AMENDED AND RESTATED FRAMEWORK AGREEMENT Dated as of December 1, 2009 by and between LDK Solar Co., Ltd. and Best Solar Co., Ltd.
Exhibit 4.12
AMENDED AND RESTATED FRAMEWORK AGREEMENT
Dated as of December 1, 2009
by and between
and
Best Solar Co., Ltd.
AMENDED AND RESTATED FRAMEWORK AGREEMENT
This AMENDED AND RESTATED FRAMEWORK AGREEMENT (the “Agreement”) is entered into as of this
1st day of December 2009 to amend and restate the framework agreement dated as of August
24, 2009 by and between LDK Solar Co., Ltd. (“LDK Solar”) and Best Solar Co., Ltd. (“Best Solar”).
LDK Solar and Best Solar may be referred to herein individually as a “Party” and collectively as
the “Parties”).
BACKGROUND
WHEREAS LDK Solar, a leading manufacturer of multicrystalline solar wafers and a wafer
processing service provider to monocrystalline and multicrystalline solar cell and module
manufacturers, is a reporting issuer under the U.S. securities laws with its shares represented by
American depositary shares listed on the New York Stock Exchange (“NYSE”) and is majority-owned by
LDK New Energy Holding Limited (“LDKNE Holding”);
WHEREAS Best Solar, a large manufacturer of solar modules and large provider of solar panel
solutions possessing the relevant product qualifications in several jurisdictions, is a private
company wholly owned by LDKNE Holding;
WHEREAS, the Parties wish to cooperate with each other and take advantage of their respective
complementary strengths in the different sectors of the photovoltaic industry in order to achieve a
mutually beneficial result under the current market conditions, without breaching the legal,
fiduciary and other obligations of the Parties and their respective affiliates under the relevant
laws, including the U.S. securities laws and the NYSE rules, as a result of these related-party
transactions; and
WHEREAS, this Agreement is subject to the approvals of both Parties in accordance with their
respective internal procedures.
NOW THEREFORE, in the spirit of mutual cooperation and fairness to the interests of both
Parties, the Parties hereto agree as follows:
ARTICLE I
PHOTOVOLTAIC DOWN-STREAM COOPERATION
PHOTOVOLTAIC DOWN-STREAM COOPERATION
(a) Pursuant to the Provisional Administrative Measures Relating to Fiscal Funding Support to
Golden Sun Trial Implementation Program issued by the PRC government on July 16, 2009, the PRC
government has announced plans to financially support the construction and operation of
photovoltaic power stations in China.
(b) In order to take advantage of the opportunities created by these and other favorable PRC
policies, LDK Solar hereby agrees to contract for solar module manufacturing services from Best
Solar with the requisite solar cells supplied by LDK Solar; and Best Solar hereby agrees to provide
such solar module manufacturing services to LDK Solar at prices no less favorable than those it
offers to independent third parties with comparable quality and quantity.
(c) LDK Solar will sign a supplemental module supply agreement (including purchase orders) to
define the volume, delivery schedule, price and quality as well as the relevant module manufacture
materials, such as wafers and cells, of the solar modules and/or the relevant tolling services to
be provided by Best Solar.
(d) Best Solar understands that these contractual arrangements with LDK Solar constitute
related-party transactions and that LDK Solar will need to undertake and pass necessary internal
control and other corporate governance procedures (including without limitation the review and
approval of the pricing and other terms and conditions thereof by the audit committee of the board
of directors of LDK Solar) before LDK Solar may enter into each of these related-party
transactions.
(e) Best Solar also understands and agrees that LDK Solar has established a photovoltaic
engineering, procurement and construction (“EPC”) company to construct solar power stations in
China and that LDK Solar has quality, quantity, delivery timing and other requirements and that
Best Solar will make its best reasonable endeavors
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to comply with such requirements of LDK Solar.
ARTICLE II
PURCHASE AND SALE OF MODULE PRODUCTION CAPACITY
PURCHASE AND SALE OF MODULE PRODUCTION CAPACITY
(a) The Parties hereby agree that, when market and other conditions permit, LDK Solar may wish
to purchase all or a certain part of the solar module production capacity of Best Solar on terms
and subject to conditions fair to both Parties, including Best Solar establishing a dedicated
production facility for solar module manufacturing exclusively for the purpose of supplying solar
modules to LDK Solar; and Best Solar hereby agrees to entertain such discussion with a view to
reaching a mutually beneficial agreement with LDK Solar.
(b) Best Solar understands that such production capacity purchase arrangements with LDK Solar
constitute related-party transactions and that LDK Solar will need to undertake and pass necessary
internal control and other corporate governance procedures (including without limitation the review
and approval of the pricing and other terms and conditions thereof by the audit committee of the
board of directors of LDK Solar) before LDK Solar may enter into such related-party transactions.
ARTICLE III
ACQUISITION OF MODULE PRODUCTION FACILITIES
ACQUISITION OF MODULE PRODUCTION FACILITIES
(a) The Parties hereby agree that, when market and other conditions permit, LDK Solar may wish
to purchase all or a portion of the solar module production facilities of Best Solar on terms and
subject to conditions fair to both Parties; and Best Solar hereby agrees to entertain such
discussion with a view to reaching a mutually beneficial agreement with LDK Solar.
(b) Best Solar understands that such acquisition of module production facilities by LDK Solar
constitutes a related-party transaction and that LDK Solar will need to undertake and pass
necessary internal control and other corporate governance procedures (including without limitation
the review and approval of the pricing and other terms and conditions thereof by the audit
committee of the board of directors of LDK Solar and review and confirmation by independent
financial advisors to LDK Solar, including their fairness opinions if required or necessary under
the circumstances) before LDK Solar may enter into such related-party transactions.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
REPRESENTATIONS AND WARRANTIES
(a) Representations and Warranties of LDK Solar. LDK Solar represents and warrants to
Best Solar the following:
(i) LDK Solar has full power, authority, and legal right to execute and deliver this
Agreement, and to perform all of its obligations hereunder.
(ii) LDK Solar has taken all actions that are necessary or advisable: (A) for the
execution, delivery, performance, and observance by LDK Solar of this Agreement; and (B) for
the validity, binding effect and enforceability of this Agreement.
| (b) | Representations and Warranties of Best Solar. Best Solar represents and warrants to LDK Solar the following: |
(i) Best Solar has full power, authority, and legal right to execute and deliver this
Agreement and to perform all of its obligations hereunder.
(ii) Best Solar has taken all actions that are necessary or advisable: (A) for the
execution, delivery, performance, and observance by Best Solar of this Agreement; and (B)
for the validity, binding effect and enforceability of this Agreement.
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(iii) Best Solar has obtained IEC/EN6125, IEC61730 tested by TUV, UL1703 tested by ETL,
CQC certifications for its solar module manufacturing and such certification remains valid,
not revoked and without any modification or qualification by the certifying authorities.
(iv) All certificates, licenses, permits, authorizations and approvals required or
necessary for the module manufacturing business of Best Solar and its subsidiaries as
presently conducted are validly held by Best Solar or its subsidiary, and Best Solar and its
subsidiaries are in compliance, and has complied, in all material respects with all terms
and conditions thereof.
(v) Best Solar owns or has the right to use all of the intellectual properties,
including without limitation any patent, patent application, patent right, trademark,
trademark registration, trademark application, servicemark, trade name, business name, brand
name, copyright, copyright registration, design or design registration, currently used or
otherwise required or necessary in the module manufacturing business of Best Solar and its
subsidiaries as presently conducted. The conduct of the business of Best Solar and its
subsidiaries as presently conducted does not violate, conflict with or infringe the
intellectual property of any other person. No claims are pending or, to the knowledge of
Best Solar, threatened, against it or any of its subsidiaries by any person with respect to
the ownership, validity, enforceability, effectiveness or use in the business of Best Solar
and its subsidiaries of any such intellectual property.
(vi) Best Solar and its subsidiaries are, and at all times have been, in compliance
with all applicable laws, including those relating to occupational health and safety, and
all judgments applicable to Best Solar, its subsidiaries or any assets owned or used by any
of them, except for instances of noncompliance that, individually or in the aggregate, have
not had and would not reasonably be expected to have a material adverse effect (a) on the
business, assets, liabilities, condition (financial or otherwise), results of operations or
prospects of Best Solar and its subsidiaries, taken as a whole, or (b) on the ability of
Best Solar to consummate the transactions contemplated herein on a timely basis and to
perform its obligations under this Agreement.
ARTICLE V
COVENANTS
COVENANTS
(a) Covenants of Best Solar. Best Solar covenants and undertakes to LDK Solar as
follows:
(i) It shall promptly advise LDK Solar in writing of the occurrence of any matter or
event that is material to the business, assets, condition (financial or otherwise), results
of operations or prospects of Best Solar and its subsidiaries, taken as a whole.
(ii) It shall promptly advise LDK Solar in writing of any conflict with, or
infringement of, the intellectual property of any other person with respect to the
ownership, validity, enforceability, effectiveness or use of the intellectual properties,
including without limitation any patent, patent application, patent right, trademark,
trademark registration, trademark application, servicemark, trade name, business name, brand
name, copyright, copyright registration, design or design registration, that Best Solar
and/or its subsidiaries currently own or use in their businesses.
(iii) It shall promptly advise LDK Solar in writing of any amendment, revocation,
cancellation, renewal, modification or qualification with respect to IEC/EN6125, IEC61730
tested by TUV, UL1703 tested by ETL, CQC and other certifications, from time to time, for
its solar module manufacturing by the certifying authorities.
(iv) It will promptly seek approvals, corporate, regulatory or otherwise, for the
transactions contemplated hereunder and its performance of the obligations provided
hereunder and shall promptly inform LDK Solar accordingly.
(b) Covenants of LDK Solar. LDK Solar covenants and undertakes to Best Solar that it
will promptly seek approvals, corporate, regulatory or otherwise, for the transactions contemplated
hereunder and its performance of the obligations provided hereunder and shall promptly inform Best
Solar accordingly.
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(c) Non-compete Covenants of the Parties. The Parties acknowledge that Best Solar has
been engaged in solar module manufacturing as well as sale of solar modules in China and that LDK
Solar has been engaged in photovoltaic system and/or solar power station construction in China with
its EPC capability as well as sale of solar modules outside China; and the Parties hereby covenant
and undertake to each other that they will each continue their engagements along the lines of their
respective existing operations in the solar module business, without competing in the other’s
operations as described above; provided, however, that such non-compete covenants of LDK Solar
shall not apply upon its acquisition of any solar module production facility from Best Solar
pursuant to Article III.
ARTICLE VI
GOVERNING LAW AND JURISDICTION
GOVERNING LAW AND JURISDICTION
(a) In the event of any claim, controversy or dispute between the Parties with respect to this
Agreement, each Party agrees to consult with the other for a period of not less than ninety (90)
days from the date notice is given by a Party to the other Party that a claim, controversy, or
dispute exists in order to determine whether there is a mutually acceptable resolution.
(b) In the event that the consultation provided for in paragraph (a) of this Article has not
resulted in a mutually acceptable resolution, then such matter shall be exclusively and finally
settled by arbitration held in Shanghai by China International Economic and Trade Arbitration
Committee (“CIETAC”) in accordance with its prevailing rules at the time of arbitration, whose
decision shall be final and legally binding on each Party. The arbitral tribunal shall consist of
three (3) arbitrators to be appointed in accordance with such CIETAC rules. The arbitration fees
payable to the arbitration organization and any reasonable attorney’s fees shall be borne by the
losing Party unless otherwise determined in the arbitration award. The arbitration proceedings
shall be conducted in Chinese.
(c) Nothing in this Agreement shall prevent either Party from seeking provisional measures or
other interim relief from any court of competent jurisdiction and any such request shall not be
deemed incompatible with the agreement to arbitration in this Agreement or as a waiver of the right
to arbitrate.
(d) Pending resolution of the dispute in accordance with this Article, the Parties shall
continue to punctually perform their respective obligations and duties under this Agreement, except
for those relating to discrepancies under arbitration.
(e) THIS AGREEMENT WILL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
PEOPLE’S REPUBLIC OF CHINA.
ARTICLE VII
NOTICES
NOTICES
All notices and other communications pursuant to this Agreement shall be in writing, in the
English language (or accompanied by an accurate English translation upon which the other Party
shall have the right to rely for all purposes under this Agreement), sent to the attention of the
person indicated below, and effective upon receipt at the address or number listed below (or such
other address or number provided by the relevant Party no less than 30 days prior to any notice or
communication).
| (a) | Notices to LDK Solar: | ||
| LDK Solar Co., Ltd. Xinyu ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ People’s Republic of China |
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| Attention: Chief Financial Officer |
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| Telephone: (▇▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇-▇▇▇▇ |
| (b) | Notices to Best Solar: | ||
| Best Solar Co., Ltd. ▇/▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ District Suzhou, Jiangsu Province 215104 People’s Republic of China |
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| Attention: President | |||
| Telephone: (▇▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇ |
ARTICLE VIII
TERMINATION OF AGREEMENT
TERMINATION OF AGREEMENT
This Agreement may be terminated at any time by either Party upon ninety (90) days written
notice thereof being given to the other Party; provided, however, that the termination of this
Agreement shall not affect any rights or obligations of either Party arising from this Agreement
prior to such termination date.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed and
delivered in counterparts, each of which shall have equal effect as of the date first above
written.
| LDK SOLAR CO., LTD | BEST SOLAR CO., LTD. | |||||||||
By:
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/s/ Zhu Liangbao
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By: | /s/ ▇▇▇▇ ▇▇▇▇
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Name:
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Zhu Liangbao
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Name: | ▇▇▇▇ ▇▇▇▇
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Title:
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Authorized Signatory
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Title: | Authorized Signatory
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