Exhibit 4.8
ORDINARY SHARE WARRANT AGREEMENT*
dated as of ______________ , ___
FOR
[UP TO ___________] ORDINARY SHARE WARRANTS
EXPIRING ____________, ___
between
SOLARFUN POWER HOLDINGS CO., LTD.
and
[NAME OF ORDINARY SHARE WARRANT AGENT], AS
ORDINARY SHARE WARRANT AGENT
- ------------------------
* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR
SUPPLEMENTS.
This ORDINARY SHARE WARRANT AGREEMENT, dated as of___________, between
Solarfun Power Holdings Co., Ltd., a company incorporated in the Cayman Islands
(the "Company"), and ______, a organized and existing under the laws of________,
warrant agent (the "Ordinary Share Warrant Agent").
WHEREAS, the Company proposes to sell [title of securities being offered
(the "Offered Securities") with] certificates evidencing one or more warrants
(the "Ordinary Share Warrants" or, individually, a "Ordinary Share Warrant")
representing the right to purchase the Company's Ordinary Shares (the "Ordinary
Share"), with par value $0.0001 per share, represented by American depositary
shares, such warrant certificates and other warrant certificates issued pursuant
to this Agreement being herein called the "Ordinary Share Warrant Certificates";
and
WHEREAS, the Company has duly authorized the execution and delivery of this
Ordinary Share Warrant Agreement to provide for the issuance of Ordinary Share
Warrants to be exercisable at such times and for such prices, and to have such
other provisions, as shall be fixed as herein after provided;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF ORDINARY SHARE WARRANTS AND EXECUTION AND DELIVERY OF
ORDINARY SHARE WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF ORDINARY SHARE WARRANTS.
Ordinary Share Warrants may be issued from time to time, together with or
separately from Offered Securities. Prior to the issuance of any Ordinary Share
Warrants, there shall be established by or pursuant to a resolution or
resolutions duly adopted by the Company's Board of Directors or by any committee
thereof duly authorized to act with respect thereto (a "Board Resolution"):
(1) The title and aggregate number of such Ordinary Share Warrants.
(2) The offering price of such Ordinary Share Warrant.
(3) The number of Ordinary Shares that may be purchased upon exercise of
each such Ordinary Share Warrant; the price, or the manner of
determining the price (the "Ordinary Share Warrant Price"), at which
such Ordinary Shares may be purchased upon exercise of such Ordinary
Share Warrants; if other than cash, the property and manner in which
the Ordinary Share Warrant Price may be paid; and any minimum number
of such Ordinary Share Warrants that are exercisable at any one time.
(4) The time or times at which, or period or periods during which, such
Ordinary Share Warrants may be exercised and the final date on which
such Ordinary Share Warrants may be exercised (the "Expiration Date").
(5) The terms of any right to redeem such Ordinary Share Warrants.
(6) The terms of any right of the Company to accelerate the Ordinary Share
Warrants upon the occurrence of certain events.
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(7) Where the registered warrant certificates evidencing such Ordinary
Share Warrants (the "Ordinary Share Warrant Certificates") may be
transferred and exchanged.
(8) Whether such Ordinary Share Warrants are to be issued with any Offered
Securities and, if so, the number and terms of any such Offered
Securities.
(9) The date, if any, on and after which the Ordinary Share Warrants and
the Offered Securities will be separately transferable (the
"Detachable Date").
(10) Any other terms of such Ordinary Share Warrants not inconsistent with
the provisions of this Agreement.
SECTION 1.02. FORM AND EXECUTION OF ORDINARY SHARE WARRANT CERTIFICATES.
(a) The Ordinary Share Warrants shall be evidenced by the Ordinary Share
Warrant Certificates, which shall be in registered form and substantially
in such form or forms as shall be established by or pursuant to a Board
Resolution. Each Ordinary Share Warrant Certificate, whenever issued, shall
be dated the date it is countersigned by the Ordinary Share Warrant Agent
and may have such letters, numbers or other marks of identification and
such legends or endorsements printed, lithographed or engraved thereon as
are not inconsistent with the provisions of this Agreement, or as may be
required to comply with any law, rule or regulation or with any rule or
regulation of any securities exchange on which the Ordinary Share or
Ordinary Share Warrants may be listed, or to conform to usage, as the
officer of the Company executing the same may approve (his execution
thereof to be conclusive evidence of such approval). Each Ordinary Share
Warrant Certificate shall evidence one or more Ordinary Share Warrants.
(b) The Ordinary Share Warrant Certificates shall be signed in the name and on
behalf of the Company by its Chairman, Chief Executive Officer, Chief
Financial Officer or any Vice President (any reference to a Vice President
of the Company herein shall be deemed to include any Vice President of the
Company whether or not designated by a number or a word or words added
before or after the title "Vice President") under its corporate seal, and
attested by its Secretary or an Assistant Secretary. Such signatures may be
manual or facsimile signatures of the present or any future holder of any
such office and may be imprinted or otherwise reproduced on the Ordinary
Share Warrant Certificates. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Ordinary Share Warrant Certificates.
(c) No Ordinary Share Warrant Certificate shall be valid for any purpose, and
no Ordinary Share Warrant evidenced thereby shall be deemed issued or
exercisable, until such Ordinary Share Warrant Certificate has been
countersigned by the manual or facsimile signature of the Ordinary Share
Warrant Agent. Such signature by the Ordinary Share Warrant Agent upon any
Ordinary Share Warrant Certificate executed by the Company shall be
conclusive evidence that the Ordinary Share Warrant Certificate so
countersigned has been duly issued hereunder.
(d) In case any officer of the Company who shall have signed any Ordinary Share
Warrant Certificate either manually or by facsimile signature shall cease
to be such officer before the Ordinary Share Warrant Certificate so signed
shall have been countersigned and delivered by the Ordinary Share Warrant
Agent, such Ordinary Share Warrant Certificate nevertheless may be
countersigned and delivered as though the person who signed such Ordinary
Share Warrant Certificate had not ceased to be such officer of the Company;
and any Ordinary Share Warrant Certificate may be signed on behalf of the
Company by such person as, at the actual date of the execution of such
Ordinary Share
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Warrant Certificate, shall be the proper officer of the Company, although
at the date of the execution of this Agreement such person was not such an
officer.
SECTION 1.03. ISSUANCE AND DELIVERY OF ORDINARY SHARE WARRANT CERTIFICATES.
At any time and from time to time after the execution and delivery of this
Agreement, the Company may deliver Ordinary Share Warrant Certificates executed
by the Company to the Ordinary Share Warrant Agent for countersignature. Except
as provided in the following sentence, the Ordinary Share Warrant Agent shall
thereupon countersign and deliver such Ordinary Share Warrant Certificates to or
upon the written request of the Company. Subsequent to the original issuance of
an Ordinary Share Warrant Certificate evidencing Ordinary Share Warrants, the
Ordinary Share Warrant Agent shall countersign a new Ordinary Share Warrant
Certificate evidencing such Ordinary Share Warrants only if such Ordinary Share
Warrant Certificate is issued in exchange or substitution for one or more
previously countersigned Ordinary Share Warrant Certificates evidencing such
Ordinary Share Warrants or in connection with their transfer, as hereinafter
provided.
SECTION 1.04. TEMPORARY ORDINARY SHARE WARRANT CERTIFICATES.
Pending the preparation of definitive Ordinary Share Warrant Certificates,
the Company may execute, and upon the order of the Company the Ordinary Share
Warrant Agent shall countersign and deliver, temporary Ordinary Share Warrant
Certificates that are printed, lithographed, typewritten, mimeographed or
otherwise produced, substantially of the tenor of the definitive Ordinary Share
Warrant Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officer
executing such Ordinary Share Warrant Certificates may determine, as evidenced
by his execution of such Ordinary Share Warrant Certificates.
If temporary Ordinary Share Warrant Certificates are issued, the Company
will cause definitive Ordinary Share Warrant Certificates to be prepared without
unreasonable delay. After the preparation of definitive Ordinary Share Warrant
Certificates, the temporary Ordinary Share Warrant Certificates shall be
exchangeable for definitive Ordinary Share Warrant Certificates upon surrender
of the temporary Ordinary Share Warrant Certificates at the corporate trust
office of the Ordinary Share Warrant Agent [or _________________], without
charge to the Holder, as defined in Section 1.06 hereof. Upon surrender for
cancellation of any one or more temporary Ordinary Share Warrant Certificates,
the Company shall execute and the Ordinary Share Warrant Agent shall countersign
and deliver in exchange therefor definitive Ordinary Share Warrant Certificates
representing the same aggregate number of Ordinary Share Warrants. Until so
exchanged, the temporary Ordinary Share Warrant Certificates shall in all
respects be entitled to the same benefits under this Agreement as definitive
Ordinary Share Warrant Certificates.
SECTION 1.05. PAYMENT OF TAXES.
The Company will pay all stamp and other similar duties, if any, to which
this Agreement or the original issuance of the Ordinary Share Warrants or
Ordinary Share Warrant Certificates may be subject under the laws of the Cayman
Islands or any other jurisdiction. The Company is not responsible for the
payment of any other taxes.
SECTION 1.06. "HOLDER".
The term "Holder" or "Holders" as used herein with reference to an Ordinary
Share Warrant Certificate shall mean the person or persons in whose name such
Ordinary Share Warrant Certificate shall
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then be registered as set forth in the Ordinary Share Warrant Register to be
maintained by the Ordinary Share Warrant Agent pursuant to Section 4.01 for that
purpose or, in the case of Ordinary Share Warrants that are issued with Offered
Securities and cannot then be transferred separately therefrom, the person or
persons in whose name the related Offered Securities shall be registered as set
forth in the security register for such Offered Securities, prior to the
Detachable Date. In the case of Ordinary Share Warrants that are issued with
Offered Securities and cannot then be transferred separately therefrom, the
Company will, or will cause the security registrar of any such Offered
Securities to, make available to the Ordinary Share Warrant Agent at all times
(including on and after the Detachable Date, in the case of Ordinary Share
Warrants originally issued with Offered Securities and not subsequently
transferred separately therefrom) such information as to holders of Offered
Securities with Ordinary Share Warrants attached thereto as may be necessary to
keep the Ordinary Share Warrant Register up to date.
ARTICLE II
DURATION AND EXERCISE OF ORDINARY SHARE WARRANTS
SECTION 2.01. DURATION OF ORDINARY SHARE WARRANTS.
Each Ordinary Share Warrant may be exercised at the time or times, or
during the period or periods, provided by or pursuant to the Board Resolution
relating thereto and specified in the Ordinary Share Warrant Certificate
evidencing such Ordinary Share Warrant. Each Ordinary Share Warrant not
exercised at or before 5:00 P.M., New York City time, on its Expiration Date
shall become void, and all rights of the Holder of such Ordinary Share Warrant
thereunder and under this Agreement shall cease, PROVIDED that the Company
reserves the right to, and may, in its sole discretion, at any time and from
time to time, at such time or times as the Company so determines, extend the
expiration date of the Ordinary Share Warrants for such periods of time as it
chooses; FURTHER PROVIDED that in no case may the expiration date of the
Ordinary Share Warrants (as extended) be extended beyond _____ years from the
expiration date set forth above. Whenever the expiration date of the Ordinary
Share Warrants is so extended, the Company shall at least 20 days prior to the
then expiration date cause to be mailed to the Ordinary Share Warrant Agent and
the registered Holders of the Ordinary Share Warrants in accordance with the
provisions of Section 5.03 hereof a notice stating that the expiration date has
been extended and setting forth the new expiration date. No adjustment shall be
made for any dividends on any Ordinary Share issuable upon exercise of any
Ordinary Share Warrant.
SECTION 2.02. EXERCISE OF ORDINARY SHARE WARRANTS.
(a) The Holder of an Ordinary Share Warrant shall have the right, at its
option, to exercise such Ordinary Share Warrant and, subject to subsection
(e) of this Section 2.02, purchase the number of Ordinary Shares provided
for therein at the time or times or during the period or periods referred
to in Section 2.01 and specified in the Ordinary Share Warrant Certificate
evidencing such Ordinary Share Warrant. No fewer than the minimum number of
Ordinary Share Warrants as set forth in the Ordinary Share Warrant
Certificate may be exercised by or on behalf of any one Holder at any one
time. Except as may be provided in an Ordinary Share Warrant Certificate,
an Ordinary Share Warrant may be exercised by completing the form of
election to purchase set forth on the reverse side of the Ordinary Share
Warrant Certificate, by duly executing the same, and by delivering the
same, together with payment in full of the Ordinary Share Warrant Price, in
lawful money of the United States of America, in cash or by certified or
official bank check or by bank wire transfer, or in property, in the manner
provided by or pursuant to the Board Resolution relative thereto and
specified in the Ordinary Share Warrant Certificate evidencing such
Ordinary Share Warrant, to the Ordinary Share Warrant Agent. Except as may
be provided in an Ordinary Share Warrant Certificate, the date on which
such Ordinary Share Warrant Certificate and payment are received by
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the Ordinary Share Warrant Agent as aforesaid shall be deemed to be the
date on which the Ordinary Share Warrant is exercised and the relevant
Ordinary Shares are issued.
(b) Upon the exercise of an Ordinary Share Warrant, the Company shall issue, to
or upon the order of the Holder of such Ordinary Share Warrant, the
Ordinary Shares to which such Holder is entitled, registered, in the case
of Ordinary Shares in registered form, in such name or names as may be
directed by such Holder.
(c) If fewer than all of the Ordinary Share Warrants evidenced by Ordinary
Share Warrant Certificates are exercised, the Company shall execute, and an
authorized officer of the Ordinary Share Warrant Agent shall countersign
and deliver, a new Ordinary Share Warrant Certificate evidencing the number
of Ordinary Share Warrants remaining unexercised.
(d) The Ordinary Share Warrant Agent shall deposit all funds received by it in
payment of the Ordinary Share Warrant Price for Ordinary Share Warrants in
the account of the Company maintained with it for such purpose and shall
advise the Company by telephone by 5:00 P.M., New York City time, of each
day on which a payment of the Ordinary Share Warrant Price for Ordinary
Share Warrants is received of the amount so deposited in its account. The
Ordinary Share Warrant Agent shall promptly confirm such telephone advice
in writing to the Company.
(e) The Ordinary Share Warrant Agent shall, from time to time, as promptly as
practicable, advise the Company of (i) the number of Ordinary Share
Warrants of each title exercised as provided herein, (ii) the instructions
of each Holder of such Ordinary Share Warrants with respect to delivery of
the Ordinary Share issued upon exercise of such Ordinary Share Warrants to
which such Holder is entitled upon such exercise, and (iii) such other
information as the Company or such Trustee shall reasonably require. Such
notice may be given by telephone to be promptly confirmed in writing.
(f) The Holder, and not the Company, shall be required to pay any stamp or
other tax or other governmental charge that may be imposed in connection
with any transfer involved in the issuance of the Ordinary Share; and in
the event that any such transfer is involved, the Company shall not be
required to issue any Ordinary Share (and the Holder's purchase of the
Ordinary Shares issued upon the exercise of such Holder's Ordinary Share
Warrant shall not be deemed to have been consummated) until such tax or
other charge shall have been paid or it has been established to the
Company's satisfaction that no such tax or other charge is due.
SECTION 2.03. ORDINARY SHARE WARRANT ADJUSTMENTS.
The terms and conditions, if any, on which the exercise price of and/or the
number of Ordinary Shares covered by Ordinary Share Warrants are subject to
adjustments will be set forth in the Prospectus Supplement relating thereto.
Such terms will include the adjustment mechanism for the exercise price of, and
the number of Ordinary Shares covered by, Ordinary Share Warrants, the events
requiring such adjustments, the events upon which the Company may, in lieu of
making such adjustments, make proper provisions so that the Holder, upon
exercise of such Holder's Ordinary Share Warrant, would be treated as if such
Holder had been a holder of the Ordinary Share received upon such exercise,
prior to the occurrence of such events, and provisions affecting exercise of the
Ordinary Share Warrants in the event of certain events affecting the Ordinary
Share.
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ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS OF ORDINARY SHARE
WARRANTS
SECTION 3.01. NO RIGHTS AS HOLDER OF ORDINARY SHARE CONFERRED BY ORDINARY SHARE
WARRANTS OR ORDINARY SHARE WARRANT CERTIFICATES.
A Holder of an Ordinary Share Warrant or Ordinary Share Warrant Certificate
shall have none of the rights of a holder of Ordinary Share.
SECTION 3.02. LOST, STOLEN, DESTROYED OR MUTILATED ORDINARY SHARE WARRANT
CERTIFICATES.
Upon receipt by the Company and the Ordinary Share Warrant Agent of
evidence reasonably satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of any Ordinary Share Warrant Certificate and
of indemnity (other than in connection with any mutilated Ordinary Share Warrant
Certificates surrendered to the Ordinary Share Warrant Agent for cancellation)
reasonably satisfactory to them, the Company shall execute, and the Ordinary
Share Warrant Agent shall countersign and deliver, in exchange for or in lieu of
each lost, stolen, destroyed or mutilated Ordinary Share Warrant Certificate, a
new Ordinary Share Warrant Certificate evidencing a like number of Ordinary
Share Warrants of the same title. Upon the issuance of a new Ordinary Share
Warrant Certificate under this Section, the Company may require the payment of a
sum sufficient to cover any stamp or other similar tax or other governmental
charge that may be imposed in connection therewith and any other expenses
(including the fees and expenses of the Ordinary Share Warrant Agent) in
connection therewith. Every substitute Ordinary Share Warrant Certificate
executed and delivered pursuant to this Section in lieu of any lost, stolen or
destroyed Ordinary Share Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Ordinary Share Warrant Certificates, duly
executed and delivered hereunder. The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with
respect to the replacement of lost, stolen, destroyed or mutilated Ordinary
Share Warrant Certificates.
SECTION 3.03. HOLDERS OF ORDINARY SHARE WARRANTS MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, any Holder may,
without the consent of the Ordinary Share Warrant Agent, enforce and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise his
Ordinary Share Warrants as provided in the Ordinary Share Warrants and in this
Agreement.
SECTION 3.04. MERGER, CONSOLIDATION, SALE, TRANSFER OR CONVEYANCE.
(a) In case any of the following shall occur while any Ordinary Share Warrants
are outstanding: (i) any reclassification or change of the outstanding
Ordinary Shares; or (ii) any consolidation or merger to which the Company
is party (other than a consolidation or a merger in which the Company is
the continuing corporation and which does not result in any
reclassification of, or change in, the outstanding Ordinary Shares issuable
upon exercise of the Ordinary Share Warrants); or (iii) any sale,
conveyance or lease to another corporation of the property of the Company
as an entirety or substantially as an entirety; then the Company, or such
successor or purchasing corporation, as the case may be, shall make
appropriate provision by amendment of this Agreement or otherwise so that
the Holders of the Ordinary Share Warrants then outstanding shall have the
right at any time thereafter, upon exercise of such Ordinary Share
Warrants, to purchase the kind and amount of shares of stock and other
securities and property receivable upon such a reclassification, change,
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consolidation, merger, sale, conveyance or lease as would be received by a
holder of the number of Ordinary Shares issuable upon exercise of such
Ordinary Share Warrant immediately prior to such reclassification, change,
consolidation, merger, sale, conveyance or lease, and, in the case of a
consolidation, merger, sale, conveyance or lease, the Company shall
thereupon be relieved of any further obligation hereunder or under the
Ordinary Share Warrants, and the Company as the predecessor corporation may
thereupon or at any time thereafter be dissolved, wound up or liquidated.
Such successor or assuming corporation thereupon may cause to be signed,
and may issue either in its own name or in the name of the Company, any of
all of the Ordinary Share Warrants issuable hereunder which theretofore
shall not have been signed by the Company, and may execute and deliver
Ordinary Share in its own name, in fulfillment of its obligations to
deliver Ordinary Share upon exercise of the Ordinary Share Warrants. All
the Ordinary Share Warrants so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Ordinary Share Warrants
theretofore or thereafter issued in accordance with the terms of this
Agreement as though all of such Ordinary Share Warrants had been issued at
the date of the execution hereof. In case of any such reclassification,
change, consolidation, merger, conveyance, transfer or lease, such changes
in phraseology and form (but not in substance) may be made in the Ordinary
Share Warrants thereafter to be issued as may be appropriate.
(b) The Ordinary Share Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such merger, consolidation, sale,
transfer, conveyance or other disposition of substantially all of the
assets of the Company complies with the provisions of this Section 3.04.
SECTION 3.05. TREATMENT OF HOLDERS OF ORDINARY SHARE WARRANT CERTIFICATES.
(a) In the event that the Ordinary Share Warrants are offered together with,
and, prior to the Detachable Date, are not detachable from, Offered
Securities, the Company, the Ordinary Share Warrant Agent and all other
persons may, prior to such Detachable Date, treat the holder of the Offered
Security as the Holder of the Ordinary Share Warrant Certificates initially
attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Ordinary Share Warrants evidenced by such
Ordinary Share Warrant Certificates, any notice to the contrary
notwithstanding. After the Detachable Date and prior to due presentment of
an Ordinary Share Warrant Certificate for registration of transfer, the
Company and the Ordinary Share Warrant Agent may treat the registered
Holder of an Ordinary Share Warrant Certificate as the absolute Holder
thereof for any purpose and as the person entitled to exercise the rights
represented by the Ordinary Share Warrants evidenced thereby, any notice to
the contrary notwithstanding.
(b) In all other cases, the Company and the Ordinary Share Warrant Agent may
treat the registered Holder of an Ordinary Share Warrant Certificate as the
absolute Holder thereof for any purpose and as the person entitled to
exercise the rights represented by the Ordinary Share Warrants evidenced
thereby, any notice to the contrary notwithstanding.
ARTICLE IV
EXCHANGE AND TRANSFER OF ORDINARY SHARE WARRANTS
SECTION 4.01. ORDINARY SHARE WARRANT REGISTER; EXCHANGE AND TRANSFER OF
ORDINARY SHARE WARRANTS.
The Ordinary Share Warrant Agent shall maintain, at its corporate trust
office [or at _______], a register (the "Ordinary Share Warrant Register") in
which, upon the issuance of Ordinary Share Warrants, or on and after the
Detachable Date in the case of Ordinary Share Warrants not separately
transferable
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prior thereto, and, subject to such reasonable regulations as the Ordinary Share
Warrant Agent may prescribe, it shall register Ordinary Share Warrant
Certificates and exchanges and transfers thereof. The Ordinary Share Warrant
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time.
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Ordinary Share Warrant Agent [or at _______ ],
Ordinary Share Warrant Certificates may be exchanged for one or more other
Ordinary Share Warrant Certificates evidencing the same aggregate number of
Ordinary Share Warrants of the same title, or may be transferred in whole or in
part. An Ordinary Share Warrant Certificate evidencing Ordinary Share Warrants
that are not then transferable separately from the Offered Security with which
they were issued may be exchanged or transferred prior to its Detachable Date
only together with such Offered Security and only for the purpose of effecting,
or in conjunction with, an exchange or transfer of such Offered Security; and on
or prior to the Detachable Date, each exchange or transfer of such Offered
Security on the Security Register of the Offered Securities shall operate also
to exchange or transfer the related Ordinary Share Warrants. A transfer shall be
registered upon surrender of an Ordinary Share Warrant Certificate to the
Ordinary Share Warrant Agent at its corporate trust office [or at
______________________] for transfer, properly endorsed or accompanied by
appropriate instruments of transfer and written instructions for transfer, all
in form satisfactory to the Company and the Ordinary Share Warrant Agent.
Whenever an Ordinary Share Warrant Certificate is surrendered for exchange or
transfer, the Ordinary Share Warrant Agent shall countersign and deliver to the
person or persons entitled thereto one or more Ordinary Share Warrant
Certificates duly executed by the Company, as so requested. The Ordinary Share
Warrant Agent shall not be required to effect any exchange or transfer which
will result in the issuance of an Ordinary Share Warrant Certificate evidencing
a fraction of an Ordinary Share Warrant. All Ordinary Share Warrant Certificates
issued upon any exchange or transfer of an Ordinary Share Warrant Certificate
shall be the valid obligations of the Company, evidencing the same obligations,
and entitled to the same benefits under this Agreement, as the Ordinary Share
Warrant Certificate surrendered for such exchange or transfer.
No service charge shall be made for any exchange or transfer of Ordinary
Share Warrants, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
such exchange or transfer, in accordance with Section 2.02(f) hereof.
SECTION 4.02. TREATMENT OF HOLDERS OF ORDINARY SHARE WARRANTS.
Every Holder of Ordinary Share Warrants, by accepting the Ordinary Share
Warrant Certificate evidencing the same, consents and agrees with the Company,
the Ordinary Share Warrant Agent and with every other Holder of Ordinary Share
Warrants of the same title that the Company and the Ordinary Share Warrant Agent
may treat the Holder of an Ordinary Share Warrant Certificate (or, if the
Ordinary Share Warrant Certificate is not then detachable, the Holder of the
related Offered Security) as the absolute owner of such Ordinary Share Warrant
for all purposes and as the person entitled to exercise the rights represented
by such Ordinary Share Warrant, any notice to the contrary notwithstanding.
SECTION 4.03. CANCELLATION OF ORDINARY SHARE WARRANT CERTIFICATES.
In the event that the Company shall purchase, redeem or otherwise acquire
any Ordinary Share Warrants after the issuance thereof, the Ordinary Share
Warrant Certificate or Certificates evidencing such Ordinary Share Warrants
shall thereupon be delivered to the Ordinary Share Warrant Agent and be
cancelled by it. The Ordinary Share Warrant Agent shall also cancel any Ordinary
Share Warrant Certificate (including any mutilated Ordinary Share Warrant
Certificate) delivered to it for exercise, in whole or in part, or for exchange
or transfer. Ordinary Share Warrant Certificates so cancelled shall be
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delivered by the Ordinary Share Warrant Agent to the Company from time to time,
or disposed of in accordance with the instructions of the Company.
ARTICLE V
CONCERNING THE ORDINARY SHARE WARRANT AGENT
SECTION 5.01. ORDINARY SHARE WARRANT AGENT.
The Company hereby appoints ________ as Ordinary Share Warrant Agent of the
Company in respect of the Ordinary Share Warrants upon the terms and subject to
the conditions set forth herein; and __________________ hereby accepts such
appointment. The Ordinary Share Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Ordinary Share Warrant
Certificates and hereby and such further powers and authority acceptable to it
to act on behalf of the Company as the Company may hereafter grant to or confer
upon it. All of the terms and provisions with respect to such powers and
authority contained in the Ordinary Share Warrant Certificates are subject to
and governed by the terms and provisions hereof.
SECTION 5.02. CONDITIONS OF ORDINARY SHARE WARRANT AGENT'S OBLIGATIONS.
The Ordinary Share Warrant Agent accepts its obligations set forth herein
upon the terms and conditions hereof, including the following, to all of which
the Company agrees and to all of which the rights hereunder of the Holders shall
be subject:
(a) COMPENSATION AND INDEMNIFICATION.
The Company agrees to promptly pay the Ordinary Share Warrant Agent
the compensation set forth in Exhibit A hereto and to reimburse the
Ordinary Share Warrant Agent for reasonable out-of-pocket expenses
(including counsel fees) incurred by the Ordinary Share Warrant Agent
in connection with the services rendered hereunder by the Ordinary
Share Warrant Agent. The Company also agrees to indemnify the Ordinary
Share Warrant Agent for, and to hold it harmless against, any loss,
liability or expense (including the reasonable costs and expenses of
defending against any claim of liability) incurred without negligence
or bad faith on the part of the Ordinary Share Warrant Agent arising
out of or in connection with its appointment as Ordinary Share Warrant
Agent hereunder.
(b) AGENT FOR THE COMPANY.
In acting under this Agreement and in connection with any Ordinary
Share Warrant Certificate, the Ordinary Share Warrant Agent is acting
solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any Holder.
(c) COUNSEL.
The Ordinary Share Warrant Agent may consult with counsel satisfactory
to it, and the advice of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the
advice of such counsel.
(d) DOCUMENTS.
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The Ordinary Share Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken, suffered or omitted
by it in reliance upon any notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by
it to be genuine and to have been presented or signed by the proper
parties.
(e) OFFICER'S CERTIFICATE.
Whenever in the performance of its duties hereunder the Ordinary Share
Warrant Agent shall reasonably deem it necessary that any fact or
matter be proved or established by the Company prior to taking,
suffering or omitting any action hereunder, the Ordinary Share Warrant
Agent may (unless other evidence in respect thereof be herein
specifically prescribed), in the absence of bad faith on its part,
rely upon a certificate signed by the Chairman, Chief Executive
Officer, Chief Financial Officer, a Vice President, a financial
controller, the Secretary or an Assistant Secretary of the Company (an
"Officer's Certificate") delivered by the Company to the Ordinary
Share Warrant Agent.
(f) ACTIONS THROUGH AGENTS.
The Ordinary Share Warrant Agent may execute and exercise any of the
rights or powers hereby vested in it or perform any duty hereunder
either itself or by or through its attorneys or agents, and the
Ordinary Share Warrant Agent shall not be answerable or accountable
for any act, default, neglect or misconduct of any such attorney or
agent or for any loss to the Company resulting from such neglect or
misconduct; provided, however, that reasonable care shall have been
exercised in the selection and continued employment of such attorneys
and agents.
(g) CERTAIN TRANSACTIONS.
The Ordinary Share Warrant Agent, and any officer, director or
employee thereof, may become the owner of, or acquire any interest in,
any Ordinary Share Warrant, with the same rights that he, she or it
would have if it were not the Ordinary Share Warrant Agent.
(h) NO LIABILITY FOR INTEREST.
The Ordinary Share Warrant Agent shall not be liable for interest on
any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Ordinary Share Warrant
Certificates, except as otherwise agreed with the Company.
(i) NO LIABILITY FOR INVALIDITY.
The Ordinary Share Warrant Agent shall incur no liability with respect
to the validity of this Agreement (except as to the due execution
hereof by the Ordinary Share Warrant Agent) or any Ordinary Share
Warrant Certificate (except as to the countersignature thereof by the
Ordinary Share Warrant Agent).
(j) NO RESPONSIBILITY FOR COMPANY REPRESENTATIONS.
The Ordinary Share Warrant Agent shall not be responsible for any of
the recitals or representations contained herein (except as to such
statements or recitals as describe the Ordinary Share Warrant Agent or
action taken or to be taken by it) or in any Ordinary Share Warrant
Certificate (except as to the Ordinary Share Warrant Agent's
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countersignature on such Ordinary Share Warrant Certificate), all of
which recitals and representations are made solely by the Company.
(k) NO IMPLIED OBLIGATIONS.
The Ordinary Share Warrant Agent shall be obligated to perform only
such duties as are specifically set forth herein, and no other duties
or obligations shall be implied. The Ordinary Share Warrant Agent
shall not be under any obligation to take any action hereunder that
may subject it to any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to
it. The Ordinary Share Warrant Agent shall not be accountable or under
any duty or responsibility for the use by the Company of any Ordinary
Share Warrant Certificate countersigned by the Ordinary Share Warrant
Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the issuance or
exercise of Ordinary Share Warrants. The Ordinary Share Warrant Agent
shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained
herein or in any Ordinary Share Warrant Certificate or in case of the
receipt of any written demand from a Holder with respect to such
default, including, without limiting the generality of the foregoing,
any duty or responsibility to initiate or attempt to initiate any
proceedings at law or otherwise or, except as provided in Section 6.02
hereof, to make any demand upon the Company.
SECTION 5.03. COMPLIANCE WITH APPLICABLE LAWS.
The Ordinary Share Warrant Agent agrees to comply with all applicable
federal and state laws imposing obligations on it in respect of the services
rendered by it under this Ordinary Share Warrant Agreement and in connection
with the Ordinary Share Warrants.
SECTION 5.04. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders of the Ordinary Share
Warrants, that there shall at all times be an Ordinary Share Warrant Agent
hereunder until all the Ordinary Share Warrants are no longer exercisable.
(b) The Ordinary Share Warrant Agent may at any time resign as such agent by
giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become
effective, subject to the appointment of a successor Ordinary Share Warrant
Agent and acceptance of such appointment by such successor Ordinary Share
Warrant Agent, as hereinafter provided. The Ordinary Share Warrant Agent
hereunder may be removed at any time by the filing with it of an instrument
in writing signed by or on behalf of the Company and specifying such
removal and the date when it shall become effective. Notwithstanding the
two preceding sentences, such resignation or removal shall take effect upon
the appointment by the Company, as hereinafter provided, of a successor
Ordinary Share Warrant Agent and the acceptance of such appointment by such
successor Ordinary Share Warrant Agent. In the event a successor Ordinary
Share Warrant Agent has not been appointed and has not accepted its duties
within 90 days of the Ordinary Share Warrant Agent's notice of resignation,
the Ordinary Share Warrant Agent may apply to any court of competent
jurisdiction for the designation of a successor Ordinary Share Warrant
Agent. The obligation of the Company under Section 5.02(a) shall continue
to the extent set forth therein notwithstanding the resignation or removal
of the Ordinary Share Warrant Agent.
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(c) In case at any time the Ordinary Share Warrant Agent shall resign, or shall
be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall make an assignment for the benefit of its
creditors, or shall consent to the appointment of a receiver or custodian
of all or any substantial part of its property, or shall admit in writing
its inability to pay or meet its debts as they mature, or if a receiver or
custodian for it or for all or any substantial part of its property shall
be appointed, or if any public officer shall have taken charge or control
of the Ordinary Share Warrant Agent or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, a successor
Ordinary Share Warrant Agent, qualified as aforesaid, shall be appointed by
the Company by an instrument in writing, filed with the successor Ordinary
Share Warrant Agent. Upon the appointment as aforesaid of a successor
Ordinary Share Warrant Agent and acceptance by the latter of such
appointment, the Ordinary Share Warrant Agent so superseded shall cease to
be Ordinary Share Warrant Agent hereunder.
(d) Any successor Ordinary Share Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such
successor Ordinary Share Warrant Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of such predecessor with like
effect as if originally named as Ordinary Share Warrant Agent hereunder,
and such predecessor, upon payment of its charges and disbursements then
unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Ordinary Share Warrant Agent shall be entitled to
receive all moneys, securities and other property on deposit with or held
by such predecessor, as Ordinary Share Warrant Agent hereunder.
(e) The Company shall cause notice of the appointment of any successor Ordinary
Share Warrant Agent to be mailed by first class mail, postage prepaid, to
each Holder at its address appearing on the Ordinary Share Warrant
Register. Such notice shall set forth the name and address of the successor
Ordinary Share Warrant Agent. Failure to give any notice provided for in
this Section 5.04(e), or any defect therein, shall not, however, affect the
legality or validity of the appointment of the successor Ordinary Share
Warrant Agent.
(f) Any corporation into which the Ordinary Share Warrant Agent hereunder may
be merged or converted or any corporation with which the Ordinary Share
Warrant Agent may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Ordinary Share Warrant
Agent shall be a party, or any corporation to which the Ordinary Share
Warrant Agent shall sell or otherwise transfer all or substantially all of
the assets and business of the Ordinary Share Warrant Agent, provided that
it shall be qualified as aforesaid, shall be the successor Ordinary Share
Warrant Agent under this Agreement without the execution or filing of any
paper or any further act on the part of any of the parties hereto.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. SUPPLEMENTS AND AMENDMENTS.
(a) This Agreement and the Ordinary Share Warrants may be supplemented or
amended by the Company and the Ordinary Share Warrant Agent, without the
consent of the Holders of Ordinary Share Warrants, for the purpose of
curing any ambiguity, or of curing, correcting or supplementing any
defective or inconsistent provision contained herein or therein or in any
other manner which the Company may deem to be necessary or desirable and
which will not materially adversely affect the interests of the Holders of
the Ordinary Share Warrants. Every Holder of Ordinary Share Warrants,
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whether issued before or after any such supplement or amendment, shall be
bound thereby. Promptly after the effectiveness of any supplement or
amendment that affects the interests of the Holders, the Company shall give
notice thereof, as provided in Section 5.04(e) hereof, to the Holders
affected thereby, setting forth in general terms the substance of such
supplement or amendment.
(b) The Company and the Ordinary Share Warrant Agent may modify or amend this
Agreement and the Ordinary Share Warrant Certificates with the consent of
the Holders of not fewer than a majority in number of the then outstanding
unexercised Ordinary Share Warrants affected by such modification or
amendment, for any purpose; PROVIDED, HOWEVER, that no such modification or
amendment that shortens the period of time during which the Ordinary Share
Warrants may be exercised, or otherwise materially and adversely affects
the exercise rights of the Holders or reduces the percentage of Holders of
outstanding Ordinary Share Warrants the consent of which is required for
modification or amendment of this Agreement or the Ordinary Share Warrants,
may be made without the consent of each Holder affected thereby.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND ORDINARY SHARE WARRANT
AGENT.
If the Ordinary Share Warrant Agent shall receive any notice or demand
addressed to the Company by any Holder pursuant to the provisions of the
Ordinary Share Warrant Certificates, the Ordinary Share Warrant Agent shall
promptly forward such notice or demand to the Company.
SECTION 6.03. ADDRESSES FOR NOTICES.
Any communications from the Company to the Ordinary Share Warrant Agent
with respect to this Agreement shall be addressed to [name of Ordinary Share
Warrant Agent], [__________________, ________], Attention: [________]; any
communications from the Ordinary Share Warrant Agent to the Company with respect
to this Agreement shall be addressed to Solarfun Power Holdings Co., Ltd., 666
Linyang Road, Qidong, Jiangsu Province, 226200, People's Republic of China,
Attention: [Chief Financial Officer]; or such other addresses as shall be
specified in writing by the Ordinary Share Warrant Agent or by the Company.
SECTION 6.04. GOVERNING LAW. THIS AGREEMENT AND THE ORDINARY SHARE WARRANTS
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE.
SECTION 6.05. PERSONS HAVING RIGHTS UNDER ORDINARY SHARE WARRANT AGREEMENT.
Nothing in this Agreement expressed or implied and nothing that may be
inferred from any of the provisions hereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the Company,
the Ordinary Share Warrant Agent and the Holders any right, remedy or claim
under or by reason of this Agreement or of any covenant, condition, stipulation,
promise or agreement hereof; and all covenants, conditions, stipulations,
promises and agreements in this Agreement contained shall be for the sole and
exclusive benefit of the Company and the Ordinary Share Warrant Agent and their
successors and of the Holders of Ordinary Share Warrant Certificates.
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SECTION 6.06. DELIVERY OF PROSPECTUS.
The Company will furnish to the Ordinary Share Warrant Agent sufficient
copies of a prospectus or prospectuses relating to the Ordinary Shares
deliverable upon exercise of any outstanding Ordinary Share Warrants (each a
"Prospectus"), and the Ordinary Share Warrant, prior to or concurrently with the
delivery of the Ordinary Shares issued upon the exercise thereof, a copy of the
Prospectus relating to such Ordinary Share.
SECTION 6.07. HEADINGS.
The descriptive headings of the several Articles and Sections of this
Agreement are for convenience only and shall not control or affect the meaning
or construction of any of the provisions hereof.
SECTION 6.08. COUNTERPARTS.
This Agreement may be executed by the parties hereto in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original; but all such counterparts shall together constitute but one and the
same instrument.
SECTION 6.09. INSPECTION OF AGREEMENT.
A copy of this Agreement shall be available during normal business hours at
the principal corporate trust office of the Ordinary Share Warrant Agent, for
inspection by any Holder of Ordinary Share Warrants. The Ordinary Share Warrant
Agent may require such Holder to submit its Ordinary Share Warrant Certificate
for inspection prior to making such copy available.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
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SOLARFUN POWER HOLDINGS CO., LTD.
By: ________________________________
NAME AND TITLE: ____________________
[ORDINARY SHARE WARRANT AGENT]
By: ________________________________
NAME AND TITLE: ____________________
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