Exhibit 4.43
EQUITY TRANSFER AGREEMENT
This Equity Transfer Agreement (this AGREEMENT) is entered into by and among the
following parties in Shanghai, the People's Republic of China (the PRC) on June
23, 2008:
Transferor 1 (PARTY A): NANTONG LINYANG ELECTRIC POWER INVESTMENT CO., LTD.
Address: No. 000 Xxxxxxx Xxxx, Xxxxxx Economic Development Zone Legal
Representative: Xx Xxxxxxx
Transferor 2 (PARTY B): JIANGSU QITIAN GROUP CO., LTD.
Address: West Chaoyang Road, Xinpu District, Lianyungang City
Legal Representative: Xxx Xxxxxxx
Transferor 3 (PARTY C): JIANGSU GUANGYI TECHNOLOGY CO., LTD.
Address: 9 Floor, Zijinmingmeng, Muxuyuan Street 77, Nanjing City, Jiangsu
Province
Legal Representative: Long Changming
Transferee (PARTY D): JIANGSU LINYANG SOLARFUN CO., LTD.
Address: Linyang Rd. 666, Qidong City, Jiangsu province
Authorized Representative: Xxxxxx Xxxxxxx
Whereas,
(A) JIANGSU YANGGUANG SOLAR TECHNOLOGY CO., LTD. (the TARGET COMPANY) is an
enterprise domiciled in Lianyungang Economic Development Zone. It has a
registered capital of RMB 337 million and is engaged in the research and
development of technologies for the manufacturing of electronic components;
manufacture and sale of monocrystalline and multicrystalline silicon ingots;
sale of electronic components; conduct or act as an agent in importing and
exporting various kinds of commodities and technologies, except for those
restricted or prohibited by the PRC government (the BUSINESS). As of the date of
this Agreement, the Target Company is validly existing under applicable laws and
jointly owned by Party A (18%), Party B (20%), Party C (10%) and Party D (52%);
and
(B) Party A, Party B and Party C intend to transfer to Party D, and Party D
intends to purchase from Party A, Party B and Party C an aggregate of 48% equity
interest in the Target Company (18% from Party A, 20% from Party B and 10% from
Party C, collectively referred to as the SUBJECT INTERESTS) (this EQUITY
TRANSFER).
(Party A, Party B and Party C are collectively referred to as the TRANSFERORS
and each a TRANSFEROR. Party A, Party B , Party C and Party D are collectively
referred to as the PARTIES and each a PARTY.)
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NOW, THEREFORE, after having reached a consensus through consultations, the
Parties hereto agree as follows:
ARTICLE 1 EQUITY TRANSFER
1.1 Party A shall transfer to Party D, and Party D shall purchase from Party A,
all the rights and interests of the 18% equity interest in the Target Company
and all the rights or privileges acquired from Party A's previous transferor for
the 18% equity interest of Target Company, in accordance with the terms and
conditions set forth herein.
1.2 Party B shall transfer to Party D, and Party D shall purchase from Party B,
all the rights and interests of the 20% equity interest in the Target Company,
and all the rights or privileges acquired from Party B's previous transferor for
the 20% equity interest of Target Company, in accordance with the terms and
conditions set forth herein.
1.3 Party C shall transfer to Party D, and Party D shall purchase from Party B,
all the rights and interests of the 10% equity interest in the Target Company,
and all the rights or privileges acquired from Party C's previous transferor for
the 10% equity interest of Target Company, in accordance with the terms and
conditions set forth herein.
1.4 The Transferee hereby agrees that it shall replace the Transferors as the
guarantor for certain loans the Target Company has taken out as of the date of
this Agreement on a pro rata basis based on the portion of the respective amount
of guarantee provided by each Transferor. . The Transferee undertakes to provide
the Transferors a counter-guarantee acceptable to Transferors if the replacement
of guarantee cannot be effected within 30 days from Final Closing Day and pay a
compensation fee to Transfeors at a 2% of the guaranteed loan per year rate
calculated by the actual days. Transferors have the right to claim any damages
they suffered because of Transferee's failure to complete the guarantor
replacement.
ARTICLE 2 PURCHASE PRICE AND PAYMENT
2.1 The total purchase price for the Subject Interests shall be equivalent to
RMB 355,872,000 (the PURCHASE PRICE).
The Purchase Price includes:
a) The purchase price for the 18% equity interest in the Target Company
to be transferred to Transferee by Party A is RMB 133,452,000
(PURCHASE PRICE A).
b) The purchase price for the 20% equity interest in the Target Company
to be transferred to Transferee by Party B is RMB 148,280,000
(PURCHASE PRICE B).
c) The purchase price for the 10% equity interest in the Target Company
to be transferred to Transferee by Party C is RMB 74,140,000 (PURCHASE
PRICE C).
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2.2 The Parties hereto agree that the Purchase Price shall be paid in accordance
with the following schedule:
a) The Transferee agrees to wire the Transferors XXX 00 million on June
24, 2008 as the pre-payment of Purchase Price (the PRE-PAYMENT). The
exact amount payable of the Pre-Payment by the Transferee to the
Transferors shall be:
(i) RMB 7,500,000 payable by the Transferee to Party A;
(ii) RMB 8,333,333 payable by the Transferee to Party B; and
(iii) RMB 4,166,667 payable by the Transferee to Party C.
If this Equity Transfer is not completed finally for reasons
attributable to the Transferors, the Transferors shall respectively
return the Pre-Payment to the Transferee. If the Equity Transfer is
not completed for reasons attributable to Transferee, the Pre-Payment
is not refundable.
b) All the Parties hereto agree to sign and/or have their director(s)
sign all documents necessary for the Registration Change stipulated in
Article 4.1 including but not limited to documents as listed in
Appendix A to this Agreement within 20 days upon duly execution of
this Agreement following Transferee's request.
c) Subject to (i) Financial Due Diligence and Legal Due Diligence to the
satisfaction of Transferee, (ii) the representations and warranties
made by Transferors under Article 3.1 a) --e), l) --n) being fully
valid, accurate and true as of the date of payment, and (iii) Article
6.5 being satisfied, and Transferee does not satisfy the conditions to
send to Transferors an Adjustment Notice pursuant to Article 6.2, the
Transferee shall pay the Transferors 50% of the Purchase Price in a
one lump-sum as the first installment of the Purchase Price (the FIRST
INSTALLMENT PAYMENT) on a preliminary closing day which shall be 20
days after the duly execution of this Agreement provided that the
Transferee does not issue a Back-out Notice (as defined in Article
6.2) or a Adjustment Notice (as defined in Article 6.2) (PRELIMINARY
CLOSING DAY). All the Parties hereto agree that the Pre-Payment shall
automatically become part of the First Installment Payment and be
deducted accordingly in the First Installment Payment by the
Transferee. The exact amount payable as the First Installment Payment
by the Transferee to the Transferors after deduction of Pre-Payment
shall be:
(i) RMB 59,226,000 payable by the Transferee to Party A;
(ii) RMB 65,806,667 payable by the Transferee to Party B; and
(iii) RMB 32,903,333 payable by the Transferee to Party C.
d) On the following working day of the Preliminary Closing Day, the
Transferors shall, together with the Transferee, submit the documents
prepared in accordance with Article 2.2 (b) to the local branch of AIC
as stipulated in Article 4.1. The Transferors shall diligently assist
the Target Company so that the Target Company
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obtains a new Business License showing Transferee as 100% owner of the
Target Company (the NEW BUSINESS LICENSE) issued by the local branch
of AIC within 15 days after the Preliminary Closing Day. The date of
issuance of the New Business License is defined as the FINAL CLOSING
DAY. If the New Business License is not issued in 60 days, the
Transferee shall be entitled to elect to terminate this Agreement. In
case the Transferee elects to terminates this Agreement by a
termination notice in writing, the Transferors shall refund the First
Installment Payment (the Pre-Payment shall be dealt with according to
Article 2.2 a) ) to the Transferee within 3 days after the date of
issuance of aforesaid termination notice.
e) Within 90 days after the Final Closing Day, Transferee shall pay 25%
of the Purchase Price to Transferors as the second installment (the
SECOND INSTALLMENT PAYMENT). The exact amount of the Second
Installment Payment shall be:
(i) RMB 33,363,000 payable by the Transferee to Party A;
(ii) RMB 37,070,000 payable by the Transferee to Party B; and
(iii) RMB 18,535,000 payable by the Transferee to Party C.
f) Within 180 days after the Final Closing Day, Transferee shall pay the
residual amount of the Purchase Price i.e. 25% of the Purchase Price
to Transferor (the THIRD INSTALLMENT PAYMENT). The exact amount of the
Third Installment Payment is
(i) RMB 33,363,000 payable by the Transferee to Party A;
(ii) RMB 37,070,000 payable by the Transferee to Party B; and
(iii) RMB 18,535,000 payable by the Transferee to Party C.
e) The Purchase Price shall be paid into the following account designated
by each Transferor by way of bank transfer:
ACCOUNT DESIGNATED BY PARTY A
Name of Beneficiary: Nantong Linyang Electric Power Investment Co.,
Ltd.
Name of Bank: Bank of China Qidong Sub-branch
Account Number: 647024780828091001
ACCOUNT DESIGNATED BY PARTY B
Name of Beneficiary: Jiangsu Qitian Group Co., Ltd.
Name of Bank: Industry and Commerce Bank of China Lianyungang
Sub-branch
Account Number: 1107010009800000021
ACCOUNT DESIGNATED BY PARTY C
Name of Beneficiary: Jiangsu Guangyi Technology Co., Ltd.
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Name of Bank: Bank of Nanjing Baixia Sub-branch
Account Number: 088590201091940006
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
3.1 The Transferors jointly and severally represent and warrant to the
Transferee as follows:
a) Each Transferor is a limited liability company duly organized, validly
existing and in good standing under the laws of PRC, and is not in
liquidation or receivership or subject to any events which under
applicable laws have a similar or analogous effect to a liquidation or
receivership. Each Transferor has all necessary corporate power and
authority to enter into this Equity Transfer Agreement (this
Agreement), to carry out its obligations hereunder and to consummate
this Equity Transfer. The execution and delivery by each Transferor of
this Agreement, the performance by each Transferor of its obligations
hereunder and the consummation by each Transferor of this Equity
Transfer have been duly authorized through all requisite procedures on
the part of each Transferor, and no other proceedings on the part of
either Transferor or any of its affiliates is required in connection
therewith. This Agreement has been duly executed and delivered by each
Transferor, and this Agreement constitutes legal, valid and binding
obligations of each Transferor, enforceable against each Transferor in
accordance with its terms;
b) The execution, delivery and performance of this Agreement by each
Transferor do not and will not (i) violate, conflict with or result in
the breach of, any provision of the articles of association (or
similar organizational documents) of either Transferor and the Target
Company, or (ii) conflict with or violate any law or governmental
order applicable to either Transferor, the Target Company or any of
their assets, properties or businesses, or (iii) constitute a breach
of any other contracts, agreements or instruments to which either
Transferor or the Target Company is a party;
c) Except as described in this Agreement, the execution, delivery and
performance by each Transferor of this Agreement do not and will not
require any consent, approval, authorization or other order of, action
by, filing with, or notification to any governmental authority;
d) Each Transferor is the owner of the rights, title and interests in the
respective portion of the Subject Interests, and such portion of the
Subject Interests is owned free and clear of any mortgage, pledge,
lien, encumbrance or any other third party interests and not subject
to any third party claim. Upon this Equity Transfer, the Transferee
will acquire all the rights, title and interests to the Subject
Interests, free and clear of all encumbrances;
e) The Transferors own the Subject Interests and each Transferor agrees
to waive any right of first refusal that such Transferor may have in
connection with the sale of the Subject Interests to the Transferee.
Other than that, there does not exist any right of first refusal in
connection with this Equity Transfer.
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f) The Target Company is a limited liability company duly organized,
validly existing and in good standing under the laws of the PRC, and
is not in liquidation or receivership or subject to any events which
under applicable laws have a similar or analogous effect to a
liquidation or receivership.
g) As at the date of this Agreement, there are no litigations or
arbitrations or any other legal proceedings pending or threatened by
or against the Target Company;
h) (i) all tax returns and other similar documents required to be filed
by the Target Company have been timely filed; (ii) all taxes required
to be shown on such tax returns or other similar documents or
otherwise due by the Target Company have been timely paid; (iii) all
such tax returns and other similar documents are true, correct and
complete in all material respects; (iv) no adjustment relating to such
tax returns or any other similar documents has been proposed formally
or informally by any governmental authority and, to the knowledge of
each Transferor, no basis exists for any such adjustment;
i) The Target Company owns, leases or has the legal rights to use all
properties and assets (tangible and intangible), including the real
property, intellectual property and licensed intellectual property,
used in the conduct of the Business (the Assets), including the major
Assets, which are 20 sets of crystal pulling furnaces, poly-furnaces
of US$35,500,000 worth purchased from ALD Vacuum Technologies GmbH,
1500 mu of land (the reference number of the Certificate of
State-owned Land Useright is Xxxx XxxXxxx (2007) XP003119, Xxxx
XxxXxxx (2007) XP003120, Xxxx XxxXxxx (2007) XP003121 and Xxxx XxxXxxx
(2007) XP003122) and six buildings with a total area of 100 million
square meters and located in Dapu Chemical Industry Zone, Liangyungang
Economic Zone, Liangyungang. Among them, three buildings have been
completed but have not obtained the title certificate (the respective
reference numbers of their Construction Project Permit are
K320705200512300301, K320705200512300101 and K320705200512300201),
while the other three buildings are under construction (the respective
reference numbers of their Construction Project Permit are
K320705200603160101, K320705200802020201 and K3207052008002020101).
The Target Company has good and marketable title or leasehold interest
to each Asset, free and clear of any mortgage, pledge, lien,
encumbrance or any other third party interests undisclosed to
Transferee. All of the Assets are in good operating condition and
repair, ordinary wear and tear excepted, and are not in need of
substantial maintenance or repairs. The intellectual property and the
licensed intellectual property of the Target Company do not conflict
with, infringe, misappropriate or otherwise violate the rights in the
intellectual property of any third party. Other than those liabilities
as fairly and truly reflected on the Target Company's financial
statements as of May 31, 2008, the Target Company does not have, and
has not entered into any contract or agreement for the creation of,
any existing liability or contingent liability such as guarantee(s)
provided in favor of any person at the date of this Agreement;
j) The Target Company is in compliance with the laws and regulations
applicable to its business or properties in all material respects. The
Target Company has never
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received notification from any governmental authority asserting that
it is not in compliance with or has violated any laws, or threatening
to revoke any authorization, consent, approval, franchise, license, or
permit;
k) The Target Company has all authorizations, consents, approvals,
franchises, certifications, registrations, licenses and permits
required under applicable law for the ownership of the Target
Company's properties and the operation of the Business (collectively,
the PERMITS). No suspension, non-renewal or cancellation of any of the
Permits is pending or threatened, and to the knowledge of the
Transferors, there is no reasonable basis thereof. The Target Company
is not in conflict with, or in default or violation of, any Permit;
l) All contracts or agreements that are currently in existence between
the Transferors and the Target Company or shareholders of any of the
Transferors and the Target Company will remain in full force and
effect unless otherwise terminated by the Target Company; Transferors
further undertake to renew such contracts / agreements as the Target
Company see fit at the same or better terms for the Target Company
when those contracts/agreements' current terms shall expire;
m) Transferors undertake that they and their respective individual
shareholders as of the date of this Agreement shall not and will not
in the next five (5) years engage in any business that the Target
Company or the Transferee shall reasonably consider as competitive in
nature with the Target Company and/or Transferee's current business;
n) The Transferors undertake that no material adverse changes that will
adversely affect the value of the Target Company will occur from date
of this Agreement to Preliminary Closing Day and all contracts,
business actions that are out of the ordinary course of business
(refer to the business actions which are beyond daily operation of the
Target Company or not conducted by the Target Company before the date
of this Agreement), bonus releases, and adoption of any board
resolutions (the EXTRAORDINARY BUSINESS ACTIONS) shall require
Transferee's prior approval from signing of this Agreement until take
over by Transferee; when the Target Company is about to engage in
business actions which are possibly considered as the EXTRAORDINARY
BUSINESS ACTIONS, it shall obtain confirmation from the Transferee in
advance:
o) There were no material litigation or arbitration or threatened
litigation or arbitration, other government proceedings, environmental
concerns and possible environmental claims against the Target Company,
material adverse contracts or contractual obligations of Target
Company that are materially damaging to Target Company other than
those expressly disclosed to Transferee before the Preliminary Closing
Day during the Financial Due Diligence and Legal Due Diligence;
p) The construction, the production and the Business conducted by the
Target Company are in compliance with applicable laws and regulations
including all environmental requirements; and
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q) There is no bonus of any employees payable or accrued that is not
reflected in the financial statements as of May 31, 2008 of the Target
Company.
3.2 The Transferee represents and warrants to the Transferors as follows:
a) The Transferee is a wholly foreign-owned enterprise duly organised,
validly existing and in good standing under the laws of PRC, and is
not in liquidation or receivership or subject to any events which
under applicable laws have a similar or analogous effect to a
liquidation or receivership. The Transferee has all necessary
corporate power and authority to enter into this Agreement, to carry
out its obligations hereunder and to consummate the transactions
contemplated by this Agreement. The execution and delivery by the
Transferee of this Agreement, the performance by the Transferee of its
obligations hereunder and the consummation by the Transferee of the
transactions contemplated by this Agreement have been duly authorized
by all requisite corporate action on the part of the Transferee, and
no other proceedings on the part of the Transferee or any of its
affiliates is required in connection therewith. This Agreement has
been duly executed and delivered by the Transferee, and this Agreement
constitutes legal, valid and binding obligations of the Transferee,
enforceable against the Transferee in accordance with its terms;
b) The execution, delivery and performance of this Agreement by the
Transferee do not and will not (i) violate, conflict with or result in
the breach of, any provision of the articles of association (or
similar organizational documents) of the Transferee or (ii) conflict
with or violate any law or governmental order applicable to the
Transferee or any of its assets, properties or businesses or (iii)
constitute a breach of any other contracts, agreements or instruments
to which the Transferee is a party; and
(c) Except as described in this Agreement (subject to approval by board of
audit committee of Transferee and Transferee's parent company), the
execution, delivery and performance by the Transferee of this
Agreement do not and will not require any consent, approval,
authorization or other order of, action by, filing with, or
notification to any governmental authority.
3.3 Special representation by Parties
The Transferee and the Transferors understand that the Target Company currently
holds a piece of land less than 100 mu on which a 220kv power transformation
station is being constructed by a grid company (PTS LAND). Transferee
understands that because of planning change the PTS Land is going to be
transferred back to the land bureau according to relevant procedures. The
Transferors guarantee that the transfer of such PTS Land will be transferred at
a premium over what the cost and improvement on the PTS Land by the Target
Company. The Transferors also guarantee that it will ensure utmost convenience
for electricity supply to the Target Company.
ARTICLE 4 CLOSING, ADDITIONAL AGREEMENTS AND COVENANTS
4.1 All the Parties hereto acknowledge that the consummation of this Equity
Transfer requires the following approvals from, filing and/or registration with
the relevant governmental authorities:
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Change of the registration in the local branch of the State Administration on
Industry and Commerce (AIC) in Lianyungang for the Target Company (Registration
Change).
4.2 All the Parties hereto agree that: provided this Agreement is not terminated
according to Article 6.2, upon the completion of financial and legal due
diligence, Parties hereto shall proceed with the procedures necessary for
transferring the ownership of the Subject Interests to Party D, including using
their commercially reasonable efforts to, as soon as practicable after the
execution of this Agreement, a) update the shareholder list/charter of Target
Company to reflect Party D's obtaining of Subject Interests; b) complete
procedures stipulated in Article 4.4; c) complete register of changes stipulated
in the Article 4.1; and d) obtain all authorizations, consents, orders,
registrations and approvals of governmental authorities and officials necessary
for the consummation of the transactions contemplated by this Agreement,
including the official reply, the certificate of approval, the registrations and
filings and the amended business license. Where any governmental authority,
following its review of the documents submitted to it hereunder in order to
apply for any of the necessary authorizations, consents, orders, registrations
or approvals set forth herein, requests any amendment to any provision of any
such document, including this Agreement, the parties hereto shall immediately
consult with each other to determine whether to make such requested amendment
and shall fully cooperate with each other therein.
4.3 This Equity Transfer shall be deemed completed at the Final Closing Day.
4.4 All the parties hereto agree to use their commercially reasonable efforts to
take, or cause to be taken, all appropriate action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws or
otherwise, and to execute and deliver all the documents and other instruments in
order to carry out the provisions of this Agreement and to consummate and
effectuate the transactions contemplated by this Agreement.
4.5 All the Parties hereto acknowledge that upon Final Closing Day, the
Transferors shall go through the necessary procedures in writing for the
turn-over and take-over of the Target Company so that Transferee can immediately
take over and obtain the control over the Target Company and can restructure the
Target Company's human resources organization and arrange the Target Company's
production preparations and corporate development in accordance with applicable
laws and Transferee's decisions.
4.6 The Transferors agree to continue all support previously provided by them or
their affiliates to the Target Company including electrical power on continuing
basis, government support as needed and other previously provided services.
4.7 The Transferors agree to provide all documents and information required by
the Transferee for the due diligence conducted by the Transferee to the Target
Company for this Equity Transfer, including but not limited to all contracts,
oral or written, evidence of disputes with any third party, other unrecorded
liabilities and items not in the ordinary course of business of the Target
Company.
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4.8 The Transferors agree to provide all Target Company's employee contracts and
their respective contact details including addresses and phone numbers to the
Transferee. The Transferors undertake that in the next three (3) years, it will
refrain from hiring or otherwise entering into any consultation or other similar
arrangements with any employee of the Target Company or any person who was
within 6 months prior to the date of this Agreement an employee of the Target
Company.
4.9 From the execution date of this Agreement to Final Closing Day, the
Transferors shall use all commercially reasonable efforts to cause the Target
Company a) to operate the Business as currently conducted by the Target Company
in the ordinary course consistent with past practice, and to preserve intact the
business organizations and the current relationships and goodwill of their
customers, suppliers and others with whom they have significant business
relations, b) and not to issue, sell, dispose of, create an encumbrance on, or
authorize the issuance, sale, disposal or creation of any encumbrance on, (i)
any registered capital or capital stock of the Target Company, or (ii) any asset
or property right; c) and not to create, incur or assume any indebtedness or any
liability, including granting or becoming subject to any guaranty, which shall
not be resulting from the ordinary business operation of the Target Company.
ARTICLE 5 LIABILITY FOR BREACH OF CONTRACT
5.1 Unless otherwise provided herein, any Party in violation of any
provision herein shall compensate each non-defaulting Party for any
and all losses arising from its breach of this Agreement.
5.2 If the Transferee delays in the payment of any amount of the Purchase
Price, it shall pay the Transferors as a whole a penalty for each day
of delay which shall be computed on a daily basis at the rate of 0.05
% of the amount payable of the Purchase Price. Such penalty payment
shall be divided among the Transferors on a pro rata basis based on
the portion of the Purchase Price owed to them.
5.3 If the Transferors or any Transferor or the Transferee fail to provide
relevant documents required for the Registration Change or otherwise
by action or inaction frustrates the Equity Transfer in part or in
all, the defaulting Party shall be liable to the non-defaulting Party
for any and all direct or indirect losses the non-defaulting Party may
have incurred by entering into this Agreement; in no event shall the
damages payable be less than 20% of the Purchase Price; in addition,
if any Transferors default, any and all of the Purchase Price paid to
the Transferors shall be refunded to the Transferee.
5.4 In the event of breach of Article 3.1 a)-e), l)-n), Article 4.8 or
Article 4.9 hereof by any Transferor, or any Transferor is proved to
have knowledge that representations and warranties stated in Article
3.1f)-k),o)-q) are untrue, the defaulting Transferor shall be liable
for such breach of this Agreement to pay the Transferee liquidated
damages of 50% of the share of Purchase Price otherwise payable to the
defaulting Transferor pursuant to this Agreement within three (3)
months of the date of the written notice of breach from the
Transferee. The Transferors hereby also expressly waive any and all
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rights they may have under any PRC laws to petition that the
liquidated damages may be higher than the actual damages.
5.5 In the event of late payment under Article 2 on the part of the
Transferee for more than 30 days or otherwise, the Transferee shall
have fundamentally breached this Agreement and shall pay the
Transferors 50% of the Purchase Price based on their respective
portion to the Purchase Price. The Transferee hereby also expressly
waives any and all rights it may have under any PRC laws to petition
that the liquidated damages may be higher than the actual damages.
ARTICLE 6 EFFECTIVENESS, AMENDMENT AND TERMINATION
6.1 This Agreement shall take effect after being affixed with the
appropriate signature and company seal of each Party hereto.
6.2 The Parties hereto agree that, if in 20 days from signing of this
Agreement a) it is found through the financial due diligence on the
Target Company (the FINANCIAL DUE DILIGENCE) by Transferee and its
advisors in connection with the transactions contemplated hereunder
that, as of the base date (May 31, 2008) determined for such financial
due diligence, there are sufficient evidence to support that the
difference between the actual net assets value of the Target Company
and the net assets value shown on the financial statement as of May
31, 2008 (which is RMB 305 million) is over 10%; 2) it is found
through legal due diligence on Target Company (the LEGAL DUE
DILIGENCE) by Transferee in connection with the transactions
contemplated hereunder that there is existing condition that will have
material impact on Transferee's interests or the completion of this
share transfer including Article 3.1 f)-k), o)-q) being materially
untrue, the Transferee shall have the right to propose an adjustment
of the Purchase Price according to the Financial Due Diligence and the
Legal Due Diligence by sending written notice to the Transferors (the
ADJUSTMENT NOTICE) and Transferors may elect to agree to the
adjustment proposed or counter-offer a price adjustment to the
Transferee within 7 days, if Parties shall not reach an agreement
within 15 days from the Transferee sending out the Adjustment Notice
regarding the reduced Purchase Price, Transferee may elect to drop
this Agreement or to accept the best counter-offered price reduction
by Transferor during the last 15 days and proceed with performance of
this Agreement. Such election of Transferee shall be made in writing
to Transferors within the 16th day from the Adjustment Notice date
with immediate effect (ELECTION NOTICE). Shall the election be to drop
this Agreement, this Agreement is cancelled immediately and the
Pre-Payment shall be dealt with in accordance with Article 2.2 (a). If
the Election Notice states Transferee's acceptance of Transferors'
best offer from the past 15 days of negotiation for the adjustment of
the Purchase Price based on Transferee's due diligence on the Target
Company since the signing of this Agreement, this Agreement will
remain in full force and effect and all Parties shall continue to be
fully bound by this Agreement and all of its terms and shall carry
through their respective obligations in their entirety. The Parties
agree that the transfer price should be adjusted accordingly based on
the difference between the actual net assets value of the Target
Company and the net assets value shown on the financial statement as
of May 31, 2008.
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6.3 If the objective of this Agreement fails to be achieved due to change
of circumstances, the parties hereto agree to amend this Agreement by
entering into a separate amendment agreement in writing.
6.4 The termination of this Agreement resulting from any violation of the
terms of this Agreement shall be conducted in accordance with the PRC
Contract Law.
6.5 The supply agreement between Party D and Jiangsu Zhongneng Polysilicon
Technology Development Co., Ltd. (JIANGSU ZHONGNENG) regarding
long-term supply of polysilicon being duly executed by the relevant
parties within 10 days from the date of this Agreement shall be a
condition precedent for this Agreement's coming into effect. If this
Agreement cannot come into effect for reasons not attributable to
Transferors, the supply agreement signed between Party D and Jiangsu
Zhongneng regarding long-term supply of polysilicon shall be
transferred unconditionally at the same terms to the Target Company.
The Parties agree that such assignment shall be completed within 30
days after all payment for the Equity Transfer already made by
Transferee to the Transferors are fully refunded (except for the
Pre-Payment dealt with in accordance Article 2.2 a)). If the
above-mentioned supply agreement is not completed within
above-mentioned 30-day grace period, Party D shall pay 20% of the
total purchase price of polysilicon purchased from Jiang Zhongneng
after the 30-day grace period until the long term supply agreement is
transferred to Target Company.
ARTICLE 7 MISCELLANEOUS
7.1 This Agreement is governed by PRC laws. Any dispute arising out of or
relating to the performance of this Agreement shall be first settled
by the parties hereto through friendly negotiation. If any dispute
fails to be resolved through such friendly negotiations within 10
working days as of the occurrence thereof, any party hereto may refer
such dispute to China International Economic and Trade Arbitration
Commission (CIETAC), Shanghai Commission (CIETAC SHANGHAI) for
arbitration in accordance with the arbitration rules of CIETAC
Shanghai then in effect. The tribunal shall be composed of three
arbitrators, one of which shall be appointed by the Transferors
jointly and one by the Transferee and the third arbitrator shall be
jointly appointed by the two arbitrators so appointed. In case either
the claimant or the respondent fails to appoint its arbitrator or the
two arbitrators appointed by the two parties fail to reach an
agreement within ten (10) days on the appointment of the third
arbitrator, such arbitrators or arbitrator shall be appointed by the
secretary general of CIETAC Beijing Headquarters. The arbitral
proceedings shall be conducted in Chinese. The arbitral award shall be
final and binding on the parties hereto.
7.2 This Agreement can only be modified by a written supplemental
agreement executed by the Parties hereto or be amended by Parties
signing to a written amendment with binding effect only on the signing
Parties.
7.3 This Agreement shall be executed in both Chinese and English and the
Chinese version shall prevail.
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7.4 This Agreement may be executed in four originals, with each party to
hold one, and four counterparts, which shall be kept by the parties
hereto for registration and filing with the competent authorities.
Each executed copy shall have the same legal effect.
7.5 The Transferee may assign this Agreement in part or in all to its
affiliates by providing a written notice to Transferors.
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Execution Page
--------------
TRANSFEROR 1 (PARTY A): NANTONG LINYANG ELECTRIC POWER INVESTMENT CO., LTD.
(company seal)
Address: Nanjing Liuhe Economic Development Zone
Legal Representative: Xx Xxxxxxx
Signed by: /s/ Xx Xxxxxxx
------------------------------------
Legal or Authorized Representative
TRANSFEROR 2 (PARTY B): JIANGSU QITIAN GROUP CO., LTD. (company seal)
Address: West Chaoyang Road, Xinpu District, Lianyungang
Legal Representative: Xxx Xxxxxxx
Signed by: /s/ Xxx Xxxxxxx
------------------------------------
Legal or Authorized Representative
TRANSFEREE (PARTY C): JIANGSU GUANGYI TECHNOLOGY CO., LTD.
Address: 9 Floor, Zijinmingmeng, Muxuyuan Street 77, Nanjing City, Jiangsu
Province
Legal Representative: Long Changming
Signed by: /s/ Long Changming
------------------------------------
Legal Representative
TARGET (PARTY D): JIANGSU LINYANG SOLARFUN CO., LTD.
Address: Linyang Rd. 666, Qidong City, Jiangsu province
Authorized Representative: Xxxxxx Xxxxxxx
Signed by: /s/ Xxxxxxxx Xxxxxxxx Xxxxxx Xxxxxxx
------------------------------------
Authorized Representative
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APPENDIX CHECKLIST FOR REQUISITE DOCUMENTS FOR APPLICATION FOR
CHANGE OF REGISTRATION CHANGE
No. Document Responsible Party
1 The Application Form (the original) This form can be obtained from local branch of AIC in Lianyungang
and shall be with the company chop of the Target Company. The
Target Company shall submit these documents to the local branch of
AIC in Lianyungang.
2 Power of Attorney for the Application Form This form can be obtained from local branch of AIC in Lianyungang
(the original) and shall be with the company chop of the Target Company. The
Target Company shall submit these documents to the local branch
of AIC in Lianyungang.
3 Resolution of shareholder's general meeting This resolution concerns the Transferor, the Transferee, the
of the Target Company by shareholders before Subject Interests and the amount of the transfer. The Target
this Equity Transfer (the original and the copy Company shall submit these documents to the local branch of AIC
with the company chop of the Target Company) in Lianyungang.
4 Equity Transfer Agreement (the original and the The Target Company shall submit these documents to the local branch
copy with the company chop of Transferors and of AIC in of in Lianyungang.
the company chop Transferee)
5 Shareholder's written decision by shareholder This written decision concerns alternations to Article of
after this Equity Transfer (the original and the Association, whether to modify company governance and etc. The
copy with the company chop of the Target Company) Target company Company shall submit these documents to the local
branch of AIC in Lianyungang.
6 The original Business License of the Target The Target Company shall submit these documents to the local branch
Company (the original) of AIC in Lianyungang.
7 The restated AOA after the Equity Transfer (the The Target Company shall submit these documents to the local branch
original and the copy with the company chop of of AIC in Lianyungang.
the Target Company)
8 Names, domiciles, relevant appointment and The Target Company shall submit these documents to the local branch
employment documents for Directors, Supervisors of AIC in Lianyungang.
and Managers of the Target Company after the
Equity Transfer (the original and the copy with
the company chop of the Target Company)
9 Registration form of Legal Representative (the The Target Company shall submit these documents to the local branch
original) of AIC in Lianyungang.
10 Other documents which the authority may deem
necessary
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