EXHIBIT 4.6
AMENDMENT AGREEMENT
AMENDMENT No. 1 (this "Amendment"), dated as of September 28, 2006, is
entered into by and among Inspiration Partners Limited, an international
business company incorporated under the laws of the British Virgin Islands (the
"Investor"), Yingli Green Energy Holding Company Limited, an exempted company
with limited liability incorporated and existing under the laws of the Cayman
Islands (the "Company"), Yingli Power Holding Company Ltd., a company with
limited liability incorporated and existing under the laws of the British Virgin
Islands (the "Holdco"), and Mr. Liansheng Miao (together with the Holdco, the
"Founders") (all of the foregoing parties, collectively, the "Existing
Parties"), and TB Management Ltd., a business company incorporated under the
laws of the British Virgin Islands ("TB Management") to amend (1) the Series A
Preferred Share Purchase Agreement (the "Purchase Agreement"), dated as of
September 20, 2006, by and among the Existing Parties and (2) the Shareholders
Agreement dated as of September 20, 2006, by and among the Existing Parties (the
"Shareholders Agreement", and together with the Purchase Agreement, the
"Agreements"). Unless otherwise indicated below, capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Purchase
Agreement.
WITNESSETH:
WHEREAS, the parties have entered into the Agreements; and
WHEREAS, pursuant to and in accordance with Section 10.06 of the Purchase
Agreement and Section 21.6 of the Shareholders Agreement, the parties wish to
amend the Agreements as set forth in this Amendment;
NOW, THEREFORE, in consideration of the rights and obligations contained
herein, and for other good and valuable consideration, the adequacy of which is
hereby acknowledged, the parties agree as follows:
Section 1. Employee Stock Option Plan. The Existing Parties agree that the
Primary ESOP Percentage (as defined in the Shareholders Agreement) shall be up
to five percent (5%) of all Ordinary Shares Equivalent (as defined in the
Shareholders Agreement) immediately after the Closing, excluding the Warrant
(namely, up to 3,394,054 Ordinary Shares), up to four percent (4%) of which
shall be in the form of restricted shares (namely, up to 2,715,243 Ordinary
Shares) and up to one percent (1%) of which shall be in the form of stock
options (namely, up to 678,811 Ordinary Shares). The Existing Parties agree that
such employee stock option plan, whether in the form of restricted shares or
stock options, shall be established in a form to the reasonable satisfaction of
the Investor. The Existing Parties further agree that the Secondary ESOP
Percentage (as defined in the Shareholders Agreement) shall be zero.
Section 2. Warrant. The Company agrees to grant a warrant to TB Management
at Closing substantially in the form of Annex A hereto (the "Warrant").
Section 3. Exhibit A to the Purchase Agreement. The following shall be
added to Exhibit A of the Purchase Agreement:
"The Warrant, dated as of the Closing Date, granted by the Company at
Closing substantially in the form of Annex A to the Amendment Agreement, dated
as of September 27, 2006, among the parties hereto."
Section 4. Registration Rights of the Shareholders Agreement.
(a) TB Management agrees to adhere to and be bound by Sections 7 through
18, 21.2, 21.6, 21.8 and 21.9 of the Shareholders Agreement thereunder as if it
were a "Holder" or "Investor" (as the case may be) to the Shareholders
Agreement.
(b) The Existing Parties agree that TB Management shall be entitled to the
benefit of all rights given in Sections 7 through 18, 21.2, 21.6, 21.8 and 21.9
of the Shareholders Agreement thereunder as if TB Management were a "Holder" or
"Investor" (as the case may be) to the Shareholders Agreement.
(c) The Existing Parties agree that the definition of "Registrable
Securities" in the Shareholders Agreement shall be replaced in its entirety with
the following:
"REGISTRABLE SECURITIES" means (a) the Ordinary Shares issued or issuable
upon conversion or exercise of any of the Series A Preferred Shares (b) the
Ordinary Shares issued or issuable upon the exercise of the Warrant, and (c)
Ordinary Shares issued or issuable pursuant to stock splits, stock dividends and
similar distributions to the Investor, or in exchange for or in replacement of
the Ordinary Shares referred to clause (a) or (b) above, excluding in all cases,
however, any Registrable Securities sold by a Person in a transaction in which
its rights under Sections 7 or 8 hereof are not assigned or any shares for which
registration rights have terminated pursuant to Section 10."
Section 5. No Assignment; Binding Effect. Neither this Amendment nor any
right, interest or obligation hereunder may be assigned by any party hereto
without the prior written consent of the other party hereto and any attempt to
do so shall be void, except that the Investor may assign any or all of its
rights, interests and obligations hereunder to an Affiliate, provided that any
such Affiliate agrees in writing to be bound by all of the terms, conditions and
provisions contained herein, but no such assignment shall relieve the Investor
of its obligations hereunder. Subject to the preceding sentence, this Amendment
is binding upon, inures to the benefit of and is enforceable by the parties
hereto and their respective successors and permitted assigns.
Section 6. No Third Party Beneficiary. The terms and provisions of this
Amendment are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third party beneficiary rights upon any other Person.
Section 7. Entire Agreement. This Amendment constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties with respect to the subject matter hereof. Except as amended by this
Amendment, the Agreements shall continue in full force and effect.
Section 8. Severability. If any term or other provision of this Amendment
is invalid, illegal or incapable of being enforced by any Law or public policy,
all other terms and provisions of this Amendment shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated by this Amendment is
2
not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Amendment so as to effect the original intent of the parties as closely as
possible in an acceptable manner in order that the transactions contemplated by
this Amendment are consummated as originally contemplated to the greatest extent
possible.
Section 9. Counterparts. This Amendment may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
Section 10. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to a
contract executed and performed in such jurisdiction, without giving effect to
the conflicts of laws principles thereof.
Section 11. Dispute Resolution. Any dispute arising from or in connection
with this Amendment shall be resolved in accordance with Section 21.2 of the
Shareholders Agreement.
3
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by or on
behalf of each party hereto as of the date first above written.
INSPIRATION PARTNERS LIMITED
By: /s/ Shujun Li
------------------------------------
Name: Shujun Li
Title: Director
TB MANAGEMENT LTD.
By: /s/ Shujun Li
------------------------------------
Name: Shujun Li
Title: Director
YINGLI GREEN ENERGY HOLDING COMPANY
LIMITED
By: /s/ Liansheng Miao
------------------------------------
Name: Liansheng Miao
Title: Chairman and Chief Executive
Officer
YINGLI POWER HOLDING COMPANY LTD.
By: /s/ Liansheng Miao
------------------------------------
Name: Liansheng Miao
Title: Director
/s/ Liansheng Miao
----------------------------------------
Liansheng Miao
4
ANNEX A
FORM OF WARRANT