Xxxxx & Xxxxxxxx
ADVOCATES & SOLICITORS
Dated 19 January 2007
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
and
DBS TRUSTEE LIMITED
TRUST DEED
RELATING TO
YINGLI GREEN ENERGY HOLDING LIMITED
2006 STOCK INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
XXXXX & XXXXXXXX
XXX XXXXXX XXXXXXXXX #00-00
XXXXXXXXX 000000
TABLE OF CONTENTS
CONTENTS PAGE
1. DEFINITIONS ............................................................................... 1
2. PAYMENTS BY THE COMPANY ................................................................... 3
3. HOLDING UPON TRUST ........................................................................ 4
4. XXXXX, XXXXXXXXXX AND VESTING OF AWARD .................................................... 4
5. DEALINGS WITH THE TRUST PROPERTY .......................................................... 6
6. VOTING RIGHTS IN RESPECT OF RESTRICTED SHARES.............................................. 6
7. POWERS OF THE MANAGING COMMITTEE .......................................................... 6
8. INVESTMENT OF TRUST PROPERTY .............................................................. 7
9. CUSTODY OF SECURITIES ..................................................................... 8
10. DISCLOSURE TO TRUST PARTICIPANTS .......................................................... 8
11. COVENANTS BY TRUSTEE....................................................................... 9
12. EXERCISE OF TRUSTEE'S POWERS AND DISCRETIONS............................................... 10
13. EMPLOYMENT OF PROFESSIONAL ADVISERS........................................................ 10
14. TRUSTEE'S CHARGES.......................................................................... 10
15. PAYMENT OF FEES, CHARGES AND EXPENSES...................................................... 10
16. COSTS...................................................................................... 11
17. INDEMNITY.................................................................................. 11
18. RELIANCE ON INFORMATION PROVIDED BY THE MANAGING COMMITTEE, COMPANY AND ITS AFFILIATES..... 11
19. MINIMUM NUMBER, APPOINTMENT AND REMOVAL OF TRUSTEE......................................... 12
20. TRUSTEE'S LIABILITY........................................................................ 12
21. TERMINATION................................................................................ 13
22. AMENDMENTS................................................................................. 13
23. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT, CHAPTER 53B....................................... 13
24. GOVERNING LAW.............................................................................. 14
i
SCHEDULE 1....................................................................................... 15
SCHEDULE 2....................................................................................... 16
SCHEDULE 3....................................................................................... 17
"SCHEDULE 4"..................................................................................... 18
ii
THIS TRUST DEED is made on the day of January 2007 BETWEEN:
(1) YINGLI GREEN ENERGY HOLDING COMPANY LIMITED, a company incorporated in the
Cayman Islands with its registered office at Cricket Square, Xxxxxxxx
Drive, P.O. Box 2681, Grand Cayman KY1-111, Cayman Islands (the
"COMPANY"); and
(2) DBS TRUSTEE LIMITED, a company incorporated in Singapore with its
registered office at 0 Xxxxxxx Xxx, XXX Xxxxxxxx Xxxxx Xxx, Xxxxxxxxx
000000 (the "TRUSTEE", which expression shall, wherever the context so
admits, include all persons for the time being the trustee or trustees of
this Trust Deed).
WHEREAS:
(A) The Company has established the Plan (as defined below) pursuant to which
Awards can be granted to employees (including directors or consultants) of
the Company or any of its Affiliates.
(B) Pursuant to the Plan, the Company is setting up this Trust (as defined
below) for the benefit of the Trust Participants (as defined below), with
the intention of granting to the Trustee the Restricted Shares to hold on
trust so as to facilitate the discharge of the respective obligations of
the Company and its Affiliates to individual Trust Participants under and
in connection with the Plan and the applicable Agreement (as defined
below).
(C) The Trust is to be constituted by way of a Trust Deed to be governed by
the laws of Singapore and the Trustee has agreed to be appointed as the
first trustee and administrator of the Trust hereof and to act in
accordance with the terms and conditions set out in this Trust Deed.
(D) The Managing Committee will be set up to provide recommendations, advice
or instructions to the Trustee in connection with the administration of
the Trust.
(E) With a view to establishing the said Trust, the Company has transferred to
the Trustee the sum of USD 10 to be held on the said Trust.
IT IS AGREED as follows:
1. DEFINITIONS
1.1 In this Trust Deed:
"AGREEMENT" means a Restricted Stock Award Agreement entered into between
the Company and the Trustee for the benefit of the persons named in the
Agreement;
"AWARD" means the grant of Restricted Shares by the Company to the Trustee
for the benefit of a Trust Participant in accordance with the terms and
conditions set out in the Plan, the applicable Agreement and this Trust
Deed;
"BUSINESS DAY" means a day where banks in Singapore are generally open for
business excluding Saturdays, Sundays and Public Holidays;
"LICENSED TRUST COMPANY" means a corporation holding a trust business
licence as defined in Section 2 of the Singapore Trust Companies Act,
Chapter 336;
"MANAGING COMMITTEE" means the managing committee appointed from
time-to-time by the Board in connection with the administration of the
Trust wherein each member of the
-1-
committee having confirmed their consent to act as such in writing to the
Trustee and any such appointment or change in the managing committee
having been duly notified by the Company to the Trustee in writing;
"PLAN" means the Yingli Green Energy Holding Company Limited 2006 Stock
Incentive Plan;
"REVERSIONARY BENEFICIARY" means the Company;
"TERMINATION DATE" means the date as determined pursuant to Clause 21.1;
"TRUST" means the trust constituted by this Trust Deed;
"TRUST PARTICIPANTS" means the individuals who are under the Employment of
the Company or any of its Affiliates and have been selected by the
Committee to be the beneficiaries under the Trust from time to time and
who are the intended beneficiaries of the Awards granted by the Company to
the Trustee and as are notified to the Trustee in accordance with Clause 4
of this Trust Deed;
"TRUST DEED" means this deed and the Schedules (as from time to time
amended or modified in accordance with the provisions herein contained)
and any deed or other document executed in accordance with the provisions
hereof (as from time to time amended or modified as aforesaid) and
expressed to be supplemental hereto;
"TRUST PERIOD" means the period of 100 years commencing on the date of
this Trust Deed;
"TRUST PROPERTY" means the subject-matter of any Award (including, without
limitation, any Restricted Shares) that are transferred by the Company to
the Trustee to be held on the Trust declared in this Trust Deed and all
other moneys, investments, shares, accumulations or income and other
property, real or personal, from which the Trustee has agreed in writing
to receive on such Trust from time to time;
"VEST" means a Trust Participant becoming beneficially entitled to the
Restricted Shares granted to the Trustee for his or her benefit, which
shall then become non-forfeitable in accordance with the terms of the
applicable Agreement and Clause 4 of this Trust Deed;
"VESTING DATE" means the date on which the beneficial interest in the
Restricted Shares granted to the Trustee for the benefit of a Trust
Participant are Vested in the Trust Participant; and
"VESTING PERIOD" means the schedule over which the Restricted Shares
granted to the Trustee for the benefit of a Trust Participant are to Vest
in the Trust Participants as stipulated pursuant to Clause 4.1 of this
Trust Deed.
1.2 Unless other indicated, in this Trust Deed, references to:
1.2.1 any provision of any statute shall be deemed also to refer to any
statutory modification or re-enactment thereof or any statutory
instrument, order or regulation made thereunder or under such
re-enactment;
1.2.2 costs, charges, remuneration or expenses shall be deemed to
include, in addition, goods and services, value added and other
duties or tax (other than income tax) charged or chargeable in
respect thereof;
-2-
1.2.3 Schedules, Clauses and paragraphs shall be construed as references
to respectively, the Schedules to, the Clauses of and the
paragraphs of this Trust Deed;
1.2.4 "$" shall be construed as references to the lawful currency for the
time being of Singapore; and
1.2.5 any action, remedy or method of judicial proceedings for the
enforcement of rights of creditors shall be deemed to include, in
respect of any jurisdiction other than Singapore, references to
such action, remedy or method of judicial proceeding for the
enforcement of rights of creditors available or appropriate in
such jurisdiction as shall most nearly approximate to such action,
remedy or method of judicial proceeding described or referred to
in this Trust Deed.
1.3 All terms and references used in this Trust Deed and which are defined or
construed in the Plan or the applicable Agreement, as the case may be, but
are not defined or construed in this Trust Deed shall have the same
meaning and construction in the Plan or applicable Agreement.
1.4 Words denoting the singular number only shall include the plural number
and vice versa and words denoting the neuter or masculine gender only
shall include the masculine and feminine gender or the neuter gender.
Words denoting persons only shall include firms and corporations.
1.5 The headings to Clauses are inserted for convenience only and shall not
affect the construction of this Trust Deed.
2. PAYMENTS BY THE COMPANY
2.1 In order for the Company to discharge its obligations to the Trust
Participants in connection with the applicable Agreement, the Company
shall to the extent provided in this Trust Deed from time to time, make
payments or procure the delivery of Restricted Shares to the Trustee to be
held and applied by the Trustee for the purposes of the Trust herein
declared.
2.2 The Company shall provide to the Trustee a list of initial Trust
Participants at the inception of the Trust in or substantially in the form
indicated in Schedule 1 setting out:
2.2.1 the name of the Trust Participant;
2.2.2 the number of Restricted Shares that are held on trust by the
Trustee for the benefit of that Trust Participant;
2.2.3 the applicable Date of Grant for each proposed Trust Participant in
respect of the Restricted Shares granted to the Trustee for the
benefit of the proposed Trust Participant under the applicable
Agreement, and
2.2.4 the Vesting Period and conditions thereof.
-3-
3. HOLDING UPON TRUST
3.1 The Trustee hereby covenants with the Company for the benefit of the Trust
Participants to hold the Trust Property upon trust in accordance with the
terms set out in this Trust Deed.
3.2 The Trustee shall, subject to the provisions of this Trust Deed, hold the
Restricted Shares which have Vested, in accordance with the terms of this
Trust Deed or otherwise, and dividends accumulated on those Restricted
Shares from the Vesting Date and are comprising part of the Trust Property
upon trust for the Trust Participants, in accordance with their rights
under the Plan, the applicable Agreement and this Trust Deed. The Trustee
shall, subject to the provisions of this Trust Deed, hold the Restricted
Shares that have not Vested (or any proceeds from the liquidation of such
Restricted Shares that have not Vested), comprising part of the Trust
Property upon trust for the Reversionary Beneficiary.
3.3 Any dividends and other income received and any capital gains realised by
the Trustee and any other moneys or property (whether real or personal)
acquired by the Trustee from time to time using or arising from the Trust
Property or any part thereof shall be held by the Trustee as an addition
to the Trust Property upon trust in accordance with the provisions of this
Trust Deed.
3.4 The Trustee shall have the absolute discretion to hold Trust Property
through a wholly-owned special purpose company incorporated within or
outside Singapore.
4. XXXXX, FORFEITURE AND VESTING OF AWARD
4.1 The Managing Committee may, on the date of this Trust Deed and from time
to time, deliver to the Trustee a certificate, in or substantially in the
form indicated in Schedule 1, setting out:
4.1.1 the name of the proposed Trust Participant;
4.1.2 the number of Restricted Shares that are the subject of the Award
to the Trustee for the benefit of that Trust Participant;
4.1.3 the applicable Date of Grant for each proposed Trust Participant in
respect of the Restricted Shares granted to the Trustee for his
benefit under the applicable Agreement; and
4.1.4 the Vesting Period and conditions thereof,
and the person named in the certificate shall be a Trust Participant from
the date of the certificate.
4.2 Where any of the particulars set out in a certificate delivered to the
Trustee under Clause 4.1 is adjusted, altered, amended or varied in
accordance with the terms of the Plan or the applicable Agreement
(including where the Vesting Period has been accelerated or Shares are
deemed Vested for any reason in accordance with the terms of the
applicable Agreement), the Managing Committee who had already issued the
certificate under Clause 4.1 shall deliver to the Trustee a certificate,
in or substantially in the form set out in Schedule 2 to replace such
certificate.
-4-
4.3 Where any Award to or for the benefit of a Trust Participant or where any
Restricted Shares issued to the Trustee for the benefit of a Trust
Participant is forfeited under the terms and conditions of the Plan and
applicable Agreement and some or all of the Restricted Shares issued to
the Trust for the benefit of the said Trust Participant have not Vested,
the Managing Committee shall, as soon as practicable and in any event not
less than fifteen (15) Business Days of such forfeiture, deliver to the
Trustee a certificate, in or substantially in the form set out in Schedule
3, setting out:
4.3.1 the name of the Trust Participant;
4.3.2 the number of Restricted Shares that are the subject of that Award
to the Trustee for the benefit of that Trust Participant and that
have not Vested;
4.3.3 the applicable Date of Xxxxx; and
4.3.4 the date of forfeiture of that Award
and the Trust Participant so named in the certificate shall cease to be a
Trust Participant in this Trust as of the date of the certificate. Upon
receipt of such certificate, the rights and interests of the individual so
named under this Trust shall be transferred to the Reversionary
Beneficiary and the Trustee shall be entitled to disregard such Trust
Participant in the performance of its duties and obligations under this
Trust Deed.
4.4 Upon Vesting of any Restricted Shares but before the expiry of the Call
Period, the Managing Committee may issue a Call Notice to the Trustee, in
or substantially in the form indicated in Schedule 4, to sell to the
Company the Callable Restricted Shares or any part (but not fractions)
thereof at the Repurchase Price and the Company shall pay to the Trustee
the Repurchase Price. Upon receipt of the Repurchase Price, the Trustee
shall distribute the Repurchase Price and any dividend accumulated on such
Callable Restricted Shares from Vesting Date, to the Company as the agent
of the Trust Participant who is the intended beneficiary of such Callable
Restricted Shares that have Vested. In the event that only a part (but not
fractions) of the Callable Restricted Shares is subject to a Call Notice,
the remainder Callable Restricted Shares not subject to such a Call Notice
shall be held in trust by the Trustee for the benefit of the Trust
Participant until the earlier of (a) the Trustee making a distribution
pursuant to a subsequent Call Notice issued by the Managing Committee in
respect of those remainder Callable Restricted Shares under this Clause
4.4, or (b) the Trustee making a distribution upon the expiry of the Call
Period in respect of those remainder Callable Restricted Shares pursuant
to Clause 4.5.
4.5 Upon the expiry of the Call Period where no Call Notice was issued or a
Call Notice was issued but a portion of the Callable Restricted Shares
were not repurchased pursuant to Clause 4.4, the Trustee shall distribute
to the Company as the agent of the Trust Participant who is the intended
beneficiary of the applicable Restricted Shares either such applicable
Restricted Shares in specie or in cash (from the proceeds of the
liquidation of such applicable Restricted Shares by the Trustee), at the
option of the Trust Participant, such option to be given in writing by the
Trust Participant to the Trustee within fifteen (15) Business Days from
the expiry of the Call Period of such applicable Restricted Shares,
failing which the Trustee shall be entitled to make the distribution of
such applicable Restricted Shares in specie, together with any dividend
accumulated on such applicable Restricted Shares from the Vesting Date, to
the Company as the agent of the Trust Participant who is the intended
beneficiary of the applicable Restricted Shares. The
-5-
Trustee shall inform the Managing Committee, as agent of the Trust
Participant of the expiry of the applicable Call Period.
4.6 For the avoidance of doubt, all distributions out of the Trust Property to
be made for the benefit of any Trust Participant by the Trustee shall be
made in accordance with the provisions of this Trust Deed and shall only
be made to the Company as the agent of any Trust Participant who is the
intended beneficiary of any such distribution. Any such payment or
distribution to the Company as the agent of any Trust Participant shall
constitute a full and proper discharge for the Trustee in relation to any
such payment or distribution and no Trust Participant shall have any claim
against the Trustee in this regard.
5. DEALINGS WITH THE TRUST PROPERTY
Except as provided in Clauses 4 and 8, the Trustee shall not have any
power to encumber, sell, transfer or otherwise dispose of the Trust
Property or any part thereof.
6. VOTING RIGHTS IN RESPECT OF RESTRICTED SHARES
6.1 In relation to Restricted Shares that have not Vested, all rights of
voting conferred by those Restricted Shares shall be exercised by the
Trustee in accordance with the instructions of the Managing Committee.
6.2 In relation to Restricted Shares that have Vested, all rights of voting
conferred by those Restricted Shares shall be exercised by the Trustee in
accordance with the instructions of the Trust Participant in whom the
interest in the Restricted Shares have Vested.
6.3 The Trustee shall not be under any liability or responsibility in respect
of any loss caused by any vote, action or consent given or taken or not
taken by the Trustee whether in person or by proxy, and, in particular but
without limitation to the foregoing, the Trustee shall not incur any
liability or responsibility for any loss caused by reason of any error of
law or mistake of fact or any matter or thing done or omitted or approval
voted or given or withheld by the Trustee under this Trust Deed, unless
such loss is caused by the Trustee's own fraud, gross negligence or wilful
misconduct.
6.4 The phrase "rights of voting" or the word "vote" used in this Clause shall
be deemed to include not only a vote at a meeting but any consent to or
approval of any arrangement, scheme or resolution or any alteration in or
abandonment of any rights attaching to any part of the Trust Property and
the right to requisition or join in a requisition to convene any meeting
or to give notice of any resolution or to circulate any statement.
7. POWERS OF THE MANAGING COMMITTEE
7.1 The Managing Committee will have the power to provide recommendations,
advice or instructions (as the case may be) to the Trustee in connection
with the administration of the Trust. Such recommendation, advice or
instruction (as the case may be) shall be made or given by the majority of
the Managing Committee in writing to the Trustee.
7.2 The Managing Committee shall have the power to add or remove any Trust
Participant under the Trust in the manner provided in Clauses 4.1 and 4.3
of this Trust Deed, such
-6-
addition or removal shall be effective from the date of the certificates
under Clauses 4.1 and 4.3 respectively.
7.3 In the event of addition of new Trust Participants pursuant to Clauses 7.1
and 7.2 of this Trust Deed, the Company shall cause additional Restricted
Shares to be registered in the name of the Trustee on the stock transfer
books of the Company for the benefit of new Trust Participants.
7.4 The Managing Committee shall have the power to recommend to or direct the
Trustee to liquidate Restricted Shares held on trust for the benefit of
the Reversionary Beneficiary. Proceeds from the liquidation of such
Restricted Shares shall be distributed by the Trustee to the Reversionary
Beneficiary. The Managing Committee shall however, not be allowed to
instruct the Trustee to liquidate Restricted Shares that have (a) already
Vested, or (b) not been forfeited under the terms and conditions of the
Plan and the applicable Agreement, unless in accordance with Clause 4.5 of
this Trust Deed.
7.5 The Managing Committee shall have the power to give instructions to the
Trustee to invest proceeds of liquidation of Restricted Shares pursuant to
Clause 7.4 of this Trust Deed, or any other part of the Trust Property
excluding Shares which have Vested and dividends paid on the Restricted
Shares.
8. INVESTMENT OF TRUST PROPERTY
8.1 The Trustee shall, on the instructions of the Managing Committee under
Clause 7.5 of this Trust Deed, have the power to invest the proceeds of
liquidation of Restricted Shares pursuant to Clause 7.4 of this Trust
Deed, or any other part of the Trust Property excluding Restricted Shares
which have Vested and dividends paid on the Restricted Shares and the
Trustee shall not be liable for any loss arising from such investments or
from acting on any recommendation or instructions from the Managing
Committee thereof unless such loss is caused by the Trustee's own fraud,
gross negligence or wilful misconduct.
8.2 For the avoidance of doubt, the Trustee shall have no obligation or duty
to invest any dividend arising from the Restricted Shares subject to this
Trust in any manner whatsoever.
8.3 The Trustee may at any time or times during the Trust Period accumulate
the whole or any part of the income of the Trust Property so far as it is
not paid or applied for the purposes of the Trust herein declared and
shall stand possessed of any such accumulations as an accretion to the
capital of the Trust Property.
8.4 The Trustee shall hold:
8.4.1 any unutilised cash balance; and
8.4.2 any income therefrom,
upon trust as part of the Trust Property and shall have the power to apply
the same in accordance with the recommendations or instructions of the
Managing Committee and/or towards its expenses of administering the Trust
established by this Trust Deed (including taxes chargeable in respect of
any income earned by or in connection with the sale or acquisition of any
Trust Property), and shall in all cases promptly notify the Managing
Committee of such expenses thereof. The Managing Committee shall be
entitled to be
-7-
informed in writing of the imposition of taxes by the relevant Singapore
tax authority in respect of any income earned by or in connection with the
sale or acquisition of any Trust Property within a reasonable time after
such tax claim is asserted by the relevant Singapore tax authority in that
all information and correspondence relating to such taxes to the extent
provided by the relevant tax authorities to the Trustee shall be given to
the Managing Committee.
8.5 Subject to Clause 6 of this Trust Deed, where any Restricted Shares are
subject to the Trust created by this Trust Deed, the Trustee may concur in
any scheme or arrangement for:
8.5.1 the reconstruction of the Company;
8.5.2 the sale of any or any part of the property and undertaking of the
Company to another company;
8.5.3 the acquisition of the securities of the Company, or of control
thereof, by another company;
8.5.4 the amalgamation of the Company with another company; and/or
8.5.5 the release, modification or variation of any rights, privileges or
liabilities attached to the Restricted Shares or any of them,
in the like manner as if the Trustee was entitled to the Restricted Shares
beneficially, with power to accept any securities of any denomination or
description of the reconstructed or purchasing or new company in lieu of
or in exchange for all or any of the Restricted Shares.
8.6 Save as expressly set out herein and as far as allowed by law, the
provisions of Part II of the Trustees Act, Chapter 337 are expressly
excluded.
9. CUSTODY OF SECURITIES
The Trustee may place any securities or documents of title for the time
being in the possession of the Trustee in connection with the trusts
hereof in any bank or safe deposit or with any solicitor and shall not be
responsible for any loss incurred by its doing so.
10. DISCLOSURE TO TRUST PARTICIPANTS
10.1 As between the Trustee and the Trust Participants, the Trustee shall not
(unless ordered to do so by a court of competent jurisdiction) be required
to disclose to any Trust Participant any confidential, financial, price
sensitive, or other information made available to the Trustee by the
Company and/or the Managing Committee in connection with this Trust Deed.
10.2 Without prejudice to the generality of the foregoing and subject to Clause
10.3 below, a Trust Participant (for the purpose of this Clause, the
"REQUESTING TRUST PARTICIPANT") may request the Managing Committee to
issue written directions to the Trustee to provide to the Managing
Committee as agent of the Requesting Trust Participant the aggregate
number of Restricted Shares which are the subject of the Awards that had
been granted to the Requesting Trust Participant and the number of
Restricted Shares Vested and
-8-
Unvested thereof, as at a date determined by the Trustee and falling not
earlier than 30 days prior to the date on which a request is made for such
information by the Requesting Trust Participant.
provided that nothing contained in this Clause 10.2 shall require the
Trustee to disclose to any Trust Participant the identity of any other
Trust Participant or the number of Restricted Shares that are the subject
of an Award granted to any other Trust Participant.
10.3 Nothing in this Clause 10 shall prevent the Trustee, in the exercise of
its discretion for the proper administration of the Trust, from providing
to the Managing Committee, as agent of any Trust Participant, from time to
time, the information set out in Clause 10.2.
11. COVENANTS BY TRUSTEE
11.1 The Trustee hereby covenants as follows:
11.1.1 that it will exercise all due diligence and vigilance in carrying
out its functions and duties and in accordance with the rights and
interests of beneficiaries under the Trust created pursuant to this
Trust Deed;
11.1.2 that it will keep or cause to be kept proper books of accounts in
relation to those rights and interests;
11.1.3 that it will send to the Company as soon as practicable and in any
event within fifteen (15) Business Days after the end of each
calendar month, a monthly report setting out:
(i) the number of Restricted Shares held by the Trustee as at the
last day of the previous calendar month;
(ii) the amount of Trust Property in the nature of moneys;
(iii) the brokerage charges, if any, incurred in the previous
calendar month;
11.1.4 at the request of the Company, the Trustee shall provide (within
fifteen (15) Business Days of the request) the following
information:
(i) such information relating to the Trust Property and to
dealings by the Trustee in relation to the Trust Property that
would enable directors of the Company or its Affiliates to
comply with their disclosure obligations;
(ii) such other information within the knowledge, possession or
control of the Trustee that is required for the performance or
conduct of business of the Company or its Affiliates; and
11.1.5 at the request of the Company, that it will appoint an approved
company auditor or auditors as defined in Section 4(1) of the
Singapore Companies Act, Chapter 50 as auditor or auditors of the
Trust created pursuant to this Trust Deed and cause its accounts
to be audited by such appointed auditor and deliver a copy of such
audited accounts to the Company; and
11.1.6 it will conduct all transactions with or for the Trust created
pursuant to this Trust Deed at arm's length; and
-9-
11.1.7 it will ensure that it complies with all tax reporting, filing and
withholding requirements only in relation to the Trust and its
administration thereof.
12. EXERCISE OF TRUSTEE'S POWERS AND DISCRETIONS
12.1 The Trustee may exercise or concur in the exercise of any power or
discretion hereby or by law conferred on the Trustee notwithstanding that
the Trustee could be deemed to be personally interested in the exercise
thereof.
12.2 The Trustee shall not make any distribution or liquidate any Share unless
in accordance with the provisions of this Trust Deed.
13. EMPLOYMENT OF PROFESSIONAL ADVISERS
13.1 The Trustee may in the exercise of its discretion and in the performance
of its duties hereunder employ, or engage in the services of, and pay a
solicitor, accountant, estate agent, stockbroker or other person, firm or
company engaged in any other profession or business to transact or advise
on all or any business required to be done provided that the estimated
expenses to be incurred in obtaining such services must be approved by the
Managing Committee prior to the employment or engagement above-mentioned,
such approval shall not be unreasonably withheld and Shall be deemed to be
given unless the Managing Committee in writing state otherwise within 15
days after the Trustee has provided the estimated expenses to the
Management Committee.
13.2 The Trustee shall not be liable for any loss (including but not limited to
indirect and consequential losses) arising from any act or omission of
such persons employed or engaged pursuant to Clause 13.1, or the reliance
of the Trustee on any advice, recommendation or services provided by such
persons so employed or engaged. For avoidance of doubt, sections 41M and
41N of the Trustees Act (Cap. 337) shall apply to this clause 13.
14. TRUSTEE'S CHARGES
The Trustee may act in relation to the trusts hereof and shall be entitled
to charge and be paid all reasonable professional and other charges
(including reasonable out-of pocket expenses) for business transacted,
time expended or acts done by the Trustee in connection with the trust
hereof (including such charges or expenses arising prior to the removal or
retirement of the Trustee) and shall be indemnified in relation thereto by
the Company accordingly.
15. PAYMENT OF FEES, CHARGES AND EXPENSES
15.1 Without prejudice to Clause 8.4, all reasonable fees, charges or expenses
incurred in connection with the management and administration of the Trust
herein (including the charges and expenses of the Trustee and charges of
persons employed or engaged pursuant to Clause 13.1) and all taxes
chargeable in respect of income earned by or in connection with the sale
of any Trust Property shall be paid out of the cash balance of the Trust
Property for the time being.
-10-
15.2 In the event that the cash balance of the Trust Property for the time
being is insufficient to effect payments under Clause 15.1 as and when
they fall due, the Company shall upon request in writing by the Trustee
make funds available to the Trustee, to ensure that such payments will be
made promptly.
16. COSTS
The Company shall bear all costs and expenses related to the preparation
and execution of this Trust Deed.
17. INDEMNITY
17.1 Without prejudice to the Company's rights to seek contribution from any of
its Affiliates, the Company hereby covenants with the Trustee that the
Company will indemnify the Trustee and keep it fully and effectually
indemnified against all costs, claims, damages, losses, expenses, and
demands whatsoever (including but not limited to indirect or consequential
losses) which may arise out of or in connection with the Trust herein
declared and especially in relation to actions taken by the Trustee on the
recommendations, advice or instructions of the Managing Committee
whatsoever, other than claims arising from the fraud, gross negligence or
wilful default of the Trustee or any of its directors, officers or
employees.
18. RELIANCE ON INFORMATION PROVIDED BY THE MANAGING COMMITTEE, COMPANY AND
ITS AFFILIATES
18.1 The Managing Committee shall provide the Trustee with an updated list of
the Trust Participants on a regular basis and prior to any investment or
liquidation of any Restricted Shares. In the event of any inconsistencies
between the abovementioned list and the records held by the Trustee, the
list provided by the Managing Committee shall prevail.
18.2 Unless herein specifically provided, any certificate, order, notice,
direction, request or other communication from the Managing Committee (or
the Company only in relation to the appointment or any change in the
members of the Managing Committee) to be made or given under any provision
of this Trust Deed shall be signed by a person or persons notified by the
Managing Committee (or the Company as the case may be) to the Trustee in
writing as the person or persons who will be signatories.
18.3 The Trustee shall be entitled to assume that all members of the Managing
Committee who communicate with the Trustee through whatever medium remain
duly appointed members of the Managing Committee and persons designated as
signatories under Clause 18.2 (as the case may), unless otherwise notified
in writing of the retirement or replacement of such member by the Company
18.4 The Company shall maintain the personal records of the Trust Participants
and the Trustee shall be entitled to rely without further enquiry on all
information relating to the Company or its Affiliates and the Trust
Participants supplied to them by the person or persons designated as
signatories under Clause 18.2.
18.5 In particular, but without prejudice to the generality of the foregoing,
any written statement signed by that person or persons designated as
signatories under Clause 18.1 to the
-11-
effect that any person is or has ceased to be in the Employment of the
Company or as to any other circumstance affecting a person believed by the
Trustee to be or not to be a Trust Participant may be treated by the
Trustee as conclusive evidence of the matters therein stated.
19. MINIMUM NUMBER, APPOINTMENT AND REMOVAL OF TRUSTEE
19.1 A Licensed Trust Company may act as sole trustee hereof, but save as
aforesaid, there shall be not less than two individual Trustees.
19.2 The power of appointing new Trustees shall be exercisable by either the
Company or the existing Trustee, which shall be entitled at any time by
deed to appoint any new or additional Trustee or Trustees.
19.3 Provided that the retirement or removal of a sole corporate Trustee or one
of two individual Trustees herein shall not become effective until a
Licensed Trust Company or, where appropriate, a new Trustee is appointed
as successor Trustee:
19.3.1 a Trustee hereof may retire at any time by giving not less than 45
days' written notice to the Company, or such shorter notice as the
Company may agree, without assigning any reason therefore and
without being responsible for any costs incurred by the Company by
such retirement; or
19.3.2 the Company shall have power to remove any Trustee hereof by
giving not less than 45 days' written notice (or in the case of
any removal of the Trustee for cause, no notice shall be required)
to the Trustees for the time being, or such shorter notice as the
Trustee may agree, without assigning any reason therefore and
without being responsible for any costs incurred by the Trustee by
such removal, except as provided in Clause 14 and Clause 16 of
this Trust Deed. The Trustee shall not be responsible for
appointing a successor Trustee (if necessary) in such an event.
19.4 A retiring Trustee or a Trustee who has been removed by the Company shall
be required to provide a final report containing substantially the
information required by Clause 11.1.3 up to and including the last date of
its appointment, enter into such deed or deeds and to effect such
transfers of Trust Property as may be necessary or desirable in order to
vest the Trust Property in the continuing or new Trustee.
20. TRUSTEE'S LIABILITY
20.1 In the execution of the trusts hereby declared, the Trustee shall not be
liable for any loss (including but not limited to indirect or
consequential losses) arising by reason of any act or thing done or
mistake or omission made in good faith by the Trustee except for any loss
arising from the fraud, gross negligence or wilful default of the Trustee
or any of its directors, officers or employees.
20.2 For the avoidance of doubt, the Trustee shall not incur any liability or
responsibility by reason of having acted on any notice, recommendation or
instruction of the Managing Committee or any Trust Participant or the
Company given to the Trustee in relation to any matter under this Trust
Deed.
-12-
20.3 On any Trustee retiring or being removed as a Trustee, such Trustee shall
(subject to Clause 18) cease to be under any obligation whatsoever in
relation to the Trust hereof or any Trust Property or any matter arising
hereunder in relation to the Trust herein declared, except for any loss
arising from the fraud gross negligence or wilful default of the Trustee
or any of its directors, officers or employees, which shall have been
committed prior to his retirement or removal as Trustee.
21. TERMINATION
21.1 The Termination Date for the purposes of this Trust Deed means the earlier
of the following dates:
21.1.1 the date on which the Trust Period shall expire;
21.1.2 the date on which the Company shall determine to terminate the
Trust established by this Trust Deed;
21.1.3 the date on which there are no Trust Participants remaining in the
Trust; and
21.1.4 the date on which no Trust Property remains in the Trust.
21.2 On the Termination Date, the Trust established by this Trust Deed shall
terminate and subject to this Clause 21, the Trustee shall be released of
its duties and obligations herein.
21.3 In the event that on Termination Date there remains Trust Participants and
Trust Property, the Trustee shall distribute such Trust Property
(excluding Restricted Shares that have Vested and dividends accumulated on
those Restricted Shares from the Vesting Date) to the remaining Trust
Participants and the Reversionary Beneficiary as the Managing Committee
shall appoint, failing which, the Trust Property shall be distributed in
any manner as the Trustee shall deem fit.
21.4 In the event that on Termination Date there remains Trust Property but no
remaining Trust Participants, the Trustee shall distribute such Trust
Property to the Reversionary Beneficiary.
22. AMENDMENTS
The Trustee may at any time with and only with the written consent of the
majority of the Managing Committee enter into a Supplemental Deed to
alter, amend, extend, modify or add to the Trust, powers and provisions of
this Trust Deed, provided always that no such alteration, amendment,
extension, modification or addition shall alter adversely the rights
attached to any Award granted prior to such alteration, amendment,
extension, modification or addition.
23. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT, CHAPTER 53B
Unless otherwise expressly provided for in this Trust Deed, a person,
other than a Affiliate of the Company, who is not a party to this Trust
Deed has no rights under the Contracts (Rights of Third Parties) Act,
Chapter 53B of Singapore to enforce any of the provisions of this Trust
Deed.
-13-
24. GOVERNING LAW
This Trust Deed shall be governed by, and construed in accordance with the
laws of Singapore.
-14-
SCHEDULE 1
FORM OF CERTIFICATE OF AWARDS GRANTED
To: [-]
[ADDRESS]
Attention: [-]
Dear Sirs
TRUST DEED DATED [-]
RELATING TO THE YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
[NOTIONAL STOCK INCENTIVE PLAN]
Pursuant to Clause 4.1 of the above Trust Deed, we hereby certify as follows:
Number of
Identification Restricted
number Shares
(eg. passport or Position held Awarded Name of
Name of certificate of in the (state range if Date of Vesting
Trust Participant identity) Company applicable) Grant Period
----------------- ---------------- ------------- --------------- ------- -------
----------------- ---------------- ------------- --------------- ------- -------
----------------- ---------------- ------------- --------------- ------- -------
----------------- ---------------- ------------- --------------- ------- -------
----------------- ---------------- ------------- --------------- ------- -------
----------------- ---------------- ------------- --------------- ------- -------
For and on behalf of
the Managing Committee
By:
---------------------------
Name:
-------------------------
Title:
-------------------------
Date:
-------------------------
-15-
SCHEDULE 2
REPLACEMENT CERTIFICATE FOR AWARDS GRANTED
To: [-]
[ADDRESS]
Attention: [-]
Dear Sirs
TRUST DEED DATED [-]
RELATING TO THE YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
[NOTIONAL STOCK INCENTIVE PLAN]
Pursuant to Clause 4.2 of the above Trust Deed, we hereby confirm that
this certificate replaces the Certificate of Award Granted/Replacement
Certificate for Award Granted dated [-] and certify as follows:
Identification Number of
number Restricted
(eg. passport or Shares Awarded
Name of certificate of (state range if Date of Vesting
Trust Participant identity) applicable) Grant Period
----------------- ---------------- --------------- ------- -------
----------------- ---------------- --------------- ------- -------
----------------- ---------------- --------------- ------- -------
----------------- ---------------- --------------- ------- -------
----------------- ---------------- --------------- ------- -------
----------------- ---------------- --------------- ------- -------
----------------- ---------------- --------------- ------- -------
For and on behalf of
the Managing Committee
By:
---------------------------
Name:
-------------------------
Title:
-------------------------
Date:
-------------------------
-16-
SCHEDULE 3
FORM OF CERTIFICATE OF AWARDS FORFEITED
To: [-]
[ADDRESS]
Attention: [-]
Dear Sirs
TRUST DEED DATED [-]
RELATING TO THE YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
[NOTIONAL STOCK INCENTIVE PLAN]
Pursuant to Clause 4.3 of the above Trust Deed, we hereby certify as follows:
Identification Number of
number Restricted
(eg. passport or Shares forfeited Date of
Name of certificate of (state range if Forfeiture of
Trust Participant identity) applicable) Date of Grant Award
----------------- ---------------- ---------------- ------------- -------------
----------------- ---------------- ---------------- ------------- -------------
----------------- ---------------- ---------------- ------------- -------------
----------------- ---------------- ---------------- ------------- -------------
----------------- ---------------- ---------------- ------------- -------------
----------------- ---------------- ---------------- ------------- -------------
----------------- ---------------- ---------------- ------------- -------------
For and on behalf of
the Managing Committee
By:
---------------------------
Name:
-------------------------
Title:
-------------------------
Date:
-------------------------
-17-
"SCHEDULE 4"
FORM OF CALL NOTICE
To: [-]
[ADDRESS]
Attention: [-]
Dear Sirs
TRUST DEED DATED [-]
RELATING TO THE YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
[NOTIONAL STOCK INCENTIVE PLAN]
Pursuant to Clause 4.4 of the Trust Deed, we hereby issue a Call Notice in
respect of the Callable Restricted Shares as set out below:
Number of
Identification Callable Number of Repurchase
number Restricted Callable Price of each
(eg. passport or Shares Vested Restricted Callable
Name of certificate of (state range if Shares subject to Restricted
Trust Participant identity) applicable) this Call Notice Share
----------------- ---------------- ---------------- ----------------- -------------
----------------- ---------------- ---------------- ----------------- -------------
----------------- ---------------- ---------------- ----------------- -------------
----------------- ---------------- ---------------- ----------------- -------------
----------------- ---------------- ---------------- ----------------- -------------
----------------- ---------------- ---------------- ----------------- -------------
For and on behalf of
the Managing Committee
By:
---------------------------
Name:
-------------------------
Title:
-------------------------
Date:
-------------------------
-18-
IN WITNESS WHEREOF this Trust Deed has been entered into the first day and year
first above written.
THE COMMON SEAL of
YINGLI GREEN ENERGY HOLDING
COMPANY LIMITED
was hereunto affixed in the presence of:
/s/ Xxxx Xxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxx
Director
/s/ Xxxx Xxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxx
Director
THE COMMON SEAL of (SEAL)
DBS TRUSTEE LIMITED
was hereunto affixed in the presence of:
/s/ Xxxx Xxxx
------------------------------------
Xxxx Xxxx
Director
/s/ Xxxx Xxx
------------------------------------
Xxxx Xxx
Authorised Signatory
-19-
