EXHIBIT 4.7
THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR APPLICABLE STATE SECURITIES LAWS AND HAVE BEEN ISSUED
PURSUANT TO AN EXEMPTION THEREFROM. EXCEPT AS PERMITTED UNDER APPLICABLE FEDERAL
AND STATE SECURITIES LAWS, THE WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE
OF THIS WARRANT MAY NOT BE SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, OR AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
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YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
ORDINARY SHARES PURCHASE WARRANT
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This certifies that, for good and valuable consideration, Yingli Green
Energy Holding Company Limited, a Cayman Islands corporation (the "Company"),
grants to TB Management Ltd., a business company incorporated under the laws of
the British Virgin Islands (the "TB Management"), the right to subscribe for and
purchase from the Company the number of validly issued, fully paid and
nonassessable shares (the "Warrant Shares") of the Company's Ordinary Shares,
$0.01 par value (the "Ordinary Shares") specified in Section 1.1 hereof, at the
purchase price per share (the "Exercise Price") determined as set forth in
Section 1.3 hereof, as may be adjusted in accordance with the terms hereof,
exercisable at any time and from time to time during the Exercise Period, as
defined in Section 1.6 hereof, all subject to the terms, conditions and
adjustments herein set forth. See Section 8 for definitions of certain terms
used herein.
1. WARRANT TERMS GENERALLY.
1.1 NUMBER OF WARRANT SHARES.
Subject to Section 1.6 below, this Warrant shall enable the Warrantholder
to purchase six hundred seventy-eight thousand eight hundred and eleven
(678,811) Ordinary Shares, as such number may be adjusted pursuant to the terms
hereof.
1.2 CASH EXERCISE OF WARRANT.
Subject to Section 1.6, this Warrant may be exercised by the Warrantholder
by (i) the surrender of this Warrant to the Company, with a duly executed
Exercise Form specifying the number of Warrant Shares to be purchased, during
normal business hours on any Business Day during the Exercise Period and (ii)
the delivery of payment to the Company, for the account of the Company, (A) by
wire transfer of immediately available funds to a bank account specified by the
Company, of the Exercise Price for the number of Warrant Shares specified in the
Exercise Form in United States Dollars, (B) by forgiveness or the offsetting of
an amount of accounts receivable from the Company to the Warrantholder equal to
the Exercise Price for the number of Warrant Shares specified in the Exercise
Form in United States Dollars or (C) by any combination of the foregoing.
Subject to Section 1.6, the Company agrees that such Warrant Shares shall be
deemed to be issued to the Warrantholder as the record holder of such Warrant
Shares as of the close of business on the date on which this Warrant shall have
been surrendered and payment made for the Warrant Shares as aforesaid. Subject
to Section 1.6, a stock certificate or certificates for the Warrant Shares
specified in the Exercise Form shall be delivered to the Warrantholder as
promptly as practicable, and in any event within 10 days thereafter. If this
Warrant shall have been exercised only in part, the Company shall, at the time
of delivery of the stock certificate or certificates, deliver to the
Warrantholder a new Warrant evidencing the rights to purchase the remaining
Warrant Shares, which new Warrant shall in all other respects be identical with
this Warrant. No adjustments shall be made on Warrant Shares issuable on the
exercise of this Warrant for any cash dividends paid or payable to holders of
record of Ordinary Shares prior to the date as of which the Warrantholder shall
be deemed to be the record holder of such Warrant Shares.
1.3 EXERCISE PRICE.
The Exercise Price shall be $2.1 per Warrant Share, as such price may be
adjusted from time to time pursuant to Section 6 hereof.
1.4 PAYMENT OF TAXES. The issuance of certificates for Warrant Shares shall
be made without charge to the Warrantholder for any stock transfer or other
issuance tax in respect thereto.
1.5 INFORMATION. Upon receipt of a written request from a Warrantholder,
the Company agrees to deliver promptly to such Warrantholder a copy of its
current financial statements and to provide such other information concerning
the Company as such Warrantholder may reasonably request in order to assist the
Warrantholder in evaluating the merits and risks of exercising the Warrant and
to make an informed investment decision in connection with such exercise.
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1.6 EXERCISE PERIOD. This Warrant shall be exercisable, in whole or in
part, at any time and from time to time prior to the closing of the Company's
first firm commitment, underwritten public offering of Ordinary Shares or shares
representing Ordinary Shares in connection with which Ordinary Shares or shares
representing Ordinary Shares are listed and become publicly traded on an
internationally recognized securities exchange or the NASDAQ National Market
(such period, the "Exercise Period").
2. RESTRICTIONS ON TRANSFER; RESTRICTIVE LEGENDS.
2.1 RESTRICTIONS ON TRANSFER; COMPLIANCE WITH SECURITIES LAWS.
(a) This Warrant and the Warrant Shares issued upon the exercise of
the Warrant are not assignable or transferrable except this Warrant (and all
rights hereunder) and the Warrant Shares issued upon the exercise of the Warrant
may be assigned or transferred, in whole or in part, to an Affiliate of the
Warrantholder, which shall thereafter be deemed to be the Warrantholder for all
purposes herein, provided, however, the Warrant Shares issued upon the exercise
of the Warrant may not be transferred or assigned in whole or in part without
compliance with all applicable federal and state securities laws by the
transferor and transferee.
(b) The Warrantholder, by acceptance hereof, acknowledges that this
Warrant and the Warrant Shares to be issued upon exercise hereof are being
acquired solely for the Warrantholder's own account and not as a nominee for any
other party, and for investment, and that the Warrantholder will not offer, sell
or otherwise dispose of any Warrant Shares to be issued upon exercise hereof
except under circumstances that will not result in a violation of the Securities
Act or any state securities laws. Upon exercise of this Warrant, the
Warrantholder shall, if requested by the Company, confirm in writing, in a form
satisfactory to the Company, that the Warrant Shares so purchased are being
acquired solely for the Warrantholder's own account and not as a nominee for any
other party, for investment, and not with a view toward distribution or resale.
The Warrantholder represents and warrants to the Company that the Warrantholder
is an "accredited investor" as that term is defined in Rule 501(a) of Regulation
D promulgated under the 1933 Act. The Warrantholder understands that the Warrant
and any Warrant Shares acquired upon exercise of this Warrant are being offered
and sold to the Warrantholder in reliance on specific exemptions from the
registration requirements of the United States federal and state securities laws
and that the Company is relying in part upon the truth and accuracy of, and the
Warrantholder's compliance with, the representations, warranties, agreements,
acknowledgments and understandings of the Warrantholder set forth herein in
order to determine the availability of such exemptions and the eligibility of
the Warrantholder to initially acquire the Warrant Shares.
2.2 RESTRICTIVE LEGENDS. This Warrant shall (and each Warrant issued in
substitution for this Warrant issued pursuant to Section 4 shall) be stamped or
otherwise imprinted with a legend in substantially the following form:
"THIS WARRANT AND ANY SHARES ACQUIRED UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR APPLICABLE STATE SECURITIES LAWS AND
HAVE BEEN ISSUED PURSUANT TO AN EXEMPTION THEREFROM. EXCEPT AS PERMITTED
UNDER APPLICABLE
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FEDERAL AND STATE SECURITIES LAWS, THE WARRANT AND ANY SHARES ACQUIRED UPON
THE EXERCISE OF THIS WARRANT MAY NOT BE SOLD OR OTHERWISE DISPOSED OF IN
THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
Except as otherwise permitted by this Section 2, each stock certificate for
Warrant Shares issued upon the exercise of any Warrant and each stock
certificate issued upon the direct or indirect transfer of any such Warrant
Shares shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
APPLICABLE STATE SECURITIES LAWS, AND HAVE BEEN ISSUED PURSUANT TO AN
EXEMPTION THEREFROM. EXCEPT AS PERMITTED UNDER APPLICABLE FEDERAL AND STATE
SECURITIES LAWS, THE SHARES MAY NOT BE SOLD, TRANSFERRED, ASSIGNED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION UNDER THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
Notwithstanding the foregoing, the Warrantholder may require the Company to
issue a stock certificate for Warrant Shares without a legend if (i) such
Warrant Shares, as the case may be, have been registered for resale under the
Securities Act or sold pursuant to Rule 144 under the Securities Act (or a
successor rule thereto) or (ii) the Warrantholder has received an opinion of
counsel reasonably satisfactory to the Company that such registration is not
required with respect to such Warrant Shares. If either condition in the
foregoing sentence has been satisfied, the Company shall, without expense
(except for the payment of any applicable transfer tax) and as expeditiously as
possible, issue a new stock certificate not bearing such legend.
2.3 REGISTRATION. The Warrant Shares shall be deemed to constitute
"Registrable Securities" defined in the Shareholders Agreement, as amended by
the Amendment Agreement, dated as of the same date hereof (the "Shareholders
Agreement"), among Inspiration Partners Limited, the Company, Yingli Power
Holding Company Ltd., Mr. Liansheng Miao and TB Management Ltd. The
Warrantholder shall be entitled to all registration rights contained in the
Shareholders Agreement in respect of the Warrant Shares.
2.4 SPLIT-UP, COMBINATION AND EXCHANGE OF WARRANTS. This Warrant may be
split up, combined or exchanged for another Warrant or Warrants containing the
same terms to purchase a like aggregate number of Warrant Shares. If the
Warrantholder desires to split up, combine or exchange this Warrant, he or it
shall make such request in writing delivered to the Company and shall surrender
to the Company this Warrant and any other Warrants to
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be so split-up, combined or exchanged. Upon any such surrender for a split-up,
combination or exchange, the Company shall execute and deliver to the person
entitled thereto a Warrant or Warrants, as the case may be, as so requested. The
Company shall not be required to effect any split-up, combination or exchange
which will result in the issuance of a Warrant entitling the Warrantholder to
purchase upon exercise a fraction of an Ordinary Share or a fractional Warrant.
The Company may require such Warrantholder to pay a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any split-up,
combination or exchange of Warrants.
3. RESERVATION OF SHARES
The Company covenants and agrees that all Warrant Shares which are issuable
upon the exercise of this Warrant will, upon issuance, be validly issued, fully
paid and nonassessable and free from all taxes, liens, security interests,
charges and other encumbrances with respect to the issue thereof, other than
taxes in respect of any transfer occurring contemporaneously with such issue.
The Company further covenants and agrees that, during the Exercise Period, the
Company will at all times have authorized and reserved, and keep available free
from preemptive rights, a sufficient number of Ordinary Shares to provide for
the exercise of the rights represented by this Warrant.
4. EXCHANGE, LOSS OR DESTRUCTION OF WARRANT.
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant and, in the case of
loss, theft or destruction, of such bond or indemnification as the Company may
reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor. The term "Warrant" as used in this Agreement shall be deemed to
include any Warrants issued in substitution or exchange for this Warrant.
5. OWNERSHIP OF WARRANT.
The Company may deem and treat the person in whose name this Warrant is
registered as the holder and owner hereof (notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company) for all
purposes and shall not be affected by any notice to the contrary.
6. CERTAIN ADJUSTMENTS.
6.1 The number of Warrant Shares purchasable upon the exercise of this
Warrant and the Exercise Price shall be subject to adjustment as follows:
(a) Share Dividends, Share Splits, or Share Subdivisions. If at any time
prior to the exercise of this Warrant in full (i) the Company shall fix a record
date for the issuance of any share dividend payable in Ordinary Shares or the
Company's assets (excluding cash dividends paid or payable solely out of
retained earnings) or (ii) the number of Ordinary Shares shall have been
increased by a subdivision or split-up of Ordinary Shares, then, on the record
date fixed for the determination of holders of Ordinary Shares entitled to
receive such dividend (without payment of additional consideration for such
dividend), or immediately after the effective date of subdivision or split-up,
as the case may be, the number of Ordinary Shares to be delivered upon exercise
of this Warrant will be increased so that the Warrantholder will be entitled to
receive the number of Ordinary Shares that
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such Warrantholder would have owned immediately following such action had this
Warrant been exercised immediately prior thereto, and the Exercise Price will be
adjusted as provided below in paragraph (f).
(b) Combination of Stock. If at any time prior to the exercise of this
Warrant in full the number of Ordinary Shares outstanding shall have been
decreased by a combination of the outstanding Ordinary Shares, then, immediately
after the effective date of such combination, the number of Ordinary Shares to
be delivered upon exercise of this Warrant will be decreased so that the
Warrantholder thereafter will be entitled to receive the number of Ordinary
Shares that such Warrantholder would have owned immediately following such
action had this Warrant been exercised immediately prior thereto, and the
Exercise Price will be adjusted as provided below in paragraph (f).
(c) Preservation of Purchase Rights in Certain Transactions. In case of any
reclassification, capital reorganization or other change of outstanding Ordinary
Shares (other than a subdivision or combination of the outstanding Ordinary
Shares and other than a change in the par value of the Ordinary Shares) or in
case of any consolidation or merger of the Company with or into another
corporation (other than merger with a subsidiary in which the Company is the
continuing corporation and that does not result in any reclassification, capital
reorganization or other change of outstanding Ordinary Shares of the class
issuable upon exercise of this Warrant) or in the case of any sale, lease,
transfer or conveyance to another corporation of the property and assets of the
Company as an entirety or substantially as an entirety, the Company shall, as a
condition precedent to such transaction cause such successor or purchasing
corporation, as the case may be, to execute with the Warrantholder an agreement
granting the Warrantholder the right thereafter, upon payment of the Exercise
Price in effect immediately prior to such action, to receive upon exercise of
this Warrant the kind and amount of shares and other securities and property
which he would have owned or have been entitled to receive after the happening
of such reclassification, change, consolidation, merger, sale or conveyance had
this Warrant been exercised immediately prior to such action. In the event that
in connection with any such reclassification, capital reorganization, change,
consolidation, merger, sale or conveyance, additional Ordinary Shares shall be
issued in exchange, conversion, substitution or payment, in whole or in part,
for, or of, a security of Company other than Ordinary Shares, any such issue
shall be treated as an issue of Ordinary Shares covered by the provisions of
Article 6. The provisions of this Section 6.1 shall similarly apply to
successive reclassifications, capital reorganizations, consolidations, mergers,
sales or conveyances.
(d) Fractional Shares. No fractional Ordinary Shares or scrip shall be
issued to any Warrantholder in connection with the exercise of this Warrant.
Instead of any fractional Ordinary Shares that would otherwise be issuable to
such Warrantholder, the Company will pay to such Warrantholder a cash adjustment
in respect of such fractional interest in an amount equal to that fractional
interest of the fair market value of one Ordinary Share as of the date of
exercise as determined by the Board of Directors of the Company.
(e) Carryover. Notwithstanding any other provision of this Section 6, no
adjustment shall be made to the number of Ordinary Shares to be delivered to the
Warrantholder (or to the Exercise Price) if such adjustment represents less than
1% of the number of shares to be so delivered, but any lesser adjustment shall
be carried forward and shall be made at the time and together with the next
subsequent adjustment which together
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with any adjustments so carried forward shall amount to 1% or more of the number
of shares to be so delivered.
(f) Exercise Price Adjustment. Whenever the number of Warrant Shares
purchasable upon the exercise of the Warrant is adjusted, as herein provided,
the Exercise Price payable upon the exercise of this Warrant shall be adjusted
by multiplying such Exercise Price immediately prior to such adjustment by a
fraction, of which the numerator shall be the number of Warrant Shares
purchasable upon the exercise of the Warrant immediately prior to such
adjustment, and of which the denominator shall be the number of Warrant Shares
purchasable immediately thereafter.
(g) No Duplicate Adjustments. Notwithstanding anything else to the contrary
contained herein, in no event will an adjustment be made under the provisions of
this Section 6 to the number of Warrant Shares issuable upon exercise of this
Warrant or the Exercise Price for any event if an adjustment having
substantially the same effect to the Warrantholder as any adjustment that
otherwise would be made under the provisions of this Section 6 is made by the
Company for any such event to the number of Ordinary Shares (or other
securities) issuable upon exercise of this Warrant.
6.2 NO ADJUSTMENT FOR DIVIDENDS. Except as provided in Section 6.1, no
adjustment in respect of any dividends shall be made during the term of the
Warrant or upon the exercise of this Warrant.
6.3 NOTICE OF ADJUSTMENT. Whenever the number of Warrant Shares or the
Exercise Price of such Warrant Shares is adjusted, as herein provided, the
Company shall promptly mail by first class, postage prepaid, to the
Warrantholder, notice of such adjustment or adjustments and a certificate of the
chief financial officer of the Company setting forth the number of Warrant
Shares and the Exercise Price of such Warrant Shares after such adjustment,
setting forth a brief statement of the facts requiring such adjustment and
setting forth the computation by which such adjustment was made.
7. NOTICES OF CORPORATE ACTION.
In the event of:
(a) any taking by the Company of a record of the holders of any class of
securities for the purpose of determining the holders thereof who are entitled
to receive any dividend or other distribution, or any right to subscribe for,
purchase or otherwise acquire any shares of stock of any class or any other
securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company or any Change of Control or
any redemption or conversion of outstanding Ordinary Shares, or
(c) any voluntary or involuntary dissolution, liquidation or winding-up of
the Company,
the Company will mail to the Warrantholder a notice specifying (i) the date or
expected date on which any such record is to be taken for the purpose of such
dividend, distribution or right and the amount and character of any such
dividend, distribution or right, (ii) the date or
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expected date on which any such reorganization, reclassification,
recapitalization, Change of Control, redemption or conversion of Ordinary
Shares, dissolution, liquidation or winding-up is to take place and the time, if
any such time is to be fixed, as of which the holders of record of Ordinary
Shares (or other securities) shall be entitled to exchange their Ordinary Shares
(or other securities) for the securities or other property deliverable upon such
reorganization, reclassification, recapitalization, Change of Control,
redemption or conversion of Ordinary Shares, dissolution, liquidation or
winding-up and (iii) that in the event of a Change of Control, the Warrants are
exercisable immediately prior to the consummation of such Change of Control.
Such notice shall be mailed at least 20 days prior to the date therein
specified, in the case of any date referred to in the foregoing subdivision (i),
and at least 20 days prior to the date therein specified, in the case of the
date referred to in the foregoing subdivision (ii).
8. DEFINITIONS.
As used herein, unless the context otherwise requires, the following terms
have the following respective meanings:
Affiliate: means, in respect of the Warrantholder, any other Person that
directly or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person, including, without
limitation, any general partner, officer or director of such Person and any
venture capital fund now or hereafter existing which is controlled by or under
common control with one or more general partners or shares the same management
company with such Person.
Business Day: any day other than a Saturday, Sunday or a day on which
national banks are authorized by law to close in Hong Kong.
Change of Control: shall mean (i) the consolidation of the Company with or
merger of the Company with or into any other person in which the Company is not
the surviving corporation, (ii) the sale or conveyance of all or substantially
all of the assets of the Company to any other person, or (iii) any sale or
transfer of any capital stock of the Company after the date of this Agreement,
following which 50% of the combined voting power of the Company becomes
beneficially owned by one person or group acting together. For purposes of this
definition, "group" shall have the meaning as such term is used in Section
13(d)(1) under the Exchange Act.
Company: Yingli Green Energy Holding Company Limited, an exempted company
with limited liability incorporated and existing under the laws of the Cayman
Islands.
Control: with respect to any third Person means the possession, directly or
indirectly, of the power or the ability to direct or cause the direction of the
management and affairs of such third Person whether, through the ownership of
voting securities, as trustee or executor, by contract or otherwise, including,
without limitation, the ownership, directly or indirectly, of securities having
the power to elect a majority of the board of directors or similar body of such
third Person.
Exchange Act: the Securities Exchange Act of 1934, as amended, or any
successor federal statute, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect at the time. Reference to a particular
section of the Securities Exchange Act of
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1934, as amended, shall include a reference to a comparable section, if any, of
any successor federal statute.
Exercise Form: an Exercise Form in the form annexed hereto as Exhibit A.
Exercise Price: the meaning specified on the cover of this Warrant, as such
price may be adjusted pursuant to Section 6 hereof.
Person: shall mean any individual, sole proprietorship, partnership,
estate, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, entity, governmental or regulatory
authority or other entity of any kind or nature.
SEC: the Securities and Exchange Commission or any other federal agency at
the time administering the Securities Act or the Exchange Act, whichever is the
relevant statute for the particular purpose.
Securities Act: the Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations of the SEC thereunder, all as the
same shall be in effect at the time. Reference to a particular section of the
Securities Act of 1933, as amended, shall include a reference to the comparable
section, if any, of any successor federal statute.
Warrantholder: TB Management or its permitted assignees and transferees of
this Warrant pursuant to the terms hereof.
Warrant Shares: the meaning specified on the cover of this Warrant, subject
to the provisions of Section 6.
9. MISCELLANEOUS.
9.1 ENTIRE AGREEMENT. This Warrant constitutes the entire agreement between
the Company and the Warrantholder with respect to this Warrant and the Warrant
Shares.
9.2 BINDING EFFECTS; BENEFITS. This Warrant shall inure to the benefit of
and shall be binding upon the Company and the Warrantholder and their respective
successors. Nothing in this Warrant, expressed or implied, is intended to or
shall confer on any person other than the Company and the Warrantholder, or
their respective successors, any rights, remedies, obligations or liabilities
under or by reason of this Warrant.
9.3 AMENDMENTS AND WAIVERS. This Warrant may not be modified or amended
except by an instrument or instruments in writing signed by the Company and the
Warrantholder. Either the Company or the Warrantholder may, by an instrument in
writing, waive compliance by the other party with any term or provision of this
Warrant on the part of such other party hereto to be performed or complied with.
The waiver by any such party of a breach of any term or provision of this
Warrant shall not be construed as a waiver of any subsequent breach.
9.4 SECTION AND OTHER HEADINGS. The section and other headings contained in
this Warrant are for reference purposes only and shall not be deemed to be a
part of this Warrant or to affect the meaning or interpretation of this Warrant.
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9.5 FURTHER ASSURANCES. Each of the Company and the Warrantholder shall do
and perform all such further acts and things and execute and deliver all such
other certificates, instruments and documents as the Company or the
Warrantholder may, at any time and from time to time, reasonably request in
connection with the performance of any of the provisions of this Agreement.
9.6 NOTICES. All notices and other communications required or permitted to
be given under this Warrant shall be in writing and shall be deemed to have been
duly given upon personal delivery to the party to be notified, or when sent by
telecopier (with receipt confirmed and promptly confirmed by personal delivery,
first class mail, or courier), or internationally recognized overnight courier
service and addressed as follows (or at such other address as a party may
designate by notice to the other):
If to the Warrantholder, to:
TB Management Ltd.
AZIA Center, Unit 2701B
1233 Lujiazui Ring Road
Shanghai P.R.China 200120
Facsimile No.: +86 21 58767238
Attn: Shujun Li and Donglei Zhou
with a copy to:
Paul, Hastings, Janofsky & Walker
22/Fl Bank of China Tower
1 Garden Rd.
Central, Hong Kong
Facsimile No.: 852 3192 9731
Attn: Maurice Hoo, Esq.
If to the Company, to:
Yingli Green Energy Holding Company Limited
No. 3055 Middle Fuxing Road
Baoding, People's Republic of China
Facsimile No.: +86 312 2151 881
Attn: Conghui Liu
and
Simpson Thacher & Bartlett LLP
7/F ICBC Tower
3 Garden Road
Central, Hong Kong
Facsimile No.: +852-2869-7694
Attn: Leiming Chen, Esq.
Except as otherwise provided herein, all such notices and communications shall
be deemed to have been received on the date of delivery thereof, if delivered
personally or by overnight
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courier or facsimile transmission (if promptly confirmed as stated above), or on
the third Business Day after the mailing thereof.
9.7 SEVERABILITY. Any term or provision of this Warrant which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the terms and provisions of this Warrant or affecting the
validity or enforceability of any of the terms or provisions of this Warrant in
any other jurisdiction.
9.8 GOVERNING LAW. This Warrant shall be deemed to be a contract made under
the laws of the State of New York (irrespective of its choice of law
principles).
9.9 NO RIGHTS OR LIABILITIES AS STOCKHOLDER. Nothing contained in this
Warrant shall be determined as conferring upon the Warrantholder any rights as a
stockholder of the Company or as imposing any liabilities on the Warrantholder
to purchase any securities whether such liabilities are asserted by the Company
or by creditors or stockholders of the Company or otherwise.
9.10 NO INCONSISTENT AGREEMENTS. The Company will not on or after the date
of this Warrant enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the Warrantholder or otherwise conflicts
with the provisions hereof. The rights granted to the Warrantholder hereunder do
not in any way conflict with and are not inconsistent with the rights granted to
holders of the Company's securities under any other agreements.
9.11 ATTORNEYS' FEES. In any action or proceeding brought to enforce any
provisions of this Warrant, or where any provision hereof is validly asserted as
a defense, the successful party shall be entitled to recover reasonable
attorneys' fees and disbursements in addition to its costs and expenses and any
other available remedy.
9.12 DISPUTE RESOLUTION. Any controversy or claim arising out of or
relating to this Agreement, or any breach of this Agreement, shall be initiated,
maintained and finally determined by binding arbitration under the rules of
conciliation and arbitration of the International Chamber of Commerce (the
"ICC"); and the site of the arbitration, unless the parties agree otherwise,
shall be in Hong Kong. The arbitral tribunal shall be appointed within thirty
(30) days of the notice of dispute, and shall consist of three arbitrators, one
of which shall be appointed by the Warrantholder and one by the Company and the
third by the Warrantholder and the Company jointly; provided, however, that if
the Warrantholder and the Company shall be unable to select the third arbitrator
within such thirty (30)-day period, such third arbitrator shall be chosen by the
International Court of Arbitration of the ICC. Judgment upon any award rendered
may be entered in any court having jurisdiction thereof, or application may be
made to such court for a judicial acceptance of the award and an order of
enforcement, as the case may be. Any award pursuant to such proceeding shall be
granted in U.S. Dollars. The fees and costs of the arbitration shall be shared
equally by all disputing parties. The arbitrators shall award legal fees,
disbursements and other expenses to the prevailing party for such amounts as
determined by the arbitrators to be appropriate.
9.13 NO IMPAIRMENT. The Company will not cooperate with or facilitate any
amendment of its Memorandum and Articles of Association or other constitutional
documents, or any reorganization, consolidation, merger, dissolution, issue or
sale of shares,
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sale of assets or any other voluntary action, so as to avoid or seek to avoid
the observance or performance of any of the terms of this Warrant, but will at
all times in good faith assist in the carrying out of all such terms and in the
taking of all such action as may be necessary or appropriate in order to protect
the rights of the Warrantholder against impairment. Without limiting the
generality of the foregoing, the Company (a) will use its best efforts to ensure
that the par value of any shares issuable upon the exercise of this Warrant will
not be increased above the amount payable therefor upon such exercise, and (b)
will take or procure the taking of all such action as may be necessary or
appropriate in order that the Company may validly and legally issue fully paid
and non-assessable Warrant Shares upon exercise of this Warrant.
9.14 REPRESENTATIONS AND WARRANTIES. The Company covenants that the
representations and warrants set forth in Exhibit B hereto shall be true and
correct in all material respects as of the date of this Warrant.
[remainder of page intentionally left blank; signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by its duly
authorized officer as of September 28, 2006.
YINGLI GREEN ENERGY HOLDING COMPANY
LIMITED
By: /s/ Liansheng Miao
------------------------------------
Name: Liansheng Miao
Title: Chairman and Chief Executive
Officer
SIGNATURE PAGE TO WARRANT
Exhibit A
EXERCISE FORM
(To be executed upon exercise of this Warrant)
To: Yingli Green Energy Holding Company Limited
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase ________________ Warrant Shares, and
tenders herewith payment of the purchase price (Exercise Price) in full in the
form of (complete as applicable):
[ ] cash (via wire transfer) or a certified or official bank check, to the
order of Yingli Green Energy Holding Company Limited, in the amount of
United States Dollars ______________ in accordance with the terms of
this Warrant; and/or
[ ] forgiveness of accounts receivable of the Company to Warrantholder in
the amount of United States Dollars ______________ in accordance with
the terms of this Warrant.
The undersigned requests that a certificate (or certificates) for such Warrant
Shares be registered in the name of the undersigned and that such certificate
(or certificates) be delivered to the undersigned's address below.
Dated: .
-------------------
Signature
-----------------------------------
-----------------------------------
(Print Name)
-----------------------------------
(Street Address)
-----------------------------------
(City) (State) (Zip Code)
If said number of shares shall not be all the shares purchasable under the
within Warrant, a new Warrant is to be issued in the name of said undersigned
for the balance remaining of the shares purchasable thereunder.
ASSIGNMENT
(To be executed only upon assignment of Warrant)
For value received, ______________________________ hereby sells, assigns
and transfers unto the Assignee(s) named below the rights represented by such
Warrant to purchase number of Warrant Shares listed opposite the respective
name(s) of the Assignee(s) named below and all other rights of the Warrantholder
under the within Warrant, and does hereby irrevocably constitute and appoint
_____________________________ as attorney, to transfer said Warrant on the books
of the within-named Company with respect to the number of Warrant Shares set
forth below, with full power of substitution in the premises:
Name(s) of
Assignee(s) Address No. of Warrant Shares
- ----------- ------------------------------- ---------------------
And if said number of Warrant Shares shall not be all the Warrant Shares
represented by the Warrant, a new Warrant is to be issued in the name of said
undersigned for the balance remaining of the Warrant Shares registered by said
Warrant.
Dated: ________________, _____
Signature
----------------------------------
Note: The above signature should correspond
exactly with the name on the face of
this Warrant
Exhibit B
CORPORATE STATUS. The Company is organized under the laws of the Cayman Islands
and is duly incorporated, validly existing, and in good standing under the laws
of the Cayman Islands.
AUTHORIZATION. All corporate action on the part of the Company and its officers,
directors and shareholders necessary for the Company to execute and perform this
Warrant has been taken.
VALIDITY OF WARRANT. This Warrant is a legally valid and binding obligation of
the Company. Upon issuance, the Warrant Shares will be duly authorized, validly
issued, fully paid and non-assessable, and free of any liens or encumbrances
except for restrictions on transfer under the securities laws and any agreement
to which the Warrantholder becomes a party. The issuance of this Warrant and the
issuance of the Warrant Shares do not and will not violate any agreements to
which the Company is, or at the time of issuance will be, a party.
SUFFICIENT ORDINARY SHARES. The Company has a sufficient number of Ordinary
Shares to enable the issuance of the Warrant Shares. In the event the number of
authorized but unissued Ordinary Shares of the Company is not sufficient to
effect the issuance of Warrant Shares specified under the Exercise Notice at the
time of exercise, the Company shall promptly take all necessary actions to
increase its authorized but unissued Ordinary Shares to such number to be
sufficient for such purposes.
NO INCONSISTENT AGREEMENTS. The Company has not previously entered into, and
will not on or after the date of this Warrant enter into, any agreement with
respect to its securities that is inconsistent with this Warrant or that would
preclude the Company from discharging its obligations hereunder.
GOVERNMENTAL AND THIRD PARTY CONSENTS. All consents, approvals, orders,
authorizations, registrations, qualifications, designations, declarations or
filings with or from any governmental agency or authority or any other person or
entity required on the part of the Company in connection with the execution,
delivery or performance of this Warrant and the consummation of the transactions
contemplated herein have been obtained.
COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation of any
provision of its Memorandum or Articles of Association; any mortgage, indenture,
contract, agreement, instrument, judgment, decree or order; or any statute, rule
or regulation applicable to the Company. The execution, delivery and performance
of and compliance with this Warrant pursuant to the terms hereof, will not
result in any violation or be in conflict with or constitute a default under any
such provision, or result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the properties or assets of the Company
pursuant to any such provision.