------------------- ----------------
Total $[-] $[-]
=================== ================
SCH I
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 COMFORT LETTER
Pursuant to Section 8(i) 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 Pricing Prospectus, 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 Public Company
Accounting Oversight Board (United States) 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 representative of the
Underwriters (the "Representative");
(iii) They have made a review in accordance with standards
established by the Public Company Accounting Oversight Board (United
States) of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Pricing Prospectus and the Prospectus as indicated in
their reports thereon copies of which have been separately furnished to
the Representative 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 cause 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;
(iii) They have compared the information in the Pricing Prospectus
and 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 11of Form 20-F and Regulation S-K;
ANNEX I 1
(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 Pricing Prospectus and
the Prospectus, inquiries of officials of the Company and its subsidiaries
responsible for financial and accounting matters 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 Pricing Prospectus and 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 Pricing Prospectus and 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 Pricing Prospectus and 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 Pricing Prospectus and the Prospectus;
(C) the unaudited financial statements which were not included
in the Pricing Prospectus and 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 Pricing Prospectus and 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 Pricing Prospectus and the
Prospectus;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Pricing Prospectus and 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
ANNEX I 2
(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 Pricing Prospectus and 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 Representative, or any
increases in any items specified by the Representative, in each case
as compared with amounts shown in the latest balance sheet included
in the Pricing Prospectus and the Prospectus, except in each case
for changes, increases or decreases which the Pricing Prospectus and
the Prospectus disclose 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 Pricing Prospectus and the Prospectus to
the specified date referred to in clause (E) 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 Representative, or any increases in any items
specified by the Representative, in each case as compared with the
comparable period of the preceding year and with any other period of
corresponding length specified by the Representative, except in each
case for decreases or increases which the Pricing Prospectus and the
Prospectus disclose 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 Pricing Prospectus and 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 Representative,
which are derived from the general accounting records of the Company and
its subsidiaries, which appear in the Pricing Prospectus and the
Prospectus, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representative, 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 I 3
ANNEX II
FORM OF OFFICER'S CERTIFICATE
I, Zongwei Li, Chief Financial Officer of Yingli Green Energy Holding
Company Limited, a company incorporated in the Cayman Islands (the "Company"),
hereby certify that I have performed the following procedures on the financial
and operating information and data identified and circled by you in the
Preliminary Prospectus dated [ ], 2007 (the "Preliminary Prospectus") attached
hereto as Annex A[, the Issuer Free Writing Prospectus dated [ ], 2007 (the
"Issuer Free Writing Prospectus")] and the Final Prospectus, dated [ ], 2007
(the "Final Prospectus") attached hereto as Annex B. I further certify each of
the circled financial and operating information and data in the attached annexes
is true and accurate:
(A) Compared (i) the amounts which combines the amounts for the period
from January 1, 2006 through September 4, 2006 (the "Predecessor
Period") and the amounts for the period from August 7 2006 through
December 31, 2006 (the "Successor Period") and (ii) the percentages
calculated using the results of combined amounts referred to in item
(i), to the amounts or percentages derived from the Company's
Financial Statements and found them to be in agreement;
(B) Compared (i) the amounts which combines the amounts for the period
from January 1, 2006 through September 4, 2006 (the "Predecessor
Period") and the amounts for the period from August 7 2006 through
September 30, 2006 (the "Successor Period") and (ii) the percentages
calculated using the results of combined amounts referred to in item
(i), to the amounts or percentages derived from the Company's
unaudited financial statements and found them to be in agreement;
(C) Compared (i) the amounts which combines the amounts for the period
from July 1, 2006 through September 4, 2006 (the "Predecessor
Quarter") and the amounts for the period from August 7 2006 through
September 30, 2006 (the "Successor Quarter") and (ii) the
percentages calculated using the results of combined amounts
referred to in item (i), to the amounts or percentages derived from
the Company's unaudited financial statements and found them to be in
agreement;
(D) Compared the amount or percentage or recalculated the amount and/or
percentage from the corresponding information in the Company's
general ledger or to the corresponding amount or percentage in an
analysis prepared by the Company's accounting personnel and found
them to be in agreement;
(E) Confirmed the accuracy of certain operating data and other data in
the Preliminary Prospectus[, the Issuer Free Writing Prospectus] and
the Final Prospectus based on corresponding data and other records
maintained by the Company; and
ANNEX II 1
(F) Recalculated the US dollar amount based on the corresponding RMB
amount and the rate of RMB[-] to $1.00 as specified in the
Registration Statement and found them to be in agreement.]
ANNEX II 2
IN WITNESS WHEREOF, I have hereunto signed my name.
Dated as of ______________________.
Name:
---------------------------------
Zongwei Li
Title:
--------------------------------
Chief Financial Officer
ANNEX II 3
ANNEX III
FORM OF LOCK-UP AGREEMENT
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
LOCK-UP AGREEMENT
___________, 2007
Credit Suisse Securities (USA) LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
As a Representative of the several Underwriters named in Schedule I to the
Underwriting Agreement (as defined below).
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 (the
"Underwriting Agreement"), on behalf of the several underwriters named in
Schedule I to such agreement (collectively, the "Underwriters"), with Yingli
Green Energy Holding Company Limited, 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 (the "Public Offering") of (i) American Depositary Shares
("ADSs") representing ordinary shares of the Company, par value US$0.01 per
share, and (ii) zero coupon convertible senior notes ("Securities") pursuant to
a Registration Statement on Form F-1 (File No. 333- ) and a Registration
Statement on Form F-6 (File No. 333-142852) 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 the Securities) and of other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the undersigned hereby
agrees that, during the period beginning from the date of the final Prospectus
covering the Public Offering and continuing to and including the date 90 days
after the date of such final Prospectus (the "Lock-Up Period"), the undersigned
will not, without prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) L.L.C., 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 Securities, ADSs or ordinary shares or any securities of the
Company that are substantially similar to the Securities, 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, Securities, 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 represent the right to
ANNEX III 1
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 Representative
determines, 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
Credit Suisse Securities (USA) LLC waives, in writing, such extension. The
undersigned understands that the Company will provide the Representative 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 Public 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.
ANNEX III 2
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
Securities or ADSs pursuant to the respective 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
-------------------------------
Authorized Signature
-------------------------------
Title
ANNEX III 3
ANNEX IV
OPINIONS OF PRC COUNSEL TO THE COMPANY
AND PRC COUNSEL TO THE UNDERWRITERS,
EACH DATED [-], 2007
ANNEX IV 1
EXHIBIT A
FORM OF THE COMPANY US COUNSEL OPINION
1. The Underwriting Agreement has been duly executed and delivered by the
Company in accordance with the laws of the State of New York.
2. The Indenture has been duly executed and delivered by the Company in
accordance with the laws of the State of New York and, assuming that the
Indenture has been duly authorized, executed and delivered by the Trustee and
the Securities Agent, constitutes a valid and legally binding obligation of the
Company enforceable against the Company in accordance with its terms.
3. The Securities have been duly issued by the Company and, assuming due
authentication thereof by the Trustee and upon payment and delivery in
accordance with the Underwriting Agreement, will constitute valid and legally
binding obligations of the Company enforceable against the Company in accordance
with their terms and entitled to the benefits of the Indenture.
4. The Deposit Agreement has been duly executed and delivered by the
Company in accordance with the laws of the State of New York and, assuming that
the Deposit Agreement has been duly authorized, executed and delivered by the
Depositary, the Deposit Agreement constitutes a valid and legally binding
obligation of the Company enforceable against the Company in accordance with its
terms.
5. Assuming due authorization, execution, issuance and delivery by the
Depositary of the ADSs issued upon conversion of the Securities, such ADSs
evidenced by American Depositary Receipts, if applicable, against the deposit of
Ordinary Shares in accordance with the terms of the Deposit Agreement, will be
validly issued and persons in whose names such ADSs are duly registered will be
entitled to the rights specified therein and in the Deposit Agreement.
6. The execution, delivery and performance of the Indenture, the Deposit
Agreement and the Underwriting Agreement will not (A) violate, breach or result
in a default under any agreement or other instrument governed by the law of the
State of New York of the Company or any of the subsidiaries, or (B) violate any
U.S. federal or New York state statute or any rule or regulation that has been
issued pursuant to any such U.S. federal or New York state statute or, to our
knowledge, any order of any U.S. federal or New York state governmental agency
or body having jurisdiction over the Company and its subsidiaries.
EXHIBIT A 1
7. The registration statement on Form F-6 (File No. 333-142852) relating to
the Company's ADSs (the "F-6 Registration Statement") has become effective under
the U.S. Securities Act of 1933, as amended (the "Securities Act"), and, to the
best of our knowledge, no stop order suspending the effectiveness of the F-6
Registration Statement has been issued or proceeding for that purpose has been
instituted or threatened by the Securities and Exchange Commission.
8. The statements made in the Final Prospectus under the caption
"Description of the Notes," insofar as they purport to constitute summaries of
certain terms of documents referred to therein, constitute accurate summaries of
the terms of such documents in all material respects.
9. The statements made in the Final Prospectus under the caption
"Description of American Depositary Shares," insofar as they purport to
constitute summaries of certain provisions of the ADSs, the ADRs and the Deposit
Agreement, constitute accurate summaries of such provisions in all material
respects.
10. The statements made in the Final 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.
11. The statements made in the Final Prospectus under the caption
"Underwriting", insofar as they purport to constitute summaries of certain
provisions of the Underwriting Agreement, constitute accurate summaries of such
provisions in all material respects.
12. 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 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, 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 ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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 the Underwriting Agreement valid personal jurisdiction over the
Company.
EXHIBIT A 2
13. 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 arising
out of or relating to the Deposit 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 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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.
14. 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 issue and sale of the Securities by the Company, the issuance
of the ADSs initially issuable by the Company upon conversion of the Securities
in accordance with the terms of the Securities and the Indenture and the
compliance by the Company with all of the provisions of the Underwriting
Agreement and the Indenture, except that it is understood that no opinion is
given in this paragraph 14 with respect to any U.S. federal or state securities
law or any rule or regulation issued pursuant to any U.S. federal or state
securities law.
15. To our knowledge, there are no contracts or documents of a character
required to be filed by the Company as exhibits to the Registration Statement
that have not been filed as required.
16. The Company is not an "investment company" with the meaning of, nor
subject to regulation under, the Investment Company Act of 1940, as amended.
17. 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 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 Pricing Disclosure Package, as of the
Applicable Time (as defined in the Underwriting Agreement) or as of the date
hereof, 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, 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 data contained in or omitted from the
Registration Statement, the Pricing Disclosure Package, the Prospectus or the
ADS Registration Statement.
EXHIBIT A 3
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 equity joint venture 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; [70.11]% 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 except as
disclosed in the Prospectus ; 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 necessary
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 has the legal right and authority to own, use, lease and
operate its assets;
(ii) Each of Chengdu Yingli, Tibet Yingli, and 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; 64% of the equity
interest of Chengdu Yingli and 50% of the equity interest of Tibet Yingli 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 or Tibet Keguang, respectively, comply with the
requirements of applicable laws of the PRC and are in full force and effect; all
of the registered capital of Chengdu Yingli, Tibet Yingli and Tibet Keguang are
fully paid and non-assessable; each of Chengdu Yingli, Tibet Yingli and Tibet
Keguang has full power and authority (corporate and other) and has all necessary
consents, approvals, authorizations, orders, registrations, clearances and
qualifications of or with any Governmental Agency having jurisdiction over
Chengdu Yingli, Tibet Yingli 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;
(iii) As of the date of the Underwriting Agreement, except for Chengdu
Yingli, Tibet Yingli and Tibet Keguang, Tianwei Yingli has no other subsidiaries
and does not own or control, directly or indirectly, any equity or other
ownership interest in any corporation, partnership, joint venture or any other
person except that Tibet Yingli holds 640,000 shares in Tibet Rhodiola
Pharmaceutical Holding Company Limited and 460,000 shares in Tibet Hebang
Electrical Source Technology Co., Ltd.
(iv) Tianwei Yingli currently has a registered capital of RMB [1,624.38]
million, and all of the registered capital of Tianwei Yingli is fully paid and
non-assessable; Tianwei Yingli has obtained all necessary 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; except as disclosed in the
Prospectus, 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) Yingli China has been duly organized and is validly existing as a
wholly-owned foreign enterprise under the laws of the PRC and its business
license is in full force and effect; the registered capital of Yingli China of
RMB 10,000,000; 100% of the equity interest of Yingli China is owned by Yingli
International, 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 Yingli China comply with the
requirements of applicable laws of the PRC and are in full force and effect;
Yingli China has full power and authority (corporate and other) and has all
necessary consents, approvals, authorizations, orders,
Exhibit B 1
registrations, clearances and qualifications of or with any Governmental Agency
having jurisdiction over Yingli China or any of its properties required for the
ownership or lease of property by it and has the legal right and authority to
own, use, lease and operate its assets;
(vi) Except as disclosed in the Prospectus, each of the Subsidiaries has
legal and valid title to all of their respective properties and assets, in each
case, free and clear of liens, charges, encumbrances, equities, orders, notices,
claims, defects, options or restriction. Each of the 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 the Subsidiaries is a party, is legal, valid, binding and enforceable in
accordance with its terms and, to the best of such Subsidiary's 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 any of the
Subsidiaries has occurred and is continuing under any such lease; the use of any
premises occupied by any of the 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 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 our knowledge after due inquiry, none of the Company and the
Subsidiaries owns, operates, manages or has any other right or interest in any
other material real property of any kind, except as descried in the Prospectus.
(vii) Except as described in the Prospectus, the Restructuring (including,
without limitation, the increase of the registered capital of Tianwei Yingli
from ▇▇▇ ▇▇ million to ▇▇▇ ▇▇▇ million, Yingli Group's increase of its equity
interest in Tianwei Yingli from 49% to 51%, the transfer of 51% equity interest
in Tianwei Yingli by Yingli Group to the Company, increase of the registered
capital of Tianwei Yingli from 1,624.38 million to 3,375.22 million, and the
Company's increase of its equity interest in Tianwei Yingli from 70.11% to
74.01%) 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 PRC 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;
(viii) The Restructuring (including, without limitation, the increase of
the registered capital of Tianwei Yingli from ▇▇▇ ▇▇ million to ▇▇▇ ▇▇▇ million,
Yingli Group's increase of its equity interest in Tianwei Yingli from 49% to
51%, the transfer of 51% equity interest in Tianwei Yingli by Yingli Group to
the Company, increase of the registered capital of Tianwei Yingli from 1,624.38
million to 3,375.22 million, and the Company's increase of its equity interest
in Tianwei Yingli from 70.11% to 74.01%) 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 thereunder did not, do not and will not (A) contravene any provision
of applicable PRC 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, (B) contravene the
articles of association, business license or other constituent documents of
Yingli Group or any of the Subsidiaries, or (C) conflict with or
Exhibit B 2
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.
(ix) Except as disclosed in the Prospectus, all necessary 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 the relevant government agency
in the PRC and (ii) the consent of third parties under joint venture agreements,
bank loans, guarantees and other contracts material to Yingli Group and Tianwei
Yingli taken as a whole, if the consent of such third parties is necessary to be
obtained), and to the best of our knowledge after due inquiry, 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;
(x) To the best of our knowledge after due inquiry, 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, to the extent material to the Company, Tianwei
Yingli, Yingli Power, Yingli Group or any of their subsidiaries, have not been
disclosed in the Prospectus;
(xi) Except as disclosed in the Prospectus, Yingli Power 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 direct share program 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
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 direct share
program 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;
(xii) 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);
(xiii) Each of the Subsidiaries 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, except where the lack of which would not,
individually or in the aggregate, have a Material Adverse Effect, 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 the Subsidiaries 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 the Subsidiaries is in compliance
Exhibit B 3
with the provisions of all such licenses, consents, authorizations, approvals,
orders, certificates or permits in all material respects;
(xiv) 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; other than as set forth 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 foreign currency 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;
(xv) Neither the Company nor any of the 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; none of the Subsidiaries is (A) in violation
of their respective constituent documents, business licenses or permits or (B)
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material 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;
(xvi) 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 "Enforceability of Civil Liabilities", in each
case, to the extent such statements relate to matters which are governed by PRC
law, 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 in light of the circumstance under which they were made;
(xvii) Tianwei Yingli owns or has valid licenses in full force and effect
or otherwise have the legal right to use the Intellectual Property as currently
used or as currently contemplated to be used by Tianwei Yingli, in each case, as
described in the Prospectus; To the best of our knowledge after due inquiry, no
third party has assigned any Intellectual Property to Tianwei Yingli;
(xviii) To the best of our knowledge after our due inquiry, 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
in all material respects;
(xix) No security interests or other liens have been created with respect
to any of the Intellectual Property;
(xx) To the best of our knowledge after due inquiry, there are no
outstanding guarantee or contingent payments obligations of Tianwei Yingli or
its subsidiaries in respect of indebtedness of third parties, except as
disclosed in the Prospectus;
(xxi) 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 issuance and sale
of the Securities, the deposit with the Depositary of Ordinary Shares against
the issuance of ADRs evidencing the ADSs issuable upon conversion of the
Securities, (b) the sale and delivery by the Company of the Securities for the
respective accounts of the Underwriters or (c) the sale and delivery outside the
Exhibit B 4
PRC by the Underwriters of the Securities to the initial purchasers thereof in
the manner contemplated in the Underwriting Agreement;
(xxii) Insofar as PRC law and subjects are concerned, 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 the Underwriting Agreement and Deposit Agreement shall be
construed in accordance with and governed by the laws of the State of New York
will be respected by the PRC Law; service of process effected in the manner set
forth in the Underwriting Agreement and the Deposit Agreement will be effective,
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 the Underwriting 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;
(xxiii) Subject to the sole discretion on the interpretation of the
"public interest" by a PRC court if there is a dispute in respect of the
Purchase Agreement submitted to such court, the indemnification and contribution
provisions set forth in Section 9 hereof and Section [-] of the Deposit
Agreement do not contravene the public interest or laws of the PRC;
(xxiv) To the best of our knowledge after due inquiry, there are no legal,
administrative, arbitration or governmental proceedings pending to which the
Company or any of its Subsidiaries is a party or of which any property of 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, reasonably to
be expected to have a Material Adverse Effect; and to the best of our knowledge
after due inquiry, no such proceedings are threatened or contemplated by any
Governmental Agency or threatened by others;
(xxv) The issue and sale of the Securities being delivered at such Time of
Delivery and the deposit of the Ordinary Shares with the Depositary against
issuance of the ADRs evidencing the ADSs issuable upon conversion of the
Securities to be delivered at such Time of Delivery and the compliance by the
Company with all of the provisions of the Underwriting Agreement, the Indenture,
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
material indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to us 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, nor will such action result in any violation of the provisions of the
articles of association, business license or any other constituent documents of
any of the Subsidiaries 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 Subsidiaries or any of their properties;
(xxvi) Except as disclosed in the Prospectus, no Governmental
Authorization of or with any Governmental Agency in the PRC is required for the
issue and sale of the Securities, the listing of the ADSs issuable upon
conversion of the Securities on the NYSE, the deposit of the Shares with the
Depositary against issuance of the ADRs evidencing the ADSs issuable upon
conversion of the Securities or the consummation of the transactions
contemplated by the Underwriting Agreement, the Indenture and the Deposit
Agreement and the compliance by the Company with all of the provisions of the
Underwriting Agreement, the Indenture 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 law or statute or any
order, rule or regulation of any Governmental Agency in the PRC;
Exhibit B 5
(xxvii) The application of the net proceeds to be received by the Company
from the sale of the Securities 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 material 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 having jurisdiction over
it or over any of its properties or assets;
(xxviii) Although we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, we have no reason to believe that (a) any part of
the Registration Statement or any further amendment thereto (other than the
financial statements and other financial information contained therein, as to
which we 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,
in the light of the circumstances under which they were made, 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 as to which we need express no opinion), 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 we 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 we 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;
(xxix) The entry into, and performance or enforcement of the Underwriting
Agreement, the Indenture and the Deposit Agreement 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 the Underwriting Agreement, the Indenture and the Deposit
Agreement or the Power of Attorney;
(xxx) Each of the Subsidiaries and their respective properties, assets and
operations are in compliance with Environmental Law in all material respects,
and each of the Subsidiaries holds all necessary permits, authorizations and
approvals required under Environmental Law 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 any of the Subsidiaries under, or to interfere
with or prevent compliance by any of the Subsidiaries with, Environmental Law
except as would not individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect; none of the 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 best of our 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 best of our knowledge after due inquiry, threatened release or cleanup at
any location of any Hazardous Materials;
Exhibit B 6
(xxxi) All returns, reports or fillings which ought to have been made by
or in respect of any of the 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 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 by the Subsidiaries; and neither the 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.
(xxxii) Except as disclosed in the Prospectus, (A) 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 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 and (ii) the issuance and
sale of the Securities, the listing and trading of the ADSs issuable upon
conversion of the Securities on the NYSE and the consummation of the
transactions contemplated by the Underwriting Agreement, the Indenture and the
Deposit Agreement did not, does not and will not contravene any provision of the
M&A Rules and Related Clarifications; and (C) all necessary consents, approvals,
authorizations, orders, registrations, filings and qualifications, to the extent
they are 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 Securities, the listing and trading of the ADSs issuable upon
conversion of the Securities on the NYSE and the consummation of the
transactions contemplated by the Underwriting Agreement, the Indenture and the
Deposit Agreement, 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
Securities, the listing and trading of the ADSs issuable upon conversion of the
Securities on the NYSE and the consummation of the transactions contemplated by
the Underwriting Agreement, the Indenture and the Deposit Agreement by any
governmental agency under the M&A Rules and Related Clarifications, and to the
best of our knowledge after due inquiry, 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;
(xxxiii) The statements set forth in the Prospectus under the captions
"Risk Factors - A new PRC rule on mergers and acquisitions may subject us to
sanctions, fines and other penalties and affect our business growth through
acquisition of complementary business" 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 light of the
circumstances under which they were made; and
(xxxiv) The transaction structure discussed in the Prospectus under the
captions "Restructuring" and "Related Party Transactions" in respect of the
issuance by the Company of mandatory redeemable bonds and mandatory convertible
bonds to Yingli Power and the issuance by Yingli Power to Deutsche Bank AG of
mandatory redeemable notes and mandatory exchangeable notes does not violate
applicable PRC laws and regulations.
Exhibit B 7
EXHIBIT C
FORM OF CAYMAN ISLANDS COUNSEL OPINION FOR THE COMPANY
(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 Securities 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 that may be issued
upon conversion of the Securities to be deposited by the Company or to be
purchased from the Company under this Agreement which have not been complied
with; the Ordinary Shares to be deposited by the Company may be freely deposited
by the Company with the Depositary against issuance of ADRs evidencing ADSs; and
the ADSs that may be issued upon conversion of the Securities are freely
transferable by the Company to or for the account of the several Underwriters in
the manner contemplated herein;
(iii) 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;
(iv) 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;
(v) The Indenture 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;
(vi) 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;
(vii) Each of this Agreement, the Indenture, 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, 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;
Exhibit C 1
(viii) The issue and sale of the Securities being delivered at such Time
of Delivery and the deposit of the Ordinary 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;
(ix) No Governmental Authorization of or with any Governmental Agency in
the Cayman Islands is required for the issue and sale of the Securities, the
deposit of the Ordinary Shares with the Depositary against issuance of the ADRs
evidencing the ADSs issuable upon conversion of the Securities to be delivered
at such Time of Delivery or the consummation of the transactions contemplated by
this Agreement, the Indenture and the Deposit Agreement;
(x) 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;
(xi) 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;
(xii) 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 Ordinary Shares by the Company against the issuance of ADRs
evidencing the ADSs issuable upon conversion of the Securities, (B) the sale and
delivery by the Company of the Securities to or for the respective accounts of
the Underwriters or (C) the sale and delivery outside the Cayman Islands by the
Underwriters of the Securities to the initial purchasers thereof in the manner
contemplated herein;
(xiii) 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;
(xiv) The Company's 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 can ▇▇▇ and be sued in their own names under the laws of the Cayman
Islands; the irrevocable submission of the Company to the exclusive jurisdiction
of a New York Court, the waiver by the Company of any objection to the venue of
a proceeding of a New York Court and the agreement of the Company 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 judgment obtained in a New York Court arising out of or in
relation to the obligations of the Company under this Agreement would be
enforceable against the Company, in the courts of the Cayman Islands;
(xv) 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;
Exhibit C 2
(xvi) 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
(xvii) 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
(i) The Depositary is a national banking association formed and in
existence under the laws of the United States and has full power and authority
to have entered into and perform its obligations as Depositary under the Deposit
Agreement;
(ii) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes legal, valid and binding obligations
of the Depositary enforceable against the Depositary in accordance with its
terms, except as enforcement thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to the
enforcement of creditors' rights generally, and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law) including, without limitation, concepts of reasonableness,
good faith and fair dealing;
(iii) Upon execution and delivery by the Depositary of ADRs evidencing the
ADSs against the deposit of shares in accordance with the terms of the Deposit
Agreement, the ADSs will be legally issued and will entitle the holders thereof
to the rights specified in the Deposit Agreement and the ADRs; and
(iv) The legal entity for the issuance of ADRs filed the ADS Registration
Statement and the staff of the Securities and Exchange Commission has informed
us that the Securities and Exchange Commission declared the ADS Registration
Statement effective and, to the best of our 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 Securities Act, and the ADS Registration Statement
complied as to form in all material respects with the requirements of the
Securities Act and the rules and regulations thereunder.
Exhibit D 1