EXHIBIT 1.1
SUNTECH POWER HOLDINGS CO., LTD.
26,380,000 AMERICAN DEPOSITARY SHARES
EACH REPRESENTING ONE ORDINARY SHARE
PAR VALUE $0.01 PER ORDINARY SHARE
UNDERWRITING AGREEMENT
December [ ], 2005
CREDIT SUISSE FIRST BOSTON LLC
Eleven Madison Avenue
New York, NY 10010-3629
U.S.A.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
As Representatives of the several Underwriters named in Schedule B attached
hereto
Dear Sirs:
1. Introductory. Suntech Power Holdings Co., Ltd., an exempted company
with limited liability incorporated under the laws of the Cayman Islands (the
"COMPANY"), proposes to issue and sell to the underwriters named in Schedule B
attached hereto (the "UNDERWRITERS") 20,000,000 American depositary shares
("ADSs"), each representing one ordinary share, par value $0.01 per share, of
the Company (each an "ORDINARY SHARE"), and the shareholders listed in Schedule
A attached hereto (the "SELLING SHAREHOLDERS") propose severally to sell to the
Underwriters an aggregate of 6,380,000 ADSs (the aggregate of 26,380,000 ADSs to
be sold by the Company and the Selling Shareholders being hereinafter referred
to as the "FIRM ADSs"). The Company also proposes to sell to the Underwriters,
at the option of Credit Suisse First Boston LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
International Limited, as representatives of the Underwriters (the
"REPRESENTATIVES"), an aggregate of not more than 2,820,655 additional ADSs, and
one of the Selling Shareholders also propose to sell to the Underwriters, at the
option of the Underwriters, an aggregate of not more than 1,136,345 additional
ADSs, as set forth in Schedule A attached hereto (the aggregate of 3,957,000
additional ADSs sold by the Company and the Selling Shareholders being
hereinafter referred to as the "OPTIONAL ADSs"). The Firm ADSs and the Optional
ADSs are herein collectively called the "OFFERED ADSs". Unless the context
otherwise requires, each reference to the Firm ADSs, the Optional ADSs or the
Offered ADSs herein also includes the Ordinary Shares underlying such ADSs.
The Offered ADSs will be evidenced by American depositary receipts
("ADRs") to be issued pursuant to the Deposit Agreement dated on or about
December [ ], 2005 (the "DEPOSIT AGREEMENT")
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
2
among the Company, The Bank of New York as depositary (the "DEPOSITARY"), and
the holders and beneficial owners from time to time of the ADRs.
As part of the offering contemplated by this Agreement, Credit Suisse
First Boston LLC (the "DESIGNATED UNDERWRITER") has agreed to reserve out of the
Firm ADSs purchased by it under this Agreement, up to [ ] shares, for sale to
the Company's directors, officers, employees and other parties associated with
the Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus (as
defined herein) under the heading "Underwriting" (the "DIRECTED SHARE PROGRAM").
The Firm ADSs to be sold by the Designated Underwriter pursuant to the Directed
Share Program (the "DIRECTED SECURITIES") will be sold by the Designated
Underwriter pursuant to this Agreement at the public offering price. Any
Directed Securities not subscribed for by the end of the business day on which
this Agreement is executed will be offered to the public by the Underwriters as
set forth in the Prospectus.
It is understood that as part of the reorganization of the Company and
its subsidiaries prior to the offering, the Company and/or its subsidiaries have
completed a series of transactions (the "REORGANIZATION") as described in the
Prospectus under the caption "Prospectus Summary--Corporate Structure", in the
second paragraph under the captions "Summary Consolidated and Financial and
Operating Data" and "Selected Consolidated and Financial and Operating Data," in
the second paragraph under the caption "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Overview," and in the first
paragraph under the caption "Management's Discussion and Analysis of Financial
Condition and Results of Operations--Share-based Compensation Expenses,"
including, among other things, the entry into various agreements filed as
Exhibit 4.4, 4.5 and 4.6 to the Initial Registration Statement (as defined
below) (each a "RELEVANT CONTRACT" and, collectively, the "RELEVANT CONTRACTS").
The Company and the Selling Shareholders hereby agree with the several
Underwriters as follows:
2. Representations and Warranties of the Company and the Selling
Shareholders.
(a) The Company represents and warrants to, and agrees with,
the several Underwriters that:
(i) A registration statement on Form F-1 (No.
333-129367), including a form of prospectus, relating to the
registration of certain of the Ordinary Shares and the
offering thereof in the form of the Offered ADSs, has been
filed with the United States Securities and Exchange
Commission (the "COMMISSION") and either (A) has been declared
effective under the Securities Act of 1933, as amended (the
"ACT"), and is not proposed to be amended or (B) is proposed
to be amended by amendment or post-effective amendment; no
stop order suspending the effectiveness of a Registration
Statement (as defined below) is in effect, and no proceedings
for such purpose are pending before or threatened by the
Commission. If such registration statement (the "INITIAL
REGISTRATION STATEMENT") has been declared effective, either
(A) an additional registration statement (the "ADDITIONAL
REGISTRATION STATEMENT") relating to certain of the Ordinary
Shares may have been filed with the Commission pursuant to
Rule 462(b) ("RULE 462(b)") under the Act and, if so filed,
has become effective upon filing pursuant to such Rule and
such Ordinary Shares and the Offered ADSs all have been duly
registered under the Act pursuant to the initial registration
statement, the ADS Registration Statement (as defined below)
and, if applicable, the additional registration statement or
(B) such an additional registration statement is proposed to
be filed with the
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
3
Commission pursuant to Rule 462(b) and will become effective
upon filing pursuant to such Rule and, upon such filing and
the effectiveness of the ADS Registration Statement, such
Ordinary Shares and the Offered ADSs will all have been duly
registered under the Act pursuant to the initial registration
statement, the ADS Registration Statement and such additional
registration statement. If the Company does not propose to
amend the initial registration statement or if an additional
registration statement has been filed and the Company does not
propose to amend it, and if any post-effective amendment to
either such registration statement has been filed with the
Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such
registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to
Rule 462(c) ("RULE 462(c)") under the Act or, in the case of
the additional registration statement, Rule 462(b). For
purposes of this Agreement, "EFFECTIVE TIME" with respect to
the initial registration statement or, if filed prior to the
execution and delivery of this Agreement, the additional
registration statement means (A) if the Company has advised
the Representatives that it does not propose to amend such
registration statement, the date and time as of which such
registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and
delivery of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to
Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-
effective amendment to such registration statement, the date
and time as of which such registration statement, as amended
by such amendment or post-effective amendment, as the case may
be, is declared effective by the Commission. If an additional
registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one,
"EFFECTIVE TIME" with respect to such additional registration
statement means the date and time as of which such
registration statement is filed and becomes effective pursuant
to Rule 462(b). "EFFECTIVE DATE" with respect to the initial
registration statement or the additional registration
statement (if any) means the date of the Effective Time
thereof. The initial registration statement, as amended at its
Effective Time, including all information contained in the
additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective
Time of the additional registration statement pursuant to the
General Instructions of the Form on which it is filed and
including all information (if any) deemed to be a part of the
initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is
hereinafter referred to as the "INITIAL REGISTRATION
STATEMENT". The additional registration statement, as amended
at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and
including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time
pursuant to Rule 430A(b), is hereinafter referred to as the
"ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration Statement are
hereinafter referred to collectively as the "REGISTRATION
STATEMENTS" and individually as a "REGISTRATION STATEMENT". If
the Company has filed an abbreviated statement to register
additional Ordinary Shares pursuant to Rule 464(b) (the "RULE
462 REGISTRATION STATEMENT"), then any reference herein to the
term "Registration Statement" shall be deemed to include the
Rule 462 Registration Statement. "REGISTRATION STATEMENT"
without reference to a time means the Registration Statement
as of its Effective Time. "REGISTRATION STATEMENT" as of any
time means the initial registration statement and any
additional registration statement in
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
4
the form then filed with the Commission, including any
amendment thereto, any document incorporated by reference
therein and any prospectus deemed or retroactively deemed to
be a part thereof that has not been superseded or modified.
For purposes of the previous sentence, information contained
in a form of prospectus or prospectus supplement that is
deemed retroactively to be a part of the Registration
Statement pursuant to Rule 430A shall be considered to be
included in the Registration Statement as of the time
specified in Rule 430A. "STATUTORY PROSPECTUS" as of any time
means the prospectus included in the Registration Statement
immediately prior to that time, including any document
incorporated by reference therein and any prospectus deemed to
be a part thereof that has not been superseded or modified.
For purposes of the preceding sentence, information contained
in a form of prospectus that is deemed retroactively to be a
part of the Registration Statement pursuant to Rule 430A shall
be considered to be included in the Statutory Prospectus as of
the actual time that the form of prospectus is filed with the
Commission pursuant to Rule 424(b) ("RULE 424(b)") under the
Act. "PROSPECTUS" means the Statutory Prospectus that
discloses the public offering price and other final terms of
the Offered ADSs and otherwise satisfies Section 10(a) of the
Act. "ISSUER FREE WRITING PROSPECTUS" means any "issuer free
writing prospectus," as defined in Rule 433, relating to the
Offered ADSs in the form filed or required to be filed with
the Commission or, if not required to be filed, in the form
retained in the Company's records pursuant to Rule 433(g).
"GENERAL USE ISSUER FREE WRITING PROSPECTUS" means any Issuer
Free Writing Prospectus that is intended for general
distribution to prospective investors, as evidenced by its
being specified in Schedule D attached hereto. "LIMITED USE
ISSUER FREE WRITING PROSPECTUS" means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing
Prospectus, as specified in Schedule E attached hereto.
"APPLICABLE TIME" means the time of each sale of the ADSs to
purchasers within the meaning of Rule 159 of the Act.
(ii) There are no other Issuer Free Writing
Prospectuses relating to the offering of the Offered ADSs
except as set forth in Schedule D and Schedule E hereto. The
Company has not provided, authorized or approved information
for the preparation, publication or dissemination by a person
unaffiliated with the Company or the Underwriters of any
written offer considered to be a free writing prospectus
prepared by or on behalf of the Company pursuant to Rule 433
of the Act.
(iii) A registration statement on Form F-6 (No.
333-129376) relating to the ADSs has been filed with the
Commission and has become effective; no stop order suspending
the effectiveness of the ADS Registration Statement (as
defined below) is in effect, and no proceedings for such
purpose are pending before or threatened by the Commission
(such registration statement on Form F-6, including all
exhibits thereto, as amended at the time such registration
statement becomes effective, being hereinafter called the "ADS
REGISTRATION STATEMENT"); the ADS Registration Statement
complied or will comply, as of its effective date, and each
amendment or supplement thereto, when it is filed with the
Commission or becomes effective, as the case may be, will
comply, in all material respects, with the Act and the Rules
and Regulations thereunder, and did not or will not, as of its
effective date, contain any 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.
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
5
(iv) If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery
of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement
conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission ("RULES
AND REGULATIONS") thereunder and did not include any untrue
statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, (B) on the Effective Date
of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all
material respects to the requirements of the Act and the Rules
and Regulations thereunder and did not include, or will not
include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading, and (C) on the date of this Agreement, the
Initial Registration Statement and, if the Effective Time of
the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of
filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the
Additional Registration Statement in which the Prospectus is
included, and on the Closing Date (as defined in Section 3
hereof), each Registration Statement and the Prospectus will
conform, in all material respects to the requirements of the
Act and the Rules and Regulations thereunder, and neither of
such documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading. If the Effective
Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective
Date of the Initial Registration Statement, the Initial
Registration Statement, and the Prospectus will conform in all
material respects to the requirements of the Act and the Rules
and Regulations thereunder, neither of such documents will
include any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and
no Additional Registration Statement has been or will be
filed. The two preceding sentences do not apply to statements
in or omissions from a Registration Statement or the
Prospectus based upon written information furnished to the
Company by any Underwriters through the Representatives
specifically for use therein, it being understood and agreed
that the only such information is that described as such in
Section 10(c) hereof.
(v) (A) At the time of filing the Registration
Statement and (B) at the date of this Agreement, the Company
was not and is not an "ineligible issuer," as defined in Rule
405 of the Act.
(vi) As of the Applicable Time, neither (i) the
General Use Issuer Free Writing Prospectuses issued at or
prior to the Applicable Time, the Statutory Prospectus, all
considered together (collectively, the "GENERAL DISCLOSURE
PACKAGE"), nor (ii) any individual Limited Use Issuer Free
Writing Prospectus, when considered together with the General
Disclosure Package, included 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. The
preceding sentence does not apply to statements in or
omissions from any prospectus included in the Registration
Statement or any Issuer Free Writing Prospectus based upon
written information furnished to the Company by any
Underwriter through the
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
6
Representatives specifically for use therein, it being
understood and agreed that the only such information furnished
by any Underwriter consists of the information described as
such in Section 10(c) hereof.
(vii) Each General Use Issuer Free Writing Prospectus
and Limited Use Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion
of the public offer and sale of the Offered ADSs or until any
earlier date that the Company notified or notifies the
Representatives as described in the next sentence, did not,
does not and will not include any information that conflicted,
conflicts or will conflict with the information then contained
in the Registration Statement, including any document
incorporated by reference therein that has not been superseded
or modified. If at any time following issuance of such Issuer
Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information
contained in the Registration Statement or included or would
include an untrue statement of a material fact or omitted or
would omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, (A) the
Company has promptly notified or will promptly notify the
Representatives and (B) the Company has promptly amended or
will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission. The foregoing two
sentences do not apply to statements in or omissions from any
Issuer Free Writing Prospectus based upon written information
furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being
understood and agreed that the only such information is that
described as such in Section 10(c) hereof.
(viii) The Company has been duly incorporated and is
validly existing as a corporation 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 General Disclosure Package as of
the Applicable Time; and the Company is duly qualified to do
business as a foreign corporation in good standing in each of
the other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification. The Memorandum and Articles of Association of
the Company comply with the requirements of applicable Cayman
Islands law and are in full force and effect.
(ix) Each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other)
to own its properties and conduct its business as described in
the General Disclosure Package as of the Applicable Time; and
each subsidiary of the Company is duly qualified to do
business as a foreign corporation in good standing in each of
the other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification; all of the issued and outstanding capital stock
of each subsidiary of the Company has been duly authorized and
validly issued and is fully paid and nonassessable; and the
capital
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
7
stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances
and defects; and none of the outstanding shares of capital
stock or equity interest in any subsidiary was issued in
violation of preemptive or similar rights of any
securityholder of such subsidiary. The Memorandum and Articles
of Association or other constitutive or organizational
documents of each of the subsidiaries comply with the
requirements of applicable law in their respective
jurisdictions of incorporation and are in full force and
effect.
(x) The Company has authorized and outstanding
capital as set forth in the section of the General Disclosure
Package as of the Applicable Time and the Registration
Statement entitled "Capitalization" under the caption "Actual"
as of the date specified therein and, upon (A) the automatic
conversion of all of the Company's outstanding Series A
preferred shares, par value $0.01 per share (the "SERIES A
PREFERRED SHARES") as described in the General Disclosure
Package as of the Applicable Time and the Registration
Statement and (B) the issuance and sale of the Firm ADSs, the
Company shall have an authorized and outstanding capital as
set forth under the caption "Pro Forma".
(xi) All the outstanding share capital of the Company
have been duly authorized and issued and are fully paid and
nonassessable; the Offered ADSs and the underlying Ordinary
Shares to be sold by the Company have been duly authorized
and, when issued and delivered against payment heretofore
pursuant to this Agreement, will be validly issued, fully paid
and nonassessable; the Offered ADSs and the underlying
Ordinary Shares to be sold by the Company, when issued and
delivered against payment heretofore pursuant to this
Agreement, will not be subject to any security interest, other
encumbrance or adverse claims, and have been issued in
compliance with all federal and state securities laws and were
not issued in violation of any preemptive right, resale right,
right of first refusal or similar right; upon payment of the
purchase price in accordance with this Agreement at each
Closing Date (as defined herein), the Depositary or its
nominee, as the registered holder of the Ordinary Shares
represented by the Offered ADSs, will be, subject to the terms
of the Deposit Agreement, entitled to all the rights of a
shareholder conferred by the Memorandum and Articles of
Association of the Company; except as disclosed in the General
Disclosure Package as of the Applicable Time and subject to
the terms and provisions of the Deposit Agreement, there are
no restrictions on transfers of Ordinary Shares or the Offered
ADSs under the laws of the Cayman Islands or the United
States, as the case may be; the Ordinary Shares represented by
the Offered ADSs may be freely deposited by the Company with
the Depositary or its nominee against issuance of ADRs
evidencing the Offered ADSs as contemplated by the Deposit
Agreement.
(xii) The share capital of the Company and the
Offered ADSs, including the Ordinary Shares underlying the
Offered ADSs, conforms in all material respects to the
description thereof contained in the General Disclosure
Package as of the Applicable Time and the Registration
Statement, and the ADRs evidencing the Offered ADSs are in due
and proper form and the holders of the ADRs will not be
subject to personal liability by reason of being such holders.
(xiii) The Registration Statement, the General
Disclosure Package, the Prospectus and the ADS Registration
Statement, and the filing of the Registration Statement, the
General Disclosure Package as of the Applicable Time (to the
extent such filing is required under Rule 433 of the Act), the
Prospectus and the ADS Registration
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
8
Statement with the Commission, have each been duly authorized
by and on behalf of the Company, and each of the Registration
Statement and the ADS Registration Statement has been duly
executed pursuant to such authorization by and on behalf of
the Company.
(xiv) This Agreement has been duly authorized,
executed and delivered by the Company.
(xv) The Deposit Agreement has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Depositary,
constitutes a valid and legally binding obligation of the
Company, enforceable in accordance with its terms, subject, as
to enforceability, to bankruptcy, insolvency, reorganization,
moratorium and similar laws of general applicability relating
to or affecting creditors' rights and to general equity
principles; upon due issuance by the Depositary of the ADRs
evidencing the Offered ADSs against the deposit of the
underlying 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; the Deposit Agreement
and the ADRs conform in all material respects to the
descriptions thereof contained in the General Disclosure
Package as of the Applicable Time.
(xvi) Neither the Company nor any of its subsidiaries
is in breach or violation of or in default under (nor has any
event occurred which with notice, lapse of time or both would
result in any breach or violation of, constitute a default
under) (A) its Memorandum and Articles of Association or other
organizational or constituent documents or business licenses,
or (B) any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness of the
Company and its subsidiaries, or give the holder of any such
indebtedness (or a person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of
all or a part of such indebtedness) or (C) any license, lease,
contract or other agreement or instrument of the Company and
its subsidiaries, taken as a whole, to which the Company or
any subsidiary is a party or by which any of them or any of
their properties may be bound or affected, except with respect
to clause (B) and (C) only in this paragraph, such defaults
which would have a material adverse effect on the condition
(financial or other), business, properties, prospects or
results of operations of the Company and its subsidiaries,
taken as a whole ("MATERIAL ADVERSE EFFECT").
(xvii) The execution, delivery and performance of
this Agreement and the Deposit Agreement by the Company, the
issuance and sale of the Offered ADSs by the Company, the
deposit of the Ordinary Shares with the Depositary and the
issuance of the ADRs evidencing the Offered ADSs, the
compliance by the Company with all of the provisions of this
Agreement and the Deposit Agreement and the consummation of
the transactions contemplated hereby and in the Deposit
Agreement will not conflict with, result in any breach or
violation of or constitute a default under (nor constitute any
event which with notice, lapse of time or both would result in
any breach or violation of or constitute a default under) (A)
the charter documents of the Company or any subsidiary, (B)
any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness that is material
to the Company and its subsidiaries, taken as a whole or (C)
any license, lease, contract or other agreement or instrument
that is material
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
9
to the Company and its subsidiaries, taken as a whole, to
which the Company or any subsidiary is a party or by which any
of them or any of their respective properties may be bound or
affected, or (D) any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable
to the Company or any subsidiary, except for such breach or
violation that would not individually or in the aggregate have
a Material Adverse Effect.
(xviii) Except as disclosed in the General Disclosure
Package as of the Applicable Time and the Registration
Statement, 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 this offering.
(xix) Except as disclosed in the General Disclosure
Package as of the Applicable Time and the Registration
Statement, 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 a registration statement or
in any securities being registered pursuant to any other
registration statement filed by the Company under the Act.
(xx) The Offered ADSs have been duly approved for
listing on the New York Stock Exchange, Inc. (the "NYSE"),
subject to official notice of issuance.
(xxi) No consent, approval, authorization, or order
of, or filing or qualification with, any governmental agency
or body or any court is required to be obtained or made by the
Company for the performance of its obligations under, and the
consummation of the transactions contemplated by, this
Agreement or the Deposit Agreement in connection with the
issuance and sale of the Offered ADSs, except such as have
been obtained and made under the Act and such as may be
required by the securities or blue sky laws of the various
states of the United States and rules and regulations of the
National Association of Securities Dealers, Inc. ("NASD") in
connection with the offer and sale of the Offered ADSs.
(xxii) The description of the Reorganization as set
forth in the General Disclosure Package as of the Applicable
Time is true and correct in all material respects. Other than
the Relevant Contracts, there are no other material
agreements, contracts or other documents, including any
government contracts, relating to the Reorganization that have
been entered into by the Company or any of the subsidiaries in
connection with the Reorganization which have not been
previously provided or made available to the Underwriters,
and, to the extent material to the Company, disclosed in the
General Disclosure Package as of the Applicable Time. The
Reorganization does not and will not (A) contravene or violate
any provision of applicable law, statute, or ordinance or any
judgment, order, rule, regulation or policies of any
governmental agency, (B) contravene the Memorandum and
Articles of Association or other organizational or constituent
documents or business licenses of the Company or any of its
subsidiaries, (C) contravene the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or
instrument to which the
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
10
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 or (D) result in the creation or
imposition of any lien, charge, encumbrance or other
restriction upon any properties or assets of the Company or
any of its subsidiaries, except with respect to clause (A),
(C) and (D) only in this paragraph, such contravention,
violation or encumbrance, as the case may be, which would have
a Material Adverse Effect.
(xxiii) The board of directors of Power Solar System
Co., Ltd. ("SUNTECH BVI") have passed unanimous written
resolutions approving the transfer of all issued and
outstanding shares of Suntech BVI to the Company and the Sale
and Purchase Agreement (filed as Exhibit 4.5 to the
Registration Statement) became effective on and was executed
by all shareholders of Suntech BVI on August 29, 2005 (the
"SHARE EXCHANGE"). Such resolutions and such Sale and Purchase
Agreement have not been amended or modified, are in full force
and effect as adopted or as executed (as the case may be), and
are the only resolutions passed by the directors of Suntech
BVI and the only agreement entered into among the shareholders
of Suntech BVI, respectively, in connection with the Share
Exchange.
(xxiv) All consents, approvals, authorizations,
orders, registrations and qualifications required of any
government in connection with the Reorganization have been
duly made or obtained in writing and remain in full force and
effect, and no such consent, approval, authorization, order,
registration or qualification is subject to any condition
precedent to be fulfilled prior to the date hereof which has
not been fulfilled or performed, except for such consents,
approvals, authorizations, orders, registrations and
qualifications the failure of which to make or obtain would
not have a Material Adverse Effect.
(xxv) Each of the Relevant Contracts has been duly
authorized, executed and delivered by the parties thereto and
constitutes a legal, valid and binding agreement, enforceable
by the parties thereto in accordance with its terms.
(xxvi) There are no legal or governmental
proceedings, inquiries or investigations pending against the
Company or any of its subsidiaries in any jurisdiction
challenging the effectiveness or validity of the
Reorganization, and no such proceedings, inquiries or
investigations are, to the knowledge of the Company after due
inquiry, threatened or contemplated in any jurisdiction.
(xxvii) Except as disclosed in the General Disclosure
Package as of the Applicable Time and the Registration
Statement, under current laws and regulations of the Cayman
Islands and any political subdivision thereof, all dividends
and other distributions declared and payable on the Offered
ADSs may be paid by the Company to the holder thereof in
United States dollars and may be freely transferred out of the
Cayman Islands and all such payments made to holders thereof
who are non-residents of the Cayman Islands will not be
subject to income, withholding or other taxes under laws and
regulations of the Cayman Islands or any political subdivision
or taxing authority thereof or therein and will otherwise be
free and clear of any other tax, duty, withholding or
deduction in the Cayman Islands or any political subdivision
or taxing authority
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
11
thereof or therein and without the necessity of obtaining any
governmental authorization in the Cayman Islands or any
political subdivision or taxing authority thereof or therein.
(xxviii) The Company and its subsidiaries have good
and marketable title to all real properties and all other
properties and assets owned by them, in each case free from
liens, encumbrances and defects of title that would materially
affect the value thereof or materially interfere with the use
made or to be made thereof by them; the Company and its
subsidiaries hold any leased real or personal property under
valid and enforceable leases with no exceptions that would
materially interfere with the use made or to be made thereof
by them.
(xxix) Each of the Company and its subsidiaries (A)
possesses adequate certificates, authorizations, permits,
consents and approvals obtained from appropriate governmental
agencies or bodies ("GOVERNMENTAL LICENSES"), and (B) has made
all necessary filings required under any federal, state, local
or foreign law, regulation or rule, necessary to conduct the
business now operated by it ("NECESSARY FILINGS") and (C) has
not received any notice of proceedings relating to the
revocation or modification of any such Governmental License,
except where the failure to possess such Governmental
Licenses, or the failure to make such Necessary Filings, would
not, individually or in the aggregate, result in a Material
Adverse Effect; provided further that all of the Governmental
Licenses and Necessary Filings are valid and in full force and
effect, and none of the Governmental Licenses contains any
materially burdensome restrictions or conditions.
(xxx) There are no material relationships or
transactions between the Company or any of its subsidiaries on
one hand and their respective 10% or greater shareholders,
affiliates, directors or officers, or any affiliates or
members of the immediate families of such persons, on the
other hand that are not disclosed in the General Disclosure
Package as of the Applicable Time and the Registration
Statement.
(xxxi) No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge of the
Company, is imminent that may have a Material Adverse Effect.
(xxxii) The Company and its subsidiaries own, possess
or can acquire on reasonable terms, adequate trademarks, trade
names and other rights to inventions, know-how, patents,
copyrights, confidential information and other intellectual
property (collectively, "INTELLECTUAL PROPERTY RIGHTS")
necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice
of infringement of or conflict with asserted rights of others
with respect to any Intellectual Property Rights that, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect; to the best of the Company's
knowledge (A) there are no third parties who have or will be
able to establish rights to any such Intellectual Property
Rights, except for the ownership rights of the owners of the
Intellectual Property Rights licensed to the Company; (B)
there is no infringement by third parties of any Intellectual
Property Rights owned by the Company; (C) there is no pending
or threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any Intellectual
Property Right; (D) there is no pending or threatened action,
suit, proceeding or claim by others challenging the validity
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
12
or scope of any Intellectual Property Rights, (E) there is no
pending or threatened action, suit, proceeding or claim by
others that the Company infringes or otherwise violates any
patent, trademark, copyright, trade secret or other
proprietary rights of others; and (F) there is no patent or
patent application that contains claims that interfere with
the issued or pending claims of any of the Intellectual
Property Rights, and with respect to (C), (D) and (F) above,
the Company is unaware of any facts which could form a
reasonable basis for any such action, suit, proceeding or
claim.
(xxxiii) Each of the Company and its subsidiaries (A)
is in compliance with any and all applicable laws and
regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"), (B)
has received all permits, licenses or other approvals required
of it under applicable Environmental Laws to conduct its
business and (C) is in compliance with all terms and
conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to
receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the
aggregate, have a Material Adverse Effect. There are no costs
or liabilities associated with Environmental Laws (including,
without limitation, any capital or operating expenditures
required for clean up, closure of properties or compliance
with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or
in the aggregate, have a Material Adverse Effect.
(xxxiv) There are no pending actions, suits or
proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations
under this Agreement or the Deposit Agreement, or which are
otherwise material in the context of the sale of the Offered
ADSs; and no such actions, suits or proceedings are, to the
knowledge of the Company after due inquiry, threatened or
contemplated.
(xxxv) Deloitte Touche Tohmatsu CPA Ltd., who have
certified the financial statements filed with the Commission
as part of the General Disclosure Package as of the Applicable
Time and the Registration Statement, are independent public
accountants as required by the Act.
(xxxvi) The financial statements included in the
General Disclosure Package as of the Applicable Time and each
Registration Statement present fairly the financial position
of the Company and its consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for
the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting
principles in the United States applied on a consistent basis;
and the assumptions used in preparing the pro forma financial
statements included in the General Disclosure Package as of
the Applicable Time and each Registration Statement provide a
reasonable basis for presenting the significant effects
directly attributable to the transactions or events described
therein, the related pro forma adjustments give appropriate
effect to those assumptions, and the pro forma columns therein
reflect the proper application of those
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
13
adjustments to the corresponding historical financial
statement amounts; the other financial and statistical data
set forth in the General Disclosure Package as of the
Applicable Time and the Registration Statement are accurately
presented and prepared on a basis consistent with the
financial statements and books and records of the Company;
there are no financial statements or schedules (historical or
pro forma) that are required to be included in and the General
Disclosure Package as of the Applicable Time and the
Registration Statement that are not included as required; and
the Company and the subsidiaries do not have any material
liabilities or obligations, direct or contingent (including
any off-balance sheet obligations), not disclosed in the
General Disclosure Package as of the Applicable Time and the
Registration Statement.
(xxxvii) Except as disclosed in the General
Disclosure Package as of the Applicable Time, since the date
of the latest audited financial statements included in the
General Disclosure Package as of the Applicable Time there has
not been (A) any material adverse change, or any development
or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or
results of operations of the Company and its subsidiaries
taken as a whole, (B) any transaction which is material to the
Company and its subsidiaries taken as a whole, (C) any
obligation, direct or contingent (including any off-balance
sheet obligations), incurred by the Company or any subsidiary,
which is material to the Company and the subsidiaries taken as
a whole, (D) any change in the share capital of the Company or
any subsidiary, (E) any material change in outstanding
indebtedness of the Company or any subsidiary, or (F) any
dividend or distribution of any kind declared, paid or made on
the share capital of the Company.
(xxxviii) The Company is not and, after giving effect
to the offering and sale of the Offered ADSs and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT").
(xxxix) The Company does not expect to be a Passive
Foreign Investment Company ("PFIC") within the meaning of
Section 1297(a) of the United States Internal Revenue Code of
1986, as amended, and the regulations and published
interpretations thereunder for the taxable year ending
December 31, 2005, and has no plan or intention to conduct its
business in a manner that would be reasonably expected to
result in the Company becoming a PFIC in the future under
current laws and regulations.
(xl) Neither the Company nor any of its subsidiaries
does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes and the Company agrees to comply
with such Section if prior to the completion of the
distribution of the Offered ADSs it commences doing such
business. None of the Company, any of its subsidiaries or, to
the knowledge of the Company, any director, officer, agent,
employee or affiliate of the Company or any of its
subsidiaries, is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the
U.S. Department of the Treasury ("OFAC").
(xli) All tax returns required to be filed by the
Company and each subsidiary have been filed, and all taxes and
other assessments of a similar nature (whether imposed
directly or through withholding) including any interest,
additions to tax or penalties
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
14
applicable thereto due or claimed to be due from such entities
have been paid, other than those being contested in good faith
and for which adequate reserves have been provided; all local
and national PRC governmental tax waivers and other local and
national PRC tax relief, concession and preferential treatment
claimed or obtained by the Company are valid, binding and
enforceable.
(xlii) Each of the Company and its subsidiaries
maintains insurance covering its properties, operations,
personnel and businesses as the Company deems adequate and as
previously disclosed to the Underwriters; such insurance
insures against such losses and risks to an extent which is
adequate in accordance with customary industry practice in the
PRC to protect the Company and its subsidiaries and their
businesses; all such insurance is fully in force on the date
hereof and will be fully in force at each Closing Date (as
hereinafter defined).
(xliii) Each of the Company and the subsidiaries
maintains a system of internal accounting controls sufficient
to provide reasonable assurance that (A) transactions are
executed in accordance with management's general or specific
authorization; (B) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
United States generally accepted accounting principles and to
maintain accountability for assets; (C) access to assets is
permitted only in accordance with management's general or
specific authorization; and (D) the recorded accountability
for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences; since the date of the latest audited financial
statements included in the General Disclosure Package as of
the Applicable Time and the Registration Statement, there has
been (X) no material weakness in the Company's internal
control over financial reporting (whether or not remedied) and
(Y) no change in the Company's internal control over financial
reporting that has resulted in a Material Adverse Affect or is
reasonably likely to result in a Material Adverse Affect,
including any corrective actions with regard to significant
deficiencies and material weaknesses.
(xliv) Any statistical and market-related data
included in the General Disclosure Package as of the
Applicable Time and the Registration Statement are based on or
derived from sources that the Company believes to be reliable
and accurate, and the Company has obtained the written consent
to the use of such data from such sources to the extent
required.
(xlv) Neither the Company nor any subsidiary nor any
of their respective directors, officers, affiliates or
controlling persons has taken, directly or indirectly, any
action designed, or which has constituted or might reasonably
be expected to cause or result in, under the United States
Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT") or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or
resale of Ordinary Shares or the Offered ADSs.
(xlvi) The Company is a "foreign private issuer"
within the meaning of Rule 405 under the Act.
(xlvii) Except as disclosed in the General Disclosure
Package as of the Applicable Time and the Registration
Statement, under the laws and regulations of each
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
15
of the PRC and the Cayman Islands, no transaction, stamp,
capital or other issuance, registration, transaction, transfer
or withholding taxes or duties are payable in the PRC and the
Cayman Islands by or on behalf of the Underwriters to any PRC
or Cayman Islands taxing authority in connection with (A) the
issuance, sale and delivery of the Ordinary Shares represented
by the Offered ADSs by the Company, the issuance of the
Offered ADSs by the Depositary, and the delivery of the
Offered ADSs to or for the account of the Underwriters, (B)
the purchase from the Company and the initial sale and
delivery by the Underwriters of the Offered ADSs to purchasers
thereof, (C) the deposit of the Ordinary Shares with the
Depositary and the Custodian (as defined in the Deposit
Agreement) and the issuance and delivery of the ADRs
evidencing the offered ADSs, or (D) the execution and delivery
of this Agreement or the Deposit Agreement.
(xlviii) The choice of laws of the State of New York
as the governing law of this Agreement and the Deposit
Agreement is a valid choice of law under the laws of the
Cayman Islands and the PRC and will be honored by courts in
the Cayman Islands and, to the extent permitted under the PRC
civil law and rules of civil procedures, will be honored by
the courts in the PRC. The Company has the power to submit,
and pursuant to Section 20 of this Agreement, has legally,
validly, effectively and irrevocably submitted, to the
personal jurisdiction of each United States federal court and
New York state court located in the Borough of Manhattan, in
The City of New York, New York, U.S.A. (each, a "NEW YORK
COURT"), and the Company has the power to designate, appoint
and authorize, and pursuant to Section 20 of this Agreement,
has legally, validly, effectively and irrevocably designated,
appointed an authorized agent for service of process in any
action arising out of or relating to this Agreement, the
Deposit Agreement or the Offered ADSs in any New York Court,
and service of process effected on such authorized agent will
be effective to confer valid personal jurisdiction over the
Company as provided in Section 20 hereof;
(xlix) Neither the Company, or any subsidiary nor any
of their respective properties, assets or revenues has any
right of immunity under Cayman Islands, PRC or New York law,
from any legal action, suit or proceeding, from the giving of
any relief in any such legal action, suit or proceeding, from
set-off or counterclaim, from the jurisdiction of any Cayman
Islands, PRC, New York or U.S. federal court, from service of
process, attachment upon or prior to judgment, or attachment
in aid of execution of judgment, or from execution of a
judgment, or other legal process or proceeding for the giving
of any relief or for the enforcement of a judgment, in any
such court, with respect to its obligations, liabilities or
any other matter under or arising out of or in connection with
this Agreement or the Deposit Agreement; and, to the extent
that the Company, or any subsidiary or any of their respective
properties, assets or revenues may have or may hereafter
become entitled to any such right of immunity in any such
court in which proceedings may at any time be commenced, each
of the Company and the subsidiaries waives or will waive such
right to the extent permitted by law and has consented to such
relief and enforcement as provided in Section 20 of this
Agreement;
(l) Any final judgment for a fixed sum of money
rendered by a New York Court having jurisdiction under its own
domestic laws in respect of any suit, action or proceeding
against the Company based upon this Agreement and the Deposit
Agreement would be recognized and enforced against the Company
by Cayman Islands courts without re-examining the merits of
the case under the common law doctrine of
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
16
obligation; provided that (A) adequate service of process has
been effected and the defendant has had a reasonable
opportunity to be heard, (B) such judgments or the enforcement
thereof are not contrary to the law, public policy, security
or sovereignty of the Cayman Islands, (C) such judgments were
not obtained by fraudulent means and do not conflict with any
other valid judgment in the same matter between the same
parties, and (D) an action between the same parties in the
same matter is not pending in any Cayman Islands court at the
time the lawsuit is instituted in the foreign court; it is not
necessary that this Agreement, the Deposit Agreement, the
Prospectus or any other document be filed or recorded with any
court or other authority in the Cayman Islands or the PRC.
(li) Neither the Company nor, to the Company's
knowledge after due inquiry, any director, officer, agent,
employee or other person associated with or acting on behalf
of the Company has, directly or indirectly, (A) used any
corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expenses; (B) made any direct
or indirect unlawful payment to any foreign or domestic
government official or employee from corporate funds; (C)
violated any provision of the United States Foreign Corrupt
Practices Act of 1977; or (D) made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(lii) There are no contracts or documents that are
required to be described in the Registration Statement, the
ADS Registration Statement or the Prospectus or to be filed as
exhibits thereto that have not been so described and filed as
required.
(liii) The section entitled "Management's Discussion
and Analysis of Financial Condition and Results of Operations"
in the General Disclosure Package as of the Applicable Time
accurately and fully describes (A) accounting policies that
the Company believes are the most important in the portrayal
of the Company's financial condition and results of operations
and that 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 an explanation
thereof.
(liv) The Company's management have reviewed and
agreed with the selection, application and disclosure of the
Critical Accounting Policies as described in the General
Disclosure Package as of the Applicable Time, and have
consulted with its legal advisers and independent accountants
with regards to such disclosure.
(lv) The General Disclosure Package as of the
Applicable Time fairly and accurately describes (A) all
material trends, demands, commitments and events known to the
Company, and uncertainties, and the potential effects thereof,
that the Company believes would be materially affect its
liquidity and are reasonably likely to occur; and (B) neither
the Company nor any subsidiary is engaged in any transactions
with, or have any obligations to, its unconsolidated entities
(if any) that are contractually limited to narrow activities
that facilitate the transfer of or access to assets by the
Company or any subsidiary, including, without limitation,
structured finance entities and special purpose entities, or
otherwise engage in, or have any obligations under, any
off-balance sheet
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
17
transactions or arrangements. As used herein, the phrase
"reasonably likely" refers to a disclosure threshold lower
than "more likely than not".
(lvi) The Company is in compliance in all material
respects with the provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002
and the rules and regulations promulgated thereunder (the
"▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT") and the corporate governance rules of
the NYSE pertaining to foreign private issuers listing on the
NYSE.
(lvii) The statements set forth in the General
Disclosure Package as of the Applicable Time under the
captions "Description of Share Capital" and "Description of
American Depositary Receipts," insofar as they purport to
constitute a summary of the terms of the Ordinary Shares and
the ADSs, respectively, and under the captions "Taxation,"
"Underwriting," "Enforceability of Civil Liabilities" and
"Chinese Government Regulations," insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair in all material
respects.
(lviii) Except as disclosed in the General Disclosure
Package as of the Applicable Time and the Registration
Statement, no governmental approvals are currently required in
the Cayman Islands in order for the Company to pay dividends
or other distributions declared by the Company to holders of
Ordinary Shares, including the Depositary and holders of ADSs,
or for the conversion by the Depositary of any dividends paid
in U.S. dollars or the repatriation thereof out of the Cayman
Islands and no other withholding or other taxes under the laws
and regulations of the Cayman Islands will be imposed in
connection with the declaration and payment by the Company of
dividends and other distributions in respect of its shares
capital.
(lix) The General Disclosure Package as of the
Applicable Time and the Prospectus comply, and any further
amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in
which the General Disclosure Package as of the Applicable Time
or the Prospectus, as amended or supplemented, if applicable,
are distributed in connection with the Directed Share Program,
and no authorization, approval, consent, license, order,
registration or qualification of or with any government,
governmental instrumentality or court, other than such as have
been obtained, is necessary under the securities law and
regulations of foreign jurisdictions in which the Directed
Securities are offered outside the United States.
(lx) The Company has not offered, or caused the
Underwriters to offer, any Offered ADS to any person pursuant
to the Directed Share Program with the specific intent to
unlawfully influence (i) a customer or supplier of the Company
to alter the customer's or supplier's level or type of
business with the Company or (ii) a trade journalist or
publication to write or publish favorable information about
the Company or its products.
(b) Each Selling Shareholder severally represents and warrants
to, and agrees with, the several Underwriters that:
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
18
(i) Such Selling Shareholder has and at each Closing
Date (as hereinafter defined), will have (A) good and
marketable title to the Ordinary Shares underlying the Firm
ADSs and the Optional ADSs to be delivered by such Selling
Shareholders, free and clear of any liens, encumbrances,
equities and claims and (B) full right, power and authority to
effect the sale and delivery of such Firm ADSs and Optional
ADSs.
(ii) Upon payment for the Offered ADSs sold by such
Selling Shareholder under this Agreement and the delivery by
such Selling Shareholder to DTC or its agent of the ADSs in
book entry form to a securities account maintained by the
Representatives at the DTC or its nominee, and payment
therefor in accordance with this Agreement, the Underwriters'
will acquire a securities entitlement (within the meaning of
Section 8-501 of the UCC) with respect to such Offered ADSs,
and no action based on an "adverse claim" (as defined in UCC
Section 8-102) may be asserted against the Underwriters with
respect to such security entitlement if, at such time, the
Underwriters do not have notice of any adverse claim within
the meaning of UCC Section 8-105.
(iii) If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery
of this Agreement: (A) on the Effective Date of the Initial
Registration Statement, the statements in the Initial
Registration Statement under "Principal and Selling
Shareholders" relating to such Selling Shareholder did not
include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make such statements therein not misleading, (B)
on the Effective Date of the Additional Registration Statement
(if any), the statements in the Registration Statement under
"Principal and Selling Shareholders" relating to such Selling
Shareholder did not include, or will not include, any untrue
statement of a material fact and did not omit, or will not
omit, to state any material fact required to be stated therein
or necessary to make such statements therein not misleading,
and (C) on the date of this Agreement, the statements in the
Initial Registration Statement and, if the Effective Time of
the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional
Registration Statement under "Principal and Selling
Shareholders" applicable to such Selling Shareholder, and at
the time of filing of the Prospectus pursuant to Rule 424(b)
or (if no such filing is required) at the Effective Date of
the Additional Registration Statement in which the Prospectus
is included and on the Closing Date, the statements in each of
the Registration Statement and the Prospectus under "Principal
and Selling Shareholders" applicable to such Selling
Shareholder, do not include, or will not include, any untrue
statement of a material fact or omits, or will omit, to state
any material fact required to be stated therein or necessary
to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, on
the Effective Date of the Initial Registration Statement, the
statements in each of the Initial Registration Statement and
the Prospectus under "Principal and Selling Shareholders"
relating to such Selling Shareholder do not include any untrue
statement of a material fact or will omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iv) As of the Applicable Time, neither (i) the
statements in the General Disclosure Package under "Principal
and Selling Shareholders" relating to such Selling
Shareholder, nor (ii) the statements in any individual Limited
Use Issuer Free Writing Prospectus under "Principal and
Selling Shareholders" relating to such Selling
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
19
Shareholder, when considered together with the General
Disclosure Package, included 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.
(v) Such Selling Shareholder has full right, power
and authority to execute and deliver this Agreement and the
power of attorney and Custody Agreement (the "CUSTODY
AGREEMENT") in connection with the offer and sale of the
Offered ADSs contemplated herein and to perform its
obligations under such agreements. The execution and delivery
of this Agreement and the consummation by such Selling
Shareholder of the transactions herein contemplated and the
fulfillment by such Selling Shareholder of the terms hereof
will not require any consent, approval, authorization, or
other order of any court, regulatory body, administrative
agency or other governmental body (except as may be required
under the Act or by the securities or Blue Sky laws of the
various states of the United States) and will not result in a
breach of any of the terms and provisions of, or constitute a
default under, organizational documents of such Selling
Shareholder, if not an individual, or any indenture, mortgage,
deed of trust or other agreement or instrument to which such
Selling Shareholder is a party, or of any order, rule or
regulation applicable to such Selling Shareholder of any court
or of any regulatory body or administrative agency or other
governmental body having jurisdiction.
(vi) Each of this Agreement and the power of attorney
and Custody Agreement in connection with the offer and sale of
the Offered ADSs contemplated herein has been duly authorized,
executed and delivered by such Selling Shareholder.
(vii) The Ordinary Shares represented by the Offered
ADSs to be sold by such Selling Shareholder may be freely
deposited by such Selling Shareholder with the Depositary or
with the Custodian as agent for the Depositary in accordance
with the Deposit Agreement against the issuance of ADRs
evidencing ADSs representing such Ordinary Shares so deposited
by such Selling Shareholder.
(viii) Except as disclosed in the General Disclosure
Package as of the Applicable Time and the Registration
Statement, the Firms ADSs and the Optional ADSs, as well as
the Ordinary Shares underlying such ADSs, delivered at each
Closing Date by such Selling Shareholder will be freely
transferable by such Selling Shareholder.
(ix) The execution, delivery and performance of this
Agreement, the deposit of Ordinary Shares with the Depositary
and the consummation of the transactions herein contemplated
by such Selling Shareholder will not result in a breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or
foreign, having jurisdiction over such Selling Shareholder or
any of its properties, or any agreement or instrument to which
such Selling Shareholder is a party or by which the such
Selling Shareholder is bound or to which any of the properties
of such Selling Shareholder is subject, or if the Selling
Shareholder is a corporate entity, the charter or by-laws of
such Selling Shareholder.
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
20
(x) Except as disclosed in the General Disclosure
Package as of the Applicable Time and the Registration
Statement, such Selling Shareholder has not taken, directly or
indirectly, any action designed, or which has constituted or
might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, the stabilization or manipulation
of the price of any security of the Company to facilitate the
sale or resale of Ordinary Shares or the Offered ADSs.
(xi) Such Selling Shareholder has no affiliations or
associations with any member of the NASD.
(xii) There are no contracts, agreements or
understandings between such Selling Shareholder and any person
that would give rise to a valid claim against such Selling
Shareholder or any Underwriter for a brokerage commission,
finder's fee or other like payment in connection with this
offering.
(xiii) Except as disclosed in the General Disclosure
Package as of the Applicable Time and the Registration
Statement, no transaction, stamp, capital or other issuance,
registration, transaction, transfer or withholding taxes or
duties are payable by or on behalf of the Underwriters in
connection with (A) the sale and delivery of the Ordinary
Shares represented by the Offered ADSs by such Selling
Shareholder, the issuance of such Offered ADSs by the
Depositary, and the delivery of such Offered ADSs to or for
the account of the Underwriters, (B) the purchase from such
Selling Shareholder and the initial sale and delivery by the
Underwriters of the Offered ADSs to purchasers thereof, (C)
the deposit by such Selling Shareholder of the Ordinary Shares
with the Depositary and the Custodian and the issuance and
delivery of the ADRs evidencing the Offered ADSs, or (E) the
execution and delivery of this Agreement.
(c) ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ represents and warrants to, and agrees
with the several Underwriters that:
(i) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement did
not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B)
on the Effective Date of the Additional Registration Statement
(if any), the Registration Statement did not include, or will
not include, any untrue statement of a material fact and did
not omit, or will not omit, to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this
Agreement, the Initial Registration Statement does not, or
will not include and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery
of this Agreement, the Additional Registration Statement does
not, or will not include, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is
required) at the Effective Date of the Additional Registration
Statement in which the Prospectus is included and on the
Closing Date, neither the Registration Statement nor the
Prospectus includes, or will include, any untrue statement of
a material fact or omits, or will omit, to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of
the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the Effective
Date of the Initial Registration
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
21
Statement, neither the Initial Registration Statement nor the
Prospectus includes any untrue statement of a material fact or
omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
The preceding two sentences do not apply to statements in or
omissions from a Registration Statement or the Prospectus
based upon written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 10(c) hereof.
(ii) There are no other Issuer Free Writing
Prospectuses relating to the offering of the Offered ADSs
except as set forth in Schedule D and Schedule E hereto.
(iii) As of the Applicable Time, neither (i) the
General Disclosure Package, nor (ii) any individual Limited
Use Issuer Free Writing Prospectus, when considered together
with the General Disclosure Package, included 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. The preceding sentence does not apply to
statements in or omissions from any prospectus included in the
Registration Statement or any Issuer Free Writing Prospectus
based upon written information furnished to the Company by any
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information is that described as such in Section 10(c) hereof.
3. Purchase, Sale and Delivery of Offered ADSs. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company and each Selling Shareholder
agree, severally and not jointly, to sell to each Underwriter, and each
Underwriter agrees, severally and not jointly, to purchase from the Company and
each Selling Shareholder, at a purchase price of $[ ] per ADS, that number of
Firm ADSs (rounded up or down, as determined by the Representatives in their
discretion, in order to avoid fractions) obtained by multiplying 20,000,000 Firm
ADSs in the case of the Company and the number of Firm ADSs set forth opposite
the name of such Selling Shareholder in Schedule A attached hereto, in the case
of a Selling Shareholder, in each case by a fraction the numerator of which is
the number of Firm ADSs set forth opposite the name of such Underwriter in
Schedule B attached hereto and the denominator of which is the total number of
Firm ADSs.
The Firm ADSs will be delivered by or on behalf of the Company and the
Selling Shareholders to the Representatives for the accounts of the Underwriters
through the facilities of The Depositary Trust Company (the "DTC") against
payment of the purchase price in Federal Funds wire transfer, at 10:00 A.M., New
York time, on December [ ], 2005, or at such other time not later than seven
full business days thereafter as the Representatives and the Company determine,
such time being herein referred to as the "FIRST CLOSING DATE". For purposes of
Rule 15c6-1 under the Exchange Act, the First Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for payment
of funds and delivery of securities for all the Offered ADSs sold pursuant to
the offering.
In addition, upon written notice from the Representatives given to the
Company and one of the Selling Shareholders from time to time not more than 30
days subsequent to the date of the Prospectus, the Underwriters may purchase all
or less than all of the Optional ADSs at the purchase price per ADS to be paid
for the Firm ADSs. The Company and one of the Selling Shareholders agree,
severally and not jointly, to sell to the Underwriters the respective numbers of
Optional ADSs, which is 2,820,655 in the case of the Company and the number of
shares set forth opposite the name of such Selling Shareholders in Schedule A
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
22
attached hereto under the caption "Number of Optional ADSs to be Sold" in the
case of the Selling Shareholder. Such Optional ADSs shall be purchased from the
Company and such Selling Shareholder for the account of each Underwriter in the
same proportion as the number of Firm ADSs set forth opposite such Underwriter's
name bears to the total number of Firm ADSs (subject to adjustment by the
Representatives to eliminate fractions) and may be purchased by the Underwriters
only for the purpose of covering over-allotments made in connection with the
sale of the Firm ADSs. No Optional ADSs shall be sold or delivered unless the
Firm ADSs previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional ADSs or any portion thereof may be exercised from
time to time and to the extent not previously exercised, may be surrendered and
terminated at any time upon notice by the Representatives to the Company and
such Selling Shareholder.
Each time for the delivery of and payment for the Optional ADSs, being
herein referred to as an "OPTIONAL CLOSING DATE", which may be the First Closing
Date (the First Closing Date and each Optional Closing Date, if any, being
sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representatives but shall be not later than five full business days after
written notice of election to purchase Optional ADSs is given. The Optional ADSs
being purchased on each Optional Closing Date will be delivered by or on behalf
of the Company and one of the Selling Shareholders to the Representatives for
the accounts of the several Underwriters through the facilities of DTC against
payment of the purchase price therefor in Federal Funds wire transfer.
As compensation for the Underwriters' commitments, the Company and each
Selling Shareholder, severally and not jointly, will pay to the Representatives
for the Underwriters' proportionate accounts the sum of $[ o ] per ADS times the
total number of Offered ADSs purchased by the Underwriters from the Company and
such Selling Shareholder on each Closing Date. The Company may, at its sole
discretion, pay an additional incentive fee of up to 0.5% of the aggregate
proceeds of the Offered ADSs (including the Optional ADSs) to the
Representatives. The Underwriters shall deduct, net of the amount payable to the
Company pursuant to Section 8 hereof, any fees, commission and incentive fee (if
any) as described in this Section 3 from the aggregate proceeds of the Offered
ADSs.
Deliveries of the documents described in Section 9 hereof with respect
to the purchase of Offered ADSs shall be made at the offices of Shearman &
Sterling LLP, 12/F, Gloucester Tower, The Landmark, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇, at 9:00 A.M., New York time, on the Closing Date of the purchase of
the Firm ADSs or the Optional ADSs, as the case may be.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered ADSs for sale to the public as set
forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) The Company has filed or will file a Statutory Prospectus
pursuant to and in accordance with Rule 424(b)(1) (or, if applicable
and consented to by the Representatives, subparagraph (4)) not later
than the second business day following the earlier of the date it is
first used after effectiveness or the date of this Agreement. The
Company has complied and will comply with Rule 433 of the Act with
respect to each Issuer Free Writing Prospectus.
(b) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by the
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
23
Representatives, subparagraph (4)) of Rule 424(b) not later than the
earlier of (A) the second business day following the execution and
delivery of this Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement.
The Company will advise the Representatives promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered ADSs under the Act but the Effective
Time thereof has not occurred as of such execution and delivery, the
Company will file the additional registration statement or, if filed,
will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to 10:00
P.M., New York time, on the date of this Agreement or, if earlier, on
or prior to the time the Prospectus is printed and distributed to any
Underwriter, or will make such filing at such later date as shall have
been consented to by the Representatives.
(c) The Company will advise the Representatives promptly of
any proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement
(if any), any Statutory Prospectus or the ADS Registration Statement
and will not effect such amendment or supplementation without the
Representatives' consent; and the Company will also advise the
Representatives promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and of any amendment or supplementation of
a Registration Statement, any Statutory Prospectus or the ADS
Registration Statement and of the institution by the Commission of any
stop order proceedings in respect of a Registration Statement or the
ADS Registration Statement and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its
lifting, if issued.
(d) The Company agrees to make available to the Underwriters,
as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the General Disclosure Package as of
the Applicable Time (or of the Statutory Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act.
(e) If, at any time when a prospectus relating to the Offered
ADSs is required to be delivered under the Act (or but for the
exemption in Rule 172 would be required to be delivered) in connection
with sales by any Underwriter or dealer, any event occurs 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 to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify the Representatives of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Representatives' consent to, nor the Underwriters' delivery of, any
such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 9 of this Agreement.
(f) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally
available to its shareholders an earnings statement covering a period
of at least 12 months beginning after the Effective Date of the Initial
Registration
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
24
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(g) The Company will furnish to the Representatives copies of
each Registration Statement (three of which will be signed and will
include all exhibits), each related preliminary prospectus and, so long
as a prospectus relating to the Offered ADSs is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer (including in circumstances where such requirement may be
satisfied pursuant to Rule 172 of the Act), the Prospectus and all
amendments and supplements to such documents, in each case in such
quantities as the Representatives request. The Prospectus shall be so
furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or
the Effective Time of the Initial Registration Statement. All other
such documents shall be so furnished as soon as available. The Company
will pay the expenses of printing and distributing to the Underwriters
all such documents.
(h) The Company will arrange, in cooperation with the
Representatives, for the qualification of the Offered ADSs for sale
under the laws of such jurisdictions as the Representatives may
reasonably designate and will continue such qualifications in effect so
long as may be necessary to complete the distribution of the Offered
ADSs which period shall in no event extend for more than one year from
the later of the effective date of the Registration Statement and any
Registration Statement filed pursuant to Rule 462(b); provided that the
Company shall not be obligated to file any general consent to service
of process (except service of process with respect to the offering and
sale of the Offered ADSs) or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business
in any jurisdiction in which it is not otherwise subject; and to
promptly advise you of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Offered ADSs
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose.
(i) The Company will file promptly all documents required to
be filed by the Company with the Commission in order to comply with the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Offered ADSs (including in circumstances where
such requirement may be satisfied pursuant to Rule 172 of the Act) and
to provide the Representatives with a copy of such reports and
statements and other documents to be filed by the Company pursuant to
Section 13 or 15(d) of the Exchange Act during such period a reasonable
amount of time prior to any proposed filing, and to promptly notify the
Representatives of such filing.
(j) The Company will furnish to its shareholders and the
Representatives as soon as practicable an earnings statement covering
the twelve-month period ending December 31, 2006 that satisfies the
provisions of Section 11(a) of the Act and the Rules and Regulations
thereunder.
(k) The Company will furnish to the Representatives within a
reasonable time for a period of one year from the date of this
Agreement (1) copies of any reports, statements, or other
communications which the Company shall send to its shareholders or
shall from time to time
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
25
publish or publicly disseminate, (2) copies of all annual, quarterly
and current reports filed with the Commission on Forms 20-F and 6-K, or
such other similar forms as may be designated by the Commission and (3)
copies of documents or reports filed with any national securities
exchange on which any class of securities of the Company is listed, and
(4) such other public information as the Representatives may reasonably
request regarding the Company or any subsidiary.
(l) The Company will furnish to the Representatives as early
as practicable prior to each Closing Date, 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 certified public accountants, as stated in their letter to
be furnished pursuant to Section 9(a) hereof.
(m) The Company will apply the net proceeds from the sale of
the Offered ADSs in the manner set forth under the caption "Use of
Proceeds" in the General Disclosure Package as of the Applicable Time;
the Company will not use, and will cause its subsidiaries not to use,
the proceeds from the sale of any ADSs, directly or indirectly, for any
purpose or activity that would cause the Underwriters or any purchaser
of the ADSs, by virtue of their purchasing or holding any Ordinary
Shares or ADSs, to be in violation of the Trading With the Enemy Act,
as amended, the International Emergency Economic Powers Act, as
amended, or any of the foreign assets control regulations of the United
States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended)
or any enabling legislation or executive order relating thereto, or in
connection with business, operations or contracts with the Governments
or with any person or entity of the Balkans, Burma (Myanmar), Cuba,
Iraq, Iran, Libya, Liberia, North Korea, Sudan, Zimbabwe or any person
or entity that is subject to sanctions under any program administered
by the Office of Foreign Assets Control of the United States Treasury
Department.
(n) For the period specified below (the "LOCK-UP PERIOD"),
the Company will not (i) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any Ordinary
Shares or ADSs or any securities convertible into or exercisable or
exchangeable for Ordinary Shares or ADSs, or enter into a transaction
which would have the same effect or (ii) enter into any swap, hedge, or
other arrangement that transfers to another, in whole or in part, any
of the economic consequences of ownership of the Ordinary Shares or
ADSs, whether any such aforementioned transaction is to be settled by
delivery of Ordinary Shares, ADSs, or such other securities, in cash or
otherwise or (iii) file with the Commission a registration statement
under the Act relating to, any additional Ordinary Shares or ADSs or
securities convertible into or exchangeable or exercisable for Ordinary
Shares or ADSs or (iv) publicly disclose the intention to make any such
offer, sale, pledge, or disposition, or enter into any such
transaction, swap, hedge, or other arrangements, or file any
registration statement covering such Ordinary Shares or ADSs, without,
in each case as mentioned in (i), (ii), (iii) and (iv) above, the prior
written consent of the Representatives, except grants of employee stock
options pursuant to the terms of a plan in effect on the date hereof,
issuances of Ordinary Shares or ADSs pursuant to the exercise of such
options or the exercise of any other employee stock options outstanding
on the date hereof or the automatic conversion of the Series A
Preferred Shares upon the consummation of a qualified initial public
offering. The initial Lock-Up Period will commence on the date hereof
and will continue and include the date 180 days after the date hereof
or such earlier date that the Representatives consent to in writing;
provided, however, that if (1) during the last 17 days of the initial
Lock-Up Period, the Company releases earnings results or material news
or a material event relating to the Company occurs or (2) prior to the
expiration
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
26
of the initial Lock-Up period, the Company announces that it will
release earnings results during the 16-day period beginning on the last
day of the initial Lock-Up Period, then in each case the Lock-Up Period
will be extended until the expiration of the 18-day period beginning on
the date of release of the earnings results or the occurrence of the
material news or material event, as applicable, unless the
Representatives waive, in writing, such extension. The Company will
provide the Representatives with notice of any announcement described
in clause (2) of the preceding sentence that gives rise to an extension
of the Lock-up Period.
(o) The Company will indemnify and hold harmless the
Underwriters against any documentary, stamp or similar issue tax,
including any interest and penalties, on the creation, issue and sale
of the Offered ADSs by the Company and on the execution and delivery of
this Agreement. All payments to be made by the Company hereunder shall
be made without withholding or deduction for or on account of any
present or future taxes, duties or governmental charges whatsoever
unless the Company is compelled by law to deduct or withhold such
taxes, duties or charges. In that event, the Company shall pay such
additional amounts as may be necessary in order that the net amounts
received after such withholding or deduction shall equal the amounts
that would have been received if no withholding or deduction had been
made.
(p) The Company will use its best efforts to effect and
maintain the listing of the Offered ADSs on the NYSE.
(q) The Company agrees not to (and to use its best efforts to
cause its affiliates not to) take, directly or indirectly, any action
which is designed to or which constitutes or that might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company.
(r) The Company agrees (i) not to attempt to avoid any
judgment obtained by it or denied to it in a court of competent
jurisdiction outside the Cayman Islands; (ii) following the
consummation of the offering of the Offered ADSs, it will use its best
efforts to obtain and maintain all approvals required in the Cayman
Islands to pay and remit outside the Cayman Islands all dividends
declared by the Company and payable on the Ordinary Shares; and (iii)
it will use its best efforts to obtain and maintain all approvals
required in the Cayman Islands for the Company to acquire sufficient
foreign exchange for the payment of dividends and all other relevant
purposes.
(s) Upon request of any Underwriter, the Company will furnish,
or cause to be furnished, to such Underwriter an electronic version of
the Company's trademarks, servicemarks and corporate logo for use on
the website, if any, operated by such Underwriter for the purpose of
facilitating the on-line offering of the ADSs (the "LICENSE");
provided, however, that the License is granted without any fee and may
not be assigned or transferred to any person other than affiliates of
such Underwriter.
(t) The Company will use its best efforts 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 in with
the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act.
(u) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
27
duties or other taxes, if any, incurred by the underwriters in
connection with the Directed Share Program.
(v) The Company will comply with all applicable securities and
other applicable laws, rules and regulations in each foreign
jurisdiction in which the Directed Securities are offered in connection
with the Directed Share Program.
(w) The Company will not directly or indirectly use the
proceeds of the Offered ADSs hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions
administered by OFAC.
6. Certain Agreements of the Selling Shareholders. Each Selling
Shareholder agrees with the several Underwriters that:
(a) such Selling Shareholder, severally and not jointly, will
pay all expenses incident to the performance of their respective
obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i) any stamp duties, capital
duties and stock transfer taxes, if any, payable upon the sale of the
Offered ADSs to the Underwriters, (ii) the fees and disbursements of
their respective counsel and accountants, except for the fees and
expenses, if any, incurred by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP on behalf of the
Selling Shareholders which will be borne by the Company and (iii) any
fees and expenses of the Custodian and the Depositary in connection
with the sale by the Selling Shareholders of the Offered ADSs.
(b) such Selling Shareholder, severally and not jointly, will
indemnify and hold harmless the Underwriters against any documentary,
stamp or similar issue tax, including any interest and penalties, on
the creation, issue and sale of the Offered ADSs by such Selling
Shareholder and on the execution and delivery of this Agreement. All
payments to be made by each Selling Shareholder hereunder shall be made
without withholding or deduction for or on account of any present or
future taxes, duties or governmental charges whatsoever unless such
Selling Shareholder or the Company is compelled by law to deduct or
withhold such taxes, duties or charges. In that event, a Selling
Shareholder shall pay such additional amounts as may be necessary in
order that the net amounts received after such withholding or deduction
shall equal the amounts that would have been received if no withholding
or deduction had been made.
(c) such Selling Shareholder agrees during the Lock-Up Period
not to (i) offer, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option,
right or warrant to purchase, lend, pledge or otherwise dispose of,
directly or indirectly, any Ordinary Shares or ADSs or any securities
convertible into or exercisable or exchangeable for Ordinary Shares or
ADSs, or enter into a transaction which would have the same effect or
(ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of
ownership of the Ordinary Shares or ADSs, whether any such
aforementioned transaction is to be settled by delivery of Ordinary
Shares, ADSs, or such other securities, in cash or otherwise or (iii)
publicly disclose the intention to make any such offer, sale, pledge or
disposition, or enter into any such transaction, swap, hedge or other
arrangement, without, in each case as mentioned in (i), (ii) and (iii)
above, the prior written consent of the Representatives, except (A) the
Ordinary Shares in the form of ADSs to be
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
28
sold by the Selling Shareholder hereunder or (B) the automatic
conversion of the Series A Preferred Shares upon the consummation of a
qualified initial public offering.
The initial Lock-Up Period will commence on the date hereof
and will continue and include the date 180 days after the date hereof
or such earlier date that the Representatives consent to in writing;
provided, however, that if (1) during the last 17 days of the initial
Lock-Up Period, the Company releases earnings results or material news
or a material event relating to the Company occurs or (2) prior to the
expiration of the initial Lock-up Period, the company announces that it
will release earnings results during the 16-day period beginning on the
last day of the initial Lock-Up Period, then in each case the Lock-Up
Period will be extended until the expiration of the 18 day period
beginning on the date of release of the earnings results or the
occurrence of the material news or material event, as applicable,
unless the Representatives waive, in writing, such extension.
7. Free Writing Prospectuses. (a) The Company represents and agrees
that, unless it obtains the prior consent of the Representatives, and each
Underwriter represents and agrees that, unless it obtains the prior consent of
the Company and the Representatives] it has not made and will not make any offer
relating to the Offered ADSs that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a "free writing prospectus," as
defined in Rule 405, required to be filed with the Commission. Any such free
writing prospectus consented to by the Company and the Representatives is
hereinafter referred to as a "Permitted Free Writing Prospectus." The Company
represents that it has treated and agrees that it will treat each Permitted Free
Writing Prospectus as an "issuer free writing prospectus," as defined in Rule
433, and has complied and will comply with the requirements of Rule 433
applicable to any Permitted Free Writing Prospectus, including timely Commission
filing where required, legending and record keeping. The Company represents that
is has satisfied and agrees that it will satisfy the conditions in Rule 433 to
avoid a requirement to file with the Commission any electronic road show.
(b) The Company agrees not to take any action that would result in an
Underwriter or the Company being required to file with the Commission pursuant
to Rule 433(d) under the Securities Act a free writing prospectus prepared by or
on behalf of the Underwriter that the Underwriter otherwise would not have been
required to file thereunder.
8. Certain Agreements of the Underwriters. The Representatives and the
several Underwriters agree that the Underwriters will reimburse the Company, for
up to US$2 million, for its costs and expenses incidental to the performance of
its obligations under this Agreement, including but not limited to those in
connection with (i) the preparation and filing of the Registration Statement,
the General Disclosure Package, the Prospectus, the ADS Registration Statement,
and any amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers, (ii) the printing and
delivery of the Statutory Prospectus requested by potential investors pursuant
to Rule 433 of the Act, (iii) listing of the Offered ADSs on any securities
exchange or qualification of the Offered ADSs for listing on the NYSE and any
registration thereof under the Exchange Act, (iv) for any travel expenses of the
Company's and the Underwriters' officers and employees and any other expenses of
the Company in connection with attending or hosting meetings with prospective
purchasers of the Offered ADSs, including the cost of any aircraft chartered in
connection with attending or hosting such meetings, and (v) the fees and
disbursements of Deloitte Touche Tohmatsu CPA Ltd. (including fees and
disbursements relating to the preparation and audit of the financial statements
included in the Registration Statement, the General Disclosure Package and the
Prospectus and the provision of the comfort letters to be given to the
Underwriters pursuant to this Agreement), the Company's legal counsels and other
professional advisers. Notwithstanding the
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
29
foregoing, if (1) the offering contemplated in this Agreement is not completed
by June 11, 2006 or has been postponed indefinitely by the Company despite one
or both of the Representatives being willing to proceed with the offering or (2)
the Offered ADSs are not delivered for any reason other than the termination of
this Agreement pursuant to Section 11 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, then the
Company shall reimburse the Underwriters for all of their reasonable expenses in
connection therewith, including the fees and disbursements of their legal
counsels.
9. Conditions of the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Firm ADSs on the First
Closing Date and the Optional ADSs to be purchased on each Optional Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Company and the Selling Shareholders herein, to the accuracy of the
statements of Company officers made pursuant to the provisions hereof, to the
performance by the Company and the Selling Shareholders of their obligations
hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated
the date of delivery thereof (which, if the Effective Time of the
Initial Registration Statement is prior to the execution and delivery
of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement, shall be
prior to the filing of the amendment or post-effective amendment to the
registration statement to be filed shortly prior to such Effective
Time), of Deloitte Touche Tohmatsu CPA Ltd. confirming that they are
independent public accountants within the meaning of the Act and the
applicable published Rules and Regulations thereunder and stating to
the effect set forth in Exhibit B attached hereto.
(b) If the Effective Time of the Initial Registration
Statement and the ADS Registration Statement is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or such later date as shall have been consented to by
the Representatives. If the Effective Time of the Additional
Registration Statement (if any) and the ADS Registration Statement is
not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the
Prospectus is printed and distributed to any Underwriter, or shall have
occurred at such later date as shall have been consented to by the
Representatives. If the Effective Time of the Initial Registration
Statement and the ADS Registration Statement is prior to the execution
and delivery of this Agreement, the Prospectus shall have been filed
with the Commission in accordance with the Rules and Regulations and
Section 5(a) of this Agreement. Prior to such Closing Date, no stop
order suspending the effectiveness of a Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Shareholder, the Company
or the Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), earnings, business, properties or results of
operations of the Company and its subsidiaries taken as a whole which,
in the judgment of the Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered ADSs.
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
30
(d) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, United States counsel for
the Company, addressed to the Underwriters, to the effect set forth in
Exhibit C attached hereto.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇ and Calder, Cayman Islands counsel for the
Company, addressed to the Underwriters, to the effect set forth in
Exhibit D attached hereto.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇ and ▇▇▇▇▇▇, BVI counsel for the Company,
addressed to the Underwriters, to the effect set forth in Exhibit E
attached hereto.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of Grandall Legal Group (Shanghai), PRC counsel for
the Company, addressed to the Underwriters, to the effect set forth in
Exhibit F attached hereto.
(h) The Representatives shall have received an opinion, dated
such Closing Date of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, United States counsel for
the Selling Shareholders, addressed to the Underwriters, to the effect
set forth in Exhibit G attached hereto.
(i) The Representatives shall have received an opinion, dated
such Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Australian counsel for the
Company, addressed to the Underwriters, to the effect set forth in
Exhibit H hereto.
(j) The Representatives shall have received (1) on or prior to
the date hereof, the opinion contemplated in the power of attorney
executed and delivered by Prax Capital Fund 1, LP and (2) an opinion,
dated such Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Delaware counsel for
such Selling Shareholder, to the effect set forth in Exhibit I attached
hereto.
(k) The Representatives shall have received (1) on or prior to
the date hereof, the opinion contemplated in the power of attorney
executed and delivered by each of D&M Technologies, Million Power
Finance Ltd., Win ▇▇▇▇ Finance Limited, DragonTech Energy Investment
Limited, Bestmanage Consultants Ltd., Financiere 1 Ltd. and Financiere
2 Ltd., and (2) an opinion, dated such Closing Date, of ▇▇▇▇▇▇ and
Calder, BVI counsel for such Selling Shareholders, to the effect set
forth in Exhibit J attached hereto.
(l) The Representatives shall have received (1) on or prior to
the date hereof, the opinion contemplated in the power of attorney
executed and delivered by Financiere Natexis Singapore 3 Pte, Ltd. and
(2) an opinion, dated such Closing Date, of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ -▇▇▇▇ &
Leow, Singapore counsel for such Selling Shareholder, to the effect set
forth in Exhibit K attached hereto.
(m) The Representatives shall have received (1) on or prior to
the date hereof, the opinion contemplated in the power of attorney
executed and delivered by Actis China Investment Holdings No. 4 Ltd.
and (2) an opinion, dated such Closing Date, of Muhammed R C Uteem,
Mauritius counsel for such Selling Shareholder, to the effect set forth
in Exhibit L attached hereto.
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
31
(n) The Representatives shall have received (1) on or prior to
the date hereof, the opinion contemplated in the power of attorney
executed and delivered by Xianfeng Yin and (2) an opinion, dated such
Closing Date, of ▇▇▇▇ Gully, New Zealand counsel for such Selling
Shareholders, to the effect set forth in Exhibit M attached hereto.
(o) The Representatives shall have received from Shearman &
Sterling LLP, United States counsel for the Underwriters, such opinion
or opinions, dated such Closing Date, with respect to matters as the
Representatives may require, and the Selling Shareholders and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters. In
rendering such opinion, Sterling & Sterling LLP may rely as to all
matters governed by Cayman Islands law upon the opinion of ▇▇▇▇▇▇ &
Calder referred to in Section 9(e) above, all matters governed by BVI
law upon the opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ referred to in Section 9(f)
above, and all matters governed by PRC law upon the opinion of Grandall
Legal Group (Shanghai) in Section 9(g) above and the opinion of Haiwen
& Partners referred to in Section 9(p) below.
(p) The Representatives shall have received from Haiwen &
Partners, PRC counsel for the Underwriters, such opinion or opinions,
dated such Closing Date, with respect to matters as the Representatives
may require, and the Selling Shareholders and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(q) The Representatives shall have received from ▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP, United States counsel for the Depositary, such opinion or
opinions, dated such Closing Date, to the effect set forth in Exhibit N
attached hereto.
(r) The Representatives shall have received a certificate,
dated such Closing Date, of the Chief Executive Officer and the Chief
Financial Officer of the Company in which such officers shall state
that: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement or ADS
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the requirements
of subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
dates of the most recent financial statements in the General Disclosure
Package as of the Applicable Time and the Registration Statement, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), earnings, business, properties or results of
operations of the Company and its subsidiaries taken as a whole except
as set forth in the General Disclosure Package as of the Applicable
Time, the Registration Statement or as described in such certificate.
(s) The Representatives shall have received a letter, dated
the Applicable Time and such Closing Date, of Deloitte Touche Tohmatsu
CPA Ltd. which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in such subsection
will be a date not more than three days prior to such Closing Date for
the purposes of this subsection.
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
32
(t) On or prior to the date of this Agreement, the
Representatives shall have received the Lock-up Agreements, in the form
as set forth as Exhibit A attached hereto, from each of the Selling
Shareholders, the Company's directors and executive officers, as well
as certain of the Company's other existing shareholders named in
Schedule C hereto.
(u) No Issuer Free Writing Prospectus, Prospectus or amendment
or supplement to the Registration Statement, the ADS Registration
Statement or the Prospectus shall have been filed to which the
Representatives object in writing.
(v) Between the time of execution of this Agreement and such
Closing Date, no material adverse change or any development involving a
prospective material adverse change in the earnings, business,
properties, management, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, shall occur or
become known.
(w) The Offered ADSs shall have been approved for listing on
the NYSE, subject only to notice of issuance.
(x) The Company and the Depositary shall have executed and
delivered the Deposit Agreement, in form and substance satisfactory to
the Underwriters, and the Deposit Agreement shall be in full force and
effect.
(y) The Depositary shall have delivered to the Company at such
Closing Date certificates satisfactory to the Underwriters evidencing
the deposit with the Depositary or its nominee of the Ordinary Shares
being so deposited against issuance of ADRs evidencing the Offered ADSs
to be delivered by the Company and the Selling Shareholders at such
Closing Date, and the execution, countersignature (if applicable),
issuance and delivery of ADRs evidencing such Offered ADSs pursuant to
the Deposit Agreement.
(z) On or prior to the Closing Date, the NASD shall have
confirmed that it has not raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
(aa) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses to
the Underwriters.
The Selling Shareholders and the Company will furnish the
Representatives with such conformed copies of such opinions, certificates,
letters and documents as the Representatives may reasonably request. The
Representatives may in their sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
The several obligations of the Underwriters to purchase Optional ADSs
hereunder are subject to the delivery to the Representatives on the applicable
Closing Date of such documents as the Representatives may reasonably request
with respect to the good standing of the Company, the due authorization and
issuance of the Optional ADSs to be sold on such Closing Date and other matters
related to the issuance of such Optional ADSs.
10. Indemnification and Contribution. (a) The Company will indemnify
and hold harmless each Underwriter, its affiliates, partners, members,
directors, officers and each person, if any, who controls
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
33
such Underwriter within the meaning of Section 15 of the Act, 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)
(including without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, the ADS Registration
Statement, each Statutory Prospectus, the Prospectus, any Issuer Free Writing
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents based upon written information furnished to
the Company by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information furnished
by any Underwriter consists of the information described as such in subsection
(c) below.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act (the "DESIGNATED Entities"), from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) (i) caused by any untrue statement or alleged untrue
statement of a material fact contained in any material prepared by or with the
consent of the Company for distribution to Participants in connection with the
Directed Share Program or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; (ii) caused by the failure of any Participant
to pay for and accept delivery of Directed Shares that the Participant agreed to
purchase; or (iii) related to, arising out of, or in connection with the
Directed Share Program, other than losses, claims, damages or liabilities (or
expenses relating thereto) that are finally judicially determined to have
resulted from the bad faith or gross negligence of the Designated Entities.
(b) The Selling Shareholders, severally and not jointly, will
indemnify and hold harmless each Underwriter, its affiliates, partners,
members, directors, officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Act, 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) (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any
such action or claim) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
any Registration Statement, the ADS Registration Statement, each
Statutory Prospectus, the Prospectus, any Issuer Free Writing
Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter
in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided,
however, that the Selling Shareholders will not be liable in any such
case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement in or omission or alleged
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
34
omission from any of such documents based upon written information
furnished to the Company by an Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below; provided,
further, that a Selling Shareholder, with the exception of ▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇, will only be liable 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 in or omission or alleged
omission from any of such documents based upon written information
furnished to the Company by such Selling Shareholder; and provided
further that the liability of each indemnifying Selling Shareholder,
including ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇, pursuant to this subsection shall not
exceed the product of the number of shares of Offered ADSs sold by such
indemnifying Selling Shareholder and the price per share of Offered
ADSs set forth in Section 4 hereof.
(c) Each Underwriter will severally and not jointly indemnify
and hold harmless the Company, its directors and officers and each
person, if any, who controls the Company within the meaning of Section
15 of the Act, and each Selling Shareholder against any losses, claims,
damages or liabilities to which the Company or such Selling Shareholder
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 any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement,
each Statutory Prospectus, the Prospectus, any Issuer Free Writing
Prospectus, or any amendment or supplement thereto, or arise out of or
are based upon the omission or the 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 based upon written information
furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and each
Selling Shareholder in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in
the Registration Statement, any Issuer Free Writing Prospectus and the
Prospectus furnished on behalf of each Underwriter: (i) the concession
and reallowance information appearing in the third paragraph (other
than the second sentence of that paragraph) under the caption
"Underwriting" and in the [o] paragraph in the Pricing Sheet (as
defined in Schedule D hereto), and (ii) the information contained in
the ninth, seventeenth, eighteenth (other than the second sentence in
that paragraph) and twenty-second paragraphs under the caption
"Underwriting".
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a), (b) or (c) above, notify the
indemnifying party of the commencement thereof; but the failure to
notify the indemnifying party shall not relieve it from any liability
that it may have under subsection (a), (b) or (c) above except to the
extent that it has been materially prejudiced (through the forfeiture
of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not
relieve it from any liability that it may have to an indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such
action is brought against any indemnified party and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
35
counsel satisfactory to such indemnified party (who 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 will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party unless such (i) settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the
subject matter of such action 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 an indemnified party.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company
and the Selling Shareholders on the one hand and the Underwriters on
the other from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Shareholders on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholders on the
one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling
Shareholders bear to the total underwriting discounts and commissions
received by the Underwriters. 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,
the Selling Shareholders or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (e)
shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection
(e). Notwithstanding the provisions of this subsection (e), 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 (e) to contribute are several in proportion to their
respective underwriting obligations and not joint. The Selling
Shareholders' obligations in this subsection (e) to contribute are
several in proportion to the respective number of Offered ADSs being
offered by each of them and not joint.
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
36
(f) The obligations of (i) the Company and the Selling
Shareholders under this Section shall be in addition to any liability
which the Company and the Selling Shareholders may otherwise have and
shall extend, upon the same terms and conditions, to each person, if
any, who controls any Underwriter within the meaning of the Act;
provided that the liability of each Selling Shareholder shall not
exceed the product of the number of shares of Offered ADSs sold by such
Selling Shareholder and the price per share of Offered ADSs set forth
in Section 4 hereof; and (ii) the Underwriters under this Section 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 director of the Company, to each officer of the Company who has
signed a Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
11. Termination. The Underwriters may terminate this Agreement by
notice given by the Representatives to the Company, if after the execution and
delivery of this Agreement and prior to the Closing Date (a) there shall have
been any change in United States, PRC, the United Kingdom, Cayman Islands or
international financial, political or economic conditions or currency exchange
rates or exchange controls as would, in the judgment of the Representatives, be
likely to prejudice materially the success of the proposed issue, sale or
distribution of the Offered ADSs, whether in the primary market or in respect of
dealings in the secondary market, (b) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the London Stock Exchange, or there shall be any setting of minimum prices for
trading on such exchanges, (c) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (d) a
material disruption in securities settlement, payment or clearance services in
the United States or the Cayman Islands shall have occurred, (e) any moratorium
on commercial banking activities shall have been declared by the United States
Federal or New York State authorities, or any PRC, the United Kingdom or Cayman
Islands authorities or (f) there shall have occurred any attack, outbreak or
escalation of hostilities, or any act of terrorism or declaration of war
involving the United States, the PRC or the Cayman Islands, or any other
national or international calamity or crisis that, in the judgment of the
Representatives, is material and adverse and which, singly or together with any
other event specified in this clause (f), makes it, in the Representatives'
judgment, impracticable or inadvisable to proceed with the offer, sale or
delivery of the Offered ADSs on the terms and in the manner contemplated in the
Prospectus.
12. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered ADSs hereunder on either the First or
any Optional Closing Date and the aggregate number of shares of Offered ADSs
that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total number of shares of Offered ADSs that the
Underwriters are obligated to purchase on such Closing Date, the Representatives
may make arrangements satisfactory to the Company and the Selling Shareholders
for the purchase of such Offered ADSs by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered ADSs that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered ADSs with respect to which such default or defaults occur exceeds 10% of
the total number of shares of Offered ADSs that the Underwriters are obligated
to purchase on such Closing Date and arrangements satisfactory to the
Representatives, the Company and the Selling Shareholders for the purchase of
such Offered ADSs by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Shareholders, except as
provided in Section 13 (provided that if such default occurs with
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
37
respect to Optional ADSs after the First Closing Date, this Agreement will not
terminate as to the Firm ADSs or any Optional ADSs purchased prior to such
termination). As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default.
13. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers, the Selling Shareholders, and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of the Company, any Selling Shareholder,
any Underwriter or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered ADSs. If this Agreement is terminated pursuant to Section 11 or
if for any reason the purchase of the Offered ADSs by the Underwriters is not
consummated, the Company and the Selling Shareholders shall remain responsible
for the expenses to be paid or reimbursed by them pursuant to Section 5 and the
respective obligations of the Company, the Selling Shareholders, and the
Underwriters pursuant to Section 10 shall remain in effect, and if any Offered
ADSs have been purchased hereunder the representations and warranties in Section
2 and all obligations under Section 5 shall also remain in effect. If the
purchase of the Offered ADSs by the Underwriters is not consummated for any
reason other than solely because of the termination of this Agreement pursuant
to Section 11 or the occurrence of any event specified in Section 10, the
Company and the Selling Shareholders will, jointly and severally, reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered ADSs.
14. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, Credit Suisse First Boston LLC, Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇, ▇.▇.▇. Attention: Legal Compliance Department --
Investment Banking Division, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, England, Attention: [ o ], Legal
Department, or, if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at Suntech Power Holdings Co., Ltd., at ▇▇-▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, Wuxi, Jiangsu Province 214028, People's Republic of
China, Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇, or, if sent to the Selling Shareholders or
any of them, will be mailed, delivered or telegraphed and confirmed to ▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇▇ or Ms. ▇▇▇ ▇▇ ▇▇▇▇▇ at Suntech Power Holdings Co., Ltd., at ▇▇-▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, Wuxi, Jiangsu Province 214028, People's
Republic of China; provided, however, that any notice to an Underwriter pursuant
to Section 10 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
15. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective personal representatives
and successors and the officers and directors and controlling persons referred
to in Section 10, and no other person will have any right or obligation
hereunder.
16. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives, jointly or by
individually, will be binding upon all the Underwriters.
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
38
17. Counterparts. This Agreement may be executed 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 Agreement.
18. Entire Agreement. This Agreement, together with any contemporaneous
written agreements and any prior written agreements (to the extent not
superseded by this Agreement) that relate to the offering of the Offered ADSs,
represents the entire agreement between the Company and the Underwriters with
respect to the preparation of the Prospectus, the conduct of the offering, and
the purchase and sale of the Offered ADSs.
19. Absence of Fiduciary Relationship. Each of the Company and the
Selling Shareholders acknowledges and agrees that:
(a) the Representatives have been retained solely to act as
underwriters in connection with the sale of the Offered ADSs and that
no fiduciary, advisory or agency relationship between the Company or
the Selling Shareholders, on the one hand, and the Representatives, on
the other, has been created in respect of any of the transactions
contemplated by this Agreement, irrespective of whether the
Representatives have advised or is advising Company or the Selling
Shareholders on other matters;
(b) the price of the Offered ADSs set forth in this Agreement
was established by the Company and the Selling Shareholders following
discussions and arms-length negotiations with the Representatives, and
the Company and the Selling Shareholders are capable of evaluating and
understanding and understand and accept the terms, risks and conditions
of the transactions contemplated by this Agreement;
(c) the Company and the Selling Shareholders have been advised
that the Representatives and their respective affiliates are engaged in
a broad range of transactions which may involve interests that differ
from those of the Company or the Selling Shareholders and that the
Representatives have no obligation to disclose such interests and
transactions to the Company or the Selling Shareholders by virtue of
any fiduciary, advisory or agency relationship; and
(d) the Company and the Selling Shareholders waive, to the
fullest extent permitted by law, any claims they may have against the
Representatives for breach of fiduciary duty or alleged breach of
fiduciary duty and agrees that the Representatives shall have no
liability (whether direct or indirect) to the Company or the Selling
Shareholders in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the
Company, including shareholders, employees or creditors of the Company.
20. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
The Company and each Selling Shareholder hereby submit to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. The Company
and each Selling Shareholder irrevocably appoint CT Corporation System, as its
authorized agent in the Borough of Manhattan in The City of New York upon which
process may be served in any such suit or proceeding, and agrees that service of
process upon such agent, and written notice of said service to the Company or
the Selling Shareholder by the person serving the same to the address provided
in Section 13, shall be deemed in every respect effective service of process
upon the Company or the Selling Shareholder
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
39
in any such suit or proceeding. The Company and each Selling Shareholder further
agree to take any and all action as may be necessary to maintain such
designation and appointment of such agent in full force and effect for a period
of seven years from the date of this Agreement.
The obligation of the Company or any Selling Shareholder in respect of
any sum due to any Underwriter shall, notwithstanding any judgment in a currency
other than United States dollars, not be discharged until the first business
day, following receipt by such Underwriter of any sum adjudged to be so due in
such other currency, on which (and only to the extent that) such Underwriter may
in accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the
sum originally due to such Underwriter hereunder, the Company and such Selling
Shareholder agree, as a separate obligation and notwithstanding any such
judgment, to indemnify such Underwriter against such loss. If the United States
dollars so purchased are greater than the sum originally due to such Underwriter
hereunder, such Underwriter agrees to pay to the Company or such Selling
Shareholder an amount equal to the excess of the dollars so purchased over the
sum originally due to such Underwriter hereunder.
21. Foreign Taxes. All payments made by the Company under this
Agreement, if any, will be made without withholding or deduction for or on
account of any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of the Cayman
Islands or any political subdivision or any taxing authority thereof or therein
unless the Company is or becomes required by law to withhold or deduct such
taxes, duties, assessments or other governmental charges. In such event, the
Company will pay such additional amounts as will result, after such withholding
or deduction, in the receipt by each Underwriter and each person controlling any
Underwriter, as the case may be, of the amounts that would otherwise have been
receivable in respect thereof, except to the extent such taxes, duties,
assessments or other governmental charges are imposed or levied by reason of
such Underwriter's or controlling person's being connected with the Cayman
Islands other than by reason of its being an Underwriter or a person controlling
any Underwriter under this Agreement.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
Suntech Power Holdings Co., Ltd.
Underwriting Agreement
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Company, the Selling Shareholders and the several Underwriters in accordance
with its terms.
Very truly yours,
SUNTECH POWER HOLDINGS CO., LTD.
By:
-----------------------------------------
Name:
Title:
▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇
--------------------------------------------
--------------------------------------------
Name:
Title:
Attorney-in-fact for and on behalf of
the Selling Shareholders
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By:
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO UNDERWRITING AGREEMENT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO., INTERNATIONAL LIMITED
By:
------------------------------------
Name:
Title:
Acting severally on behalf of themselves and the
several Underwriters named in
Schedule B attached hereto.
SIGNATURE PAGE TO UNDERWRITING AGREEMENT
SCHEDULE A
SELLING SHAREHOLDERS
NUMBER OF
NUMBER OF OPTIONAL
FIRM ADSs ADSs
SELLING SHAREHOLDER TO BE SOLD TO BE SOLD
------------------- ------------- -------------
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇/D&M Technologies Limited .............. 363,655 1,136,345
Million Power Finance Ltd. ............................. 350,000 --
Win ▇▇▇▇ Finance Limited ............................... 350,000 --
Xianfeng Yin ........................................... 196,000 --
DragonTech Energy Investment Limited ................... 1,100,000 --
Actis China Investment Holdings No. 4 Ltd. ............. 1,083,345 --
Financiere Natexis Singapore 3 Pte. Ltd. ............... 494,000 --
Bestmanage Consultants Ltd. ............................ 1,083,000 --
Prax Capital Fund 1, LP ................................ 800,000 --
Financiere 1 Ltd. ...................................... 317,000 --
Financiere 2 Ltd. ...................................... 143,000 --
------------- -------------
Total .................................................. 6,380,000 1,136,345
============= =============
S-A-1
SCHEDULE B
UNDERWRITERS
NUMBER OF
FIRM ADSs
UNDERWRITER TO BE PURCHASED
----------- ---------------
Credit Suisse First Boston LLC..................................
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited......................
▇▇ ▇▇▇▇▇ & Co., LLC.............................................
CLSA Limited ...................................................
------------
Total................................ 26,380,000
============
S-B-1
SCHEDULE C
LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP
DIRECTORS AND EXECUTIVE OFFICERS:
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
Jingjia Ji
▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇ Qiu
SELLING SHAREHOLDERS:
D&M Technologies Limited
Million Power Finance Ltd.
Win ▇▇▇▇ Finance Limited
Xianfeng Yin
DragonTech Energy Investment Limited
Actis China Investment Holdings No. 4 Ltd.
Financiere Natexis Singapore 3 Pte. Ltd
Bestmanage Consultants Ltd.
Prax Capital Fund 1, LP
Financiere 1 Ltd.
Financiere 2 Ltd.
NON-SELLING SHAREHOLDERS:
Tiptop Bright Limited
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia) Finance
S-C-1
SCHEDULE D
GENERAL USE ISSUER FREE WRITING PROSPECTUS
1. The pricing supplement as set forth below (the "PRICING SHEET").
[INSERT PRICING SHEET]
S-D-1
SCHEDULE E
LIMITED USE ISSUER FREE WRITING PROSPECTUSES
1. The electronic roadshow recording relating to the Offered ADSs
posted on the Company's website at ▇▇▇.▇▇▇▇▇▇▇-▇▇▇▇▇.▇▇▇ and on the website
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇.
S-E-1
SCHEDULE F
LIST OF MATERIAL CONTRACTS
o Share Purchase Agreement, dated as of April 29, 2005, among Power Solar
System Co., Ltd., ▇▇▇▇▇▇▇▇▇ ▇▇▇, Power Solar System Pty. Ltd., Eucken
Capital Limited, Wuxi Suntech Power Co., Ltd., ▇▇▇▇▇▇▇ ▇▇▇▇▇ (Asia)
Finance, DragonTech Energy Investment Limited, Actis China Investment
Holdings ▇▇. ▇ ▇▇▇., ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇ Pte. Ltd.,
Bestmanage Consultants Ltd., Prax Capital Fund 1, LP.
o Sale and Purchase Agreement in relation to the entire issued share
capital of Power Solar System Co., Ltd. dated as of August 29, 2005
among the Company and other parties therein
o Agreement for the Transfer and Assumption of Obligations under the
Share Purchase Agreement and the Right of first Refusal and Co-Sale
Agreement dates as of August 29, 2005 among the Company and other
parties therein
o Long-term Loan Agreement between Wuxi Suntech Solar Power Company
Limited and Industrial and Commercial Bank of China, Wuxi Branch dated
March 31, 2005.
o RMB Loan Agreement (Short-term) between Wuxi Suntech Solar Power
Company Limited and Bank of China, New & Hi-tech Industrial Development
Zone Wuxi Branch dated April 30, 2005.
o Foreign Currency Loan Agreement between Wuxi Suntech Solar Power
Company Limited and Bank of China, New & Hi-tech Industrial Development
Zone Wuxi Branch dated January 31, 2005.
S-F-1
EXHIBIT A
FORM OF LOCK-UP AGREEMENT
CREDIT SUISSE FIRST BOSTON LLC
Eleven Madison Avenue
New York, NY 10010-3629
U.S.A.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
As Representatives of the several Underwriters named in
Schedule B attached to the Underwriting Agreement
[DATE], 2005
Ladies and Gentlemen:
This Lock-Up Agreement is being delivered to you in connection with the
proposed Underwriting Agreement (the "UNDERWRITING AGREEMENT") to be entered
into by Suntech Power Holdings Co., Ltd. (the "COMPANY") and you, as
Representatives of the several Underwriters named therein, with respect to the
public offering (the "OFFERING") of American depositary shares (the "ADSs"),
each representing one ordinary share, par value US$0.01 per share, of the
Company (the "ORDINARY SHARES").
In order to induce you to enter into the Underwriting Agreement, the
undersigned agrees that during the Lock-Up Period (as described below) not to
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend or otherwise transfer or dispose of, directly or
indirectly, any Ordinary Shares or ADSs or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or ADSs or enter into a
transaction which would have the same effect or (ii) enter into any swap, hedge,
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Ordinary Shares or ADSs, whether any
such aforementioned transaction is to be settled by delivery of Ordinary Shares,
ADSs or such other securities, in cash or otherwise or (iii) publicly disclose
the intention to make any such offer, sale, pledge, or disposition, or enter
into any such transaction, swap, hedge, or other arrangement, without, in each
case as mentioned in (i), (ii) and (iii) above, the prior written consent of the
Representatives, except (A) the Ordinary Shares in the form of ADSs to be sold
by the Selling Shareholder hereunder or (B) the automatic conversion of the
Series A Preferred Shares upon the consummation of a qualified initial public
offering. The initial Lock-Up Period will commence on the date of the final
Prospectus covering the Offering (the "PROSPECTUS") and will continue and
include the date 180 days after the date of the Prospectus or such earlier date
that the Representatives consent to in writing; provided, however, that if (1)
during the last 17 days of the initial Lock-Up Period, the Company releases
earnings results or material news or a material event relating to the Company
occurs or (2) prior to the
A-1
expiration of the initial Lock-up Period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of
the initial Lock-Up Period, then in each case the Lock-Up Period will be
extended until the expiration of the 18 day period beginning on the date of
release of the earnings results or the occurrence of the material news or
material event, as applicable, unless the Representatives waive, in writing,
such extension.
This Lock-up Agreement shall automatically terminate if the
Underwriting Agreement is not executed on or prior to January 31, 2006.
Very truly yours,
------------------------
(Name)
------------------------
(Address)
A-2
EXHIBIT B
FORM OF COMFORT LETTER
(i) in their opinion the financial statements and schedules examined by
them and included in the Registration Statement comply as to form in all
material respects with the applicable accounting requirements of the Act and the
related rules and regulations adopted by the SEC;
(ii) they have performed the procedures specified by the PCAOB for a
review of interim financial information as described in Statement of Auditing
Standards No. 100, Interim Financial Information, on the unaudited consolidated
financial statements included in the Registration Statement;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the Company,
inquiries of officials of the Company who have responsibility for financial and
accounting matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) any material modifications should be made to the
unaudited consolidated financial statements included
in the Registration Statement for them to be in
conformity with accounting principles generally
accepted in the United States of America;
(B) the audited consolidated financial statements
included in the Registration Statement do not comply
as to form in all material respects with the
applicable accounting requirements of the Act and the
related rules and regulations adopted by the SEC;
(C) at [November 30], 2005, there was any change in the
capital stock, increase in long-term debt, or
decrease in consolidated net current assets or
increase in shareholders' deficit of the consolidated
companies as compared with amounts shown in the
September 30, 2005, unaudited consolidated balance
sheet included in the Registration Statement;
(D) for the period from October 1, 2005 to [November 30,
2005], there were any decreases, as compared to the
corresponding period in the preceding year, in
consolidated net sales or in the total or per-share
amounts of income before extraordinary items or of
net income, except in all instances for changes
increases, or decreases that the Registration
Statement discloses have occurred or may occur;
(E) at the date of the latest available balance sheet
read by such accountants, or at a subsequent
specified date not more than three business days
prior to the date of this Agreement, there was any
change in the capital stock, increase in long-term
debt or any decrease in consolidated net current
assets or increase in shareholders' deficit of the
consolidated companies as compared with amounts shown
on the September 30, 2005 unaudited consolidated
balance sheet included in the Registration Statement;
or
(F) for the period from October 1, 2005 to December
[ o ], 2005, there were any decreases, as compared
with the corresponding period in the preceding year,
in
B-1
consolidated net sales or in the total or per-share
amounts of income before extraordinary items or of
net income. On the basis of certain inquires and
their reading of minutes, nothing came to their
attention that caused them to believe that there was
any such change, increase or decrease, except in all
instances for changes, increases or decrease that the
Registration Statement discloses have occurred or may
occur.
(G) they have read certain items in the Registration
Statement and any issuer free writing prospectus
filed by the Company with the SEC as part of the
Registration Statement, and have performed the
procedures with respect to the symbols as listed in
the attachment to the comfort letter.
B-2
EXHIBIT C
FORM OF LEGAL OPINION FOR U.S. COUNSEL TO COMPANY
(i) The Underwriting Agreement has been duly executed and delivered by
the Company in accordance with the laws of the State of New York.
(ii) The Deposit Agreement has been duly executed and delivered by the
Company in accordance with the laws of the State of New York and is the legally
valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms.
(iii) Upon due execution and delivery by the Depositary of ADRs
evidencing ADSs against the deposit of Ordinary Shares in respect thereof in
accordance with the terms of the Deposit Agreement and payment therefor in
accordance with the terms of the Underwriting Agreement, such ADRs will be duly
and validly issued and will entitle the holders thereof to the rights specified
therein and in the Deposit Agreement.
(iv) The execution and delivery of the Underwriting Agreement and the
Deposit Agreement by the Company do not, and the deposit of the Ordinary Shares
with the Depositary by the Company against issuance of the ADRs evidencing the
ADSs and the sale of ADSs by the Company to you and other underwriters pursuant
to the Underwriting Agreement do not:
(a) result in the breach of or default under any of the
Material Agreements that are expressly governed by New York law; or
(b) violate any United States federal or New York statute,
rule or regulation applicable to the Company; or
(c) require any consents, approvals, or authorizations to be
obtained by the Company from, or any registrations, declarations or
filings to be made by the Company with, any governmental authority
under any United States federal or New York statute, rule or regulation
applicable to the Company on or prior to the date hereof that have not
been obtained or made.
(v) The F-1 Registration Statement and the F-6 Registration Statement
have become effective under the Act. To the best of such counsel's knowledge, no
stop order suspending the effectiveness of the F-1 Registration Statement and
the F-6 Registration Statement has been issued under the Act and no proceedings
have been initiated by the Commission for the issuance of such stop order. Any
required filing of the Prospectus pursuant to Rule 424 under the Act has been
made in accordance with Rule 424 under the Act.
(vi) Except as set forth in paragraph (viii), which matters are not
addressed in this paragraph 6, the F-1 Registration Statement, as of the date it
was declared effective, and the Prospectus, as of its date appeared on their
face to be appropriately responsive in all material respects to the requirements
for a registration statement on Form F-1 under the Act and the rules and
regulations of the Commission thereunder; it being understood, however, that
such counsel expresses no opinion with respect to Regulation S-T or the
financial statements, schedules or other financial data, included in, or omitted
from, the F-1 Registration Statement or the Prospectus; and the F-6 Registration
Statement, as of the
C-1
date it became effective, appeared on its face to be appropriately responsive in
all material respects to the requirements for a registration statement on Form
F-6 under the Act and the rules and regulations of the Commission thereunder.
For purposes of this paragraph, such counsel has assumed that the statements
made in the F-1 Registration Statement, the F-6 Registration Statement and the
Prospectus are correct and complete.
(vii) The statements in the Prospectus under the caption "Description
of American Depositary Shares," insofar as they purport to constitute a summary
of the terms of the ADSs and to describe or summarize certain provisions of the
Deposit Agreement, and under the caption "Shares Eligible for Future Sale,"
insofar as they purport to describe or summarize certain provisions of the
agreements, statutes or regulations referred to therein, are accurate
descriptions or summaries in all material respects.
(viii) To the best of such counsel's knowledge, there are no contracts
or documents of a character required to be described in the F-1 Registration
Statement or the Prospectus or to be filed as exhibits to the F-1 Registration
Statement that are not described or filed.
(ix) The Company is not, and immediately after giving effect to the
sale of the Ordinary Shares represented by ADSs in accordance with the
Underwriting Agreement and the application of the proceeds as described in the
Prospectus under the caption "Use of Proceeds," will not be required to be
registered as an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
(x) Pursuant to Section 20 of the Underwriting Agreement and Sections
7.6 and 7.8 of the Deposit Agreement, under the laws of the State of New York
the Company has validly (i) chosen New York law to govern its rights and duties
under the Underwriting Agreement and the Deposit Agreement, (ii) submitted to
the personal jurisdiction of the state or federal courts located in The City of
New York in connection with any action or proceeding arising out of or related
to the Underwriting Agreement or the Deposit Agreement, (iii) to the extent
permitted by law, waived any objection to the venue of a proceeding in any such
court with respect to the Underwriting Agreement and (iv) appointed CT
Corporation System as its initial authorized agent for the purpose described in
Section 20 of the Underwriting Agreement and Section 7.8 of the Deposit
Agreement. Service of process in the manner described in Section 20 of the
Underwriting Agreement and Section 7.8 of the Deposit Agreement will be
effective to confer valid personal jurisdiction over the Company in connection
with an action or proceeding arising out of or related to the Underwriting
Agreement or the Deposit Agreement in any such court.
(xi) Upon indication by book entry that the ADSs have been credited to
a securities account maintained by the Representatives at the Depository Trust
Company ("DTC") and payment therefor in accordance with the Underwriting
Agreement, the Representatives will acquire a securities entitlement on behalf
of the several Underwriters with respect to the ADSs and, under the Uniform
Commercial Code as in effect on the date hereof in the State of New York (the
"NY UCC"), an action based on an adverse claim to such securities entitlement,
whether framed in conversion, replevin, constructive trust, equitable lien or
other theory, may not be asserted against the Representatives.
In addition, such counsel shall state that, in the course of acting as
counsel to the Company and the Selling Shareholders in connection with the
preparation by the Company of the Registration Statements, the Preliminary
Prospectus (as defined in such counsel's opinion), the Pricing Information Annex
(as defined in such counsel's opinion) and the Prospectus, such counsel reviewed
the Registration Statements, the Preliminary Prospectus, the Pricing Information
Annex and the Prospectus, and participated
C-2
in conferences and telephone conversations with officers and other
representatives of the Company, the independent public accountants for the
Company, the Underwriters, and the Underwriters' and the Selling Shareholders'
counsels, during which conferences and conversations the contents of the
Registration Statements, the Preliminary Prospectus, the Pricing Information
Annex and the Prospectus, and related matters were discussed. Such counsel also
reviewed and relied upon certain corporate records and documents, letters from
counsel and accountants and oral and written statements of officers and other
representatives of the Company and others as to the existence and consequence of
certain factual and other matters. Based on such counsel's participation, review
and reliance as described above, such counsel advises that no facts came to its
attention that caused such counsel to believe that either of the Registration
Statements, at the time they 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; or the
Preliminary Prospectus as of [the Specified Time], when taken together with the
Pricing Information Annex, contained an untrue statement of a material fact or
omitted 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
the Prospectus, as of its date or as of the Closing Date contained or contains
an untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; it being understood that such
counsel expresses no belief with respect to the financial statements, schedules,
or other financial data included in, or omitted from, the Registration
Statements, the Preliminary Prospectus, the Pricing Information Annex or the
Prospectus.
C-3
EXHIBIT D
FORM OF LEGAL OPINION FOR CAYMAN ISLANDS COUNSEL TO COMPANY
(i) The Company has been duly incorporated as an exempted company with
limited liability for an unlimited duration and is validly existing under the
laws of the Cayman Islands, with full corporate power and authority to own its
property and assets and to carry on its business in accordance with the
Company's Memorandum and Articles of Association and as described in the General
Disclosure Package as of the Applicable Time, and to execute, deliver and
perform its obligations under this Agreement, the Deposit Agreement and the
Registration Statements.
(ii) The Company is in good standing with the Registrar of Companies in
the Cayman Islands.
(iii) The Company has the authorized and issued share capital as set
forth under the caption "Actual" in the Section headed "Capitalization" in the
General Disclosure Package as of the Applicable Time, and, immediately after (A)
the automatic conversion of all of the Company's outstanding Series A Preferred
Shares as described therein and (B) the issuance and sale of the Firm ADSs, the
Company will have the authorized and issued share capital as set forth under the
caption "Pro Forma" therein. All of the issued share capital of the Company
(including the Ordinary Shares (i) issued and delivered in accordance with the
terms of this Agreement and the Deposit Agreement (together, the "AGREEMENTS")
and (ii) resulting from the automatic conversion of Series A Preferred Shares as
described in the General Disclosure Package as of the Applicable Time) have been
or will be duly and validly authorized and issued, as fully paid and
non-assessable, conform with the laws of the Cayman Islands, following
conversion are free from any restriction on voting or transfer under the laws of
the Cayman Islands and the Company's Memorandum and Articles of Association, are
not subject to any pre-emptive or similar rights under Cayman Islands law or the
Company's Memorandum and Articles of Association, conform to the description
thereof contained in the General Disclosure Package as of the Applicable Time
and will be registered in the Company's register of members. When allotted,
issued and paid for and registered in the register of members (shareholders),
shares are considered to be legally issued and allotted, fully paid and
non-assessable.
(iv) The execution and delivery of each Agreement by the Company and
the performance of its obligations thereunder, the Registration Statements, the
issuance and sale of the Ordinary Shares and the filing of the Registration
Statements, the General Disclosure Package as of the Applicable Time and the
Prospectus have been duly authorized and approved by all necessary corporate
action of the Company, and the execution and delivery of each Agreement by the
Company and the performance of its obligations thereunder do not violate,
conflict with or result in a breach of any of the terms or provisions of the
Company's Memorandum and Articles of Association or any law, public rule or
regulation applicable to the Company in the Cayman Islands currently in force
and do not violate, conflict with or result in a breach of any existing order or
decree of any governmental authority or agency or any official body in the
Cayman Islands.
(v) Each Agreement has been duly executed and delivered for and on
behalf of the Company and constitute legal, valid and binding obligations of the
Company enforceable in the Cayman Islands in accordance with its terms except
and in so far as such enforcement may be limited as hereinafter set forth.
D-1
(vi) The Registration Statements have been duly executed by and on
behalf of the Company.
(vii) No authorizations, consents, orders, permissions or approvals are
required from any governmental or judicial authorities or agencies or other
official bodies in the Cayman Islands and no notice to or other filing with or
action by any Cayman Islands governmental authority, judicial or regulatory body
is required in connection with:
(1) the execution and delivery of this Agreement and the
Deposit Agreement;
(2) the performance of any obligation under this Agreement and
the Deposit Agreement; and
(3) the payment of any amount under this Agreement and the
Deposit Agreement.
(viii) It is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of any Agreement that any document
be filed, recorded or enrolled with any governmental department, agency or other
authority in the Cayman Islands.
(ix) The statements in the General Disclosure Package as of the
Applicable Time under "Risk Factors", "Dividend Policy", "Management's
Discussion and Analysis of Financial and Results of Operations", "Enforceability
of Civil Liabilities", "Description of Share Capital" and "Taxation - Cayman
Islands Taxation" and the statements in the Registration Statement under Item 6,
insofar as such statements constitute summaries of the legal matters, documents
or proceedings referred to therein, in each case to the extent, and only to the
extent, governed by the laws of the Cayman Islands, fairly present the
information and summarize the matters referred to therein.
(x) No stamp duties or other similar taxes or charges are payable under
the laws of the Cayman Islands, or which under the present laws of the Cayman
Islands could in the future become imposed, in respect of:
(1) the execution or delivery of this Agreement and the
Deposit Agreement or the performance by any of the parties of their
respective obligations or enforcement of this Agreement or the Deposit
Agreement unless they are executed in or thereafter brought within the
jurisdiction of the Cayman Islands (e.g. for the purposes of
enforcement) in which case stamp duty of CI$2.00 (US$2.44) for each of
this Agreement and the Deposit Agreement will be payable; or
(2) the issuance and sale of the Ordinary Shares by the
Company pursuant to the terms of this Agreement; or
(3) the entering of the Custodian as the registered holder of
the Ordinary Shares; or
(4) the issue to and deposit with the Custodian on behalf of
the Depositary of the Shares against the issuance of ADSs for the
account of the Underwriters; or
(5) the sale and delivery outside of the Cayman Islands by the
Underwriters of the Offered ADSs to the initial purchasers thereof.
(xi) There are currently no taxes or other charges or deductions
payable (by withholding or otherwise) to the Cayman Islands government or any
taxing authority thereof on or by virtue of:
D-2
(1) the execution, delivery, performance or enforcement of
each Agreement;
(2) any payment of any nature to be made by the Company under
each Agreement;
(3) the issuance and sale of the Ordinary Shares by the
Company; or
(4) the payment of dividends and other distributions declared
and payable on the Ordinary Shares, and the payment of such dividends
and other distributions by the Depository or its nominee to holders of
Offered ADSs pursuant to the Deposit Agreement.
(xii) The Cayman Islands currently have no income, corporate or capital
gains tax and no estate duty, inheritance tax or gift tax.
(xiii) The Company can ▇▇▇ and be sued in its own name under the laws
of the Cayman Islands. The choice of the laws of New York to govern each
Agreement will be upheld as a valid choice of law under the laws of the Cayman
Islands and the courts of the Cayman Islands would uphold such choice of law in
a suit on any of the Agreements brought in the courts of the Cayman Islands,
assuming it is so pleaded. An action against the Company in the Cayman Islands
under any of the Agreements could be instituted in the Grand Court, which has
jurisdiction over the Company, without first having to obtain a judgment in
respect of the Agreements in a court of New York or any other relevant
jurisdiction. In the event of any proceedings being brought in the Cayman
Islands courts in respect of a monetary obligation expressed to be payable in a
currency other than Cayman Islands dollars, a Cayman Islands court would give
judgment expressed as an order to pay such currency or its Cayman Islands dollar
equivalent at the time of payment or enforcement of the judgment.
(xiv) The submission to the jurisdiction of the U.S. federal or state
courts sitting in the Borough of Manhattan in The City of New York, the
appointment of CT Corporation System to accept service of process in such
jurisdiction and the waiver by the Company of any objection to the venue of a
proceeding in a New York court, pursuant to the Agreements, is legal, valid and
binding on the Company.
(xv) No approvals are currently required from any governmental
department, agency or other authority in the Cayman Islands in order for the
Company to pay dividends declared by the Company to the holders of Ordinary
Shares, including the Depositary.
(xvi) Although there is no statutory enforcement in the Cayman Islands
of judgments obtained in New York, the courts of the Cayman Islands will
recognize and enforce a judgment of a foreign court of competent jurisdiction in
respect of any legal suit or proceeding arising out of or relating to any of the
Agreements without retrial on the merits based on the principle that a judgment
of a competent foreign court imposes upon the judgment debtor an obligation to
pay the sum for which judgment has been given provided that such judgment is
final and conclusive, for a liquidated sum, not in respect of taxes or a fine or
penalty, is not inconsistent with a Cayman Islands judgment in respect of the
same matter, and was not obtained in a manner and is not of a kind the
enforcement of which is contrary to the public policy of the Cayman Islands. A
Cayman Islands court may stay proceedings if concurrent proceedings are being
brought elsewhere. A foreign judgment may be final and conclusive even if
subject to appeal. However, if appealable, a Cayman Islands court may stay
enforcement until such appeal has been heard.
(xvii) Based solely on such counsel's inspection of the Register of
Writs and Other Originating process in the Grand Court of the Cayman Islands
from the date of incorporation of the Company, there
D-3
were no actions or petitions pending against the Company in the courts of the
Cayman Islands as at close of business in the Cayman Islands on [ o ], 2005. A
search at the Companies Registry in the Cayman Islands would not reveal any
order or resolution for the winding up of the Company because under Cayman
Islands law the records kept by the Registrar of Companies are not documents of
public record. The enquiries referred to above which such counsel has made at
the Grand Court of the Cayman Islands have revealed no record of the
presentation of any winding up petition in respect of the Company. Such counsel
assumes that there has been no change in this position since the date on which
the enquiries were made.
(xviii) There is no exchange control legislation under Cayman Islands
law and accordingly there are no exchange control regulations imposed under
Cayman Islands law.
(xix) The Company is not entitled to any immunity under the laws of the
Cayman Islands whether characterized as sovereign immunity or otherwise for any
legal proceedings in the Cayman Islands to enforce or to collect upon the
Agreements, and the Company is subject to civil and commercial law with respect
to its obligations under this Agreement and the Deposit Agreement, which
obligations constitute private and commercial acts rather than governmental or
public acts.
(xx) So far as the law of the Cayman Islands is concerned, each
Agreement is in proper form under the laws of the Cayman Islands for the
enforcement thereof against the Company, subject in so far as such enforcement
may be limited as more particularly set forth below.
(xxi) Such counsel has reviewed the register of members of the Company.
As of the date hereof there are no entries or notations indicating any third
party interests, including any security interest, on the register of members of
the Company.
(xxii) The Underwriters will not be treated as resident, domiciled or
carrying on or transacting business or subject to taxation in the Cayman Islands
or in violation of any law thereof solely by reason of the negotiation,
preparation, execution or delivery of this Agreement or the entering into of,
the exercise of their rights, the performance of their obligations under or the
enforcement of this Agreement.
(xxiii) The Underwriters will not be required to be licensed, qualified
or otherwise entitled to carry on business in the Cayman Islands in order to
enforce their rights under, or as a consequence of the execution, delivery and
performance of the Agreements.
(xxiv) The summaries of the Memorandum and Articles of Association of
the Company and of relevant Cayman Islands company law contained in the General
Disclosure Package as of the Applicable Time are true, accurate and complete in
the context in which they appear.
(xxv) The form of certificate used to evidence the Ordinary Shares
complies in all material respects with applicable statutory requirements of the
Cayman Islands and the Company's Memorandum and Articles of Association.
(xxvi) There are no restrictions under Cayman Islands law which would
prevent the Company from paying dividends to shareholders in U.S. Dollars or any
other currency, nor is it necessary under the laws of the Cayman Islands that
any of the Agreements or any document relating thereto be registered or recorded
in any public office or elsewhere in the Cayman Islands in order for the Company
to pay dividends to shareholders in U.S. Dollars or any other currency.
D-4
EXHIBIT E
FORM OF LEGAL OPINION FOR BVI COUNSEL TO COMPANY
(i) Suntech BVI is an exempted company duly incorporated, validly
existing and in good standing under British Virgin Islands laws.
(ii) Suntech BVI has full corporate power and authority to own its
property and assets and to carry on its business in accordance with its
Memorandum and Articles of Association and to execute and deliver the Relevant
Contracts and to perform its obligations under the Relevant Contracts.
(iii) Suntech BVI has the authorized and issued share capital as set
forth in the Relevant Contracts. All of the issued share capital of Suntech BVI
have been duly authorized and validly issued, are fully paid and non-assessable,
are registered in Suntech BVI's register of members as fully paid, and are not
subject to any pre-emptive or similar rights or transfer restrictions or liens
under British Virgin Islands law or the Memorandum and Articles of Association.
When allotted, issued and paid for and registered in the register of members as
fully-paid, shares are considered to be legally issued and allotted, fully paid
and non-assessable.
(iv) The Relevant Contracts have been duly authorized and executed and,
when delivered by Suntech BVI and its shareholders, will constitute the legal,
valid and binding obligations of Suntech BVI and its shareholders, respectively,
enforceable in accordance with their respective terms.
(v) So far as the British Virgin Islands law is concerned, the Relevant
Contracts are each in proper form under British Virgin Islands laws for the
enforcement thereof against Suntech BVI and/or the shareholders, respectively.
(vi) The execution, delivery and performance of the Relevant Contracts
and the consummation of the transactions contemplated under the Relevant
Contracts, and the compliance by Suntech BVI with the terms and provisions
thereof do not (i) contravene any law, public rule or regulation of the British
Virgin Islands applicable to Suntech BVI and/or its shareholders; or (ii)
contravene the Memorandum and Articles of Association of Suntech BVI.
(vii) Neither the execution, delivery or performance of any of the
Relevant Contracts nor the consummation or performance of any of the
transactions contemplated thereby by Suntech BVI and/or its shareholders
requires the consent or approval of, the giving of notice to, or the
registration with, or the taking of any other action in respect of any British
Virgin Islands governmental or judicial authority or agency.
(viii) Based solely on such counsel's inspection of the High Court
Registry from the date of incorporation of Suntech BVI there were no actions or
petitions pending against Suntech BVI in the High Court of the British Virgin
Islands as at close of business in the British Virgin Islands on [ ] December
2005.
(ix) On the basis of such counsel's searches conducted at the Registry
of Corporate Affairs and at the High Court Registry, no currently valid order or
resolution for the winding-up of Suntech BVI and no current notice of
appointment of a receiver over Suntech BVI, or any of its assets, appears on the
records maintained in respect of Suntech BVI. It should however be noted that it
is not a requirement
E-1
that notice of appointment of a receiver be registered with the Registry of
Corporate Affairs or the High Court Registry or any other public body in the
British Virgin Islands.
E-2
EXHIBIT F
FORM OF LEGAL OPINION FOR PRC COUNSEL TO COMPANY
(i) Wuxi Suntech Power Co., Ltd. ("SUNTECH CHINA") has been duly
organized and is validly existing as a wholly-foreign owned enterprise with
limited liability, with full legal person status and in good standing under the
Laws of the PRC and its business license is in full force and effect; Suntech
China has been duly qualified as a foreign invested enterprise; 100% of the
equity interest of Suntech is owned directly or beneficially by Power Solar
System Co., Ltd. ("POWER SOLAR"), an exempted company incorporated in British
Virgin Island, whose 100% equity interest is directly owned by the Company. To
the best of such counsel's knowledge after due inquiry, such equity interest is
free and clear of all liens, encumbrances, equities or claims; the Articles of
Association of Suntech China dated June 1st, 2005, the business license and
other constituent documents of Suntech China comply with the requirements of
applicable PRC law and are in full force and effect.
(ii) Suntech China has full legal right, power and authority (corporate
and other) to own, use, lease and operate its assets and to conduct its business
in the manner presently conducted and as described in the General Disclosure
Package as of the Applicable Time and is duly qualified to transact business and
is in good standing in each jurisdiction in which it owns or uses or leases
properties, conducts any business or in which such qualification is required.
Except as disclosed in the General Disclosure Package as of the Applicable Time,
Suntech China has all necessary licenses, consents, authorizations, approvals,
orders, certificates and permits of and from, and has made all declarations and
filings (collectively, "Governmental Authorizations") with any governmental or
regulatory agency or any court in the PRC ("Governmental Agencies") to own,
lease, license and use its properties, assets and conduct its business in the
manner described in the General Disclosure Package as of the Applicable Time and
such licenses, consents, authorizations, approvals, orders, certificates or
permits contain no materially burdensome restrictions or conditions not
described in the General Disclosure Package as of the Applicable Time. Except as
described in the General Disclosure Package as of the Applicable Time, Suntech
China has no reason to believe that any regulatory body is considering
modifying, suspending or revoking any such licenses, consents, authorizations,
approvals, orders, certificates or permits. Further, Suntech is in compliance
with the provisions of all such licenses, consents, authorizations, approvals,
orders, certificates or permits in all material respects.
(iii) The entering into, and the consummation of the transactions
contemplated in the relevant documents in connection with the restructuring as
described in the Registration Statement and the General Disclosure Package as of
the Applicable Time constitute legal, valid and binding obligations of all the
parties therein, enforceable against all the parties therein, in accordance with
their terms; all necessary steps for transactions contemplated in the
restructuring documents have being taken and all consents required from
respective parties have been obtained and are in full force and effect; all
governmental approvals, consents, registrations, filings and all necessary steps
required in the PRC for the transactions contemplated in the restructuring
documents have been obtained, made and taken and are in full force and effect.
(iv) All of the equity interests in Suntech China have been duly
authorized and validly issued, are fully paid and non-assessable and are legally
owned by the Company through Power Solar, free and clear of all liens, charges,
restrictions upon voting or transfer or any other encumbrances, equities or
claims; Suntech China has obtained all approvals, authorizations, consents and
orders, and has made all filings, which are required under PRC law and
regulations for the ownership interest by the Company of
F-1
its equity interest in Suntech China through Power Solar; 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 Suntech
China.
(v) The application of the net proceeds to be received by the Company
from the Offering as contemplated by the General Disclosure Package as of the
Applicable Time, will not contravene any provision of applicable PRC law, rule
or regulation, or the Articles of Association, other constitutive documents or
the business license or other constitutive documents of Suntech China or
contravene the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument binding upon Suntech China, or any judgment, order or
decree of any Governmental Agency in the PRC.
(vi) Suntech China has valid title to all of its properties and assets,
in each case, free and clear of all liens, charges, encumbrances, equities,
claims, defects, options or restrictions; each lease agreement to which Suntech
China is a party is legally executed; the leasehold interests of Suntech China
are fully protected by the terms of the lease agreements, which are valid,
binding and enforceable in accordance with their respective terms under PRC law;
and, to the best of such counsel's knowledge, neither the Company nor Suntech
China owns, operates, manages or has any other right or interest in any other
material real property of any kind, except as described in the General
Disclosure Package as of the Applicable Time.
(vii) There are no outstanding guarantees or contingent payment
obligations of Suntech China in respect of indebtedness of third parties except
as disclosed in the General Disclosure Package as of the Applicable Time.
(viii) To the best of such counsel's knowledge, neither Suntech China,
the Company nor any of its subsidiaries is in breach or violation of or in
default, as the case may be, under (A) its Articles of Association, business
licenses or any other constituent documents, (B) any material obligation,
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness governed by PRC laws, (C) any material obligation,
license, lease, contract or other agreement or instrument governed by PRC laws
to which the Company or any of the subsidiaries is a party or by which any of
them or any of their respective properties may be bound or affected, or (D) any
law, regulation or rule of the PRC, or any decree, judgment or order of any
court in the PRC, applicable to the Company or any of the subsidiaries (nor has
any event occurred which with notice, lapse of time, or both would result in any
breach of, or constitute a default under or give the holder of any indebtedness
(or a person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a part of such indebtedness
under).
(ix) There are no legal, governmental, administrative or arbitrative
proceedings before any court of the PRC or before or by any Governmental Agency
pending or, to the best of such counsel's knowledge, threatened against, or
involving the properties or business of, the Company or Suntech China or to
which any of the properties of the Company or Suntech China is subject which
will have a Material Adverse Effect.
(x) Except as disclosed in the Registration Statement, the General
Disclosure Package as of the Applicable Time and the Prospectus, all dividends
and other distributions declared and payable on the Company's equity interest in
Suntech China in Renminbi may under the current laws and regulations of PRC be
payable in foreign currency and may be freely transferred out of the PRC, and
all such dividends will not be subject to withholding or other taxes under the
laws and regulations of PRC and are otherwise
F-2
free and clear of any other tax, withholding or deduction in the PRC and may be
paid without the necessity of obtaining any Government Authorization from any
Governmental Agency in the PRC.
(xi) All matters of PRC law and practice relating to the Company,
Suntech China and their respective businesses and other statements with respect
to or involving PRC law set forth in the General Disclosure Package as of the
Applicable Time are correctly set forth therein, and nothing has been omitted
from such statements which would make the same misleading in any material
respect.
(xii) Each of the material contracts listed in Schedule F attached to
the Underwriting Agreement (the "MATERIAL CONTRACTS") has been duly authorized,
executed and delivered by Suntech China, to the extent applicable, has taken all
necessary corporate actions to authorize the performance thereof; Suntech China
had the corporate power and capacity to enter into and to perform its
obligations under such Material Contract; each of the Material Contracts to
which the Company or Suntech China is a party constitutes a legal, valid and
binding obligation of the Company or Suntech China, as the case may be,
enforceable against the Company or Suntech China, as the case may be, in
accordance with its terms; if applicable, such Material Contract has been
properly transferred, amended or assigned such that the Company is the obligor
and beneficiary under such Material Contract; such transfers, amendments or
assignments were duly authorized, executed and delivered by the parties to the
applicable Material Contract; all Governmental Authorizations required in the
PRC for such transfers, amendments and assignments, if applicable, have been
obtained and are in full force and effect; and all necessary steps for such
transfers and assignments have been taken and all consents required from all
counter parties to such contracts have been obtained and are in full force and
effect.
(xiii) Suntech China owns or otherwise has the legal right to use, or
can acquire on reasonable terms, trademarks, service marks and trade names
currently employed by it in connection with the business currently operated by
it; except as described in the General Disclosure Package as of the Applicable
Time, to the best of such counsel's knowledge after due inquiry, Suntech China
has not received any notice of infringement of or conflict with asserted rights
of others with respect to any of the foregoing which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in any Material Adverse Effect;
(xiv) The sections in the General Disclosure Package as of the
Applicable Time that describe the patent rights, inventions, trade secrets,
trademarks, service marks or other proprietary information or materials of the
Company or its subsidiaries in the PRC (the "PRC INTELLECTUAL PROPERTY"), to the
extent that they constitute matters of law, summaries of legal matters or legal
proceedings, or legal conclusions, have been reviewed by such counsel and are
accurate and complete statements or summaries of the matters therein set forth,
fairly represent the matters disclosed therein and do not omit to state a
material fact or facts necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(xv) To the best of such counsel's knowledge after due inquiry, the
patents described in General Disclosure Package as of the Applicable Time (the
"PATENTS") include all issued patents and pending patent applications owned by
Suntech China; Suntech China is the exclusive owner of all right, title and
interest in and to the Patents, and Suntech China has a valid right to use the
Patents as currently used or as currently contemplated to be used by Suntech
China, in each case, as described in the General Disclosure Package as of the
Applicable Time, and nothing would preclude the Company or Suntech China from
having valid license rights or clear title to such Patents; and each such
pending patent is being diligently prosecuted by Suntech China; the Patents have
been duly maintained and are in full force and in effect; and none of the
Patents has been adjudged invalid or unenforceable in whole or in part.
F-3
(xvi) To the best of such counsel's knowledge after due inquiry, there
is no existing PRC patent that would invalidate (A) the claims of any Patent
held by the Company or Suntech China or (B) any pending patent if claims of such
pending patent was issued in substantially the same form as currently written;
and such counsel is not aware of any material fact with respect to the patent
applications of the Company or Suntech China presently on file that (A) would
preclude the issuance of patents with respect to such applications, or (B) would
lead such counsel to conclude that such patents, when issued, would not be valid
and enforceable in accordance with applicable regulations.
(xvii) The Company or Suntech China has a valid right to use the
Intellectual Property Rights currently used or as currently contemplated to be
used by the Company or Suntech China, in each case, as described in the General
Disclosure Package as of the Applicable Time; all such Intellectual Property
Rights have been properly licensed or assigned to the Company or Suntech China,
which assignments are either recorded in and proclaimed by the State
Intellectual Property Office of the People's Republic of China and/or other
relevant PRC intellectual property administrative authority (collectively, the
"PRC INTELLECTUAL PROPERTY AUTHORITY") or have been submitted for recording in
the PRC Intellectual Property Authority, and each of the Company or Suntech
China does not lack the ability or will be unable to obtain any rights or
licenses to use all such Intellectual Property Rights; to the extent that an
Intellectual Property Right was acquired by the Company or Suntech China
pursuant to an assignment, such assignment is valid, binding and enforceable,
and all PRC governmental approvals in respect of such assignment have been
obtained and are in full force and effect, and such counsel has no reason to
believe that such assignment is invalid; the Intellectual Property rights have
been duly maintained and are in full force and in effect; none of the
Intellectual Property Rights has been adjudged invalid or unenforceable in whole
or in part, and such counsel is not aware of any facts which form a basis for a
finding of unenforceability or invalidity of any of the Intellectual Property
Rights.
(xviii) To the best of such counsel's knowledge after due inquiry, no
person or entity is engaging in any activity that infringes, misappropriates or
violates the Intellectual Property Rights of the Company or Suntech China.
(xix) To the best of such counsel's knowledge after due inquiry,
neither the Company nor Suntech China is infringing, misappropriating or
violating any Intellectual Property Right of any third party in the PRC; and no
Intellectual Property Right is subject to any outstanding decree, order,
injunction, judgment or ruling restricting the use of such Intellectual Property
Right that would impair the validity or enforceability of such Intellectual
Property Right.
(xx) No security interests or other liens have been created with
respect to any of the Intellectual Property Rights.
(xxi) To the best of such counsel's knowledge after due inquiry, no
legal or government proceedings, actions or claims have been asserted or are
pending or, to the best of such counsel's knowledge, threatened against the
Company or Suntech China (A) based upon or challenging or seeking to deny or
restrict the use by the Company or Suntech China of any of the Intellectual
Property Rights, (B) alleging that any services provided by, processes used by,
or products manufactured or sold by the Company or Suntech China infringe,
misappropriate or violates any Intellectual Property Right of any third party,
(C) alleging that an assignment to the Company or Suntech China of any
Intellectual Property Right is invalid, or (D) or that otherwise relate to the
Intellectual Property Rights.
F-4
(xxii) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement and the
Deposit Agreement and the consummation by the Company of the transactions
contemplated herein and therein, and the conduct of the business and operations
of the Company and its subsidiaries as described in the Registration Statement
and in the General Disclosure Package as of the Applicable Time, including the
issue and sale of the Ordinary Shares and the Offered ADSs under this Agreement
and the Deposit Agreement, and the compliance by the Company with all of the
provisions of this Agreement and the Deposit Agreement (A) do not and 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 to which Suntech China is
a party or by which Suntech China is bound or to which any of the properties or
assets of Suntech China is bound or to which any of the properties or assets of
Suntech China is subject, (B) do not and will not result in any violation of the
provisions of the Articles of Association, business licenses or any other
constituent documents of Suntech China, (C) do not and will not result in any
violation of any provision of PRC law or statute or any PRC regulation, and (D)
do not and will not result in a violation of any order, rule or regulation of
any governmental or regulatory agency or any court in the PRC.
(xxiii) No Governmental Authorizations from any Governmental Agency is
required for (A) the issue and sale of the Offered ADSs and the Ordinary Shares
represented thereof at such Closing Date to be sold by the Company under this
Agreement, (B) the deposit of the Ordinary Shares represented by the Offered
ADSs with the Depositary or its nominee, and (C) the consummation by the Company
and the Depositary of the transactions contemplated by this Agreement and the
Deposit Agreement, as applicable.
(xxiv) There are no reporting obligations under PRC law on non-PRC
holders of the Offered ADSs or the Ordinary Shares.
(xxv) As a matter of PRC law, no holder of the Offered ADSs or Ordinary
Shares will be subject to any personal liability, or be subject to a requirement
to be licensed or otherwise qualified to do business or be deemed domiciled or
resident in the PRC, by virtue only of holding such Offered ADSs or Ordinary
Shares. There are no limitations under PRC law on the rights of holders of the
Offered ADSs or Ordinary Shares to hold, vote or transfer their securities nor
any statutory pre-emptive rights or transfer restrictions applicable to the
Ordinary Shares.
(xxvi) The statements set forth in the General Disclosure Package as of
the Applicable Time under the captions "Prospectus Summary," "Risk Factors,"
"Dividend policy," "Related Party Transactions," "Our Business," "Chinese
Government Regulations," "Management," "Description of Share Capital," "Selected
Consolidated Financial and Operating Data," "Enforcement of Civil Liabilities"
and "Taxation,", insofar as such statements describe or summarize PRC legal or
regulatory matters, or documents, agreements or proceedings governed by PRC law,
are true and accurate, and fairly present or fairly summarize the PRC legal and
regulatory matters, documents, agreements or proceedings referred to therein;
and such statements did not contain and will not contain an untrue statement of
a material fact, and did not omit and will not omit to state any material fact
necessary to make the statements, in light of the circumstances under which they
were made, not misleading.
(xxvii) The submission of the Company to the non-exclusive jurisdiction
of the New York Courts, the waiver by the Company of any objection to the venue
of a proceeding in a New York Court, the waiver and agreement of the Company not
to plead an inconvenient forum, and the agreement of the Company that this
Agreement and the Deposit Agreement be construed in accordance with and governed
F-5
by the laws of the State of New York will be recognized by PRC courts; service
of process effected in the manner set forth in this Agreement will be effective
to confer jurisdiction over the subsidiaries, assets and property of the Company
in the PRC, subject to compliance with relevant civil procedural requirements
(which do not involve a re-examination of the merits of the claim) in the PRC;
and any judgment obtained in a New York Court arising out of or in relation to
the obligations of the Company under this Agreement and the Deposit Agreement
will be recognized by PRC courts, subject to compliance with relevant civil
procedural requirements (which do not involve a re-examination of the merits of
the claim) in the PRC.
(xxviii) The indemnification and contribution provisions set forth in
this Agreement and the Deposit Agreement do not contravene the public policy or
laws of the PRC, and insofar as matters of PRC law are concerned, constitute the
legal, valid and binding obligations of the Company, enforceable in accordance
with the terms therein, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or affecting
creditors' rights; each of this Agreement and the Deposit Agreement is in proper
legal form under PRC law for the enforcement thereof against the Company,
subject to compliance with relevant civil procedural requirements; and to ensure
the legality, validity, enforceability or admissibility in evidence of this
Agreement and the Deposit Agreement 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 such document.
(xxix) 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 Company, any of its subsidiaries, any Underwriter or the Depository to the
PRC government or any political subdivision or taxing authority thereof or
therein in connection with (A) the creation, issuance, sale and delivery of the
Offered ADSs and Ordinary Shares, (B) the deposit with the Depositary of
Ordinary Shares by the Company pursuant to the Deposit Agreement against
issuances of the Offered ADSs, (C) the sale and delivery by the Company of the
Offered ADSs to or for the accounts of the Underwriters in the manner
contemplated in this Agreement and the Deposit Agreement, (D) the execution,
delivery and performance of this Agreement and the Deposit Agreement by the
Company, or (E) the sale and delivery by the Underwriters of the Offered ADSs to
the initial purchasers thereof in the manner contemplated in the General
Disclosure Package as of the Applicable Time.
(xxx) The entry into, and performance or enforcement of this Agreement
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
this Agreement and the Deposit Agreement.
(xxxi) The Depositary will not (absent negligence, bad faith or breach
of contract and general principle of agency) be subject to any potential
liability under PRC laws for taking any action contemplated in the Deposit
Agreement.
(xxxii) Under the laws of the PRC, none of the Company or its
subsidiaries, or any of their respective properties, assets or revenues, is
entitled to any right of immunity on the grounds of sovereignty or otherwise
from any legal action, suit or proceeding, set-off or counterclaim, the
jurisdiction of any court in the PRC, service of process, attachment prior to or
in aid of execution of judgment, or other legal process or proceeding for the
granting of any relief or the enforcement of any judgment.
F-6
(xxxiii) Each of the Company and Suntech China is currently in
compliance with all applicable PRC law and regulations, and the issuance, sale
and delivery of the Offered ADSs by the Company as described in the General
Disclosure Package as of the Applicable Time will not conflict with or result in
a breach or violation of, the provisions of any applicable PRC law and the
regulations.
(xxxiv) Nothing has come to such counsel's attention that causes such
counsel to believe that the General Disclosure Package as of the Applicable
Time, the Registration Statement and the Prospectus (except for financial
statements included in the General Disclosure Package as of the Applicable Time
and the Prospectus, as to which such counsel need not express any belief), as of
its date and as of the First Closing Date and any Optional Closing Date,
contained or contains, as the case may be, any untrue statement of a material
fact or omitted or omits, as the case may be, to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
In rendering such opinion, Grandall Legal Group (Shanghai) may rely
upon the opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇ referred to in Section 9(e) as all matters
governed by Cayman Islands laws and the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP referred
to in Section 9(d) as all matters governed by United States federal and New York
State laws.
F-7
EXHIBIT G
FORM OF LEGAL OPINION FOR US COUNSEL TO SELLING SHAREHOLDERS
(i) Each of the Custody Agreements and the Powers of Attorney has been
duly executed and delivered by the Selling Shareholders in accordance with the
laws of the State of New York.
(ii) Such counsel has assumed, with the Representatives' consent, that
(A) each Selling Shareholder has the capacity, power and authority, as
applicable, to execute, deliver and perform the Power of Attorney, the Custody
Agreement and the Underwriting Agreement, (B) each Selling Shareholder, as
applicable, has duly authorized the execution, delivery and performance of the
Power of Attorney, the Custody Agreement, and the Underwriting Agreement, (C)
each Selling Shareholder has duly executed and delivered the Power of Attorney
and the Custody Agreement (other than with respect to the execution and delivery
thereof under the laws of the State of New York), and (D) such execution,
delivery and performance of the Power of Attorney, the Custody Agreement, and
the Underwriting Agreement do not (i) breach any agreement or instrument to
which the Selling Shareholder is a party or, (ii) except as expressly addressed
in paragraph (iii) below, violate any law, rule or regulation applicable to such
Selling Shareholder and require by or on behalf of such Selling Shareholder any
consent, approval or authorization to be obtained from, or filing, registration
or declaration to be made with, any governmental authority which has not been
duly obtained or made. On the basis of such assumptions, each of the Powers of
Attorney and the Custody Agreements constitutes a legally valid and binding
obligation of such Selling Shareholder, enforceable against the Selling
Shareholder in accordance with its terms; and the Underwriting Agreement has
been duly executed and delivered by an Attorney-in-Fact under the Powers of
Attorney on behalf of the Selling Shareholders.
(iii) The execution and delivery of the Custody Agreements and the
Powers of Attorney by the Selling Shareholders do not, the execution and
delivery of the Underwriting Agreement by an Attorney-in-Fact under the Powers
of Attorney on behalf of the Selling Shareholders do not, and the deposit of the
Ordinary Shares with the Depositary by the Selling Shareholders against issuance
of the ADRs evidencing the ADSs and the sale of the ADSs by the Selling
Shareholders to the Representatives and the other underwriters pursuant to the
Underwriting Agreement do not:
(a) violate any United States federal or New York
statute, rule or regulation applicable to such
Selling Shareholder; or
(b) require any consents, approvals, or authorizations to
be obtained by such Selling Shareholder from, or any
registrations, declarations or filings to be made by
such Selling Shareholder with, any governmental
authority under any United States federal or New York
statute, rule or regulation applicable to such
Selling Shareholder on or prior to the date hereof
that have not been obtained or made.
(iv) Pursuant to Section 20 of the Underwriting Agreement, under the
laws of the State of New York each of the Selling Shareholders has validly (i)
chosen New York law to govern its rights and duties under the Underwriting
Agreement, (ii) submitted to the personal jurisdiction of the state or federal
courts located in The City of New York in connection with any action or
proceeding
G-1
arising out of or related to the Underwriting Agreement, (iii) to the extent
permitted by law, waived any objection to the venue of a proceeding in any such
court and (iv) appointed CT Corporation System as its initial authorized agent
for the purpose described in Section 20 of the Underwriting Agreement. Service
of process in the manner described in Section 20 of the Underwriting Agreement
will be effective to confer valid personal jurisdiction over such Selling
Shareholder in connection with an action or proceeding arising out of or related
to the Underwriting Agreement in any such court.
(v) Upon indication by book entry that the ADSs have been credited to a
securities account maintained by the Representatives at the Depository Trust
Company ("DTC") and payment therefor in accordance with the Underwriting
Agreement, the Representatives will acquire a securities entitlement on behalf
of the several Underwriters with respect to the ADSs and, under the Uniform
Commercial Code as in effect on the date hereof in the State of New York (the
"NY UCC"), an action based on an adverse claim to such securities entitlement,
whether framed in conversion, replevin, constructive trust, equitable lien or
other theory, may not be asserted against the Representatives.
G-2
EXHIBIT H
FORM OF LEGAL OPINION FOR AUSTRALIAN COUNSEL TO THE COMPANY
(i) PSS is an Australian proprietary company limited by shares duly
incorporated in the Commonwealth of Australia and is taken to be registered in
the state of New South Wales with corporate power and authority to own its
property and assets and to carry on its business in accordance with PSS's
Constitution;
(ii) PSS is in good standing and validly existing under the laws of the
Commonwealth and possesses the capacity to ▇▇▇ and be sued in its own name;
(iii) The statements set forth in the General Disclosure Package as of
the Applicable Time under the captions "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Taxation," insofar as they
purport to describe or summarize matters of Australian laws, referred to
therein, are fair and accurate descriptions or summaries in all material
respects;
(iv) There are currently no taxes or other charges or levies or
deductions payable, by withholding or otherwise, to the Australian government or
any of its political subdivisions or any taxation authority thereof in respect
of the payment of dividends and other distributions declared and payable on the
ordinary shares of PSS or the Ordinary Shares of the Company, and the payment of
such dividends and other distributions by the Depository or its nominee to
holders of ADSs;
(v) PSS is not currently subject to income, withholdings or other
taxes, levies or charges payable to the Australian government or any of its
political subdivisions or any taxation authority thereof with respect to the
payment of dividends and other distributions declared, payable or paid to it by
Suntech China;
(vi) No approvals, consents, authorization or order of, or
qualifications are currently required from Authority in order for PSS to pay
dividends to its shareholders; and
(vii) Except as disclosed in the General Disclosure Package at the
Applicable Time, there are no restrictions or limitations under Australian law
or laws of any of its political subdivisions which would prevent PSS from paying
dividends to shareholders in U.S. Dollars or any other currency, nor is it
necessary under Australian laws or laws of any of its political subdivisions
that any document relating thereto be registered or recorded in any public
office or elsewhere in Australia in order for PSS to pay dividends to its
shareholders in U.S. Dollars or any other currency.
H-1
EXHIBIT I
FORM OF LEGAL OPINION FOR DELAWARE COUNSEL TO THE SELLING SHAREHOLDER
1. The Selling Shareholder is a limited partnership and has been duly
formed under the Delaware Limited Partnership Act, with limited partnership
power and authority to enter into the Documents and perform its obligations
thereunder. Based on certificates from public officials, we confirm that the
Selling Shareholder is validly existing and in good standing under the laws of
the State of Delaware and is qualified to do business in the State of Delaware.
2. The execution, delivery and performance of the Underwriting
Agreement, the Custody Agreement and the Power of Attorney (collectively, the
"Documents") have been duly authorized by all necessary limited partnership
action of the Selling Shareholder, and the Documents have been duly executed and
delivered by the Selling Shareholder.
3. Each of the Custody Agreement and the Power of Attorney constitutes
a legally valid and binding obligation of the Selling Shareholder, enforceable
against the Selling Shareholder in accordance with its terms.
4. The execution and delivery of each of the Custody Agreement and the
Power of Attorney, the execution and delivery of the Underwriting Agreement by
an Attorney-in-Fact under the Power of Attorney on behalf of the Selling
Shareholder do not, and the deposit of the Ordinary Shares with the Depositary
by the Selling Shareholder against issuance of the American Depositary Receipt
evidencing the ADSs and the sale of the ADSs by the Selling Shareholder to you
and the other underwriters pursuant to the Underwriting Agreement on the date
hereof do not:
(i) violate the provisions of the Governing Documents,
(ii) violate any federal or Delaware statute, rule, regulation
applicable to the Selling Shareholder, or
(iii) require any consents, approvals, or authorizations to be
obtained by the Selling Shareholder from, or any registrations,
declarations or filings to be made by the Selling Shareholder with, any
governmental authority, under any federal or Delaware statute, rule,
regulation applicable to the Selling Shareholder that have not been
obtained or made.
5. With your consent, based solely on a review on [ o ], 2005 of the
stock transfer records of Company furnished to us and a review of the
certificates representing the Ordinary Shares to be sold by the Selling
Shareholder pursuant to the Underwriting Agreement, the Selling Shareholder is
the owner of record on that date in the share register of Company.
I-1
EXHIBIT J
FORM OF LEGAL OPINION FOR BVI COUNSEL TO THE SELLING SHAREHOLDERS
(i) The Selling Shareholder is a limited liability company duly
incorporated under the British Virgin Islands International Business Companies
Act, 1984 (as amended), in good standing at the Registry of Corporate Affairs
and validly existing under the laws of the British Virgin Islands, and possesses
the capacity to ▇▇▇ and be sued in its own name.
(ii) The Selling Shareholder has full power and authority under its
Memorandum and Articles of Association and the laws of the British Virgin
Islands to enter into, execute, deliver and perform its obligations under the
Underwriting Agreement and the Custody Agreement (the "TRANSACTION DOCUMENTS")
and the Power of Attorney and to sell, transfer and deliver the Relevant Shares
to the Underwriters free and clear of all liens, restrictions on transfers,
encumbrances, security interests and claims whatsoever as contemplated by the
Transaction Documents.
(iii) The execution and delivery of the Transaction Documents and the
Power of Attorney and the performance by the Selling Shareholder of its
obligations thereunder does not conflict with or result in a breach of any of
the terms or provisions of the Memorandum and Articles of Association of the
Selling Shareholder or any law, public rule or regulation applicable to the
Selling Shareholder in the British Virgin Islands currently in force and does
not conflict with or result in a breach or constitute a default under any
existing rule, regulation, order or decree of any governmental authority or
agency or official body of the British Virgin Islands.
(iv) The execution, delivery and performance of the Transaction
Documents and the Power of Attorney has been authorised by and on behalf of the
Selling Shareholder.
(v) Assuming the Power of Attorney has been delivered by a director of
the Selling Shareholder [or [insert name of person] as the authorised
signatory], and the Transaction Documents have been delivered by an
Attorney-in-Fact (as hereinafter defined) under the relevant Power of Attorney,
the Transaction Documents and the Power of Attorney have been duly executed and
delivered on behalf of that Company and the Power of Attorney constitutes and
the Transaction Documents will constitute the legal, valid and binding
obligations of that Company enforceable in accordance with their terms.
(vi) No authorisations, consents, approvals, licences, validations or
exemptions are required by law from any governmental authorities or agencies or
other official bodies in the British Virgin Islands in connection with: (i) the
creation, execution or delivery of the Transaction Documents or the Power of
Attorney by the Selling Shareholder; (ii) subject to the payment of the
appropriate nominal stamp duty, enforcement of the Transaction Documents or the
Power of Attorney against the Selling Shareholder; or (iii) the performance by
the Selling Shareholder of its obligations under the Transaction Documents or
the Power of Attorney.
(vii) No taxes, fees or charges (other than nominal stamp duty) are
payable (either by direct assessment or withholding) to the government or other
taxing authority in the British Virgin Islands under the laws of the British
Virgin Islands in respect of: (i) the execution or delivery of the Transaction
Documents or the Power of Attorney; (ii) the enforcement of the Transaction
Documents or the Power of Attorney; (iii) the performance of the Transaction
Documents or the Power of Attorney; and (iv) payments made under, or pursuant
to, the Transaction Documents or the Power of Attorney.
J-1
The British Virgin Islands currently have no form of income, corporate
or capital gains tax and no estate duty, inheritance tax or gift tax.
(viii) The courts of the British Virgin Islands will observe and give
effect to the choice of New York law as the governing law of the Transaction
Documents and the Power of Attorney. The submission by the Selling Shareholder
to the non-exclusive jurisdiction of the federal and state courts in New York
City and the waiver of any objection to venue in the Transaction Documents and
the appointment of an agent to accept service of process in such jurisdiction
are legal, valid and binding on the Selling Shareholder.
(ix) The Power of Attorney has been duly executed by the Selling
Shareholder and constitutes the person therein named as the duly appointed
attorney of the Selling Shareholder (the "Attorney-in-Fact") with the powers and
authorities therein specified and, in particular, permitting the
Attorney-in-Fact to bind the Selling Shareholder named therein on the terms set
out in the Power of Attorney.
(x) Any final and conclusive monetary judgment obtained against the
Selling Shareholder in the courts of New York in respect of the Agreements, for
a definite sum, may be treated by the courts of the British Virgin Islands as a
cause of action in itself so that no retrial of the issues would be necessary
provided that in respect of the foreign judgment: (i) the foreign court issuing
the judgment had jurisdiction in the matter and the Selling Shareholder either
submitted to such jurisdiction or was resident or carrying on business within
such jurisdiction and was duly served with process; (ii) the judgment given by
the foreign court was not in respect of penalties, taxes, fines or similar
fiscal or revenue obligations of the Selling Shareholder; (iii) in obtaining
judgment there was no fraud on the part of the person in whose favour judgment
was given or on the part of the court; (iv) recognition or enforcement of the
judgment in the British Virgin Islands would not be contrary to public policy;
and (v) the proceedings pursuant to which judgment was obtained were not
contrary to natural justice.
(xi) It is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of the Transaction Documents or the
Power of Attorney that any document be filed, recorded or enrolled with any
governmental authority or agency or any official body in the British Virgin
Islands.
(xii) Such counsel's search at the Registry of Corporate Affairs did
not reveal the existence of a Register of Mortgages, Charges and Other
Encumbrances. A Register of Mortgages, Charges and Other Encumbrances may,
however, be maintained at the Selling Shareholder's registered office without a
copy necessarily being filed at the Registry of Corporate Affairs. [However,
such counsel refers you to the registered agent's certificate (a copy of which
is attached as Annex A) that states that the Selling Shareholder does not
maintain a Register of Mortgages Charges and Other Encumbrances at the Selling
Shareholder's Registered Office.] Or [Such counsel's search at the Registry of
Corporate Affairs revealed the existence of a Register of Mortgages, Charges and
Other Encumbrances a copy of which is attached as Annexure [C], showing details
of a [legal mortgage/charge etc] over the [brief description of asset charged].
(xiii) Neither the Selling Shareholder nor its assets is entitled to
any immunity under the laws of the British Virgin Islands, whether characterised
as sovereign immunity or otherwise, for any legal proceedings in the British
Virgin Islands to enforce or collect upon the Transaction Documents or the Power
of Attorney.
J-2
EXHIBIT K
FORM OF LEGAL OPINION
FOR SINGAPORE COUNSEL TO THE SELLING SHAREHOLDERS
(i) The Selling Shareholder is a company duly incorporated and validly
existing under the laws of Singapore. The company winding-up and the judicial
management searches referred to in such counsel's opinion revealed no record of
any order or resolution for the winding up of the Selling Shareholder or any
notice of the appointment of a receiver, or judicial manager to the Selling
Shareholder. It should be noted that the searches referred to such counsel's
opinion are not capable of revealing whether or not a statutory demand has been
made on the Selling Shareholder or a resolution of the Selling Shareholder has
been passed to wind up the Selling Shareholder voluntarily. Further, it should
be noted that such searches are not capable of revealing whether or not a
winding-up petition has been presented. Notice of a winding-up order made, a
resolution passed or a receiver or judicial manager appointed may not be filed
with the relevant authorities immediately and there may be delay in the relevant
notice appearing on the file of the company concerned. The composite litigation
and writ of seizure and sale searches referred to in such counsel's opinion
revealed no record of any legal proceedings before any court in Singapore
against the Selling Shareholder and no record of a writ of seizure and sale
being issued against the Selling Shareholder;
(ii) the Selling Shareholder has the corporate power and authority to
enter into and perform its obligations under the Underwriting Agreement, the
Custodian Agreement and the Power of Attorney;
(iii) the Selling Shareholder has taken all necessary corporate action
to authorize the execution and delivery of the Underwriting Agreement, the
Custodian Agreement and the Power of Attorney and the performance by the Selling
Shareholder of its obligations thereunder;
(iv) the execution, delivery and performance by the Selling Shareholder
of the Underwriting Agreement, the Custodian Agreement and the Power of Attorney
and the deposit of the Ordinary Shares with The Bank of New York Depositary as
contemplated by the Deposit Agreement will not:
(a) contravene any provisions of the memorandum of association or
the articles of association of the Selling Shareholder; or
(b) violate or contravene any provisions of any existing law or
regulation of Singapore applicable to companies generally;
(v) each of the Underwriting Agreement, the Custodian Agreement and the
Power of Attorney has been duly executed and delivered by the Selling
Shareholder under Singapore laws;
(vi) the obligations of the Selling Shareholder contained in the
Underwriting Agreement, the Custodian Agreement and the Power of Attorney
constitute valid, legally binding and enforceable obligations under Singapore
laws, to the extent that such laws apply thereto;
K-1
(vii) no consent, approval, authorisation or order of, or qualification
with, any governmental agency in Singapore is necessary under any Singapore law
which is binding on the Selling Shareholder and which is applicable to companies
generally in connection with the execution, delivery and performance of the
Underwriting Agreement by the Selling Shareholder;
(viii) the choice of the laws of the State of New York to govern the
Underwriting Agreement, the Custodian Agreement and the Power of Attorney is a
valid choice of laws and, in the event that an action were brought in Singapore
on any of such documents and a Singapore court accepted jurisdiction in any such
action, such court would apply New York laws as the law of the contract subject
to proof of such laws, provided that (i) New York law would not be applied to
the extent that it conflicts with Singapore public policy or mandatory rules of
law and (ii) Singapore law as to matters of evidence and procedure would apply
in any such action;
(ix) it is not necessary that the Documents or any of them be stamped
with any stamp or similar transaction tax of or in Singapore;
(x) no stamp duties or similar transaction tax of or in Singapore is
payable in respect of the deposit of the Ordinary Shares by the Company pursuant
to the Custodian Agreement; and
(xi) no stamp duties or similar transaction tax of or in Singapore is
payable in respect of the sale of the ADSs by the Company to the Underwriters
pursuant to the Underwriting Agreement.
K-2
EXHIBIT L
FORM OF LEGAL OPINION
FOR MAURITIUS COUNSEL TO THE SELLING SHAREHOLDERS
1. The Selling Shareholder is duly incorporated and existing under the
laws of Mauritius, and has full right, power and authority to execute and
deliver the Underwriting Agreement and the power of attorney and Custody
Agreement in connection with the offer and sale of the Offered ADSs contemplated
in the Underwriting Agreement and to perform its obligations under such
agreements.
2. Each of this Underwriting Agreement and the Custody Agreement and
the power of attorney executed by each Selling Shareholder has been duly
authorized, executed and delivered by such Selling Shareholder and constitutes
valid and binding agreement of such Selling Shareholder, enforceable in
accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general equitable principles (whether relief is sought in a proceeding at law or
in equity) and except as enforceability of rights to indemnification and
contribution thereunder may be limited by applicable law or public policy
relating thereto.
3. The execution, delivery and performance by and on behalf of each of
the Selling Shareholders of the Underwriting Agreement, the Custody Agreement,
the power of attorney, the sale of the ADSs and the deposit of the Ordinary
Shares with the Depositary as contemplated by the Deposit Agreement do not and
will not (A) result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court in Mauritius having jurisdiction
over the Selling Shareholder or any of its properties or (B) breach the charter
or by-laws of any Selling Shareholder which is a corporation.
4. No consent, approval, authorization or order of, or filing with, any
governmental agency or body or any court in Mauritius is required to be obtained
or made by any Selling Shareholder for the consummation of the transactions
contemplated by the Underwriting Agreement in connection with the sale of the
Offered ADSs sold by the Selling Shareholder.
5. The law chosen in each of the Underwriting Agreement, and the power
of attorney and Custody Agreement in connection with the offer and sale of the
Offered ADSs contemplated in the Underwriting Agreement that govern its
interpretation would be upheld as a valid choice of law in any action on that
document in the courts of Mauritius.
6. No stamp duties, income taxes, withholdings, levies, registration
taxes, or other duties or similar taxes or charges in Mauritius are payable by
or on behalf of the Underwriters or otherwise imposed on any payments made to
the Underwriters in connection with (i) the deposit of Ordinary Shares by the
Selling Shareholder with the Custodian on behalf of the Depositary against
issuance of ADRs evidencing the ADSs or Additional ADSs, and (ii) the sale and
delivery on behalf of the Selling Shareholder of such ADSs to or for the
respective accounts of the Underwriters as set forth in the General Disclosure
Package as of the Applicable Time and pursuant to the terms of the Underwriting
Agreement; or any other transaction or payment contemplated by the Underwriting
Agreement or the Deposit Agreement.
7. The statements in the General Disclosure Package as of the
Applicable Time under "Principal and Selling Shareholders" insofar as such
statements constitute summaries of the legal matters, documents or proceedings
referred to therein, in each case to the extent, and only to the extent,
relating to
L-1
the Selling Shareholder and governed by the laws of Mauritius, are true and
accurate as of the date of this opinion.
8. No fixed or floating charge has been created in Mauritius over any
of the assets of the Selling Shareholder.
L-2
EXHIBIT M
FORM OF LEGAL OPINION
FOR NEW ZEALAND COUNSEL TO THE SELLING SHAREHOLDERS
(i) The Selling Shareholder has the power to enter into, execute, and
perform her obligations under, the Power of Attorney, the Underwriting Agreement
and the Custody Agreement (the "Documents");
(ii) the Selling Shareholder, or her attorney appointed under the Power
of Attorney, has executed each Document in accordance with New Zealand law;
(iii) the obligations expressed to be assumed by the Selling
Shareholder under each Document constitute her valid, binding and enforceable
obligations;
(iv) the Selling Shareholder's entry into, execution of, and
performance of her obligations under, the Documents do not conflict with any New
Zealand law that is applicable to individuals generally;
(v) no consent, licence, approval or authorisation of or with any New
Zealand court or New Zealand governmental agency is required under New Zealand
law in connection with the Selling Shareholder's entry into, execution of, or
performance of her obligations under, the Documents;
(vi) the choice of the law of the State of New York as the governing
law of the Documents should be recognised and enforced in any proceedings taken
in New Zealand in relation to the Documents; and
(vii) a New Zealand court should give effect to the submission of the
Selling Shareholder in each Document to the non-exclusive jurisdiction of the
Federal and state courts of Borough of Manhattan in The City of New York.
M-1
EXHIBIT N
FORM OF LEGAL OPINION FOR COUNSEL TO THE DEPOSITARY
(i) The Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and constitutes a valid and binding agreement of the
Depositary enforceable against the Depositary in accordance with its terms,
except as enforcement of it may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws of general application
relating to or affecting creditors' rights and by general principles of equity.
(ii) Upon execution and delivery by the Depositary of ADRs
evidencing the ADSs against the deposit of Shares in accordance with the
provisions of the Deposit Agreement, the ADSs will be validly issued and will
entitle the holders of the ADSs to the rights specified in those ADRs and in the
Deposit Agreement.
(iii) The legal entity for the issuance of ADRs filed a
registration statement for the ADSs (the "ADR Registration Statement") on Form
F-6 under the U.S. Securities Act of 1933, as amended (the "1933 Act"), and the
staff of the U.S. Securities and Exchange Commission (the "Commission") has
informed such counsel that the Commission declared the ADR Registration
Statement effective and, to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the ADR Registration Statement or any part
thereof or any amendment thereto has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated under the 1933 Act,
and the ADR Registration Statement, and any amendments thereto as of their
respective effective dates, complied as to form in all material respects with
the requirements of the 1933 Act and the rules and regulations thereunder.
These opinions are based upon the assumptions that (a) the Deposit
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company enforceable against the
Company in accordance with its terms, (b) all the Shares are duly authorized,
validly issued, fully paid and non-assessable and are registered or not required
to be registered in accordance with the Securities Act of 1933, as amended, and
(c) all signatures on documents examined by such counsel are genuine. In giving
these opinions, such counsel have also relied as to certain matters, without
independent verification, on information obtained from public officials or
officers of the Depositary.
N-1