UNITED STATES
	SECURITIES AND EXCHANGE COMMISSION
	Washington, D.C. 20549
	SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No. 7)*

 

Information to be Included in Statements Filed Pursuant to Rule 13d-1(a) and Amendments Thereto Filed Pursuant to Rule 13d-2(a)

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

 

(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

 

(1)      Not for trading, but only in connection with the listing on Nasdaq Global Select Market of American depositary shares, each representing five ordinary shares.

 

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 

 

(1)                                 Percentage calculated based on 237,853,602 ordinary shares outstanding as of March 31, 2017, as set forth in the Issuer’s annual report on Form 20-F filed with the SEC on April 26, 2017.

 

2

 

 

(1)                                 Percentage calculated based on 237,853,602 ordinary shares outstanding as of March 31, 2017, as set forth in the Issuer’s annual report on Form 20-F filed with the SEC on April 26, 2017.

 

3

 

 

(1)                                 Percentage calculated based on 237,853,602 ordinary shares outstanding as of March 31, 2017, as set forth in the Issuer’s annual report on Form 20-F filed with the SEC on April 26, 2017.

 

4

 

 

(1)                                 Percentage calculated based on 237,853,602 ordinary shares outstanding as of March 31, 2017, as set forth in the Issuer’s annual report on Form 20-F filed with the SEC on April 26, 2017.

 

5

 

 

(1)                                 Percentage calculated based on 237,853,602 ordinary shares outstanding as of March 31, 2017, as set forth in the Issuer’s annual report on Form 20-F filed with the SEC on April 26, 2017.

 

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INTRODUCTORY NOTE

 

This amendment No. 7 (“Amendment No. 7”) to Schedule 13D is filed jointly by Jinglong Group Co., Ltd., Mr. Jin Baofang, Mr. Chin Tien Huang, Ms. Chi Fung Wong and Ms. Pak Wai Wong (each, a “Reporting Person” and collectively, the “Reporting Persons”), with respect to JA Solar Holdings Co., Ltd. (the “Issuer” or “Company”), pursuant to their Joint Filing Agreement dated as of November 20, 2017, filed with the Schedule 13D as Exhibit 7.03.

 

This Amendment No. 7 amends and supplements the statement on Schedule 13D filed on behalf of Jinglong Group Co., Ltd. with the United States Securities and Exchange Commission (the “SEC”) on December 2, 2008, as amended and supplemented by Amendment No. 1 to Schedule 13D filed with the SEC on June 11, 2009, Amendment No. 2 to Schedule 13D filed with the SEC on December 21, 2009, Amendment No. 3 to Schedule 13D filed with the SEC on September 16, 2010, Amendment No. 4 to Schedule 13D filed with the SEC on December 6, 2011, Amendment No. 5 to Schedule 13D filed with the SEC on June 8, 2015 and Amendment No. 6 to Schedule 13D filed with the SEC on June 9, 2017 (as amended and supplemented to date, the “Original Schedule 13D”). Except as provided herein, this Amendment No. 7 does not modify any of the information previously reported on the Original Schedule 13D.

 

Item 3.                                                         Source and Amount of Funds or Other Consideration

 

Item 3 of the Original Schedule 13D is hereby amended and replaced in its entirety as follows:

 

Pursuant to an agreement and plan of merger, dated as of November 17, 2017 (the “Merger Agreement”), among JASO Holdings Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands (“Holdco”), JASO Parent Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands, and a wholly directly-owned subsidiary of Holdco (“Parent”), JASO Acquisition Limited, an exempted company with limited liability incorporated under the laws of Cayman Islands and a wholly directly-owned subsidiary of Parent (“Merger Sub”) and the Company, Merger Sub will be merged with and into the Company, with the Company continuing as the surviving company and a wholly directly-owned subsidiary of Parent (the “Merger”). The descriptions of the Merger and the Merger Agreement set forth in Item 4 below are incorporated by reference in their entirety into this Item 3. The information disclosed in this paragraph does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 7.04 as is incorporated herein by reference in its entirety.

 

It is anticipated that, at a price of US$7.55 in cash per ADS (each representing 5 Ordinary Shares) or US$1.51 in cash per ordinary share, approximately US$268 million will be required for (i) purchasing approximately 178,055,770 outstanding Ordinary Shares (including Ordinary Shares represented by ADSs) not owned by the Rollover Shareholders (as defined below), (ii) paying for outstanding options, restricted shares and restricted share units to purchase Ordinary Shares and (iii) paying for transaction costs in connection with the Merger.

 

The financing for the Merger and other transactions contemplated by the Merger Agreement will be provided by a combination of debt and equity capital arranged by the Reporting Persons. Pursuant to a debt commitment letter, dated as of November 17, 2017 (the “Debt Commitment Letter”), delivered by CSI Finance Limited, Credit Suisse AG, Singapore Branch, Dong Yin Development (Holdings) Limited and SPDB International (Hong Kong) Limited (collectively the “Lenders”) to Merger Sub, the Lenders will provide a term loan facility in an aggregate amount of up to US$160 million to Merger Sub. The information disclosed in this paragraph does not purport to be complete and is qualified in its entirety by reference to the Debt Commitment Letter, a copy of which is filed as Exhibit 7.05 and is incorporated herein by reference in its entirety. In addition, pursuant to a debt commitment letter, dated as of November 17, 2017 (the “Abax Commitment Letter”), delivered by Abax Asian Structured Credit Fund II, LP (the “Noteholder”) to JASO Top Holdings Limited, an exempted company with limited liability incorporated under the laws of the Cayman Islands, and wholly owned by Mr. Jin Baofang (the “Borrower”), the Noteholder will subscribe for an exchangeable note to be issued by the Borrower in the principal amount of US$20 million. The information disclosed in this paragraph does not purport to be complete and is qualified in its entirety by reference to the Abax Commitment Letter, a copy of which is filed as Exhibit 7.06 and is incorporated herein by reference in its entirety.

 

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Concurrently with the execution of the Merger Agreement, Jinglong Group Co., Ltd. and JASO Top Holdings Limited (collectively, the “Sponsors”) entered into an equity commitment letter, dated as of November 17, 2017 (the “Equity Commitment Letter”) with Holdco, pursuant to which the Sponsors undertook to subscribe for newly issued ordinary shares of Holdco for an aggregate cash purchase price in immediately available funds equal to US$116 million, which will be used to fund the Merger. The information disclosed in this paragraph does not purport to be complete and is qualified in its entirety by reference to the Equity Commitment Letter, a copy of which is filed as Exhibit 7.07 and is incorporated herein by reference in its entirety.

 

Concurrently with the execution of the Merger Agreement, each of Jinglong Group Co., Ltd., Mr. Chin Tien Huang, Ms. Chi Fung Wong and Ms. Pak Wai Wong (each, a “Rollover Shareholder” and together, the “Rollover Shareholders”) have executed and delivered to Holdco a support agreement (the “Support Agreements”), pursuant to which an aggregate of 61,036,140 Ordinary Shares (assuming their respective options are fully exercised) owned by the Rollover Shareholders will be cancelled at the closing of the Merger in exchange for newly issued Ordinary Shares of Holdco. The Rollover Shareholders, which own an aggregate of approximately 9.3% of the outstanding Ordinary Shares, representing approximately 9.3% in the Company’s shareholder votes, also agreed, among other things, to, at the shareholders’ meeting of the Company for purposes of voting upon and approving the Merger Agreement and the transactions contemplated thereby, (i) cause its representative(s) to appear at such meeting or otherwise cause their Ordinary Shares to be counted as present thereat for purposes of determining whether a quorum is present, and (ii) vote or cause to be voted at such meeting all their Ordinary Shares (A) in favor of the approval of the Merger Agreement and any actions required in furtherance thereof, (B) against any competing acquisition proposal, (C) against any action, proposal transaction or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such Rollover Shareholder in the Support Agreement, (D) in favor of any adjournment or postponement of the Shareholders’ Meeting as may be reasonably requested by Parent, and (E) in favor of any other matter necessary to effect the transactions under the Merger Agreement, unless the Company’s board of directors (at the direction of the Special Committee) or the Special Committee has made a change in the company recommendation. The information disclosed in this paragraph does not purport to be complete and is qualified in its entirety by reference to the Support Agreements, a copy of which is filed as Exhibit 7.08 and is incorporated herein by reference in its entirety.

 

Item 4.                                                         Purpose of Transaction

 

Item 4 of the Original Schedule 13D is hereby amended and replaced in its entirety as follows:

 

On November 17, 2017, the Company announced in a press release that it had entered into the Merger Agreement. Pursuant to the Merger Agreement, Merger Sub will be merged with and into the Company, with the Company continuing as the surviving corporation and a wholly-owned subsidiary of Parent. At the effective time of the Merger (the “Effective Time”), each ADS issued and outstanding immediately prior to the Effective Time (other than the Excluded Shares and the Dissenting Shares, each as defined below) will be cancelled and cease to exist in exchange for the right to receive US$7.55 in cash without interest and net of any withholding taxes. “Excluded Shares” means, collectively, Ordinary Shares and ADSs beneficially owned (as determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) by the Rollover Shareholders. Each of the Excluded Shares and ADSs representing the Excluded Shares will be cancelled and cease to exist at the Effective Time without payment of any consideration or distribution therefor. “Dissenting Shares” means Ordinary Shares outstanding immediately prior to the Effective Time and held by holders who have validly given a written objection with respect to the Merger pursuant to Section 238(2) of the Cayman Islands Companies Law (the “CICL”) and not withdrawn or lost their dissenter’s rights pursuant to the CICL. Each Dissenting Share will be cancelled at the Effective Time for the right to receive from the surviving corporation the fair value of such Ordinary Shares as determined in accordance with the CICL.

 

The consummation of the Merger is subject to the satisfaction or waiver of a number of conditions set forth in the Merger Agreement, including the approval of the Merger Agreement and the transactions contemplated thereby by holders of Ordinary Shares representing two-thirds or more of the Ordinary Shares present and voting at a shareholders’ meeting of the Company convened for purposes of voting upon and approving the Merger Agreement and the transactions contemplated thereby. The Merger Agreement may be terminated by the Company or Parent under certain circumstances.

 

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The purpose of the transactions contemplated under the Merger Agreement, including the Merger, is to acquire all of the outstanding Ordinary Shares and ADSs not owned by the Rollover Shareholders. If the Merger is consummated, ADSs will no longer be traded on the Nasdaq Global Select Market, the ADSs and Ordinary Shares will cease to be registered under Section 12 of the Exchange Act, and the Company will be privately held by Parent. The information disclosed in this paragraph and the preceding two paragraphs is qualified in its entirety by reference to the Merger Agreement, which is incorporated herein by reference in its entirety.

 

Concurrently with the execution of the Merger Agreement, Jingling Group Co., Ltd. (the “Guarantor”) entered into a limited guaranty in favor of the Company (the “Limited Guaranty”), pursuant to which the Guarantor irrevocably and unconditionally guaranteed, subject to certain conditions, a portion of Parent’s payment obligations under the Merger Agreement for the termination fee that may become payable by Parent under certain circumstances and certain reimbursement obligations set forth therein. The information disclosed in this paragraph is qualified in its entirety by reference to the Limited Guaranty, a copy of which is filed as Exhibit 7.09, and is incorporated herein by reference in its entirety.

 

Item 3 of this Schedule 13D/A is incorporated herein by reference.

 

Other than described in Item 3 and Item 4 above, the Reporting Persons have no plans or proposals which relate to or would result in any of the actions specified in paragraphs (a) through (d) of Item 4 of the Schedule 13D. The reporting Persons may, at any time and from time to time, formulate other purposes, plans or proposals regarding the Company, or any other actions that could involve one or more of the types of the transactions that have one or more of the results described in paragraphs (a) through (d) of Item 4 of the Schedule 13D.

 

ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER

 

Item 6 of the Original Schedule 13D is hereby supplemented as follows:

 

The descriptions of the Merger Agreement, the Debt Commitment Letter, the Abax Commitment Letter, the Support Agreement and the Limited Guaranty under Item 3 and Item 4 are incorporated herein by reference. The summary of certain provisions of such agreements in this Schedule 13D/A are not intended to be complete and are qualified in their entirety by reference to the full text of such agreements.

 

To the best of the knowledge of the Reporting Persons, except as provided herein, there are no contracts, arrangements, understandings or relationships (legal or otherwise), including, but not limited to, transfer or voting of any of the securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, or the giving or withholding of proxies, between any of the Reporting Persons, and any other person, with respect to any securities of the Company, including any securities pledged or otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities other than standard default and similar provisions contained in loan agreements.

 

Item 7.                                                         Material to be Filed as Exhibits.

 

Exhibit 7.03	Joint Filing Agreement, by and among the Reporting Persons, dated as of November 20, 2017.
Exhibit 7.04	Agreement and Plan of Merger, among JASO Holdings Limited, JASO Parent Limited, JASO Acquisition Limited and the Company, dated as of November 17, 2017, incorporated herein by reference to Exhibit 99.2 to the Report on Form 6-K furnished by the Company to the SEC on November 17, 2017.
Exhibit 7.05	Debt Commitment Letter, by CSI Finance Limited, Credit Suisse AG, Singapore Branch, Dong Yin Development (Holdings) Limited and SPDB International (Hong Kong) Limited in favor of JASO Acquisition Limited, dated as of November 17, 2017.
Exhibit 7.06	Commitment Letter, by Abax Asian Structured Credit Fund II, LP in favor of JASO Top Holdings Limited, dated as of November 17, 2017.

 

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Exhibit 7.07	Equity Commitment Letter, by Jinglong Group Co., Ltd. and JASO Top Holdings Limited in favor of JASO Holdings Limited, dated as of November 17, 2017.
Exhibit 7.08	Support Agreement, by and among Jinglong Group Co., Ltd., Chin Tien HUANG, Chi Fung WONG and Pak Wai WONG and JASO Holdings Limited, dated as of November 17, 2017.
Exhibit 7.09	Limited Guaranty, by Jingling Group Co., Ltd. in favor of the Company, dated as of November 17, 2017.

 

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SIGNATURE

 

After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

Dated: November 21, 2017

 

	JINGLONG GROUP CO., LTD.
	By:	/s/ Jin Baofang
		Name:	Jin Baofang
		Title:	Authorized Signatory
	JIN BAOFANG
	By:	/s/ Jin Baofang
	CHIN TIEN HUANG
	By:	/s/ Chin Tien Huang
	CHI FUNG WONG
	By:	/s/ Chi Fung Wong
	PAK WAI WONG
	By:	/s/ Pak Wai Wong

 

[Signature Page to Amendment No. 7]

 

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EXHIBIT 7.03

 

JOINT FILING AGREEMENT

 

In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to (i) the joint filing on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the Ordinary Shares (including Ordinary Shares represented by ADSs) of JA Solar Holdings Co., Ltd. and (ii) that this Joint Filing Agreement be included as an exhibit to such joint filing, provided that, as contemplated by Section 13d-1(k)(ii), no person shall be responsible for the completeness and accuracy of the information concerning the other persons making the filing unless such person knows or has reason to believe such information is inaccurate.

 

This Joint Filing Agreement may be executed in any number of counterparts all of which together shall constitute one and the same instrument.

 

[Signatures Pages Follow]

 

EXH 7.03-1

 

IN WITNESS WHEREOF, the undersigned hereby execute this Agreement as of November 20, 2017

 

	JINGLONG GROUP CO., LTD.
	By:	/s/ Jin Baofang
		Name:	Jin Baofang
		Title:	Sole Director
	JIN BAOFANG
	By:	/s/ Jin Baofang
	CHIN TIEN HUANG
	By:	/s/ Chin Tien Huang
	CHI FUNG WONG
	By:	/s/ Chi Fung Wong
	PAK WAI WONG
	By:	/s/ Pak Wai Wong

 

Exhibit 7.05

 

EXECUTION VERSION

 

 

To:                       JASO Acquisition Limited (the Company or you)

 

17 November, 2017

 

Dear Sirs,

 

Project Jasmine — Mandate Letter

 

We, CSI Finance Limited, Credit Suisse AG, Singapore Branch, Dong Yin Development (Holdings) Limited and SPDB International (Hong Kong) Limited as mandated lead arrangers and underwriters (the MLAUs, we or us) are pleased to set out in this letter (together with the Term Sheet, this Letter) the terms and conditions on which we are willing to arrange, underwrite and provide the Facility, in connection with the Cayman Islands statutory merger in respect of you and JA Solar Holdings Co., Ltd. (the Target).

 

Unless a contrary indication appears in this Letter, a term defined in the Term Sheet or any other Mandate Document has the same meaning when used in this Letter.

 

In this Letter:

 

Affiliate means, in relation to a person, a subsidiary or holding company of that person and any other subsidiary of any such holding company.

 

Agents means the Facility Agent and each Security Agent (each as defined below).

 

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Hong Kong, the Cayman Islands, Singapore and (in relation to any date for payment in US Dollars) New York City.

 

Commitment Party means each MLAU and each Agent.

 

Facility Agreement means the facility agreement relating to the Facility.

 

Facility Documents means the Facility Agreement, the Closing Transaction Security Documents, the Investor PRC Guarantee and related documentation (in accordance with the terms of this Letter) reflecting the terms of the Term Sheet and otherwise in form and substance satisfactory to the MLAUs.

 

Fee Letter means any fee letter between: (a) any of the MLAUs and/or the Agents; and (b) the Company dated on or about the date of this Letter.

 

Information Memorandum means the information memorandum containing all relevant information (including projections) including, but not limited to, information about the Group and the Target Group and how the proceeds of the Facility will be applied.

 

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Mandate Documents means this Letter (including the Term Sheet) and any Fee Letter.

 

Term Sheet means the term sheet attached to this Letter as an appendix (which, for the avoidance of doubt, includes all appendices thereto).

 

1.                                Appointment and Exclusivity

 

1.1                         The Company appoints:

 

(a)                           the MLAUs as exclusive arrangers and underwriters of the Facility;

 

(b)                           Citicorp International Limited as facility agent in connection with the Facility (the Facility Agent);

 

(c)                            Citicorp International Limited as offshore security agent in connection with the Facility (the Offshore Security Agent); and

 

(d)                           Madison Pacific Trust Limited as onshore security agent in connection with the Facility (together with the Offshore Security Agent, the Security Agents).

 

1.2                         Until this mandate terminates in accordance with paragraph 13 (Termination):

 

(a)                           no other person shall be appointed as mandated lead arranger, underwriter, bookrunner, lender, documentation agent, facility agent or security agent (whether offshore or onshore);

 

(b)                           no other titles shall be awarded; and

 

(c)                            except as provided in the Mandate Documents, no other fees or compensation shall be paid to any person,

 

in connection with the Facility without the prior written consent of each of the MLAUs.

 

2.                                Conditions

 

2.1                         This offer to arrange and underwrite the Facility is made on the terms of the Mandate Documents and is subject to satisfaction of the following conditions:

 

(a)                           compliance by the Company in all material respects with the terms of each Mandate Document (other than in respect of paragraph 7 (Information) of this Letter, compliance with which in all material respects shall not be a condition to the offer to arrange and underwrite the Facility contained in this Letter);

 

(b)                           no “Company Material Adverse Effect” (as defined under the Merger Agreement) has occurred since the date of this Letter and is “continuing” (as interpreted in accordance with Section 7.02(c) (Conditions to the Obligations of the Parent Parties — Material Adverse Effect) of the Merger Agreement);

 

(c)                            no: (i) Change of Control; or (ii) illegality with respect to an MLAU or any of its Affiliates (in accordance with paragraph (a) of the section entitled “Prepayment and Cancellation” of the Term Sheet) having occurred and compliance with the other conditions of the section entitled “Certain Funds” of the Term Sheet;

 

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(d)                           the preparation, execution and delivery of the Facility Agreement in accordance with paragraph 4 (Facility Documents) of this Letter; and

 

(e)                            satisfaction (on or prior to the date of submission of the Utilisation Request in respect of the Utilisation) of all conditions precedent to the submission of the Utilisation Request in respect of the Utilisation set out in Annex 2 (Conditions Precedent) to the Term Sheet, and the Facility Agreement.

 

2.2                         Each MLAU confirms that:

 

(a)                           it has obtained all credit committee and all other relevant internal approvals with respect to the Facility;

 

(b)                           it has completed all required due diligence with respect to the Facility; and

 

(c)                            the draft Merger Documents received by legal counsel to the MLAUs at 01:00 Hong Kong time on 17 November 2017 (email subject: RE: [Ext] Jasmine - Merger Documents (0094707-0000014)) will (subject to them remaining in substantially the same forms, or with such supplements or other modifications which, when taken as a whole, do not materially and adversely affect the interests of the MLAUs), when delivered in final form, be acceptable to it for the purposes of satisfying the relevant condition(s) precedent in the Term Sheet which correspond(s) to the Merger Documents.

 

2.3                         Each Commitment Party confirms that it has completed all of its client identification procedures in respect of the Original Obligors in compliance with all applicable laws and regulations.

 

3.                                Underwriting Amounts

 

3.1                         The underwriting amounts of each of the MLAUs in respect of the Facility are (subject to the Closing Date Gross Leverage Test) as follows:

 

MLAU		Amount (USD)
CSI Finance Limited		35,000,000
Credit Suisse AG, Singapore Branch		35,000,000
Dong Yin Development (Holdings) Limited		80,000,000
SPDB International (Hong Kong) Limited		10,000,000
Total		160,000,000

 

3.2                         The obligations of the Commitment Parties under the Mandate Documents are several.  No Commitment Party is responsible for the obligations of any other Commitment Party.

 

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4.                                Facility Documents

 

4.1                         Each of the parties agrees (unless this Letter is terminated in accordance with its terms) to negotiate in good faith, to use reasonable efforts and to allocate sufficient resources and personnel so that the parties hereto shall (in all relevant capacities) enter into the Facility Agreement, and agree the form of the Closing Transaction Security Documents, as soon as reasonably practicable following the countersignature of this Letter by the Company and, in any event, on or prior to the date falling six months from the date of this Letter (or such later date as may be mutually agreed by the parties hereto (each party acting reasonably)) (the Proposed Signing Date).

 

4.2                         The Facility Agreement will be based upon the most recent version of the Loan Market Association’s Senior Multicurrency Term and Revolving Facilities Agreement for Leveraged Acquisition Finance Transactions (Senior/Mezzanine) (the Precedent Facility Agreement), amended only to reflect the internal policy requirements and guidelines of the MLAUs, the terms contained in the Term Sheet or otherwise as mutually agreed.

 

4.3                         The Closing Transaction Security Documents will reflect the Agreed Security Principles.

 

4.4                         The Investor PRC Guarantee shall contain terms and conditions consistent with personal guarantees commonly used in the offshore PRC financing market and shall be in form and substance satisfactory to us.

 

4.5                         If, despite good faith negotiation, the parties hereto are unable, after discussion, to agree on any term of the Facility Agreement by the date falling three weeks prior to the Proposed Signing Date, such term will, to the extent comparable with respect to the Precedent Facility Agreement and subject to the Term Sheet, be in the form of that term in the Precedent Facility Agreement, provided that if the Precedent Facility Agreement contains a drafting option, is silent on a particular point or the provisions of the Precedent Facility Agreement require more than minor or technical changes in order to be incorporated into the Facility Agreement, the relevant language shall be such option or language as is reasonably requested by us or, if we do not specify any option or language within ten days of the date of a written request by you, such option or language reasonably requested by you.

 

4.6                         If, despite good faith negotiation, the parties hereto are unable, after discussion, to agree on any term of the Closing Transaction Security Documents or the Investor PRC Guarantee by the date falling three weeks prior to the Proposed Signing Date, such term will be that reasonably requested by us or, if we do not specify any option or language within ten days of the date of a written request by you, such option or language reasonably requested by you (in each case in accordance with the Agreed Security Principles).

 

5.                                Fees, Costs and Expenses

 

5.1                         All fees shall be paid in accordance with the Fee Letter(s) and as set out in the Term Sheet.

 

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5.2                         The Company shall, whether or not the Facility Documents are signed, promptly on demand pay the Commitment Parties the amount of all costs and expenses (including legal fees (subject to any pre-agreed caps)) reasonably incurred by any of them in connection with: (a) the negotiation, preparation, printing and execution of the Facility Documents and the Mandate Documents; and (b) primary syndication of the Facility.

 

6.                                Payments

 

All payments to be made under the Mandate Documents:

 

(a)                           shall be paid in the currency of invoice and in immediately available, freely transferable cleared funds to such account(s) with such bank(s) as the relevant Commitment Parties notify to the Company;

 

(b)                           shall be paid without any deduction or withholding for or on account of tax (a Tax Deduction) unless a Tax Deduction is required by law.  If a Tax Deduction is required by law to be made, the amount of the payment due shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required; and

 

(c)                            are exclusive of any goods and services tax, value added tax or similar charge (Indirect Tax).  If Indirect Tax is chargeable, the Company shall also and at the same time pay to the recipient of the relevant payment an amount equal to the amount of that Indirect Tax.

 

7.                                Information

 

7.1                         The Company represents and warrants that:

 

(a)                           all information (other than financial projections and any information of a general non-specific economic or industry nature) provided to the MLAUs by or on behalf of it or any other member of the Group concerning the Group and the Target Group (including for the purposes of preparing the Information Memorandum) (the Information) is true and accurate in all material respects as at the date it is provided or as at the date (if any) at which it is stated;

 

(b)                           nothing has occurred or been omitted and no information has been given or withheld that results in the Information being untrue or misleading in any material respect; and

 

(c)                            the financial projections contained in the Information have been prepared in good faith on the basis of recent historical information and on the basis of reasonable assumptions.

 

7.2                         The representations and warranties set out in paragraph 7.1 are deemed to be made by the Company daily by reference to the facts and circumstances then existing commencing on the date of this Letter and continuing until the date the Facility Documents are signed.

 

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7.3                         The Company shall immediately notify the MLAUs in writing if any representation and warranty set out in paragraph 7.1 is incorrect or misleading and agrees to supplement the Information promptly from time to time to ensure that each such representation and warranty is correct when made.

 

7.4                         The Company acknowledges that the MLAUs will be relying on the Information without carrying out any independent verification.

 

8.                                Indemnity

 

8.1

 

(a)                                      Whether or not the Facility Documents are signed, the Company shall within three Business Days of demand indemnify each Indemnified Person against any cost, expense, loss or liability (including without limitation legal fees) incurred by or awarded against that Indemnified Person in each case arising out of or in connection with any action, claim, investigation or proceeding commenced or threatened (including, without limitation, any action, claim, investigation or proceeding to preserve or enforce rights) in relation to:

 

(1)                   the use of the proceeds of the Facility;

 

(2)                   any Mandate Document or any Facility Document; and/or

 

(3)                   the arranging or underwriting of the Facility.

 

(b)                                      The Company will not be liable under sub-paragraph (a) above for any cost, expense, loss or liability (including without limitation legal fees) incurred by or awarded against an Indemnified Person if that cost, expense, loss or liability results directly from any breach by that Indemnified Person of any Mandate Document or any Facility Document which is in each case finally judicially determined to have resulted directly from the gross negligence or wilful misconduct of that Indemnified Person.

 

(c)                                       For the purposes of this paragraph 8:

 

Indemnified Person means each Commitment Party, each Lender, in each case, any of their respective Affiliates and each of their (or their respective Affiliates’) respective directors, officers, employees and agents.

 

8.2                         No Commitment Party shall have any duty or obligation, whether as fiduciary for any Indemnified Person or otherwise, to recover any payment made or required to be made under paragraph 8.1.

 

8.3

 

(a)                           The Company agrees that no Indemnified Person shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Company or any of its Affiliates for or in connection with anything referred to in paragraph 8.1 above except, following the Company’s agreement to the Mandate Documents, for any such cost, expense, loss or liability incurred by the Company that results directly from any breach by that Indemnified Person of any Mandate Document or any Facility Document which is in each case finally judicially determined to have resulted directly from the gross negligence or wilful misconduct of that Indemnified Person.

 

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(b)                           Notwithstanding paragraph (a) above, no Indemnified Person shall be responsible or have any liability to the Company or any of its Affiliates or anyone else for consequential losses or damages.

 

(c)                            The Company represents to the MLAUs (and, in the case of sub-paragraph (4), each Agent) that:

 

(1)                   it is acting for its own account and it has made its own independent decisions in respect of the Facility, the Merger and all other transactions contemplated by the Mandate Documents (the Transaction) and as to whether the Transaction is appropriate or proper for it based upon its own judgement and upon advice from such advisers as it has deemed necessary;

 

(2)                   it is not relying on any communication (written or oral) from any or all of the MLAUs as investment advice or as a recommendation to enter into the Transaction, it being understood that information and explanations related to the terms and conditions of the Transaction shall not be considered investment advice or a recommendation to enter into the Transaction.  No communication (written or oral) received from any or all of the MLAUs shall be deemed to be an assurance or guarantee as to the expected results of the Transaction;

 

(3)                   it is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction.  It is also capable of assuming, and assumes, the risks of the Transaction; and

 

(4)                   no Agent or MLAU is acting as a fiduciary for or as an adviser to it in connection with the Transaction.

 

8.4                         The Contracts (Rights of Third Parties) Act 1999 shall apply to this paragraph 8 but only for the benefit of the other Indemnified Persons, subject always to the terms of paragraphs 16.2 and 18 (Governing Law and Jurisdiction).

 

9.                                Confidentiality

 

The parties hereto acknowledge that the Mandate Documents are confidential and no party shall, and each party shall ensure that none of its Affiliates shall, without the prior written consent of each of the other parties to this Letter, disclose the Mandate Documents or their contents to any other person except:

 

(a)                           as required by law or regulation, or any governmental, quasi-governmental, administrative, regulatory or supervisory body or authority (including, without limitation, the US Securities and Exchange Commission), stock exchange (including, without limitation, NASDAQ), court, arbitral or other tribunal with applicable jurisdiction (each a Relevant Authority) or in connection with any legal, arbitral or regulatory proceedings or procedure;

 

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(b)                           to any of its Affiliates (which, for the purposes of this paragraph 9 in the case of the Commitment Parties, shall include its head office entity and any other branches, representative offices or related corporations (and each of their Affiliates)) on a confidential basis;

 

(c)                            to its (and its Affiliates’) employees, professional advisers and other service providers (including, without limitation, auditors, insurers or insurance brokers, administrative, agency or settlement services, clearing houses or other financial market utilities) for the purposes of the Facility on a confidential basis;

 

(d)                           to: (i) any Obligor and Jinglong (and its shareholders) and their employees or professional advisers; (ii) to the Target Group and their employees or professional advisers for the purposes of the Facility or the Merger; and (iii) Abax and its Affiliates and their employees or professional advisers for the purposes of the Abax Exchangeable Bond, in each case on a confidential basis;

 

(e)                            by the Commitment Parties to any potential lenders or Participants in accordance with the terms of this Letter or to any person for the purposes of obtaining a valuation in connection with a Participation Transaction; and

 

(f)                             where such information is publicly available (other than as a result of a breach by the disclosing party of this paragraph 9).

 

10.                         Publicity/Announcements

 

Each of the parties hereto shall not make, and shall procure that none of its Affiliates shall make, any public announcement regarding the Facility (including without limitation any roles in respect thereof) without the prior consent of the other parties hereto (such consent not to be unreasonably withheld or delayed), except to the extent required by a Relevant Authority.

 

11.                         Conflicts

 

11.1                  The Company and each MLAU acknowledges that the MLAUs or their Affiliates may provide debt financing, equity capital or other services to other persons with whom the Company or its Affiliates may have conflicting interests in respect of the Facility in this or other transactions.

 

11.2                  The Company and each MLAU acknowledges that the MLAUs or their Affiliates may act in more than one capacity in relation to this transaction and may have conflicting interests in respect of such different capacities.

 

11.3                  The MLAUs shall not use confidential information obtained from the Company or its Affiliates for the purposes of the Facility in connection with providing services to other persons or furnish such information to such other persons.

 

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11.4                  The Company acknowledges that the MLAUs have no obligation to use any information obtained from another source for the purposes of the Facility or to furnish such information to the Company or its Affiliates.

 

12.                         Assignments

 

The Company shall not assign any of its rights or transfer any of its rights or obligations under the Mandate Documents without the prior written consent of each of the MLAUs.

 

13.                         Termination

 

13.1                  Any Commitment Party may terminate its obligations under this Letter with immediate effect by notifying the Company and the other Commitment Parties:

 

(a)                           if, in its reasonable opinion, any of the conditions set out in paragraph 2 (Conditions) is not satisfied (or, in the case of sub-paragraph 2.1(e) thereof, becomes impossible to satisfy);

 

(b)                           if the Merger Documents have not been executed on or before the date of this Letter or if the Facility Agreement has not been executed on or before the Proposed Signing Date;

 

(c)                            if the Utilisation Date has not occurred on or before the date (New York time) falling 12 months after the date of this Letter; and/or

 

(d)                           on the date on which you notify us that you have withdrawn your offer for the Target Shares or you have otherwise abandoned or terminated the Merger or any of the Merger Documents (such notification to be provided by the Company promptly following any such abandonment, withdrawal or termination).

 

13.2                  No failure to exercise, nor any delay in exercising, on the part of any Commitment Party, any right or remedy under this Letter shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise thereof or the exercise of any other right or remedy.  The rights and remedies provided in this Letter are cumulative and not exclusive of any rights or remedies provided by law.

 

14.                         Survival

 

14.1                  Except for paragraphs 2 (Conditions), 3 (Underwriting Amounts) and 13 (Termination) the terms of this Letter shall survive and continue after the Facility Documents are signed.

 

14.2                  Without prejudice to paragraph 14.1, paragraphs 5 (Fees, Costs and Expenses), 6 (Payments), 8 (Indemnity), 9 (Confidentiality), 10 (Publicity/Announcements), 11 (Conflicts) and 13 (Termination) to 18 (Governing Law and Jurisdiction) inclusive shall survive and continue after any termination of the obligations of any MLAU under the Mandate Documents.

 

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15.                         Entire Agreement

 

15.1                  The Mandate Documents set out the entire agreement between the Company and the MLAUs as to arranging and underwriting the Facility and supersede any prior oral and/or written understandings or arrangements relating to the Facility.

 

15.2                  Any provision of a Mandate Document may only be amended or waived in writing signed by the Company and each of the Commitment Parties which is a party to such Mandate Document.

 

16.                         Third Party Rights

 

16.1                  Unless expressly provided to the contrary in this Letter, a person who is not a party to this Letter has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any of its terms.

 

16.2                  Notwithstanding any term of this Letter, the consent of any person who is not a party to this Letter is not required to rescind or vary this Letter at any time.

 

17.                         Counterparts

 

This Letter may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Letter.

 

18.                         Governing Law and Jurisdiction

 

18.1                  This Letter (including the agreement constituted by your acknowledgement of its terms) and any non-contractual obligations arising out of or in connection with it (including any non-contractual obligations arising out of the negotiation of the transaction contemplated by this Letter) are governed by English law.

 

18.2                  The courts of England have non-exclusive jurisdiction to settle any dispute arising out of or in connection with this Letter (including a dispute relating to: (a) any non-contractual obligation arising out of or in connection with this Letter; (b) the negotiation of the transaction contemplated by this Letter; or (c) the existence, validity or termination of this Letter).

 

18.3                  Without prejudice to any other mode of service allowed under any relevant law, the Company:

 

(a)                           irrevocably appoints Law Debenture Corporate Services Limited as its agent for service of process in relation to any proceedings before the English courts in connection with any Mandate Document; and

 

(b)                           agrees that failure by a process agent to notify the Company of the process will not invalidate the proceedings concerned.

 

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Yours faithfully

 

/s/ John Sun

Director

For and on behalf of
CSI Finance Limited as MLAU

 

Signature page to Project Jasmine Commitment Letter

 

 

/s/ Kamal Sidhu

Vice President

 

/s/ Kuvesh Pather

Director

For and on behalf of
Credit Suisse AG, Singapore Branch as MLAU

 

Signature page to Project Jasmine Commitment Letter

 

 

/s/ Sui Zhaohui

Director and General Manager

For and on behalf of

Dong Yin Development (Holdings) Limited as MLAU

 

Signature page to Project Jasmine Commitment Letter

 

 

/s/ Yu Xiaodong

Director

For and on behalf of

SPDB International (Hong Kong) Limited as MLAU

 

Signature page to Project Jasmine Commitment Letter

 

 

/s/ Terence Yeung

Vice President

For and on behalf of
Citicorp International Limited as Facility Agent

 

Signature page to Project Jasmine Commitment Letter

 

 

/s/ Terence Yeung

Vice President

For and on behalf of
Citicorp International Limited as Offshore Security Agent

 

Signature page to Project Jasmine Commitment Letter

 

 

/s/ David Naphtali

Managing Director

For and on behalf of
Madison Pacific Trust Limited as Onshore Security Agent

 

Signature page to Project Jasmine Commitment Letter

 

 

We acknowledge and agree to the above:

 

/s/ Jin Baofang

Director

For and on behalf of
JASO Acquisition Limited as the Company

 

Signature page to Project Jasmine Commitment Letter

 

Exhibit 7.06

 

Execution Version

 

Abax Asian Structured Credit Fund II, LP
1707B-1708, International Commerce Centre

17/F, 1 Austin Road West

Kowloon

Hong Kong

 

Attention:  Donald Yang

 

17 November 2017

 

Dear Sirs:

 

JASO Top Holdings Limited (“we” or the “Borrower”) has advised Abax Asian Structured Credit Fund II, LP (the “Noteholder”) that we wish the Noteholder to subscribe for an exchangeable note (the “Note”) to be issued by the Borrower in the principal amount of US$20,000,000 and otherwise upon the terms and subject to the conditions set out or referred to in the Commitment Documents (the “Transaction”).

 

This letter is to be read together with the term sheet attached hereto as Appendix A (the “Term Sheet”, and together with this Commitment Letter, the “Commitment Documents”).

 

1.                                      Commitment

 

The Noteholder is pleased to confirm its agreement, on the Issue Date (as defined in the Term Sheet) (being no later than one Business Day prior to the closing date of the Merger (as defined in the Term Sheet) (or such other date as the parties may agree)), to subscribe for, and purchase from the Borrower, the Note at a purchase price of 100 per cent of the principal amount of the Note.

 

2.                                      Conditions to Commitment

 

The obligation of the Noteholder to subscribe for and purchase the Note on the Issue Date is subject only to (i) execution of the Definitive Agreements in accordance with paragraph 3 (Definitive Agreements) (reflecting the terms set out in the Term Sheet and otherwise in form and substance reasonably satisfactory to the Noteholder and including customary terms and conditions applicable to a transaction of this nature), (ii) satisfaction of the conditions precedent set out in the section entitled “Conditions Precedent” in the Term Sheet and in the Definitive Agreements, and (iii) no “Company Material Adverse Effect” (as defined under the Merger Agreement relating to the Merger (as defined in the Term Sheet)) has occurred since the date of this letter and is “continuing” (as interpreted in accordance with Section 7.02(c) of the Merger Agreement).  Following execution of the Definitive Agreements and satisfaction of all such conditions precedent on the Issue Date the Noteholder shall pay the purchase price for the Note, being US$20,000,000, to the Borrower by electronic bank transfer of immediately available funds to a bank account designated in writing by the Borrower prior to the Issue Date.

 

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3.                                      Definitive Agreements

 

Each of the parties agrees to negotiate in good faith, to use reasonable efforts and to allocate sufficient resources and personnel to enable the parties to enter into the Definitive Agreements (as defined in the Term Sheet) on or before the Issue Date, in each case consistent with the Term Sheet, in all relevant capacities.

 

4.                                      Indemnification

 

4.1                               Whether or not the Definitive Agreements are signed, the Borrower shall, within five Business Days of demand, indemnify each Indemnified Person against any cost, expense, loss or liability (including without limitation legal fees) incurred by or awarded against that Indemnified Person in each case arising out of or in connection with any action, claim, investigation or proceeding commenced or threatened (including, without limitation, any action, claim, investigation or proceeding to preserve or enforce rights) in relation to the Commitment Documents.

 

4.2                               The Borrower shall not be liable under paragraph 4.1 of this Commitment Letter for any cost, expense, loss or liability (including without limitation legal fees) incurred by or awarded against an Indemnified Person if that cost, expense, loss or liability results directly from any breach by that Indemnified Person of any Commitment Document or any Definitive Agreement which in any case has resulted directly from the wilful misconduct of that Indemnified Person.

 

4.3                               For the purposes of this paragraph 4, “Indemnified Person” means the Noteholder, each of its affiliates and each of their respective directors, officers, employees and agents.

 

5.                                      Confidentiality

 

The parties hereto acknowledge that the terms and conditions of the Commitment Documents are confidential and are not to be disclosed to or relied upon by anyone else, except that disclosure of such terms and conditions or a copy of any of them is permitted to the extent made as follows:

 

(a)                                 to the Borrower, the Controlling Shareholder (as defined in the Term Sheet), the Noteholder or any of their respective affiliates or to any of their or their respective affiliates’ officers, directors, employees and advisors for purposes of the Transaction;

 

(b)                                 to any member of the Target Group (as defined in the Term Sheet) and their officers, directors, employees and advisors for purposes of the Merger;

 

(c)                                  to the Senior Lenders (as defined in the Term Sheet) and their officers, directors, employees and advisors for purposes of the Merger or the Senior Facility (as defined in the Term Sheet);

 

(d)                                 in connection with any preservation or enforcement of rights under any Commitment Document;

 

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(e)                                  in accordance with the paragraph of the Term Sheet entitled “Confidentiality”; and

 

(f)                                   to anyone else to the extent required by law, regulation, legal process or applicable governmental or regulatory authority or stock exchange (including, without limitation, the US Securities and Exchange Commission and NASDAQ).

 

6.                                      No Announcements

 

Each of the parties hereto shall not make, and shall cause each of its affiliates not to make, any public announcement regarding the Transaction without the prior consent of the other party hereto (such consent not to be unreasonably withheld or delayed), except to the extent required by law, regulation, legal process or applicable governmental or regulatory authority or stock exchange (including, without limitation, the US Securities and Exchange Commission and NASDAQ).

 

7.                                      No Assignment

 

Neither the Borrower nor the Noteholder may assign or transfer any of their respective rights or obligations under this letter without the prior written consent of the other party. For the avoidance of doubt, notwithstanding the foregoing, there are no restrictions on sale or transferability of the Note as provided in the Term Sheet, subject only to limitations under applicable securities laws and the Noteholder may request that the Note is issued to a person designated by it.

 

8.                                      Term

 

This letter shall expire at 5:00 p.m. (New York time) on the date which is twelve months from the date of this letter (the “Expiry Date”). Such expiry shall be without prejudice to the continued existence of all rights and obligations arising out of any breach of any provision of this letter where such breach occurs prior to the time of such expiry.

 

9.                                      Commitment Fee

 

If the Merger is effected on or prior to the Expiry Date but the Borrower does not issue the Note to the Noteholder or a person designated by the Noteholder (other than by reason of any default by the Noteholder), a commitment fee of US$200,000 (being 1.0 per cent. of the principal amount of the Note) shall be payable by the Issuer to the Noteholder on the Expiry Date, provided that no Default has occurred under the Senior Facility.  The commitment fee is non-refundable and non-creditable against other fees payable in connection with the Note. It shall be paid in full, without (and free and clear of any deduction for) set-off or counterclaim.

 

10.                               Payments

 

All payments under this letter shall be paid without any deduction or withholding for or on account of tax (a “Tax Deduction”) unless a Tax Deduction is required by law. If a Tax Deduction is required by law to be made, the amount of the payment due shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.

 

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11.                               Survival

 

Paragraph 4 (Indemnification) to paragraph 7 (No Assignment) and paragraph 9 (Commitment Fee) to paragraph 17 (Jurisdiction) inclusive shall survive and continue after any expiry of any Commitment Document.

 

12.                               Amendments

 

No waiver or amendment of any provision of this letter shall be effective unless it is in writing and signed by the parties hereto.

 

13.                               Third Party Rights

 

A person who is not a party to this letter has no right under the Contracts (Rights of Third Parties) Ordinance (Cap 623) to enforce or to enjoy the benefit of any term of this letter.

 

14.                               Counterparts

 

This letter may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of such letter.

 

15.                               Notices

 

15.1                        Any communication to be made under or in connection with this letter shall be made in writing and, unless otherwise stated, may be made by email or letter.

 

15.2                        Notices and communications to be given to the Borrower shall be sent to:

 

Name:	Mr. JIN Baofang
Address:	JASO Top Holdings Limited
	Building No. 8, Noble Center
	Automobile Museum East Road
	Fengtai, Beijing 100070
	The People’s Republic of China
Attention:	Mr. JIN Baofang
Email:	xiejian@jasolar.com

 

15.3                        Notices and communications to be given to the Noteholder shall be sent to:

 

Name:	Donald Yang
Address:	1707B-1708, International Commerce Centre, 17/F, 1 Austin Road West, Kowloon, Hong Kong
Attention:	Donald Yang
Email:	donald.yang@abaxcap.com

 

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16.                               Governing Law

 

This Commitment Letter is governed by the laws of Hong Kong.

 

17.                               Jurisdiction

 

17.1                        The courts of Hong Kong have exclusive jurisdiction to settle any dispute arising out of or in connection with this letter (including any dispute regarding the existence, validity or termination of this letter (a “Dispute”)).

 

17.2                        The parties to this Commitment Letter agree that the courts of Hong Kong are the most appropriate and convenient courts to settle Disputes and accordingly neither of the parties to this Commitment Letter will argue to the contrary.

 

If you agree to the above, please sign, date and return to us the enclosed copy of this letter.

 

Yours faithfully,

 

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JASO Top Holdings Limited

 

as the Borrower

 

By:	/s/ Jin Baofang
	Name: Jin Baofang
	Title: Director

 

[Signature Page for Abax Commitment Letter]

 

 

We agree to the terms set out above.

 

Abax Asian Structured Credit Fund II, LP

as the Noteholder

 

By:	/s/ Yang Xiang Dong
	Name: Yang Xiang Dong
	Title: Director
Date: November 17, 2017

 

[Signature Page for Abax Commitment Letter]

 

Exhibit 7.07

 

Execution Version

 

November 17, 2017

 

JASO Holdings Limited (“Holdco”)

c/o Building No.8, Noble Center

Automobile Museum East Road

Fengtai, Beijing 100070

The People’s Republic of China

Attention: Mr. JIN Baofang

Facsimile No.: +86 10 6361 1999

 

Re:                             Equity Commitment Letter

 

Ladies and Gentlemen:

 

This letter sets forth the commitment of the undersigned (the “Sponsors”), subject to (i) the terms and conditions contained in an agreement and plan of merger (as may be revised, amended, restated and supplemented from time to time, the “Merger Agreement”) dated as of the date hereof by and among Holdco, JASO Parent Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands and a wholly owned subsidiary of Holdco (“Parent”), JASO Acquisition Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands and a wholly owned subsidiary of Parent (“Merger Sub”), and JA Solar Holdings Co., Ltd., an exempted company with limited liability incorporated under the Laws of the Cayman Islands (the “Company”), pursuant to which, upon the terms and subject to the conditions set forth therein, Merger Sub will be merged with and into the Company (the “Merger”), and (ii) the terms and conditions contained herein.  Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Merger Agreement.

 

1.                                             Commitment.  The Sponsors hereby jointly and severally commit, subject to the terms and conditions set forth herein, to subscribe, or cause to be subscribed, directly or indirectly through one or more intermediate entities, for newly issued ordinary shares of Holdco and to pay, or cause to be paid, to Holdco in immediately available funds at or prior to the Effective Time an aggregate cash purchase price in immediately available funds equal to $116,000,000 (such sum, the “Commitment”), which will be applied by Holdco to (i) fund a portion of the aggregate Per Share Merger Consideration and Per ADS Merger Consideration and any other amounts required to be paid pursuant to the Merger Agreement, (ii) pay any and all fees and expenses of Holdco, Parent and Merger Sub at the Closing in connection with the consummation of the Merger and the other transactions contemplated by the Merger Agreement, and (iii) satisfy all of Holdco, Parent and Merger Sub’s other payment obligations in connection with the consummation of the Merger and the other transactions contemplated by the Merger Agreement.  Notwithstanding anything to the contrary contained herein, the Sponsors shall not, under any circumstances, be obligated to contribute more than the Commitment to Holdco.  In the event Holdco does not require the full amount of the Commitment in order to consummate the Merger, the amount to be funded under this letter shall, unless otherwise agreed in writing by the Sponsors, be reduced by Holdco to the level sufficient to fully fund the aggregate Per Share Merger Consideration and Per ADS Merger Consideration and pay related fees and expenses related to the transactions contemplated by the Merger Agreement.

 

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2.                                              Conditions to Funding.  The payment of the Commitment to Holdco shall be subject to (i) the execution and delivery of the Merger Agreement by the Company, and (ii) the satisfaction, or waiver by Holdco, of each of the conditions to Holdco, Parent and Merger Sub’s obligations to effect the Merger set forth in Sections 7.01 and 7.02 of the Merger Agreement as in effect from time to time (other than those conditions that by their nature are to be satisfied at the Closing).

 

3.                                              Termination.  This letter, and the obligation of the Sponsors to fund the Commitment will terminate automatically and immediately to the extent described below upon the earlier to occur of (i) the Effective Time; provided that the Sponsors shall at or prior to the Effective Time have fully funded and paid to Holdco the Commitment and fully performed their other obligations hereunder, and (ii) the valid termination of the Merger Agreement in accordance with its terms.  Upon termination of this letter, the Sponsors shall not have any further obligations or liabilities hereunder.

 

4.                                              No Modification.  Neither this letter nor any provision hereof may be amended, modified, supplemented, terminated or waived except by an agreement in writing signed by each of Holdco, the Sponsors and the Company. No transfer or assignment of any rights or obligations hereunder shall be permitted without the consent of Holdco, the Sponsors and the Company.

 

5.                                              Confidentiality.  This letter shall be treated as confidential and is being provided to Holdco solely in connection with the transactions contemplated by the Merger Agreement, including the Merger.  Unless required by applicable Laws, regulations or rules of the SEC and NASDAQ, this letter may not be used, circulated, quoted or otherwise referred to in any document, except with the Sponsors’ written consent.  Notwithstanding the foregoing, a copy of this letter may be provided to the Company if the Company agrees to treat the letter as confidential.

 

6.                                              Third Party Beneficiaries.  This letter shall inure to the benefit of and be binding upon Holdco and the Sponsors. Nothing in this letter, express or implied, is intended to, nor does it, confer upon any person (other than Holdco and the Sponsors) any rights or remedies under, or by reason of, or any rights (i) to enforce the Commitment or any provisions of this letter or (ii) to confer upon any person any rights or remedies against any person other than the Sponsors under or by reason of this letter; provided, however, that the Company is an express third party beneficiary of this letter and shall be entitled to specific performance of the terms hereof, including an injunction, temporary restraining order or other equitable relief, to prevent breaches of this letter by the parties hereto, in addition to any other remedy at law or equity.  In no event shall any of Holdco’s creditors or any other person have any right to enforce this letter.

 

7.                                              Governing Law. This letter and all disputes or controversies arising out of or relating to this letter or the transaction contemplated hereby shall be interpreted, construed and governed by and in accordance with the Laws of the State of New York without regard to the conflicts of law principles thereof.

 

8.                                              Submission to Jurisdiction.  Subject to the last sentence of this Section 8, any Action arising out of or relating to this letter or its subject matter (including a dispute regarding the existence, validity, formation, effect, interpretation, performance or termination of this letter) shall be finally settled by arbitration.  The place of arbitration shall be Hong Kong, and the arbitration shall be administered by the HKIAC in accordance with the HKIAC Rules.  The arbitration shall be decided by a tribunal of three (3) arbitrators, whose appointment shall be in accordance with the HKIAC Rules.  Arbitration proceedings (including but not limited to any arbitral award rendered) shall be in English.  Subject to the agreement of the tribunal, any Action(s) which arise subsequent to the commencement of arbitration of any existing Action(s), shall be resolved by the tribunal already appointed to hear the existing Action(s).  The award of the arbitration tribunal shall be final and conclusive and binding upon the parties as from the date rendered.  Judgment upon any award may be entered and enforced in any court having jurisdiction over a party or any of its assets.  For the purpose of the enforcement of an award, the parties irrevocably and unconditionally submit to the jurisdiction of any competent court and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.

 

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9.                                              Counterparts.  This letter may be executed in counterparts and by facsimile or in .pdf format, each of which, when so executed, shall be deemed to be an original and all of which taken together shall constitute one and the same instrument.

 

10.                                       Warranties.  Each Sponsor hereby represents and warrants with respect to itself to Holdco that (a) it is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation and it has full legal right, power, capacity and authority to execute and deliver this letter, to perform the obligations hereunder and to consummate the transactions contemplated hereby; (b) the execution, delivery and performance of this letter by it has been duly and validly authorized and approved by all necessary action by it, (c) this letter has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with the terms of this letter, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity; (d) it has, and will continue to have until the valid termination of this letter, readily available funds in excess of the sum of its Commitment hereunder; (e) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority or any other person necessary for the due execution, delivery and performance of this letter by it have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority or any other person is required in connection with the execution, delivery or performance of this letter; (f) there is no Action pending against it, or, to the knowledge of it, threatened against it or any other person, that restricts or prohibits (or, if successful, would restrict or prohibit) the performance by it of its obligations under this letter; and (g) the execution, delivery and performance by it of this letter does not (i) violate any applicable Law or judgment, (ii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or to the loss of any benefit under, or otherwise require the consent or approval of any other person pursuant to, any Contract to which it is a party, or (iii) violate its organizational documents.

 

11.                                       No Recourse.  Notwithstanding anything that may be expressed or implied in this letter or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this letter, Holdco covenants, agrees and acknowledges that no person (other than the Sponsors) has any obligation hereunder.

 

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12.                                       Notices.  All notices and other communications hereunder shall be in writing (in the English language) and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile or e-mail, upon written confirmation of receipt by facsimile or e-mail, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier, or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid.  All notices hereunder shall be delivered to the addresses set forth below or pursuant to such other instructions as may be designated in writing by the party to receive such notice:

 

if to Holdco, to:

 

JASO Holdco Limited

c/o Building No.8,

Noble Center, Automobile Museum East Road
Fengtai, Beijing 100070
The People’s Republic of China

Attention: Mr. JIN Baofang

Facsimile No.: +86 10 6361 1999

Email: xiejian@jasolar.com

 

if to the Sponsors, to:

 

Jinglong Group Co., Ltd.

c/o Building No.8,

Noble Center, Automobile Museum East Road
Fengtai, Beijing 100070
The People’s Republic of China

Attention: Mr. JIN Baofang

Facsimile No.: +86 10 6361 1999

Email: xiejian@jasolar.com

 

13.                                       Complete Agreement. This letter, together with the Limited Guarantee, the Support Agreement, and the applicable portions of the Merger Agreement, contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all contemporaneous or prior agreements or understandings, both written and oral, between the parties with respect to the subject matter hereof.

 

14.                                       Severability. Any term or provision of this letter which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this letter in any other jurisdiction. If any provision of this letter is so broad as to be unenforceable, such provision shall be interpreted to be only so broad as is enforceable.

 

[Remainder of page intentionally left blank]

 

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	Very truly yours,
	JINGLONG GROUP CO., LTD.
	By:	/s/ Jin Baofang
	Name:		Jin Baofang
	Title:		Director

 

[Signature Page to Equity Commitment Letter]

 

 

	JASO TOP HOLDINGS LIMITED
	By:	/s/ Jin Baofang
	Name:		Jin Baofang
	Title:		Director

 

[Signature Page to Equity Commitment Letter]

 

 

Agreed to and acknowledged
as of the date first written above:
JASO HOLDINGS LIMITED
By:	/s/ Jin Baofang
Name: Jin Baofang
Title: Director

 

[Signature Page to Equity Commitment Letter]

 

Exhibit 7.08

 

Execution Version

 

SUPPORT AGREEMENT

 

This SUPPORT AGREEMENT (this “Agreement”) is entered into as of November 17, 2017 by and among JASO Holdings Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands (“Holdco”) and the persons set forth on Schedule A hereto (each such person, a “Rollover Shareholder” and collectively, the “Rollover Shareholders”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).

 

WHEREAS, Holdco, JASO Parent Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands, and a wholly owned subsidiary of Holdco (“Parent”), JASO Acquisition Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands and a wholly owned subsidiary of Parent (“Merger Sub”) and JA Solar Holdings Co., Ltd., an exempted company with limited liability incorporated under the Laws of the Cayman Islands (the “Company”) have, concurrently with the execution of this Agreement, entered into an Agreement and Plan of Merger, dated as of the date hereof (as may be revised, amended, restated and supplemented from time to time, the “Merger Agreement”), which provides, among other things, for the merger of Merger Sub with and into the Company, with the Company continuing as the surviving corporation and a wholly owned subsidiary of Parent (the “Merger”), upon the terms and subject to the conditions set forth in the Merger Agreement;

 

WHEREAS, as of the date hereof, each Rollover Shareholder is a “beneficial owner” (within the meaning of Rule 13d-3 under the Exchange Act) of the Shares and/or ADSs as set forth opposite its name on Schedule A (such shares, the “Rollover Shares”) (the Rollover Shares, together with any other Shares acquired (whether beneficially or of record) by such Rollover Shareholder after the date hereof and prior to the earlier of the Effective Time and the termination of all of such Rollover Shareholder’s obligations under this Agreement, including any Shares acquired by means of purchase, dividend or distribution, or issued upon the exercise of any Company Equity Award, or any other options or warrants or the conversion of any convertible securities or otherwise, being collectively referred to herein as the “Securities”);

 

WHEREAS, in connection with the consummation of the Merger, each of the Rollover Shareholders agrees to (a) have its Rollover Shares cancelled for no consideration in connection with the Merger, and (b) subscribe for newly issued ordinary shares of Holdco (the “Holdco Shares”) immediately prior to Closing;

 

WHEREAS, receipt of the Requisite Company Vote is a condition to the consummation of the Merger; WHEREAS, in order to induce Holdco, Parent and Merger Sub to enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Merger, each of the Rollover Shareholders is entering into this Agreement; and

 

WHEREAS, each Rollover Shareholder acknowledges that Holdco, Parent and Merger Sub are entering into the Merger Agreement in reliance on the representations, warranties, covenants and other agreements of such Rollover Shareholder set forth in this Agreement.

 

 

NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

 

ARTICLE I

 

VOTING; GRANT AND APPOINTMENT OF PROXY

 

Section 1.1                                    Voting.  At the Shareholders’ Meeting or any other meeting (whether annual or special) of the shareholders of the Company, however called, at which any of the matters described in paragraphs (a) — (f) hereof is to be considered (and any adjournment or postponement thereof), or in connection with any written resolution of the Company’s shareholders, each Rollover Shareholder hereby irrevocably and unconditionally agrees that it shall, and shall cause its Affiliates to, (i) in the case of a meeting, appear, or cause its representative(s) to appear, at such meeting or otherwise cause its Securities to be counted as present thereat for purposes of determining whether a quorum is present and (ii) vote or cause to be voted (including by proxy or written resolution, if applicable) all of such Rollover Shareholder’s Securities:

 

(a)                                 in favor of the authorization and approval of the Merger Agreement, the Plan of Merger and the Transactions,

 

(b)                                 against the approval of any Acquisition Proposal or any action contemplated by an Acquisition Proposal, or any other transaction, proposal, agreement or action made in opposition to the authorization or the approval of the Merger Agreement or in competition or inconsistent with the Merger and the other Transactions,

 

(c)                                  against any other action, agreement or transaction that is intended, that could reasonably be expected, or the effect of which could reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely affect the Merger or any of the other Transactions or this Agreement or the performance by such Rollover Shareholder of its obligations under this Agreement, including, without limitation: (i) any extraordinary corporate transaction, such as a scheme of arrangement, merger, consolidation or other business combination involving the Company or any of its Subsidiaries (other than the Merger); (ii) a sale, lease or transfer of a material amount of assets of the Company or any of its Subsidiaries or a reorganization, recapitalization or liquidation of the Company or any of its Subsidiaries; (iii) an election of new members to the board of directors of the Company, other than nominees to the board of directors of the Company who are serving as directors of the Company on the date of this Agreement or as otherwise provided in the Merger Agreement; (iv) any material change in the present capitalization or dividend policy of the Company or any amendment or other change to the Company’s memorandum or articles of association, except if approved in writing by Holdco; or (v) any other action that would require the consent of Holdco pursuant to the Merger Agreement, except if approved in writing by Holdco,

 

(d)                                 against any action, proposal, transaction or agreement that would reasonably be expected to result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of such Rollover Shareholder contained in this Agreement,

 

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(e)                                  in favor of any adjournment or postponement of the Shareholders’ Meeting or other annual or special meeting of the shareholders of the Company, however called, at which any of the matters described in paragraphs (a) — (f) hereof is to be considered as may be reasonably requested by Holdco in order to consummate the Transactions, including the Merger, and

 

(f)                                   in favor of any other matter necessary or reasonably requested by Holdco to effect the Transactions.

 

Section 1.2                                    Grant of Irrevocable Proxy; Appointment of Proxy.

 

(a)                                 Each Rollover Shareholder hereby irrevocably appoints Holdco and any designee thereof, each of them individually, as its proxy and attorney-in-fact (with full power of substitution), to vote or cause to be voted (including by proxy or written resolution, if applicable) the Securities in accordance with Section 1.1 above at the Shareholders’ Meeting or other annual or special meeting of the shareholders of the Company, however called, including any adjournment or postponement thereof, at which any of the matters described in Section 1.1 above is to be considered. Each Rollover Shareholder represents that all proxies, powers of attorney, instructions or other requests given by it prior to the execution of this Agreement in respect of the voting of its Securities, if any, have been revoked or substituted by Holdco and any designee thereof with respect to such Rollover Shareholder’s Securities in connection with the transactions contemplated, and to the extent required, under the Merger Agreement and this Agreement, including the Merger.  Each Rollover Shareholder shall take (or cause to be taken) such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy.

 

(b)                                 Each Rollover Shareholder affirms that the irrevocable proxy set forth in this Section 1.2 is given in connection with the execution of the Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of such Rollover Shareholder under this Agreement. Each Rollover Shareholder further affirms that the irrevocable proxy is coupled with an interest and, except as set forth in this Section 1.2, is intended to be irrevocable prior to the termination of this Agreement. If for any reason the proxy granted herein is not irrevocable, then such Rollover Shareholder agrees to vote its respective Securities in accordance with Section 1.1 above as instructed in writing by Holdco, or any designee of Holdco prior to the termination of this Agreement. The parties agree that the foregoing is a voting agreement.

 

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Section 1.3                                    Restrictions on Transfers.  Except as provided for in Article III below or pursuant to the Merger Agreement, each Rollover Shareholder hereby agrees that, from the date hereof until the termination of this Agreement, it shall not, directly or indirectly, (a) sell (constructively or otherwise), transfer, assign, tender in any tender or exchange offer, pledge, grant, encumber, hypothecate or otherwise similarly dispose of (by merger, testamentary disposition, operation of law or otherwise) (collectively, “Transfer”), either voluntarily or involuntarily, or enter into any Contract, option or other arrangement or understanding with respect to the Transfer of any Securities or any interest therein, or with respect to any limitation on voting right of any Securities, including, without limitation, any swap transaction, option, warrant, forward purchase or sale transaction, futures transaction, cap transaction, floor transaction, collar transaction or any other similar transaction (including any option with respect to any such transaction) or combination of any such transactions, in each case involving any Securities (any such transaction, a “Derivative Transaction”), (b) deposit any Securities into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement, (c) take any action that would make any representation or warranty of such Rollover Shareholder set forth in this Agreement untrue or incorrect or have the effect of preventing, disabling, or delaying it from performing any of its obligations under this Agreement or that is intended, or would reasonably be expected, to impede, frustrate, interfere with, delay, postpone, adversely affect or prevent the consummation of the Merger or the other transactions contemplated by the Merger Agreement or this Agreement or the performance by the Company of its obligations under the Merger Agreement or by such Rollover Shareholder of its obligations under this Agreement, (d) exercise, convert or exchange, or take any action that would result in the exercise, conversion or exchange, of any Securities, or (e) agree (whether or not in writing) to take any of the actions referred to in the foregoing clauses (a) - (d).  Any purported Transfer or Derivative Transaction in violation of this paragraph shall be null and void.

 

ARTICLE II

 

NO SOLICITATION

 

Section 2.1                                    Restricted Activities.  During the period commencing on the date hereof and continuing until the termination of this Agreement in accordance with its terms (the “Term”), each Rollover Shareholder, solely in its capacity as a shareholder of the Company, shall not, and shall cause its officers, directors, employees, agents, advisors and other representatives (as applicable) (in each case, acting in their capacity as such to such Rollover Shareholder (the “Shareholder’s Representatives”)) not to, directly or indirectly: (a) solicit, initiate or knowingly encourage (including by way of furnishing non-public information), or knowingly take any other action with the intent to induce the making of any Acquisition Proposal, (b) enter into, maintain or continue discussions or negotiations with, or provide any non-public information relating to the Company or any of its Subsidiaries to, any person in connection with any Acquisition Proposal, (c) to the extent not required by applicable Law, grant any waiver, amendment or release under any standstill or confidentiality agreement or Takeover Statutes, or otherwise knowingly facilitate any effort or attempt by any person to make an Acquisition Proposal, or (d) approve, endorse or recommend (or publicly propose to approve, endorse or recommend) or enter into any letter of intent, Contract or commitment contemplating or otherwise relating to, or that could reasonably be expected to result in, any Acquisition Proposal.

 

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Section 2.2                                    Notification.  Each Rollover Shareholder, solely in its capacity as a shareholder of the Company, shall and shall cause its Shareholder’s Representatives as applicable) to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may have been conducted heretofore with respect to an Acquisition Proposal.  During the Term, each Rollover Shareholder shall promptly advise Holdco in writing of (a) any Acquisition Proposal, (b) any request it receives in its capacity as a shareholder of the Company for non-public information relating to the Company or any of its Subsidiaries, and (c) any inquiry or request for discussion or negotiation it receives in its capacity as a shareholder of the Company regarding an Acquisition Proposal, including in each case the identity of the person making any such Acquisition Proposal or indication or inquiry and the terms of any such Acquisition Proposal or indication or inquiry (including, if applicable, copies of any written requests, proposals or offers, including proposed agreements).  Each Rollover Shareholder, in its capacity as a shareholder of the Company, shall keep Holdco reasonably informed on a reasonably current basis of the status and terms (including any material changes to the terms thereof) of any such Acquisition Proposal or indication or inquiry (including, if applicable, any revised copies of written requests, proposals and offers) and the status of any such discussions or negotiations to the extent known by such Rollover Shareholder. This Section 2.2 shall not apply to any Acquisition Proposal received by the Company.

 

Section 2.3                                    Capacity.  Notwithstanding anything to the contrary in this Agreement, (i) each Rollover Shareholder is entering into this Agreement, and agreeing to become bound hereby, solely in its capacity as a beneficial owner of the Securities owned by it and not in any other capacity (including without limitation any capacity as a director or officer of the Company) and (ii) nothing in this Agreement shall obligate such Rollover Shareholder to take, or forbear from taking, any action as a director or officer of the Company.

 

ARTICLE III

 

ROLLOVER SHARES

 

Section 3.1                                    Cancellation of Rollover Shares.  Subject to the terms and conditions set forth herein, all of each Rollover Shareholder’s right, title and interest in and to its Rollover Shares shall be cancelled at the Closing for no consideration.  Each Rollover Shareholder shall take all actions necessary to cause it Securities to be treated as set forth herein.

 

Section 3.2                                    Subscription of Holdco Shares.  Immediately prior to the Closing, in consideration for the cancellation of the Rollover Shares by each Rollover Shareholder in accordance with Section 3.1, Holdco shall issue to such Rollover Shareholder (or, if designated by such Rollover Shareholder in writing, one or more affiliates of such Rollover Shareholder), and such Rollover Shareholder and/or its affiliates (as applicable) shall subscribe for, an aggregate number of Holdco Shares, at par value per share, equal to the aggregate number of Rollover Shares held by such Rollover Shareholder and cancelled pursuant to Section 3.1 above.  Each Rollover Shareholder hereby acknowledges and agrees that (a) delivery of such Holdco Shares shall constitute complete satisfaction of all obligations towards or sums due such Rollover Shareholder by Holdco, Parent and Merger Sub in respect of the Rollover Shares held by such Rollover Shareholder and cancelled pursuant to Section 3.1 above, and (b) such Rollover Shareholder shall have no right to any Per Share Merger Consideration, Per ADS Merger Consideration, or any other merger consideration in respect of the Rollover Shares held by such Rollover Shareholder.  Notwithstanding the foregoing, the Rollover Shares set forth opposite each Rollover Shareholder’s name on Schedule A shall be deemed to include Shares issuable up on the exercise of the Company Options only if such Rollover Shareholder pays or causes to be paid to the Company at or prior to the Rollover Closing the exercise price for each Company Option included in its Rollover Shares; provided, that if such Rollover Shareholder fails to pay such amount to the Company at or prior to the Rollover Closing, such Rollover Shareholder’s Rollover Shares shall include only those Shares that are validly issued, fully paid and non-assessable, and each such Company Option shall be cancelled in accordance with Section 2.02 of the Merger Agreement.

 

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Section 3.3                                    Rollover Closing.  Subject to the satisfaction in full (or waiver, if permissible) of all of the conditions set forth in ARTICLE VII of the Merger Agreement (other than conditions that by their nature are to be satisfied or waived, as applicable, at the Closing), the closing of the subscription and issuance of Holdco Shares contemplated hereby (the “Rollover Closing”) shall take place immediately prior to the Closing.

 

Section 3.4                                    Deposit of Rollover Shares.  No later than three (3) Business Days prior to the Closing, each Rollover Shareholder and any of its agents holding certificates evidencing any of its Rollover Shares shall deliver or cause to be delivered to Holdco all certificates representing its Rollover Shares in such person’s possession, for disposition in accordance with the terms of this Agreement; such certificates and documents shall be held by Holdco or any agent authorized by Holdco until the Closing.

 

ARTICLE IV

 

REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SHAREHOLDERS

 

Section 4.1                                    Representations and Warranties.  Each Rollover Shareholder hereby represents and warrants to Holdco as of the date hereof and as of the Closing:

 

(a)                                 such Rollover Shareholder is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation (if applicable) and such Rollover Shareholder has full legal right, power, capacity and authority to execute and deliver this Agreement, to perform such Rollover Shareholder’s obligations hereunder and to consummate the transactions contemplated hereby;

 

(b)                                 this Agreement has been duly executed and delivered by such Rollover Shareholder and the execution, delivery and performance of this Agreement by such Rollover Shareholder and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of such Rollover Shareholder (if applicable) and no other actions or proceedings on the part of such Rollover Shareholder (if applicable) are necessary to authorize this Agreement or to consummate the transactions contemplated hereby;

 

(c)                                  assuming due authorization, execution and delivery by Holdco, this Agreement constitutes a legal, valid and binding agreement of such Rollover Shareholder, enforceable against such Rollover Shareholder in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law);

 

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(d)                                 (i) such Rollover Shareholder (A) is and, immediately prior to the Closing, will be the beneficial owner of, and has and will have good and valid title to, the Securities, free and clear of Liens other than as created by this Agreement, and (B) has and will have sole or shared (together with affiliates controlled by such Rollover Shareholder) voting power, power of disposition, power to demand dissenter’s rights and power to agree to all of the matters set forth in this Agreement, in each case with respect to all of the Securities, with no limitations, qualifications, or restrictions on such rights, subject to applicable United States federal securities Laws, Laws of the Cayman Islands, Laws of the People’s Republic of China (the “PRC”) and the terms of this Agreement; (ii) except described herein, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which such Rollover Shareholder is a party relating to the pledge, disposition or voting of any of the Securities, and the Securities are not subject to any voting trust agreement or other Contract to which such Rollover Shareholder is a party restricting or otherwise relating to the voting or Transfer of the Securities other than this Agreement; (iii) such Rollover Shareholder has not Transferred any Securities or any interests therein pursuant to any Derivative Transaction; (iv) as of the date hereof, other than its Rollover Shares, such Rollover Shareholder does not own, beneficially or of record, any Shares, securities of the Company, or any direct or indirect interest in any such securities (including by way of derivative securities); and (v) such Rollover Shareholder has not appointed or granted any proxy or power of attorney that is still in effect with respect to any of its Rollover Shares, except as contemplated by this Agreement;

 

(e)                                  except for the applicable requirements of the Exchange Act, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of such Rollover Shareholder for the execution, delivery and performance of this Agreement by such Rollover Shareholder or the consummation by such Rollover Shareholder of the transactions contemplated hereby, and (ii) neither the execution, delivery or performance of this Agreement by such Rollover Shareholder nor the consummation by such Rollover Shareholder of the transactions contemplated hereby, nor compliance by such Rollover Shareholder with any of the provisions hereof shall (A) conflict with or violate any provision of the organizational documents of such Rollover Shareholder which is an entity, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on property or assets of such Rollover Shareholder pursuant to any Contract to which such Rollover Shareholder is a party or by which such Rollover Shareholder or any property or asset of such Rollover Shareholder is bound or affected, (C) violate any Law applicable to such Rollover Shareholder or any of such Rollover Shareholder’s properties or assets, or (D) otherwise require the consent or approval of any other person pursuant to any Contract binding on such Rollover Shareholder or its properties or assets;

 

(f)                                   there is no Action pending against such Rollover Shareholder or, to the knowledge of such Rollover Shareholder, any other person or, to the knowledge of such Rollover Shareholder, threatened against such Rollover Shareholder or any other person that restricts or prohibits (or, if successful, would restrict or prohibit) the performance by such Rollover Shareholder of its obligations under this Agreement;

 

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(g)                                  such Rollover Shareholder has been afforded the opportunity to ask such questions as it has deemed necessary of, and to receive answers from, representatives of Holdco concerning the terms and conditions of the transactions contemplated hereby and the merits and risks of owning the Holdco Shares and such Rollover Shareholder acknowledges that it has been advised to discuss with its own counsel the meaning and legal consequences of such Rollover Shareholder’s representations and warranties in this Agreement and the transactions contemplated hereby; and

 

(h)                                 such Rollover Shareholder understands and acknowledges that Holdco, Parent, Merger Sub and the Company are entering into the Merger Agreement in reliance upon such Rollover Shareholder’s execution, delivery and performance of this Agreement.

 

Section 4.2                                    Covenants.  Each Rollover Shareholder hereby:

 

(a)                                 agrees, prior to the termination of this Agreement, not to knowingly take any action that would make any representation or warranty of such Rollover Shareholder contained herein untrue or incorrect or have or could have the effect of preventing, impeding or interfering with or adversely affecting the performance by such Rollover Shareholder of its obligations under this Agreement;

 

(b)                                 irrevocably waives, and agrees not to exercise, any rights of appraisal or rights of dissent from the Merger that such Rollover Shareholder may have with respect to such Rollover Shareholder’s Securities (including without limitation any rights under Section 238 of the CICL) prior to the termination of this Agreement;

 

(c)                                  agrees to permit the Company to publish and disclose in the Proxy Statement (including all documents filed with the SEC in accordance therewith), such Rollover Shareholder’s identity and beneficial ownership of Shares or other equity securities of the Company and the nature of such Rollover Shareholder’s commitments, arrangements and understandings under this Agreement;

 

(d)                                 agrees and covenants that such Rollover Shareholder shall promptly (and in any event within twenty-four (24) hours) notify Holdco of any new Shares with respect to which beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act) is acquired by such Rollover Shareholder, including, without limitation, by purchase, as a result of a stock dividend, stock split, recapitalization, combination, reclassification, exchange or change of such shares, or upon exercise or conversion of any securities of the Company after the date hereof and that such shares shall automatically become subject to the terms of this Agreement as its Rollover Shares, and Schedule A shall be deemed amended accordingly; and

 

(e)                                  agrees further that, upon request of Holdco, such Rollover Shareholder shall execute and deliver any additional documents, consents or instruments and take such further actions as may reasonably be deemed by Holdco to be necessary or desirable to carry out the provisions of this Agreement.

 

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ARTICLE V

 

REPRESENTATIONS AND WARRANTIES OF HOLDCO

 

Holdco hereby represents and warrants to each Rollover Shareholder that as of the date hereof and as of the Closing:

 

(a)                                 Holdco is duly organized, validly existing and in good standing under the Laws of the Cayman Islands and has all requisite power and authority to execute and deliver this Agreement and to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Holdco, and the execution, delivery and performance of this Agreement by Holdco and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Holdco and no other corporate actions or proceedings on the part of Holdco are necessary to authorize this Agreement or to consummate the transactions contemplated hereby.  Assuming due authorization, execution and delivery by each Rollover Shareholder, constitutes a legal, valid and binding obligation of Holdco, enforceable against Holdco in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

 

(b)                                 Except for the applicable requirements of the Exchange Act and Laws of the Cayman Islands, (i) no filing with, and no permit, authorization, consent or approval of, any Governmental Authority is necessary on the part of Holdco for the execution, delivery and performance of this Agreement by Holdco or the consummation by Holdco of the transactions contemplated hereby, and (ii) neither the execution, delivery or performance of this Agreement by Holdco, nor the consummation by Holdco of the transactions contemplated hereby, nor compliance by Holdco with any of the provisions hereof shall (A) conflict with or violate any provision of its organizational documents, (B) result in any breach or violation of, or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on such property or asset of Holdco pursuant to any Contract to which Holdco is a party or by which Holdco or any of its property or asset is bound or affected, (C) violate any Law applicable to Holdco or any of its properties or assets or (D) otherwise require the consent or approval of any other person pursuant to any Contract binding on Holdco or its properties or assets.

 

(c)                                  At Closing, the Holdco Shares to be issued under this Agreement shall have been duly and validly authorized and when issued and delivered in accordance with the terms hereof, will be validly issued, fully paid and nonassessable ordinary shares of Holdco, free and clear of all claims, Liens and encumbrances, other than restrictions (i) arising under applicable securities Laws or (ii) arising under any agreements entered into at or prior to the Rollover Closing by each Rollover Shareholder pursuant to the transactions contemplated by the Merger Agreement and the Commitment Letters.

 

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ARTICLE VI

 

TERMINATION

 

This Agreement, and the obligations of each Rollover Shareholder hereunder (including, without limitation, Section 1.2 hereof), shall terminate and be of no further force or effect immediately upon the earlier to occur of (a) the Closing and (b) the date of termination of the Merger Agreement in accordance with its terms.  Notwithstanding the preceding sentence, this Article VI and Article VII shall survive any termination of this Agreement.  Nothing in this Article VI shall relieve or otherwise limit any party’s liability for any breach of this Agreement prior to the termination of this Agreement.  If for any reason the Merger fails to occur but the Rollover Closing contemplated by Article III has already taken place, then Holdco shall promptly take all such actions as are necessary to restore each Rollover Shareholder to the position it was in with respect to ownership of its Rollover Shares prior to the Rollover Closing.

 

ARTICLE VII

 

MISCELLANEOUS

 

Section 7.1                                    Notices.  All notices and other communications hereunder shall be in writing in the English language and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile or e-mail, upon written confirmation of receipt by facsimile or e-mail, (b) on the first Business Day following the date of dispatch if delivered utilizing a next-day service by a recognized next-day courier, or (c) on the earlier of confirmed receipt or the fifth (5th) Business Day following the date of mailing if delivered by registered or certified mail (return receipt requested, postage prepaid).  All notices hereunder shall be delivered to the addresses set forth below (or at such other address for a party as shall be specified in a notice given in accordance with this Section 7.1):

 

(i)                                     If to a Rollover Shareholder, to the addresses set opposite its name as set forth on Schedule A;

 

(ii)                                  If to Holdco:

 

Attention: Mr. JIN Baofang

Address:           Building No.8, Noble Center, Automobile Museum East Road
Fengtai, Beijing 100070
The People’s Republic of China

Facsimile  No.: +86 10 6361 1999

Email: xiejian@jasolar.com

 

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Section 7.2                                    Severability.  Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision shall be interpreted to be only as broad as is enforceable.

 

Section 7.3                                    Entire Agreement.  This Agreement, the Equity Commitment Letter and the Guarantee and the Merger Agreement (and any other agreement or instrument delivered in connection with the transaction contemplated by this Agreement or the Merger Agreement) constitute the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

 

Section 7.4                                    Specific Performance.  (i) The parties hereto agree that this Agreement shall be enforceable by all available remedies at law or in equity. (ii) Each Rollover Shareholder acknowledges and agrees that monetary damages would not be an adequate remedy in the event that any covenant or agreement of such Rollover Shareholder in this Agreement is not performed in accordance with its terms, and therefore agrees that, in addition to and without limiting any other remedy or right available to Holdco, Holdco will have the right to an injunction, temporary restraining order or other equitable relief in any court of competent jurisdiction enjoining any such breach and enforcing specifically the terms and provisions hereof. Each Rollover Shareholder agrees not to oppose the granting of such relief in the event a court determines that such a breach has occurred, and to waive any requirement for the securing or posting of any bond in connection with such remedy. All rights, powers, and remedies provided under this Agreement or otherwise available in respect hereof at law or in equity shall be cumulative and not alternative, and the exercise or beginning of the exercise of any thereof by Holdco shall not preclude the simultaneous or later exercise of any other such right, power or remedy by Holdco.  Notwithstanding anything contrary in the foregoing, under no circumstances will Holdco be entitled to both the monetary damages under this Section 7.4(i) and the right of specific performance under this Section 7.4(ii).

 

Section 7.5                                    Amendments; Waivers.  At any time prior to the termination of this Agreement, any provision of this Agreement may be amended or waived if, and only if such amendment or waiver is in writing and signed, in the case of an amendment, by each Rollover Shareholder, Holdco, and the Company (at the direction of the Special Committee) or in the case of a waiver, by the party against whom the waiver is to be effective and by the Company (at the direction of the Special Committee). Notwithstanding the foregoing, no failure or delay by a party hereto in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.

 

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Section 7.6                                    Governing Law; Dispute Resolution; Jurisdiction.  This Agreement shall be interpreted, construed and governed by and in accordance with the Laws of the State of New York without regard to the conflicts of law principles thereof.  Subject to the last sentence of this Section 7.6, any Action arising out of or relating to this Agreement or its subject matter (including a dispute regarding the existence, validity, formation, effect, interpretation, performance or termination of this Agreement) shall be finally settled by arbitration.  The place of arbitration shall be Hong Kong, and the arbitration shall be administered by the HKIAC in accordance with the HKIAC Rules.  The arbitration shall be decided by a tribunal of three (3) arbitrators, whose appointment shall be in accordance with the HKIAC Rules.  Arbitration proceedings (including but not limited to any arbitral award rendered) shall be in English.  Subject to the agreement of the tribunal, any Action(s) which arise subsequent to the commencement of arbitration of any existing Action(s), shall be resolved by the tribunal already appointed to hear the existing Action(s).  The award of the arbitration tribunal shall be final and conclusive and binding upon the parties as from the date rendered.  Judgment upon any award may be entered and enforced in any court having jurisdiction over a party or any of its assets.  For the purpose of the enforcement of an award, the parties irrevocably and unconditionally submit to the jurisdiction of any competent court and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.

 

Section 7.8                                    Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to or shall confer upon any person other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement; provided, however, that the Company is an express third-party beneficiary of this Agreement and shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement by the parties hereto, in addition to any other remedy at law or equity.

 

Section 7.9                                    Assignment; Binding Effect.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned or delegated, in whole or in part, by any of the parties hereto (whether by operation of law or otherwise) without the prior written consent of the other parties and the Company, except that Holdco may assign this Agreement (in whole but not in part) only in connection with a permitted assignment of the Merger Agreement by Holdco (as the case may be), as applicable in accordance with the terms therein. Subject to the preceding sentence, this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns and, in the case of each Rollover Shareholder, its estate, heirs, beneficiaries, personal representatives and executors.

 

Section 7.10                             No Presumption Against Drafting Party.  Each of the parties to this Agreement acknowledges that it has been represented by independent counsel in connection with this Agreement and the transactions contemplated by this Agreement. Accordingly, any rule of law or any legal decision that would require interpretation of any claimed ambiguities in this Agreement against the drafting party has no application and is expressly waived.

 

Section 7.11                             Counterparts.  This Agreement may be executed in one or more consecutive counterparts (including by facsimile or email pdf format), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered (by telecopy, email pdf format or otherwise) to the other parties.

 

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[Remainder of page intentionally left blank]

 

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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.

 

	HOLDCO:
	JASO HOLDINGS LIMITED
	By:	/s/ Jin Baofang
	Name: Jin Baofang
	Title: Director

 

[Signature Page to Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.

 

 

	ROLLOVER SHAREHOLDERS:
	JINGLONG GROUP CO., LTD.
	By:	/s/ Jin Baofang
		Name: Jin Baofang
		Title: Director

 

[Signature Page to Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.

 

 

	ROLLOVER SHAREHOLDERS:
	CHIN TIEN HUANG
	By:	/s/ Chin Tien Huang
		Name: Chin Tien Huang

 

[Signature Page to Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.

 

 

	ROLLOVER SHAREHOLDERS:
	CHI FUNG WONG
	By:	/s/ Chi Fung Wong
		Name: Chi Fung Wong

 

[Signature Page to Support Agreement]

 

 

IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date and year first written above.

 

 

	ROLLOVER SHAREHOLDERS:
	PAK WAI WONG
	By:	/s/ Pak Wai Wong
		Name: Pak Wai Wong

 

[Signature Page to Support Agreement]

 

 

SCHEDULE A

 

Rollover Shareholder Name		Rollover Shareholder Address		Rollover Shares (Type/Number)		Holdco Shares (Type/Number)		Ownership Percentage of Holdco
Jinglong Group Co., Ltd.		Building No.8, Noble Center, Automobile Museum East Road, Fengtai, Beijing 100070 The People’s Republic of China		38,897,365 ordinary shares		38,897,365 ordinary shares		16.3	%
Chin Tien HUANG		Wong Pak Wai Room A, 43/F, BLK 8, the Wings, 9 Tong Yin Street, Tseung Kwan O, N.T., Hong Kong		10,288,775 ordinary shares		10,288,775 ordinary shares		4.3	%
Chi Fung WONG		Room A, 52/F, BLK 13, Central Heights, 9 Tong Tak Street, Tseung Kwan O, N.T., Hong Kong		9,000,000 ordinary shares		9,000,000 ordinary shares		3.8	%
Pak Wai WONG		Room A, 43/F, BLK 8, the Wings, 9 Tong Yin Street, Tseung Kwan O, N.T., Hong Kong		2,850,000 ordinary shares		2,850,000 ordinary shares		1.2	%

 

Exhibit 7.09

 

Execution Version

 

LIMITED GUARANTEE

 

LIMITED GUARANTEE, dated as of November 17, 2017 (this “Limited Guarantee”), by Jinglong Group Co., Ltd., a British Virgin Islands company (the “Guarantor”), in favor of JA Solar Holdings Co., Ltd., an exempted company with limited liability incorporated under the Laws of the Cayman Islands (the “Guaranteed Party”).  Capitalized terms used but not defined in this Limited Guarantee shall have the meanings assigned to such terms in the Merger Agreement (as defined below).

 

1.                                      GUARANTEE.

 

(a)                                 To induce the Guaranteed Party to enter into that certain Agreement and Plan of Merger, dated as of the date hereof (as may be revised, amended, restated and supplemented from time to time in accordance with its terms, the “Merger Agreement”), by and among the Guaranteed Party, JASO Holdings Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands (“Holdco”) , JASO Parent Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands and a wholly owned subsidiary of Holdco (“Parent”) and JASO Acquisition Limited, an exempted company with limited liability incorporated under the Laws of the Cayman Islands and a wholly owned subsidiary of Parent (“Merger Sub”), pursuant to which, among other things, Merger Sub will be merged with and into the Guaranteed Party, the Guarantor hereby absolutely, unconditionally and irrevocably guarantees to the Guaranteed Party the due and punctual payment and discharge as and when due of the payment obligations of the Parent Parties with respect to (i) the payment of the Parent Termination Fee pursuant to Section 8.06(b) of the Merger Agreement (subject to the limitations set forth in Section 8.06(e) of the Merger Agreement), (ii) the reimbursement obligations of the Parent Parties pursuant to Section 8.06(c) of the Merger Agreement and (iii) the indemnification, reimbursement and expense obligations of the Parent Parties under Section 6.07(g) of the Merger Agreement ((i), (ii) and (iii) collectively, the “Obligations”); provided that, notwithstanding anything to the contrary contained in this Limited Guarantee, this Limited Guarantee may be enforced for money damages only and in no event shall the Guarantor’s aggregate liability under this Limited Guarantee exceed US$21,600,000 (the “Maximum Amount”).  The Guarantor shall not have any obligations or liability to any person relating to, arising out of or in connection with this Limited Guarantee other than as expressly set forth herein.

 

(b)                                 Subject to the terms and conditions of this Limited Guarantee, if Holdco fails to pay the Obligations when due, then all of the Guarantor’s liabilities to the Guaranteed Party hereunder in respect of the Obligations shall become immediately due and payable and the Guaranteed Party may, at the Guaranteed Party’s option and so long as Holdco remains in breach of the Obligations, take any and all actions available hereunder or under applicable Law to collect the Obligations from the Guarantor.

 

 

(c)                                  The Guarantor agrees to pay on demand all reasonable and documented out-of-pocket expenses (including reasonable fee and expenses of counsel) incurred by the Guaranteed Party in connection with the enforcement of its rights thereunder, including without limitation in the event (i) the Guarantor asserts in any Action that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms and the Guaranteed Party prevails in such Action, or (ii) the Guarantor fails or refuses to make any payments to the Guaranteed Party hereunder when due and payable and it is determined judicially or by arbitration that the Guarantor is required to make such payment hereunder, which amounts will be in addition to the Obligations.

 

2.                                      NATURE OF GUARANTEE.  The Guarantor’s liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment, or waiver of or any consent to departure from the Merger Agreement that may be agreed to by Holdco, Parent or Merger Sub.  Without limiting the foregoing, the Guaranteed Party shall not be obligated to file any claim relating to the Obligations in the event that Holdco, Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantor’s obligations hereunder.  In the event that any payment from the Guarantor to the Guaranteed Party in respect of the Obligations is rescinded or must otherwise be, and is, returned to the Guarantor for any reason whatsoever, the Guarantor shall remain liable hereunder as if such payment had not been made.  This is an unconditional guarantee of payment and performance not of collectability.  The Guarantor reserves the right to assert as a defense to such payment by the Guarantor under the Limited Guarantee any rights, remedies and defenses that Holdco, Parent or Merger Sub may have with respect to payment of any Obligations under the Merger Agreement, other than defenses arising from the bankruptcy or insolvency of Holdco, Parent or Merger Sub and other defenses expressly waived herein.  This Limited Guarantee is a primary and original obligation of the Guarantor and is not merely the creation of a surety relationship, and the Guaranteed Party shall not be required to proceed against Parent or Merger Sub first before proceeding against the Guarantor.

 

3.                                      CHANGES IN OBLIGATIONS; CERTAIN WAIVERS.

 

(a)                                 The Guarantor agrees that the Guaranteed Party may, in its sole discretion, at any time and from time to time, extend the time of payment of any of the Obligations, and may also make any agreement with Holdco, Parent or Merger Sub, for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, or for any modification of the terms thereof or of any agreement between the Guaranteed Party and Holdco, Parent, Merger Sub, or such other person without in any way impairing or affecting the Guarantor’s obligations under this Limited Guarantee or affecting the validity or enforceability of this Limited Guarantee.  The Guarantor agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Holdco, Parent, Merger Sub, or any other person interested in the transactions contemplated by the Merger Agreement; (ii) any change in the corporate existence, structure or ownership of Holdco, Parent, Merger Sub, or any other person interested in the transactions contemplated by the Merger Agreement; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Holdco, Parent, Merger Sub or any other person interested in the transactions contemplated by the Merger Agreement; (iv) except as expressly provided herein, the existence of any claim, set-off or other right that the Guarantor may have at any time against Holdco, Parent, Merger Sub or the Guaranteed Party, whether in connection with the Obligations or otherwise; (v) any change in the time, place or manner of payment of any of the Obligations, or any recession, waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof (in each case, except in the event of any amendment to the circumstances under which the Obligations are payable); (vi) any addition, substitution, legal or equitable discharge or release (in the case of a discharge or release, other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a full discharge or release of Holdco with respect to the Obligations under the Merger Agreement, or as a result of valid defenses to the payment of the Obligations that would be available to Holdco under the Merger Agreement) of any person now or hereafter liable with respect to any portion of the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement; (vii) the adequacy of any other means the Guaranteed Party may have of obtaining repayment of any of the Obligations; (viii) any other act or omission that may in any manner or to any extent vary the risk of or to the Guarantor or otherwise operate as a discharge or release of the Guarantor as a matter of law or equity (other than a discharge or release of the Guarantor with respect to the Obligations as a result of payment in full of the Obligations in accordance with their terms, a full discharge or release of Holdco with respect to the Obligations under the Merger Agreement, or as a result of valid defenses to the payment of the Obligations that would be available to Holdco under the Merger Agreement); or (ix)  the value, genuineness, validity, illegality or enforceability of the Merger Agreement.

 

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(b)                                 The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any Obligations and all other notices of any kind (other than notices expressly required to be provided to Holdco, Parent and Merger Sub pursuant to the Merger Agreement), all defenses that may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshaling of assets of any person interested in the transactions contemplated by the Merger Agreement, and all suretyship defenses generally (other than defenses to the payment of the Obligations (x) that are available to Holdco, Parent or Merger Sub under the Merger Agreement or (y) in respect of a breach by the Guaranteed Party of Section 8 hereof).  The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Merger Agreement and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits.

 

(c)                                  The Guarantor hereby unconditionally and irrevocably waives and agrees not to exercise any rights that it may now have or hereafter acquire against Holdco, Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of the Guarantor’s obligations under or in respect of this Limited Guarantee or any other agreement in connection therewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Holdco, Parent or Merger Sub, whether or not such claim, remedy or right arises in equity or under contract, statute or common Law, including, without limitation, the right to take or receive from Holdco, Parent or Merger Sub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Obligations and all other amounts payable under this Limited Guarantee shall have been paid in full in immediately available funds. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of the Obligations and all other amounts payable under this Limited Guarantee, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for any Obligations or other amounts payable under this Limited Guarantee thereafter arising.

 

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(d)                                 The Guaranteed Party hereby agrees that to the extent Holdco, Parent or Merger Sub is relieved of all or any portion of its payment obligations under the Merger Agreement, the Guarantor shall be similarly relieved of their corresponding obligations under this Limited Guarantee.

 

4.                                      NO WAIVER; CUMULATIVE RIGHTS.  No failure on the part of the Guaranteed Party to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise by the Guaranteed Party of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power hereunder.  Each and every right, remedy and power hereby granted to the Guaranteed Party or allowed it by Law or other agreement shall be cumulative and not exclusive of any other, and may be exercised by the Guaranteed Party at any time or from time to time.  The Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Party’s rights against Holdco, Parent or Merger Sub or any other persons now or hereafter liable for any Obligations or interested in the transactions contemplated by the Merger Agreement prior to proceeding against the Guarantor, and the failure by the Guaranteed Party to pursue rights or remedies against Holdco, Parent or Merger Sub shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights, remedies, whether express, implied or available as a matter of law, of the Guaranteed Party.

 

5.                                      REPRESENTATIONS AND WARRANTIES.  The Guarantor hereby represents and warrants to the Guaranteed Party that:

 

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(a)                                 (i) it is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is formed and has all requisite power and authority to execute, deliver and perform this Limited Guarantee and (ii) the execution, delivery and performance of this Limited Guarantee have been duly authorized by all necessary action on the Guarantor’s part;

 

(b)                                 the execution, delivery and performance of this Limited Guarantee do not contravene any Law or contractual restriction binding on the Guarantor or its assets;

 

(c)                                  all consents, approvals, authorizations and permits of, filings with and notifications to, any Governmental Entity necessary for the due execution, delivery and performance of this Limited Guarantee by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Entity or regulatory body is required from the Guarantor in connection with the execution, delivery or performance of this Limited Guarantee;

 

(d)                                 this Limited Guarantee constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar Laws affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law); and

 

(e)                                  (i) the Guarantor is solvent and shall not be rendered insolvent as a result of its execution and delivery of this Limited Guarantee or the performance of its obligations hereunder, (ii) the Guarantor has the financial capacity to pay and perform its obligations under this Limited Guarantee, and (iii) all funds necessary for the Guarantor to fulfill its obligations under this Limited Guarantee shall be available to the Guarantor for so long as this Limited Guarantee shall remain in effect in accordance with Section 8 hereof.

 

6.                                      NO ASSIGNMENT.  No party hereto may assign its rights, interests or obligations hereunder to any other person (except by operation of law) without the prior written consent of each other party hereto; provided, however, that the Guarantor may assign all or a portion of its obligations hereunder, with prior written notice to the Guaranteed Party accompanied by a guarantee in the form identical to this Limited Guarantee duly executed and delivered by the assignee, to an Affiliate of the Guarantor; provided, further, that no such assignment shall relieve the Guarantor of any liability or obligations hereunder except to the extent actually performed or satisfied by the assignee.

 

7.                                      NOTICES.  All notices, requests and other communications to any party hereunder shall be given in the manner specified in the Merger Agreement (and shall be deemed given as specified therein) as follows:

 

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if to the Guarantor, to:

 

Attention: Mr. JIN Baofang

Address:  Building No.8, Noble Center, Automobile Museum East Road

Fengtai, Beijing 100070

The People’s Republic of China

Facsimile No.: +86 10 6361 1999

Email: xiejian@jasolar.com

 

with a copy to (which alone shall not constitute notice):

 

Skadden, Arps, Slate, Meagher & Flom LLP

Attention:  Peter X. Huang

Address:  30/F, China World Office 2

No. 1, Jian Guo Men Wai Avenue

Beijing 100004, China

Facsimile No.:  +86 10 6535 5577

Email: peter.huang@skadden.com

 

All notices to the Guaranteed Party hereunder shall be given as set forth in the Merger Agreement.

 

8.                                      TERMINATION; CONTINUING GUARANTEE.  Subject to the last sentence of Section 3, this Limited Guarantee shall remain in full force and effect and shall be binding on the Guarantor, its successors and assigns until the earlier of (a) the Closing of the Merger under the Merger Agreement, (b) in the case of a termination of the Merger Agreement in a circumstance which does not result in any obligation on the part of Holdco, Parent and/or Merger Sub to make any payment or performance of any Obligations and no Obligation is payable at the time of such termination, upon such termination, (c) all amounts payable under this Limited Guarantee have been paid in full, and (d) in the case of a termination of the Merger Agreement in a circumstance which results in any obligation on the part of Holdco, Parent and/or Merger to make any payments or performance of any Obligations or there is otherwise any outstanding Obligation at the time of such termination, the date falling 120 days after such termination (unless the Guaranteed Party has presented a written claim by such date, in which case this Limited Guarantee shall terminate upon the date that such claim is finally resolved and payment in full of any amounts required to be paid in respect of such final resolution).  Notwithstanding the foregoing, in the event that the Guaranteed Party or any of its controlled Affiliates asserts in any litigation or other proceeding that any provisions of this Limited Guarantee limiting the Guarantor’s liability to the Maximum Amount are illegal, invalid or unenforceable in whole or in part or that the Guarantor is liable in excess of or to a greater extent than the Maximum Amount, or asserts any theory of liability against any Non-Recourse Party or, other than the Retained Claims (as defined below), then (x) the obligations of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void, (y) if the Guarantor has previously made any payments under this Limited Guarantee, it shall be entitled to recover such payments and (z) neither the Guarantor nor any Non-Recourse Party shall have any liability to the Guaranteed Party with respect to the Merger Agreement and the transactions contemplated thereby, the Debt Financing or under this Limited Guarantee.

 

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9.                                      NO RECOURSE.

 

(a)                                 The Guaranteed Party acknowledges and agrees that none of Holdco, Parent or Merger Sub has any assets other than their respective rights under the Merger Agreement and the agreements contemplated thereby, and that no funds are expected to be contributed to Holdco, Parent or Merger Sub unless and until the Effective Time.  Notwithstanding anything that may be expressed or implied in this Limited Guarantee or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guarantee, the Guaranteed Party covenants, agrees and acknowledges that no person (other than the Guarantor and any of its permitted assignees) has any obligations under this Limited Guarantee and that the Guaranteed Party has no right of recovery under this Limited Guarantee, or any claim based on such obligations against, and no personal liability shall attach to, the former, current or future equity holders, controlling persons, directors, officers, employees, agents, general or limited partners, managers, members, or Affiliates of any of the Guarantor, Holdco, Parent or Merger Sub, or any former, current or future equity holders, controlling persons, directors, officers, employees, agents, general or limited partners, managers, members, or Affiliates of any of the foregoing, excluding however any such persons that constitute an assignee of the Guarantor (each of excluded parties, a “Non-Recourse Party” and collectively, the “Non-Recourse Parties”), through Holdco, Parent or Merger Sub or otherwise, whether by or through attempted piercing of the corporate (or limited partnership or limited liability company) veil, by or through a claim by or on behalf of Holdco, Parent or Merger Sub against any Non-Recourse Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable Law, or otherwise, except in connection with or in any manner related to (i) Holdco’s, Parent’s and/or Merger Sub’s obligation to make a cash payment to the Guaranteed Party under and pursuant to the terms of the Merger Agreement and, without duplication, the Guarantor’s obligation to make a cash payment to the Guaranteed Party under and pursuant to the terms of this Limited Guaranty (subject to the Maximum Amount), (ii) Holdco’s, Parent’s and/or Merger Sub’s obligation to cause the equity financing to be funded when and if the Guaranteed Party seeks specific performance of such obligation pursuant to, in accordance with, and subject to the limitations set forth in Section 9.07 of the Merger Agreement, (iii) the Rollover Shareholders’ (as such term is defined under the Support Agreement) obligations under the Support Agreement, and Holdco’s obligations to enforce its rights thereunder, and (iv) the Guarantor’s obligation to specifically perform his obligation to make an equity contribution to Holdco pursuant to the Equity Commitment Letter, when and if the conditions thereto have been satisfied and Holdco or the Company seeks specific performance of such obligation pursuant to, in accordance with, and subject to the limitations set forth in Section 6 of the Equity Commitment Letter, and Section 9.07 of the Merger Agreement (the claims described in the foregoing clauses (i) through (iv), collectively, the “Retained Claims”), provided that in the event the Guarantor (x) consolidates with or merges with any other person and is not the continuing or surviving entity of such consolidation or merger or (y) transfers or conveys all or a substantial portion of its properties and other assets to any person such that the aggregate sum of the Guarantor’s remaining net assets is less than an amount equal to its payment obligations hereunder as of the time of such transfer, then, and in each such case, the Guaranteed Party may seek recourse, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any applicable Law, against such continuing or surviving entity or such person, as the case may be, but only if the Guarantor fails to satisfy its payment obligations hereunder and only to the extent of the liability of the Guarantor hereunder.

 

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(b)                                 The Retained Claims shall be the sole and exclusive remedy of the Guaranteed Party and its Affiliates against the Guarantor and the Non-Recourse Parties in respect of any liabilities or obligations arising under, or in connection with the Merger Agreement, the Support Agreement, the Debt Financing, the Equity Financing, or the transactions contemplated thereby.  The Guaranteed Party hereby unconditionally and irrevocably covenants and agrees that it shall not institute, directly or indirectly, and shall cause its controlled Related Persons not to institute, directly or indirectly, any proceeding or bring any other claim (whether at law, in equity, in contract, in tort or otherwise) arising under, or in connection with, the Merger Agreement or this Limited Guarantee or the transactions contemplated hereby or thereby, or in respect of any oral representations made or alleged to be made in connection herewith or therewith against the Guarantor or any of the Guarantor’s controlled Related Persons, except for the Retained Claims.  Nothing set forth in this Limited Guarantee shall affect or be construed to affect any liability of Holdco, Parent or Merger Sub to the Guaranteed Party under the Merger Agreement or otherwise or give or shall be construed to confer or give to any person other than the Guaranteed Party any rights or remedies against any person, except as expressly set forth in this Limited Guarantee.

 

(c)                                  For the purposes of this Limited Guarantee, the term “Related Person” shall mean any former, current or future director, officer, agent, employee, general or limited partner, manager, member, stockholder or Affiliate of a person or any former, current or future director, officer, agent, employee, general or limited partner, manager, member, stockholder or Affiliate of any of the foregoing, but shall not include Holdco, Parent, Merger Sub or any of their controlled Affiliates.

 

10.                               AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this Limited Guarantee will be valid and binding unless it is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party, or in the case of waiver, by the party against whom the waiver is to be effective.  No waiver by any party of any breach or violation of, or default under, this Limited Guarantee, whether intentional or not, will be deemed to extend to any prior or subsequent breach, violation or default hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

 

11.                               ENTIRE AGREEMENT. This Limited Guarantee, the Merger Agreement, the Support Agreement, and the Equity Commitment Letter, constitute the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.

 

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12.                               GOVERNING LAW; SUBMISSION TO JURISDICTION.  This Limited Guarantee shall be interpreted, construed and governed by and in accordance with the Laws of the State of New York without regard to the conflicts of law principles thereof.  Subject to the last sentence of this Section 12, any Action arising out of or relating to this Agreement or its subject matter (including a dispute regarding the existence, validity, formation, effect, interpretation, performance or termination of this Agreement) shall be finally settled by arbitration.  The place of arbitration shall be Hong Kong, and the arbitration shall be administered by the HKIAC in accordance with the HKIAC Rules.  The arbitration shall be decided by a tribunal of three (3) arbitrators, whose appointment shall be in accordance with the HKIAC Rules.  Arbitration proceedings (including but not limited to any arbitral award rendered) shall be in English.  Subject to the agreement of the tribunal, any Action(s) which arise subsequent to the commencement of arbitration of any existing Action(s), shall be resolved by the tribunal already appointed to hear the existing Action(s).  The award of the arbitration tribunal shall be final and conclusive and binding upon the parties as from the date rendered.  Judgment upon any award may be entered and enforced in any court having jurisdiction over a party or any of its assets.  For the purpose of the enforcement of an award, the parties irrevocably and unconditionally submit to the jurisdiction of any competent court and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum.

 

13.                               NO THIRD PARTY BENEFICIARIES.   This Limited Guarantee shall be binding upon and insure solely to the benefit of the parties hereto and their respective successors and permitted assigns, and nothing express or implied in this Limited Guarantee is intended to, or shall, confer upon any other Person other than the parties hereto any benefits, rights or remedies under or by reason of, or any rights to enforce or cause the Guaranteed Party to enforce, the obligations set forth herein.

 

14.                               COUNTERPARTS.  This Limited Guarantee may be signed in any number of counterparts and may be executed and delivered by facsimile or email pdf format, and each counterpart shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

15.                               SEVERABILITY.  If any term or other provision of this Limited Guarantee is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Limited Guarantee shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party; provided, however, that this Limited Guarantee may not be enforced against the Guarantor without giving effect to the Maximum Amount or the provisions set forth in Sections 1, 8 and 9. No party hereto shall assert, and each party shall cause its respective Affiliates not to assert, that this Limited Guarantee or any part hereof is invalid, illegal or unenforceable.  Upon a determination that any term or provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Limited Guarantee so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

 

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16.                               HEADINGS.  Headings are used for reference purposes only and do not affect the meaning or interpretation of this Limited Guarantee.

 

[Remainder of page intentionally left blank]

 

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IN WITNESS WHEREOF, the Guarantor has caused this Limited Guarantee to be executed and delivered as of the date first written above.

 

	JINGLONG GROUP CO., LTD.
	By:	/s/ Jin Baofang
	Name: Jin Baofang
	Title: Director

 

[Signature Page to Limited Guarantee]

 

 

IN WITNESS WHEREOF, the Guaranteed Party has caused this Limited Guarantee to be executed and delivered as of the date first written above by its officer thereunto duly authorized.

 

	JA SOLAR HOLDINGS CO., LTD.
	By:	/s/ Shaohua Jia
	Name: Shaohua Jia
	Title: Director

 

[Signature Page to Limited Guarantee]