Dated December 4, 2007 SOLARFUN POWER HOLDINGS CO., LTD. and GOOD ENERGIES INVESTMENTS (JERSEY) LIMITED and YONGHUA SOLAR POWER INVESTMENT HOLDING LTD. and CITIGROUP VENTURE CAPITAL INTERNATIONAL GROWTH PARTNERSHIP, L.P. and CITIGROUP VENTURE CAPITAL...

 

 

 

 

 

 

 

 

 

 

 

 

 

Good Energies has previously entered into a Stock Purchase Agreement, dated December 4, 2007 (the “Stock Purchase Agreement”), by and among the Shareholders and Good Energies, pursuant to which Good Energies has agreed to purchase an aggregate total of 66,745,638 of the Company’s ordinary shares of the Company, par value US$0.0001 per share (“Ordinary Shares”) and 281,011 American Depositary Shares, each representing five (5) Ordinary Shares (the “American Depositary Shares”);

In connection with the Stock Purchase Agreement, the Shareholders have agreed to enter into this Agreement;

Following the completion of the transactions set forth in the Stock Purchase Agreement (the “Closing”), the Shareholders will continue to own that number of Ordinary Shares and/or American Depositary Shares as set forth on Schedule A (together with any other Ordinary Shares, American Depositary Shares or other Equity Securities of the Company that are Beneficially Owned by any Shareholder or Permitted Transferee during the term of this Agreement, the “Shares”), and the Shareholders and Good Energies wish to provide for certain rights and obligations regarding the Company as set forth herein;

Certain of the Shareholders and other Persons have previously entered into a Shareholders Agreement, dated June 27, 2006 (the “First Shareholders Agreement”); and

The Board of Directors of the Company, recognizing the benefit of having Good Energies as a strategic Shareholder in the Company to assist the Company in the development of its business and achieve the maximization of the value of the Company to all of its Shareholders and other constituencies, has determined that it is advisable and in the best interests of the Company for the Company to enter into this Agreement;

“AFFILIATE” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with such Person (including any Subsidiary) and “AFFILIATES” and “AFFILIATED” shall have correlative meanings. For the purpose of this definition, the term “CONTROL” (including with correlative meanings, the terms “CONTROLLING”, “CONTROLLED BY” and “UNDER COMMON CONTROL WITH”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise. Without prejudice to the foregoing, any fund, collective investment scheme, trust, partnership, including without limitation, any co-investment partnership, special purpose or other vehicle or any subsidiary or affiliate of any of the foregoing, which is controlled by Citigroup Inc. or any of its direct or indirect subsidiaries as well as any or all of Citigroup Venture Capital International Growth Partnership, L.P. and Citigroup Venture Capital International Partnership G.P., shall be deemed to be an “Affiliate” of CVCI.

“ARTICLES OF ASSOCIATION” means the memorandum and articles of association of the Company, including the memorandum and articles of association amended and restated in accordance with the Purchase Agreement and as amended from time to time.

“BANKRUPTCY EVENT” means with respect to any Person (the “Bankruptcy Party”), (a) the commencement by it of a Bankruptcy Proceeding with respect to itself or the consent by it to be subject to a Bankruptcy Proceeding commenced by another Person, (b) the commencement by another Person of a Bankruptcy Proceeding with respect to the Bankruptcy Party that remains unstayed or undismissed for a period of thirty (30) consecutive days, (c) the appointment of or taking possession by a Receiver over the Bankruptcy Party or any substantial part of its property, (d) the making by the Bankruptcy Party of a general assignment for the benefit of its creditors or the admission by the Bankruptcy Party in writing of its inability to generally pay its debts as they become due, (e) the entry by a court having jurisdiction over the Bankruptcy Party or a substantial part of its property of an Order for relief under any Bankruptcy Law which remains unstayed or undismissed for a period of thirty (30) consecutive days, (i) adjudging the Bankruptcy Party bankrupt or insolvent, (ii) approving as properly filed a petition seeking the reorganization or other similar relief with respect to the Bankruptcy Party, (iii) appointing a Receiver over the Bankruptcy Party or any substantial part of its property or (iv) otherwise ordering the winding up and liquidation of the Bankruptcy Party or (f) the occurrence of any event similar to (a), (b), (c), (d) or (e) under any applicable Law with respect to the Bankruptcy Party.

“BANKRUPTCY LAW” means any bankruptcy, insolvency, reorganization, composition, moratorium or other similar Law.

“BANKRUPTCY PROCEEDING” means a case or proceeding under any Bankruptcy Law wherein a Person may be adjudicated bankrupt, insolvent or become subject to an Order of reorganization, arrangement, adjustment, winding up, dissolution, composition or other similar Order.

“BENEFICIAL OWNERSHIP” by a Person of any securities includes ownership by any Person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares (a) voting power which includes the power to vote, or to direct the voting of, such security, and/or (b) investment power which includes the power to dispose, or to direct the disposition, of such security, and shall otherwise be interpreted in accordance with the term “beneficial ownership” as determined under Rule 13d-3 under the Securities Exchange Act of 1934, as amended. The terms “Beneficially Own” and “Beneficial Owner” have correlative meanings

“BOARD” means the board of directors of the Company.

“BUSINESS DAY” means a day other than Saturday, Sunday or any day on which banks located in New York, Hong Kong or PRC are authorized or obligated to close.

“Cause” means, with respect to a Director, (a) such Director’s or officer’s willful or continued failure to substantially perform his or her duties, (b) such Director’s or officer’s conviction or under formal investigation in a criminal proceeding (other than traffic violations or other minor infractions), (c) such Director’s or other officer’s being censured or subject to equivalent action by any internationally recognized securities exchange, or (d) such Director or officer being subject to a Bankruptcy Event.

“CVCI” means Citigroup Venture Capital International Growth Partnership, L.P., and Citigroup Venture Capital International Co-Investment, L.P., each a limited partnership organized under the laws of the Cayman Islands.

“DIRECTOR” means a director of the Company (including any duly appointed alternate director).

“ENCUMBRANCE” means (a) any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, assignment, deed of trust, title retention, security interest or other encumbrance of any kind securing, or conferring any priority of payment in respect of, any obligation of any Person, including any right granted by a transaction which, in legal terms, is not the granting of security but which has an economic or financial effect similar to the granting of security under applicable Law, (b) any lease, sub-lease, occupancy agreement, easement or covenant granting a right of use or occupancy to any Person, (c) any proxy, power of attorney, voting trust agreement, interest, option, right of first offer, negotiation or refusal or Transfer restriction in favor of any Person and (d) any adverse claim as to title, possession or use.

“EQUITY SECURITIES” means the capital stock, membership interests, partnership interests, registered capital or other ownership interest in any Person or any options, warrants or other securities that are directly or indirectly convertible into, or exercisable or exchangeable for, such capital stock, membership interests, partnership interests, registered capital or other ownership interests (whether or not such derivative securities are issued by such Person) and includes the Shares.

“GOVERNMENT AUTHORITY” means any court, tribunal, arbitrator, authority, agency, commission, official or other instrumentality of the United States, the PRC and the Cayman Island, any other country or territory or any province, state, country, city or other political subdivision of the United States, the PRC and the Cayman Islands or any other country or territory.

“LAW” means any law, treaty, statute, ordinance, code, rule or regulation of any Government Authority or any Order. “Law” also includes the rules of any stock exchange or self-regulatory organization upon which the Company’s Equity Securities are listed or included for quotation.

“ORDER” means any writ, judgment, decree, injunction, award or similar order of any Government Authority (in each case whether preliminary or final).

“ORDINARY SHARES” has the meaning given in the recitals and includes any subdivisions, combinations, splits or reclassifications of such “Ordinary Shares”.

“PARTIES” means collectively the Shareholders, the Company, Good Energies and any Person who becomes a party to this Agreement under Clause 4.1(a). Each of the Parties shall be referred to as a “PARTY.”

“PERMITTED TRANSFEREE” means with respect to any Person, (i) such Person’s Affiliates, (ii) any investment funds managed by such Person’s Affiliates or any Subsidiary of such Person or, (iii) any Affiliate or Subsidiary of such Person’s parent entity.

“PERSON” means an individual, firm, corporation, partnership, association, limited liability company, trust or estate or any other entity or organization whether or not having separate legal existence, including any Government Authority.

“PRC” or “CHINA” each means the People’s Republic of China.

“PUBLIC TRANSFEREE” means any Person to whom Shares are Transferred on a public market; provided, that such Transfer has not been directed to a particular Person with whom a Shareholder has an understanding, agreement or arrangement (written or otherwise) regarding such Transfer.

“RECEIVER” means any receiver, liquidator, trustee, administrator, sequestrator or other similar official.

“SHAREHOLDERS” has the meaning stated in the preamble and shall include any Permitted Transferee.

“SUBSIDIARY” means, with respect to any Person, any entity which such Person controls, directly or indirectly. For purposes of this definition, “control” has the meaning set forth above under the definition of “Affiliate.”

“TRANSFER” means to sell, exchange, assign, pledge, charge, grant a security interest, make a hypothecation, gift or other encumbrance, or enter into any contract therefor, or into any voting trust or other agreement or arrangement with respect to the transfer of voting rights or any other legal or beneficial interest in any of the Shares, create any other claim thereto or make any other transfer or disposition whatsoever, whether voluntary or involuntary, affecting the right, title, interest or possession in, to or of such Shares, and “TRANSFER”, “TRANSFERS” and “TRANSFERRED” shall have correlative meanings.

Whenever used in this Agreement, except as otherwise expressly provided or unless the context otherwise requires, any noun or pronoun shall be deemed to include the plural as well as the singular and to cover all genders.

Unless otherwise specified, words such as “herein,” “hereof,” “hereby,” “hereunder” and words of similar import refer to this Agreement as a whole and not to any particular clause or sub-clause of this Agreement, and references herein to “articles” or “clauses” refer to articles or clauses of this Agreement.

Unless otherwise specified, references herein to the word “including” shall be deemed to be followed by words “without limitation” or “but not limited to,” as applicable, or words of similar import.

The word “or” shall not be interpreted to be exclusive. If any translated version of this Agreement differs from the English version, the English version shall control.

The table of contents and headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.

Whenever this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified.

such Party has the full power and authority to enter into, execute and deliver this Agreement and to perform the transactions contemplated hereby and, if such Party is not a natural Person, such Party is duly incorporated or organized and existing and in good standing under the laws of the jurisdiction of its incorporation or organization;

the execution and delivery by such Party of this Agreement and the performance by such Party of the transactions contemplated hereby have been duly authorized by all necessary corporate or other action of such Party;

assuming the due authorization, execution and delivery hereof by each of the other Parties, this Agreement constitutes the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms, except as such enforceability may be limited by applicable Bankruptcy Laws affecting creditors’ rights generally;

the execution, delivery and performance of this Agreement by such Party and the consummation of the transactions contemplated hereby will not (i) violate any provision of the organizational or governance documents of such Party; (ii) require such Party to obtain any consent, approval or action of, or make any filing with or give any notice to, any Government Authority in such Party’s country of organization or any other Person pursuant to any instrument, contract or other agreement to which such Party is a party or by which such Party is bound, other than any such consent, approval, action or filing that has already been duly obtained or made; (iii) conflict with or result in any material breach or violation of any of the terms and conditions of, or constitute (or with notice or lapse of time or both would constitute) a default under any instrument, contract or other agreement to which such Party is a party or by which such Party is bound; (iv) violate any Order against, or binding upon, such Party or upon its respective securities, properties or businesses; or (v) violate any Law of such Party’s country of organization or any other country in which it maintains its principal office; and

such Party, such Party’s assets and such Party’s business and record keeping practices are not in violation of any Law, the violation of which would, at any time (including after the Closing) have a material adverse effect upon (i) such Party, (ii) such Party’s ability to perform its obligations hereunder or (iii) any of the other Party’s hereto.

Subject to applicable Law:

in connection with any election for members of the Board at any Shareholders Meeting, the Company shall, at the request of Good Energies, include person(s) designated by Good Energies in the slate of directors to be considered by the Shareholders for election as directors (the “Good Energies Nominee(s)”) in accordance with Clause 3.2.2; and

the Company shall take no action intended to diminish the prospects of such Good Energies Nominees being elected to the Board or increase the prospects of such Good Energies Nominees being removed from the Board.

If Good Energies and its Affiliates Beneficially Own less than 5% of the Equity Securities of the Company at the time of any Shareholders Meeting, Good Energies shall not designate any Good Energies Nominees at such Shareholders Meeting;

if Good Energies and its Affiliates Beneficially Own at least 5% but less than 16% of the Equity Securities of the Company at the time of any Shareholders Meeting, Good Energies shall designate one Good Energies Nominee at such Shareholders Meeting; and

if Good Energies and its Affiliates Beneficially Own at least 16% of the Equity Securities of the Company at the time of any Shareholders Meeting, Good Energies shall designate two Good Energies Nominees at such Shareholders Meeting.

Each Shareholder shall vote its Shares at any Shareholders Meeting called for the purpose of electing the Good Energies Nominees to elect such Good Energies Nominees, and shall take all other actions necessary or required to ensure the election to the Board of the persons nominated to the Board by Good Energies.

Subject to applicable Law:

the Company shall consider at least one (1) Good Energies Nominee to be appointed to each committee or sub-committee of the Board; and

the Company shall consider at least one (1) person nominated by Good Energies, which may be a Good Energies Nominee, to be appointed to serve as a director on the board of directors of any Subsidiary of the Company and, to the extent practicable, on the board of directors of each joint venture to which the Company is a party.

The Company, if requested by Good Energies, shall appoint an observer to any committee or sub-committee of the Board or the Board of Directors of any Subsidiary or joint venture to which the Company is a party.

the entry into any contract, agreement, understanding, whether oral or written (a “Contract”) that would have a value or potential liability to the Company in excess of 5% of the Company’s net assets as of the time such contract is entered into or is otherwise likely to be material to the Company;

the engagement of any business other than photovoltaic business or a change in the nature or scope of the business of the Company or any Subsidiary;

any joint ventures, strategic alliances, partnerships or similar arrangement with any third party;

any recapitalization, merger, asset swap, share sale or transfer of substantially all of the rights to intellectual properties or other assets, or any other extraordinary transaction;

any amendment to the Articles of Association or any other constitutional documents, including without limitation increase and decrease in the capitalization of the Company or any Subsidiary; and

entry into any agreement or understanding to do any of the foregoing.

Without Good Energies’ prior written consent, for a period of one (1) year from the date hereof (the “Lockup Period”), Yonghua Solar Power Investment Holding Ltd. agrees that neither it nor any Permitted Transferee of Yonghua Solar Power Investment Holding Ltd. shall, directly or indirectly, make or permit any Transfer of Shares Beneficially Owned by Yonghua Solar Power Investment Holding Ltd.or such Permitted Transferee to any Person other than a Permitted Transferee of Yonghua Solar Power Investment Holding Ltd..

During the one year period immediately following the Lockup Period, neither Yonghua Solar Power Investment Holding Ltd. nor any of its Permitted Transferees shall, directly or indirectly, make or permit any Transfer of Shares Beneficially Owned by Yonghua Solar Power Investment Holding Ltd.or such Permitted Transferee to any Person (each such transfer, an “Unrestricted Transfer”), except to the extent that the aggregate of all Unrestricted Transfers does not exceed 50% of the total Shares Benefically Owned by Yonghua Solar Power Investment Holding Ltd. and its Permitted Transferees immediately following Closing.

Even to the extent otherwise restricted from making a Transfer of Shares pursuant to Sections 4.1.1and 4.1.2, Yonghua Solar Power Investment Holding Ltd. and any of its Permitted Transferees shall be permitted to Transfer Shares to a Permitted Transferee if all the following conditions are met: (a) prior to such Transfer, the Permitted Transferee has agreed in writing to be bound by the terms and conditions of this Agreement by signing a copy of this Agreement in which case such transferee shall be considered a Shareholder and a Party to this Agreement except when such transferee is already a Party to this Agreement, (b) the Transfer complies in all respects with the terms of this Agreement and (c) the Transfer complies in all respects with applicable securities and other Laws. Any Transfer of Shares by any Shareholder in violation of the preceding sentence shall be null and void, and the Company shall not register and the Shareholders shall procure that no transfer agent registers such Transfer.

the Company has been dissolved, liquidated and wound up;

such time as Good Energies and its Affiliates Beneficially Own less than 5% of the Equity Securities of the Company; or

the Parties have agreed in writing to terminate this Agreement.

If there is any dispute, claim or controversy arising from, related to or in connection with this Agreement, or the breach, termination or invalidity hereof, the Parties shall first attempt to resolve such dispute, controversy or claim through friendly consultations. If the dispute, claim or controversy is not resolved through friendly consultations within thirty (30) days after a Party has delivered a written notice to another Party requesting the commencement of consultation, then the dispute, claim or controversy shall be finally settled by arbitration conducted by the International Chamber of Commerce (the “ICC”) in accordance with the Arbitration Rules of the ICC then in effect and as may be amended by the rest of this Clause 6.2 (the “Rules”). There shall be three (3) arbitrators of whom the plaintiff and the defendant shall each nominate one (1) in accordance with the Rules. The two (2) named arbitrators shall nominate the third arbitrator within thirty (30) days of the nomination of the second arbitrator. If any arbitrator has not been named within the time limits specified in the Rules, such appointment shall be made by the International Court of Arbitration of the ICC upon the written request of either Party within thirty (30) days of such request. The arbitration shall be held and the award shall be rendered in Hong Kong. Each Party shall cooperate in good faith to expedite (to the maximum extent practicable) the conduct of any arbitral proceedings commenced under this Agreement.

Prompt resolution of any dispute is important to both parties, and the parties agree that the arbitration of any dispute shall be conducted expeditiously. The arbitrator(s) are instructed and directed to assume case management initiative and control over the arbitration process (including scheduling of events, pre-hearing discovery and activities, and the conduct of the hearing), in order to complete the arbitration as expeditiously as is reasonably practical for obtaining a just resolution of the dispute.

The arbitrator(s) shall follow and apply the applicable law. The arbitrator(s) shall grant such legal or equitable remedies and relief in compliance with applicable law that the arbitrator(s) deem just and equitable, but only to the extent that such remedies or relief could be granted by a state or federal court and as otherwise limited by the terms in this Agreement. No punitive damages may be awarded by the arbitrator(s). No court action may be maintained seeking punitive damages.

The award shall be final and binding upon the Parties, and shall be the exclusive remedy between the Parties regarding any claims, counterclaims, issues, or accountings presented to the arbitral tribunal. To the fullest extent allowed by applicable Law, each Party hereby waives any right to appeal such award. Judgment upon the award may be entered in any court having jurisdiction thereof, and for purposes of enforcing any arbitral award made hereunder, each Party irrevocably submits to the jurisdiction of any court sitting where any of such Party’s material assets may be found. Any arbitration proceedings, decisions or awards rendered hereunder shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, as amended, and the Parties agree that any award rendered hereunder shall not be deemed a domestic arbitration under the laws of any jurisdiction.

By agreeing to arbitration, the Parties do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment or other order in aid of arbitration proceedings and the enforcement of any award.

The costs of the arbitration, as defined in the Rules, shall be allocated between the Parties by the arbitrators and shall be set forth in the arbitral award. Any amounts subject to the dispute, controversy or claim that are ultimately awarded to a Party under this Clause 6.2 shall bear interest at the rate of six percent per annum from the earlier of (i) the date of the request for arbitration and (ii) the date such amount would have become due and owing but for the dispute, controversy or claim until the date the arbitral award is paid in full.

This Agreement constitutes the whole agreement among the parties hereto and thereto relating to the subject matter hereof and thereof and supersedes all prior agreements or understandings both oral and written among all of the parties hereto and thereto relating to the subject matter hereof and thereof.

The First Shareholders Agreement shall remain unamended and in full force.

Except as set out in Section 7.4.1, no Party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the written consent of the other Parties.

Notwithstanding Section 7.4.1, any Party may, without the written consent of the other Parties, assign, delegate or otherwise transfer any of its rights or obligations under this Agreement to a Permitted Transferee, in connection with a Transfer to such Transferee, provided (a) prior to such Transfer, the Permitted Transferee has agreed in writing to be bound by the terms and conditions of this Agreement by signing a copy of this Agreement in which case such transferee shall be considered a Shareholder and a Party to this Agreement, and (b) timely notice is provided to the other Parties.

This Agreement may not be amended, modified or supplemented except by a written instrument executed by each of the Parties.

No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party waiving such provision. No failure or delay by a Party in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by a Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof. The rights and remedies herein provided shall be cumulative and not exclusive of any rights, powers or remedies provided at law or in equity.

If to the Shareholders, to the address set forth on Schedule A hereto.

If to Good Energies, to:

Good Energies Investments (Jersey) Limited

If to the Company, to: