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

 

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934
(Amendment No. 2)*

 

(Name of Issuer)

 

(Title of Class of Securities)

 

(CUSIP Number)

 

Mr. Xiaofeng Peng

Rm.2202 Beautiful Group Tower, 74-77

(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.

 

* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

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) This CUSIP number applies to the Issuer’s American depositary shares (“ADSs”), each representing ten ordinary shares of the Issuer.

 

 

CUSIP Number: 78470H109

 

 

1.	Name of Reporting Person Xiaofeng Peng
2.	Check the Appropriate Box if a Member of a Group
	(a)	x
	(b)	o
3.	SEC Use Only
4.	Source of Funds PF/OO
5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  o
6.	Citizenship or Place of Organization People’s Republic of China
Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0
			8.	Shared Voting Power 264,070,000 ordinary shares
			9.	Sole Dispositive Power 0
			10.	Shared Dispositive Power 264,070,000 ordinary shares
11.	Aggregate Amount Beneficially Owned by Each Reporting Person 264,070,000 ordinary shares
12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares  o
13	Percent of Class Represented by Amount in Row (11) 32.8%*
14	Type of Reporting Person IN

*         Based upon 641,665,172 Shares.

 

2

 

CUSIP Number: 78470H109

 

 

1.	Name of Reporting Person Tracy Shan Zhou
2.	Check the Appropriate Box if a Member of a Group
	(a)	x
	(b)	o
3.	SEC Use Only
4.	Source of Funds PF/OO
5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  o
6.	Citizenship or Place of Organization People’s Republic of China
Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0
			8.	Shared Voting Power 264,070,000 ordinary shares
			9.	Sole Dispositive Power 0
			10.	Shared Dispositive Power 264,070,000 ordinary shares
11.	Aggregate Amount Beneficially Owned by Each Reporting Person 264,070,000 ordinary shares
12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares  o
13	Percent of Class Represented by Amount in Row (11) 32.8%*
14	Type of Reporting Person IN

*         Based upon 641,665,172 Shares.

 

3

 

CUSIP Number: 78470H109

 

 

1.	Name of Reporting Person LDK New Energy Holding Limited
2.	Check the Appropriate Box if a Member of a Group
	(a)	x
	(b)	o
3.	SEC Use Only
4.	Source of Funds OO
5	Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)  o
6.	Citizenship or Place of Organization British Virgin Islands
Number of Shares Beneficially Owned by Each Reporting Person With			7.	Sole Voting Power 0
			8.	Shared Voting Power 174,370,000 ordinary shares
			9.	Sole Dispositive Power 0
			10.	Shared Dispositive Power 174,370,000 ordinary shares
11.	Aggregate Amount Beneficially Owned by Each Reporting Person 174,370,000 ordinary shares
12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares  o
13	Percent of Class Represented by Amount in Row (11) 21.7%*
14	Type of Reporting Person CO

*         Based upon 641,665,172 Shares.

 

4

 

This amendment No.2 (“Amendment No. 2”) is filed by the following persons (each, a “Reporting Person” and collectively, the “Reporting Persons”): (i) Xiaofeng Peng (“Mr. Peng”) (ii) Tracy Shan Zhou (“Ms. Zhou”) and (iii) LDK New Energy Holding Limited (“LDK”). The agreement among the Reporting Persons relating to the joint filing of this Schedule 13D is attached hereto as Exhibit 7.01.

 

This Amendment No. 2 amends and supplements the Schedule 13D filed by the Reporting Persons with respect to SPI Energy Co., Ltd., a Cayman Islands company (the “Issuer”), filed with the United States Securities and Exchange Commission (the “SEC”) on March 14, 2016 as amended and supplemented by Amendment No. 1 thereto, filed with the SEC on May 11, 2016 (the “Original Schedule 13D”).

 

Item 1.                       Security and Issuer

 

Item 1 of the Original Schedule 13D is hereby amended and restated in its entirety as follows:

 

This Schedule 13D relates to the ordinary shares, par value $0.000001 per share (the “Shares”) of SPI Energy Co., Ltd., a company organized under the laws of the Cayman Islands (the “Company” or “Issuer”), whose principal executive offices are located at 7F/A Block, 1st Building, Jinqi Plaza, No. 2145 Jinshajiang Road, Putuo District, Shanghai, the People’s Republic of China.

 

American depositary shares (the “ADSs,” and each, an “ADS”), each representing ten Shares, are quoted on the NASDAQ Global Market under the symbol “SPI.”

 

Item 2.                       Identity and Background

 

Item 2 of the Original Schedule 13D is hereby amended and restated in its entirety as follows:

 

This Statement is being filed jointly by the following persons (each, a “Reporting Person” and collectively, the “Reporting Persons”): (i) Xiaofeng Peng (“Mr. Peng”), (ii) Tracy Shan Zhou (“Ms. Zhou”) and (iii) LDK New Energy Holding Limited (“LDK”). The content of Schedule A hereto is incorporated herein by reference.  The agreement among the Reporting Persons relating to the joint filing of this Schedule 13D is attached hereto as Exhibit 7.01.

 

Information with respect to each of the Reporting Persons is given solely by such Reporting Person, and no Reporting Person assumes responsibility for the accuracy or completeness of the information concerning the other Reporting Persons except as otherwise provided in Rule 13d-1(k).

 

During the last five years, Mr. Peng has not been convicted in any criminal proceeding. During the last five years, Mr. Peng has not been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

During the last five years, Ms. Zhou has not been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

LDK New Energy Holding Limited is a British Virgin Islands.  Mr. Peng and Ms. Zhou are the directors of LDK and each owns 50% of the total outstanding shares of LDK as of the date hereof.  LDK solely engages in investment holdings. LDK does not have any executive officer.  The name, business address, present principal occupation or employment and citizenship of each director of LDK are as set forth on Schedule A hereto. During the last five years, LDK has not been a party to any civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.

 

5

 

Item 4.                       Purpose of Transaction

 

Item 4 of the Original Schedule 13D is hereby amended and supplemented as follows:

 

LDK agreed to purchase the Shares pursuant to the September 2016 SPA as disclosed in this statement to pursue strategic partnership with the Issuer. Although the Reporting Persons have no present intention to purchase additional securities of the Issuer in addition to the securities described in Item 5 other than pursuant to the 2016 Option Agreement (as disclosed under Item 6 hereof), the Reporting Persons intend to review their equity interest in the Issuer on a regular basis and, as a result thereof, may at any time or from time to time determine, either alone or as part of a group, (a) to acquire additional securities of the Issuer, through open market purchases, privately negotiated transactions or otherwise, (b) to dispose of all or a portion of the securities of the Issuer owned by them in the open market, in privately negotiated transactions or otherwise, or (c) to take any other available course of action, which could involve one or more of the types of transactions or have one or more of the results described in this Item 4. Any such acquisition or disposition or other transaction would be made in compliance with all applicable laws and regulations. Notwithstanding anything contained herein, the Reporting Persons specifically reserve the right to change their intention with respect to any or all of such matters.

 

6

 

Item 5.                       Interest in Securities of the Issuer

 

Item 5 of the Original Schedule 13D is hereby amended and restated in its entirety as follows:

 

The information contained on each of the cover pages of this Statement and the information set forth in Items 2, 3, and 4 are hereby incorporated by reference in their entirety in this Item 5.

 

As of the date hereof, LDK directly owns 1,220,000 ADSs (representing 12,200,000 Shares) and holds an option to purchase 162,170,000 Shares.  As a result, as of the date hereof, LDK beneficially owns 174,370,000 Shares, representing 21.7% of the total outstanding Shares (assuming the issuance of the 162,170,000 option Shares).  Pursuant to the September 2016 SPA, the Issuer agrees to issue 162,170,000 Shares to LDK.  After giving effect to those 162,170,000 Shares issuable to LDK, LDK beneficially owns 336,540,000 Shares, representing 34.8% of the total outstanding Shares (assuming the issuance of the 162,170,000 option Shares and the issuance of the 162,170,000 Shares pursuant to the September 2016 SPA).

 

As of the date hereof, Mr. Peng directly owns 200,000 ADSs (representing 2,000,000 Shares) and an option to purchase 2,000,000 Shares within 60 days.  As the spouse of Ms. Zhou, Mr. Peng may be deemed to beneficially own the Shares owned by Ms. Zhou pursuant to Section 13(d) of the Exchange Act and the rules promulgated thereunder.  Similarly, as a shareholder and director of LDK, Mr. Peng may be deemed to beneficially own the Shares owned by LDK.  As a result, as of the date hereof and excluding the Shares issuable to LDK under the September 2016 SPA, Mr. Peng beneficially owns 264,070,000 Shares, representing 32.8% of the total outstanding Shares (assuming the issuance of the 162,170,000 option Shares).  After giving effect to the 162,170,000 Shares issuable to LDK pursuant to the September 2016 SPA, Mr. Peng beneficially owns 426,240,000 Shares, representing 44.0% of the total outstanding Shares (assuming the issuance of the 162,170,000 option Shares and the issuance of the 162,170,000 Shares pursuant to the September 2016 SPA).

 

As of the date hereof, Ms. Zhou directly owns 8,750,000 ADSs (representing 87,500,000 Shares).  As the spouse of Mr. Peng, Ms. Zhou may be deemed to beneficially own the Shares owned by Mr. Peng pursuant to Section 13(d) of the Exchange Act and the rules promulgated thereunder.  Similarly, as a shareholder and director of LDK, Ms. Zhou may be deemed to beneficially own the Shares owned by LDK.  As a result, as of the date hereof and excluding the Shares issuable to LDK under the September 2016 SPA, Ms. Zhou beneficially owns 264,070,000 Shares, representing 32.8% of the total outstanding Shares (assuming the issuance of the 162,170,000 option Shares).  After giving effect to the 162,170,000 Shares issuable to LDK pursuant to the September 2016 SPA, Ms. Zhou beneficially owns 426,240,000 Shares, representing 44.0% of the total outstanding Shares (assuming the issuance of the 162,170,000 option Shares and the issuance of the 162,170,000 Shares pursuant to the September 2016 SPA).

 

Except as set forth in this Statement, the Reporting Persons have not effected any transaction in the ordinary shares or ADSs during the past 60 days.

 

Except as set forth in this Item 5, to the best knowledge of the Reporting Persons, no person other than the Reporting Persons is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of the ordinary shares.

 

7

 

Item 6.                       Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.

 

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

 

On September 27, 2016, LDK entered into a purchase agreement (the “September 2016 SPA”) with the Issuer, pursuant to which LDK agrees to purchase from the Issuer 162,170,000 Shares for an aggregate consideration of US$42,002,030. Shares acquired by LDK under this agreement will be subject to a 180-day lock-up period from the date of their issuance.

 

The description of the transaction contained herein does not purport to be complete and is qualified in its entirety by reference to the full text of the September 2016 SPA, a copy of which is attached hereto as Exhibit 7.04.

 

On September 27, 2016, LDK entered into an option agreement (the “2016 Option Agreement”) with the Issuer, pursuant to which the Issuer granted LDK an option exercisable prior to the second anniversary of the closing date of the share issuance under the September 2016 SPA to purchase 162,170,000 Shares.  The aggregate exercise price of this option is US$42,002,030 (representing per Share exercise price of US$0.259). The description of the transaction contained herein does not purport to be complete and is qualified in its entirety by reference to the full text of the 2016 Option Agreement, a copy of which is attached hereto as Exhibit 7.05.

 

Except as set forth herein, there are no contracts, arrangements, understandings or relationships between the Reporting Persons or between the Reporting Persons and any other person with respect to any securities of the Issuer.

 

Item 7.                       Material to be Filed as Exhibits.

 

Item 7 of the Original Schedule 13D is hereby amended and restated in its entirety as follows:

 

7.01                        Joint Filing Agreement by and among the Reporting Persons, dated as of the date hereof.

7.02                        Share Purchase Agreement by and between Robust Elite Limited (now known as “Head & Shoulders Global Investment Limited”) and Zhou Shan, dated as of March 8, 2016 (previously filed)

7.03                        Share Purchase Agreement by and between SPI Energy Co., Ltd. and Zhou Shan, dated as of May 10, 2016 (previously filed).

7.04                        Purchase Agreement by and between SPI Energy Co., Ltd. and LDK New Energy Holding Limited, dated as of September 27, 2016.

7.05                        Option Agreement by and between SPI Energy Co., Ltd. and LDK New Energy Holding Limited, dated as of September 27, 2016.

 

8

 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Dated: October 3, 2016

 

 

	Xiaofeng Peng
	/s/ Xiaofeng Peng
	Tracy Shan Zhou
	/s/ Tracy Shan Zhou
	LDK New Energy Holding Limited
	By:	/s/ Xiaofeng Peng
	Name: Xiaofeng Peng
	Title: Director

 

9

 

Schedule A
Information Concerning the Reporting Persons

 

Name		Present Principal Occupation/ Employment		Business Address		Citizenship/Place of Incorporation
Xiaofeng Peng		Chairman of the board of directors and chief executive officer of the Issuer		Rm.2202 Beautiful Group Tower, 74-77 Connaught Road Central, Hong Kong		PRC
Tracy Shan Zhou		Chairman and director of LDK New Energy Holding Limited, which is in the business of new energy investment		c/o LDK New Energy Holding Limited Rm.2202 Beautiful Group Tower, 74-77 Connaught Road Central, Hong Kong		PRC
LDK New Energy Holding Limited (1)		N/A		Rm.2202 Beautiful Group Tower, 74-77 Connaught Road Central, Hong Kong		BVI

 

(1) Mr. Peng and Ms. Zhou are the directors of LDK.  LDK has no executive officer.

 

10

Exhibit 7.01

 

Joint Filing Agreement

 

In accordance with Rule 13d-1(k) promulgated under the Securities Exchange Act of 1934, as amended, the undersigned hereby agree to the joint filing with all other Reporting Persons (as such term is defined in the Schedule 13D referred to below) on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the ordinary shares of SPI Energy Co., Ltd., a Cayman Islands company, and that this Agreement may be included as an Exhibit to such joint filing. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.

 

Dated: October 3, 2016

 

 

	Xiaofeng Peng
	/s/ Xiaofeng Peng
	Tracy Shan Zhou
	/s/ Tracy Shan Zhou
	LDK New Energy Holding Limited
	By:	/s/ Xiaofeng Peng
	Name: Xiaofeng Peng
	Title: Director

 

1

Exhibit 7.04

 

PURCHASE AGREEMENT

 

This Purchase Agreement (this “Agreement”), dated as of September 27, 2016, is by and between LDK New Energy Holding Limited, a company incorporated under the laws of British Virgin Islands (the “Purchaser”), and SPI Energy Co., Ltd., a company incorporated under the laws of the Cayman Islands (the “Company”). Each of the Purchaser and the Company is referred to herein each as a “Party”, and collectively as the “Parties”.

 

W I T N E S S E T H:

 

WHEREAS, the Company and the Purchaser desire to provide for the issuance, sale and purchase of certain number of ordinary shares of the Company, par value US$0.000001 per share (the “Ordinary Shares”), on the terms and conditions set forth in this Agreement; and

 

WHEREAS, the Company and the Purchaser desire to make certain representations, warranties, covenants and agreements in connection with the issuance, sale and purchase of certain Ordinary Shares and related transactions contemplated by this Agreement.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Company and the Purchaser agree as follows:

 

ARTICLE I

 

PURCHASE AND SALE

 

Section 1.1                                   Issuance, Sale and Purchase of Shares. Subject to the terms and conditions of this Agreement, and in reliance upon the representations and warranties set forth herein, the Company agrees to issue, sell and deliver to the Purchaser, free and clear of any pledge, mortgage, security interest, encumbrance, lien, charge, assessment, claim or restriction of any kind or nature other than those imposed by the Articles of Association and Bylaws of the Company, and the Purchaser agrees to purchase from the Company, on the Closing Date (as defined below), 162,170,000 Ordinary Shares (the “Purchase Shares”).

 

Section 1.2                                   Purchase Price. The Purchaser shall pay an aggregate purchase price of US$42,002,030 (the “Purchase Price”) for the Purchase Shares.

 

Section 1.3                                   Closing.

 

(a)                                 Upon the terms and subject to the conditions of this Agreement, the closing (the “Closing”) of the purchase and sale of the Purchase Shares shall take place at a place determined by the Company at 9:00 A.M. New York time on a date that is no later than December 22, 2016 or at such other time or on such other date that is agreed upon in writing by the Company and the Purchaser (the “Closing Date”).

 

(b)                                 At or before the Closing, the Purchaser shall deliver the Purchase Price by wire transfer in immediately available funds to the Company’s bank account designated by the Company in a written notice to the Purchaser. At the Closing, the Purchaser shall deliver a certificate of a duly authorized officer of the Purchaser certifying as to the matters set forth in Section 1.4(b).

 

1

 

(c)                                  After the Closing and as soon as practicable, the Company shall make entry or entries in the register of members of the Company and deliver to the Purchaser the following items:

 

(i)                                     A share certificate (x) representing the number of Purchase Shares and (y) evidencing the Purchaser as the holder of the Purchase Shares with the rights of a holder of Ordinary Shares under the Articles of Association and the Bylaws of the Company, such rights being the same as the rights of other holders of Ordinary Shares.

 

(ii)                                  A copy of the updated register of members of the Company evidencing the Purchaser as the holder of the Purchase Shares.

 

Section 1.4                                   Closing Conditions.

 

The obligations of the Company to issue and sell the Purchase Shares as contemplated by this Agreement shall be subject to the satisfaction, on or before the Closing, of each of the following conditions, provided that any of which may be waived in writing by the Company in its sole discretion:

 

(a)                                 All corporate and other actions required to be taken by the Company in connection with the issuance and sale of the Purchase Shares shall have been completed and all corporate and other actions required to be taken by the Purchaser in connection with the purchase of the Purchase Shares shall have been completed.

 

(b)                                 The representations and warranties of the Purchaser contained in Section 2.2 of this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct in all material respects as of the Closing; and the Purchaser shall have performed and complied with in all material respects all, and not be in breach or default in any material respect under any, agreements, covenants, conditions and obligations contained in this Agreement that are required to be performed or complied with on or before the Closing.

 

(c)                                  No governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins, prevents, prohibits or otherwise makes illegal the consummation of, or materially and adversely alter, the transactions contemplated by this Agreement or imposes any damages or penalties that are substantial in relation to the Company; and no action, suit, proceeding or investigation shall have been instituted by or before any governmental authority of competent jurisdiction or threatened that seeks to restrain, enjoin, prevent, prohibit or otherwise makes illegal the consummation of, or materially and adversely alter, the transactions contemplated by this Agreement or impose any damages or penalties that are substantial in relation to the Company.

 

2

 

ARTICLE II

 

REPRESENTATIONS AND WARRANTIES

 

Section 2.1                                   Representations and Warranties of the Company. The Company hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing, as follows:

 

(a)                                 Organization and Authority.  Each of the Company and its subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with the requisite power and authority to own and use its properties and assets and to carry on its business in all material respects as is currently conducted. Neither the Company nor any of its subsidiaries is in material violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and its subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification, except to the extent that the failure to be so qualified and in good standing would not adversely affect the ability of the Company to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement or adversely affect the ability of the Company and its subsidiaries to conduct the business as is currently conducted.

 

(b)                                 Due Issuance of the Purchase Shares. The Purchase Shares of the Company have been duly authorized and, when issued and delivered to the Purchaser and paid for by the Purchaser pursuant to this Agreement, will be validly issued, fully paid and non-assessable, and free of any liens or encumbrances, except as required by applicable laws, and issued in compliance with all applicable federal, securities laws and the Articles of Association and the Bylaws of the Company.

 

(c)                                  Authority. The Company has full power and authority to enter into, execute and deliver this Agreement and each agreement, certificate, document and instrument to be executed and delivered by it pursuant to this Agreement and to perform its obligations hereunder. The execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite actions on its part.

 

(d)                                 Noncontravention. This Agreement has been duly executed and delivered by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental entity or court to which the Company or any of its subsidiaries is subject. To the Company’s best knowledge, neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of any of the transactions contemplated hereby, nor compliance by the Company with any of the terms and conditions hereof will contravene any existing agreement, federal, state, county or local law, rule or regulation or any judgment, decree or order applicable to, or binding upon, it.

 

3

 

(e)                                  Filings, Consents and Approvals. Assuming the accuracy of the representations and warranties of the Purchaser in Section 2.2(f), neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of any of the transactions contemplated hereby, nor the performance by the Company of this Agreement in accordance with its terms requires the filing, consent, approval, order or authorization of, or registration with, or the giving notice to, any governmental or public body or authority, except such as have been obtained, made, given or will be made promptly hereafter and any required filing or notification with the Securities and Exchange Commission.

 

Section 2.2                                   Representations and Warranties of the Purchaser. The Purchaser hereby represents and warrants to the Company as of the date hereof and as of the Closing Date, as follows:

 

(a)                                 Due Formation. It is a company duly incorporated as an exempted company with limited liability, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with full power and authority to own and operate and to carry on its business in the places and in the manner as currently conducted.

 

(b)                                 Authority. It has full power and authority to enter into, execute and deliver this Agreement and each agreement, certificate, document and instrument to be executed and delivered by it pursuant to this Agreement and to perform its obligations hereunder. The execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite actions on its part.

 

(c)                                  Valid Agreement. This Agreement has been duly executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

 

(d)                                 Consents. Neither the execution and delivery by it of this Agreement nor the consummation by it of any of the transactions contemplated hereby nor the performance by it of this Agreement in accordance with its terms requires the consent, approval, order or authorization of, or registration with, or the giving of notice to, any governmental or public body or authority or any third party, except as have been obtained, made or given.

 

(e)                                  No Conflict. Neither the execution and delivery by it of this Agreement, nor the consummation by it of any of the transactions contemplated hereby, nor compliance by it with any of the terms and conditions hereof will contravene any existing agreement, federal, state, county or local law, rule or regulation or any judgment, decree or order applicable to, or binding upon, it.

 

(f)                                   Status and Investment Intent.

 

(i)                                     Experience. It has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Purchase Shares. It is capable of bearing the economic risks of such investment, including a complete loss of its investment.

 

4

 

(ii)                                  Purchase Entirely for Own Account. It is acquiring the Purchase Shares for its own account for investment purposes only and not with the view to, or with any intention of, resale, distribution or other disposition thereof. It does not have any direct or indirect arrangement, or understanding with any other persons to distribute, or regarding the distribution of the Purchase Shares in violation of the United States Securities Act of 1933, as amended (the “Securities Act”) or other applicable laws.

 

(iii)                               Not U.S. person. It is not a “U.S. person” (as such term is defined in Regulation S of the Securities Act) and is not purchasing the Purchase Shares for the account or benefit of any “U.S. person”.

 

(iv)                              Distribution Compliance Period. It acknowledges that all offers and sales of the Purchase Shares before the end of the “distribution compliance period” (as such term is defined in Regulation S of the Securities Act) be made only in accordance with Regulation S of the Securities Act, pursuant to registration of the securities under the Securities Act or pursuant to an exemption therefrom.

 

(v)                                 Restrictive Legend. It understands that the certificate evidencing the Purchase Shares will bear a legend or other restriction substantially to the following effect:

 

“THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NO SALE, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION OF THESE SECURITIES MAY BE MADE UNLESS EITHER (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (B) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EITHER CASE UPON THE RECEIPT OF AN OPINION OF U.S. COUNSEL.”

 

(vi)                              No Broker. No broker, investment banker or other person is entitled to any broker’s, finder’s or other similar fee or commission in connection with the execution and delivery of this Agreement or the consummation of any of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Purchaser.

 

(g)                                  Financing. It has sufficient funds available to it to purchase all of the Purchase Shares pursuant to this Agreement.

 

ARTICLE III

 

MISCELLANEOUS

 

Section 3.1                                   Lockup. Without the prior written consent of the Company, the Purchaser shall not sell, give, assign, hypothecate, pledge, encumber, grant a security interest in or otherwise dispose of, or suffer to exist (whether by operation of law or otherwise) any encumbrance on, any of the Purchase Shares, or any right, title or interest therein or thereto, prior to the date that is 180 days after the Closing Date.

 

5

 

Section 3.2                                   Survival of the Representations and Warranties. All representations and warranties made by any Party shall survive for two years and shall terminate and be without further force or effect on the second anniversary of the Closing Date. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representations or warranty and such claims shall survive until finally resolved.

 

Section 3.3                                   Termination. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned at any time prior to Closing, (i) by mutual agreement of the Parties, (ii) by the Purchaser in the event that the Closing has not occurred by the date that is 90 days from the date of this Agreement. Nothing in this Section 3.3 shall be deemed to release any Party from any liability for any breach of this Agreement prior to the effective date of such termination.

 

Section 3.4                                   Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of New York without giving effect to the conflicts of law principles thereof.

 

Section 3.5                                   Dispute Resolution. Any dispute, controversy or claim (each, a “Dispute”) arising out of or relating to this Agreement, or the interpretation, performance breach, termination, validity or invalidity thereof, shall be referred to arbitration upon the demand of any Party to the dispute with notice (the “Arbitration Notice”) to the other Party.

 

(a)                                 The Dispute shall be settled in Hong Kong in a proceeding conducted in English by one (1) arbitrator from the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with the Hong Kong International Arbitration Centre Administered Arbitration Rules (the “HKIAC Rules”) in force when the Arbitration Notice is submitted in accordance with the HKIAC Rules.

 

(b)                                 Each party to the arbitration shall cooperate with each other party to the arbitration in making full disclosure of and providing complete access to all information and documents reasonably requested by such other party in connection with such arbitral proceedings, subject only to any confidentiality obligations binding on such party.

 

(c)                                  The award of the arbitral tribunal shall be final and binding upon the parties thereto, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such award.

 

(d)                                 During the course of the arbitral tribunal’s adjudication of the Dispute, this Agreement shall continue to be performed except with respect to the part in dispute and under adjudication.

 

Section 3.6                                   Amendment. This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto.

 

Section 3.7                                   Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, each of the Parties and their respective heirs, successors and permitted assigns.

 

Section 3.8                                   Assignment. Neither this Agreement nor any of the rights, duties or obligations hereunder may be assigned by the Company or the Purchaser without the express written consent of the other Party. Any purported assignment in violation of the foregoing sentence shall be null and void.

 

6

 

Section 3.9                                   Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of actual delivery if delivered personally to the Parties to whom notice is to be given, on the date sent if sent by telecopier, tested telex or prepaid telegram, on the next business day following delivery if sent by courier or on the day of attempted delivery by postal service if mailed by registered or certified mail, return receipt requested, postage paid, and properly addressed as follows:

 

If to the Purchaser, at:	LDK New Energy Holding Limited
If to the Company, at:	SPI Energy Co., Ltd.
	7F/A Block, 1st Building, Jinqi Plaza
	No. 2145 Jinshajiang Road, Putuo District
	Shanghai, P.R. China
	Fax: +86 21-80129003

 

Any Party may change its address for purposes of this Section 3.9 by giving the other Party a written notice of the new address in the manner set forth above.

 

Section 3.10                            Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties hereto with respect to the matters covered hereby, and all prior agreements and understandings, oral or in writing, if any, between the Parties with respect to the matters covered hereby are merged and superseded by this Agreement.

 

Section 3.11                            Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

 

Section 3.12                            Fees and Expenses. Except as otherwise provided in this Agreement, each Party will be responsible for all of its own expenses incurred in connection with the negotiation, preparation and execution of this Agreement.

 

Section 3.13                            Public Announcements. The Purchaser shall not make, or cause to be made, any press release or public announcement in respect of this Agreement or the transactions contemplated by this Agreement or otherwise communicate with any news media without the prior written consent of the Company unless otherwise required by securities laws or other applicable law.

 

Section 3.14                            Specific Performance. The Parties agree that irreparable damage would occur in the event any provision of this Agreement is not performed in accordance with the terms hereof. Accordingly, each Party shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.

 

7

 

Section 3.15                            Headings. The headings of the various articles and sections of this Agreement are inserted merely for the purpose of convenience and do not expressly or by implication limit, define or extend the specific terms of the section so designated.

 

Section 3.16                            Execution in Counterparts. For the convenience of the Parties and to facilitate execution, this Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

 

SIGNATURE PAGE FOLLOWS

 

8

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

 

	SPI Energy Co., Ltd.
	By:	/s/ Xiaofeng Peng
		Name:	Xiaofeng Peng
		Title:	Director

 

 

	Purchaser:
	LDK New Energy Holding Limited
	By:	/s/ Xiaofeng Peng
		Name:	Xiaofeng Peng
		Title:	Director

 

Exhibit 7.05

 

OPTION AGREEMENT

 

This Option Agreement (this “Agreement”), dated as of September 27, 2016 (the “Signing Date”), is by and between LDK New Energy Holding Limited, a corporation established under the laws of British Virgin Islands (the “Option Holder”), and SPI Energy Co., Ltd., an exempted company incorporated under the laws of the Cayman Islands (the “Company”).

 

. The Option Holder and the Company is each referred to herein as a “Party,” and collectively as the “Parties.”

 

W I T N E S S E T H:

 

WHEREAS, the Company and the Option Holder desire to provide for the grant of an option to purchase certain number of ordinary shares of the Company, par value $0.000001 per share (the “Ordinary Shares”), on the terms and conditions set forth in this Agreement; and

 

WHEREAS, the Company and the Option Holder desire to make certain representations, warranties, covenants and agreements in connection with the transactions contemplated by this Agreement.

 

WHEREAS, the Company and the Option Holder entered into a purchase agreement dated as of September 27, 2016 (the “Purchase Agreement”). Upon the terms and subject to the conditions of the Purchase Agreement, the closing (the “SPA Closing”) of the purchase and sale of the Purchase Shares (the “SPA Purchase Shares”) shall take place at a place determined by the Company at 9:00 A.M. New York time on a date that is no later than December 22, 2016 or at such other time or on such other date that is agreed upon in writing by the Company and the Purchaser (the “SPA Closing Date”).

 

NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants and agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Company and the Option Holder agree as follows:

 

ARTICLE I

 

PURCHASE AND SALE

 

Section 1.1                                   Option. Subject to the terms and conditions of this Agreement, and in reliance upon the representations and warranties set forth herein, the Company hereby grants the Option Holder an option (the “Option”) to purchase from the Company 162,170,000 Ordinary Shares (the “Purchase Shares”) determined by dividing the total purchase price of US$42,002,030 (the “Purchase Price”) by the Option Exercise Price (as defined below) per share, which Option is exercisable by the Option Holder at any time on or prior to the date that is Twenty four (24) months after the SPA Closing Date (the “Option Deadline”).  The Option will be deemed exercised upon the payment of the Purchase Price to the Company by the Option Holder.  For the avoidance of doubt, the Option shall expire automatically if the Option Holder fails to exercise the Option on or prior to the Option Deadline.  If the Option Holder exercises the Option, the Company shall issue, sell and deliver to the Option Holder, free and clear of any pledge, mortgage, security interest, encumbrance, lien, charge, assessment, claim or restriction of any kind or nature other than those imposed by the Articles of Incorporation and Bylaws of the Company, and the Option Holder agrees to purchase from the Company, on the Closing Date (as defined below), the Purchase Shares. The Company is not obligated to complete the sale and purchase of any Purchase Shares unless the Option is exercised by the Option Holder in full and the sale and purchase of all the Purchase Shares is completed.  The number of Purchase Shares subject to the Option and the Purchase Price shall be subject to adjustment for any stock split, reverse stock split, stock dividend, recapitalization or similar event with respect to the Ordinary Shares. The “Option Exercise Price” per share shall mean US$ 0.259, the closing price of the Company’s ADSs as of September 23, 2016, divided by ten, the ordinary share to ADS ratio.

 

1

 

Section 1.2                                   Purchase Price. If the Option Holder exercises the Option, it shall pay the Purchase Price for the Purchase Shares.

 

Section 1.3                                   Closing.

 

(a)                                 If the Option Holder wishes to exercise the Option, it shall provide a written notice to the Company on a date prior to the Option Deadline (the “Option Exercise Date”), and the proposed closing date (the “Closing Date”) shall not be later than three (3) weeks after the Option Exercise Date upon the terms and subject to the conditions of this Agreement, the closing (the “Closing”) of the purchase and sale of the Purchase Shares shall take place at a place determined by the Company at 9:00 A.M. New York time on the Closing Date.

 

(b)                                 At or before the Closing, the Option Holder shall deliver the Purchase Price by wire transfer in immediately available funds to the Company’s bank account designated by the Company in a written notice to the Option Holder.  At the Closing, the Option Holder shall deliver a certificate of its duly authorized officer certifying as to the matters set forth in Section 1.4(b).

 

(c)                                  After the Closing and as soon as practicable, the Company shall make entry or entries in the stock ledger of the Company and deliver to the Option Holder the following items:

 

(i)                                     A stock certificate (x) representing the number of Purchase Shares and (y) evidencing the Option Holder as the holder of such Purchase Shares with the rights of a holder of Ordinary Shares under the Articles of Incorporation and the Bylaws of the Company, such rights being the same as the rights of all other holders of Ordinary Shares, and if any other holder of Ordinary Shares is granted any special rights, then the Option Holder shall be granted substantially similar rights as such other holder of Ordinary Shares.

 

(ii)                                  A copy of the updated stock ledger of the Company evidencing the Option Holder as the holder of the Purchase Shares;

 

(iii)                               A true and complete copy certified by a director of the Company, of the resolutions duly and validly adopted by the board of directors of the Company, evidencing its approval of the issuance and allotment to the Option Holder of the Purchase Shares.

 

2

 

Section 1.4                                   Closing Conditions.

 

The obligations of each Party upon the Closing (if any) as contemplated by this Agreement shall be subject to the satisfaction, on or before the Closing, of each of the following conditions, provided that any of which may be waived in writing by the other Party in its sole discretion:

 

(a)                                 All corporate and other actions required to be taken by the Company in connection with the issuance and sale of the Purchase Shares shall have been completed and all corporate and other actions required to be taken by the Option Holder in connection with the purchase of the Purchase Shares shall have been completed.

 

(b)                                 The representations and warranties of such Party contained in Section 2 of this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct in all material respects as of the Closing Date; and such Party shall have performed and complied with in all material respects all, and not be in breach or default in any material respect under any, agreements, covenants, conditions and obligations contained in this Agreement that are required to be performed or complied with on or before the Closing.

 

(c)                                  No governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any law (whether temporary, preliminary or permanent) that is in effect and restrains, enjoins, prevents, prohibits, or otherwise makes illegal the consummation of the transactions contemplated by this Agreement; and no action, suit, proceeding or investigation shall have been instituted by or before any governmental authority of competent jurisdiction or threatened that seeks to restrain, enjoin, prevent, prohibit, or otherwise makes illegal the consummation of the transactions contemplated by this Agreement.

 

ARTICLE II

 

REPRESENTATIONS AND WARRANTIES

 

Section 2.1                                   Representations and Warranties of the Company. The Company hereby represents and warrants to the Option Holder, as of the date hereof and as of the Closing, as follows:

 

(a)                                 Organization and Authority. Each of the Company and its subsidiaries is an entity duly incorporated or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with the requisite power and authority to own and use its properties and assets and to carry on its business in all material respects as is currently conducted. Neither the Company nor any of its subsidiaries is in material violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of the Company and its subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such qualification necessary and no proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification, except to the extent that the failure to be so qualified and in good standing would not adversely affect the ability of the Company to carry out its obligations under, and to consummate the transactions contemplated by, this Agreement or adversely affect the ability of the Company and its subsidiaries to conduct the business as is currently conducted.

 

3

 

(b)                                 Due Issuance of the Purchase Shares. The Purchase Shares have been duly authorized and, when issued and delivered to the Option Holder and paid for by the Option Holder pursuant to this Agreement, will be validly issued, fully paid and non-assessable, and free of any liens or encumbrances, except as required by applicable laws, and issued in compliance with all applicable federal, state and other securities laws and the Articles of Incorporation and the Bylaws of the Company.

 

(c)                                  Authority. The Company has full power and authority to enter into, execute and deliver this Agreement and each agreement, certificate, document and instrument to be executed and delivered by it pursuant to this Agreement and to perform its obligations hereunder. The execution and delivery by it of this Agreement and the performance by it of its obligations hereunder have been duly authorized by all requisite actions on its part.

 

(d)                                 Noncontravention. This Agreement has been duly executed and delivered by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental entity or court to which the Company or any of its subsidiaries is subject. To the Company’s best knowledge, neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of any of the transactions contemplated hereby, nor compliance by the Company with any of the terms and conditions hereof will contravene any existing agreement, federal, state, county or local law, rule or regulation or any judgment, decree or order applicable to, or binding upon, it.

 

(e)                                  Filings, Consents and Approvals. Assuming the accuracy of the representations and warranties of the Option Holder in Section 2.2(f), neither the execution and delivery by the Company of this Agreement, nor the consummation by the Company of any of the transactions contemplated hereby, nor the performance by the Company of this Agreement in accordance with its terms requires the filing, consent, approval, order or authorization of, or registration with, or the giving notice to, any governmental or public body or authority, except such as have been obtained, made, given or will be made promptly hereafter and any required filing or notification with the Securities and Exchange Commission.

 

Section 2.2                                   Representations and Warranties of the Option Holder. The Option Holder hereby represents and warrants to the Company as of the date hereof and as of the Closing Date, as follows:

 

(a)                                 Due Formation. The Option Holder is a company duly incorporated as an exempted company with limited liability, validly existing and in good standing under the laws of the jurisdiction of its incorporation, with full power and authority to own and operate and to carry on its business in the places and in the manner as currently conducted.

 

(b)                                 Authority. The Option Holder has full power and authority to enter into, execute and deliver this Agreement and each agreement, certificate, document and instrument to be executed and delivered by the Option Holder pursuant to this Agreement and to perform its obligations hereunder. The execution and delivery by the Option Holder of this Agreement and the performance by the Option Holder of its obligations hereunder have been duly authorized by all requisite actions on its part.

 

4

 

(c)                                  Valid Agreement. This Agreement has been duly executed and delivered by the Option Holder and constitutes the legal, valid and binding obligation of the Option Holder, enforceable against it in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium, and other laws of general application affecting enforcement of creditors’ rights generally, and (ii) as limited by laws relating to the availability of specific performance, injunctive relief, or other equitable remedies.

 

(d)                                 Consents. Neither the execution and delivery by the Option Holder of this Agreement nor the consummation by it of any of the transactions contemplated hereby nor the performance by the Option Holder of this Agreement in accordance with its terms requires the consent, approval, order or authorization of, or registration with, or the giving of notice to, any governmental or public body or authority or any third party, except as have been obtained, made or given.

 

(e)                                  No Conflict. Neither the execution and delivery by the Option Holder of this Agreement, nor the consummation by it of any of the transactions contemplated hereby, nor compliance by the Option Holder with any of the terms and conditions hereof will contravene any existing agreement, federal, state, county or local law, rule or regulation or any judgment, decree or order applicable to, or binding upon, the Option Holder.

 

(f)                                   Status and Investment Intent.

 

(i)                                     Experience. The Option Holder has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risks of its investment in the Option and the Purchase Shares. The Option Holder is capable of bearing the economic risks of such investment, including a complete loss of its investment.

 

(ii)                                  Purchase Entirely for Own Account. The Option Holder is acquiring the Option and the Purchase Shares that may be sold pursuant to this Agreement for its own account for investment purposes only and not with the view to, or with any intention of, resale, distribution or other disposition thereof.  The Option Holder does not have any direct or indirect arrangement, or understanding with any other persons to distribute, or regarding the distribution of the Option and the Purchase Shares in violation of the United States Securities Act of 1933, as amended (the “Securities Act”) or other applicable laws.

 

(iii)                               Not U.S. person. The Option Holder is not a “U.S. person” (as such term is defined in Regulation S of the Securities Act) and is not acquiring the Option and/or purchasing the Purchase Shares for the account or benefit of any “U.S. person”.

 

(iv)                              Distribution Compliance Period. The Option Holder acknowledges that all offers and sales of the Purchase Shares before the end of the “distribution compliance period” (as such term is defined in Regulation S) be made only in accordance with Regulation S, pursuant to registration of the securities under the Securities Act or pursuant to an exemption therefrom.

 

5

 

(v)                                 Restrictive Legend. The Option Holder understands that the certificate evidencing the Purchase Shares will bear a legend or other restriction substantially to the following effect:

 

“THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NO SALE, PLEDGE, HYPOTHECATION, TRANSFER OR OTHER DISPOSITION OF THESE SECURITIES MAY BE MADE UNLESS EITHER (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (B) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EITHER CASE UPON THE RECEIPT OF AN OPINION OF U.S. COUNSEL.”

 

(vi)                              No Broker. No broker, investment banker or other person is entitled to any broker’s, finder’s or other similar fee or commission in connection with the execution and delivery of this Agreement or the consummation of any of the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Option Holder.

 

(g)                                  Financing. Prior to the exercise of the Option, the Option Holder shall have sufficient funds available to it to purchase all of the Purchase Shares pursuant to this Agreement.

 

ARTICLE III

 

MISCELLANEOUS

 

Section 3.1                                   Lockup. The Option Holder shall not subject to any restrictions to sell, give, assign, hypothecate, pledge, encumber, grant a security interest in or otherwise dispose of, or suffer to exist (whether by operation of law or otherwise) any encumbrance on, any of its Purchase Shares, or any right, title or interest therein or thereto, after the Closing Date.

 

Section 3.2                                   Survival of the Representations and Warranties. All representations and warranties made by any Party shall survive for two years and shall terminate and be without further force or effect on the second anniversary of the Closing Date.  Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representations or warranty and such claims shall survive until finally resolved.

 

Section 3.3                                   Termination. This Agreement may be terminated, and the transactions contemplated hereby may be abandoned at any time prior to Closing by mutual agreement of the Parties. Nothing in this Section 3.3 shall be deemed to release any Party from any liability for any breach of this Agreement prior to the effective date of such termination.

 

Section 3.4                                   Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of New York without giving effect to the conflicts of law principles thereof.

 

6

 

Section 3.5                                   Dispute Resolution. Any dispute, controversy or claim (each, a “Dispute”) arising out of or relating to this Agreement, or the interpretation, performance breach, termination, validity or invalidity thereof, shall be referred to arbitration upon the demand of any Party to the dispute with notice (the “Arbitration Notice”) to the other Party.

 

(a)                                 The Dispute shall be settled in Hong Kong in a proceeding conducted in English by one (1) arbitrator from the Hong Kong International Arbitration Centre (the “HKIAC”) in accordance with the Hong Kong International Arbitration Centre Administered Arbitration Rules (the “HKIAC Rules”) in force when the Arbitration Notice is submitted in accordance with the HKIAC Rules.

 

(b)                                 Each party to the arbitration shall cooperate with each other party to the arbitration in making full disclosure of and providing complete access to all information and documents reasonably requested by such other party in connection with such arbitral proceedings, subject only to any confidentiality obligations binding on such party.

 

(c)                                  The award of the arbitral tribunal shall be final and binding upon the parties thereto, and the prevailing party may apply to a court of competent jurisdiction for enforcement of such award.

 

(d)                                 During the course of the arbitral tribunal’s adjudication of the Dispute, this Agreement shall continue to be performed except with respect to the part in dispute and under adjudication.

 

Section 3.6                                   Amendment. This Agreement shall not be amended, changed or modified, except by another agreement in writing executed by the Parties hereto.

 

Section 3.7                                   Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, each of the Company and the Option Holder and their respective heirs, successors and permitted assigns.

 

Section 3.8                                   Assignment. Neither this Agreement nor any of the rights, duties or obligations hereunder may be assigned by the Company or the Option Holder without the express written consent of the other Parties. Any purported assignment in violation of the foregoing sentence shall be null and void.

 

Section 3.9                                   Notices. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of actual delivery if delivered personally to the Party to whom notice is to be given, on the date sent if sent by telecopier, tested telex or prepaid telegram, on the next business day following delivery if sent by courier or on the day of attempted delivery by postal service if mailed by registered or certified mail, return receipt requested, postage paid, and properly addressed as follows:

 

If to the Option Holder, at:	LDK New Energy Holding Limited
If to the Company, at:	SPI Energy Co., Ltd.
	7F/A Block, 1st Building, Jinqi Plaza
	No. 2145 Jinshajiang Road, Putuo District
	Shanghai, P.R. China
	Fax: +86 21-80129003

 

7

 

Any Party may change its address for purposes of this Section 3.9 by giving the other Party hereto written notice of the new address in the manner set forth above.

 

Section 3.10                            Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties hereto with respect to the matters covered hereby, and all prior agreements and understandings, oral or in writing, if any, between the Parties with respect to the matters covered hereby are merged and superseded by this Agreement.

 

Section 3.11                            Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the Parties hereto shall use their commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.

 

Section 3.12                            Fees and Expenses. Except as otherwise provided in this Agreement, each Party will be responsible for all of its own expenses incurred in connection with the negotiation, preparation and execution of this Agreement.

 

Section 3.13                            Public Announcements. The Option Holder shall not make, or cause to be made, any press release or public announcement in respect of this Agreement or the transactions contemplated by this Agreement or otherwise communicate with any news media without the prior written consent of the Company unless otherwise required by securities laws or other applicable law.

 

Section 3.14                            Specific Performance. The Parties hereto agree that irreparable damage would occur in the event any provision of this Agreement are not performed in accordance with the terms hereof. Accordingly, each Party shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or equity.

 

Section 3.15                            Headings. The headings of the various articles and sections of this Agreement are inserted merely for the purpose of convenience and do not expressly or by implication limit, define or extend the specific terms of the section so designated.

 

Section 3.16                            Execution in Counterparts. For the convenience of the Parties and to facilitate execution, this Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.

 

[SIGNATURE PAGE FOLLOWS]

 

8

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

 

	SPI Energy Co., Ltd.
	By:	/s/ Xiaofeng Peng
		Name:	Xiaofeng Peng
		Title:	Director

 

9

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year first above written.

 

	Option Holder
	LDK New Energy Holding Limited
	By:	/s/ Xiaofeng Peng
		Name:	Xiaofeng Peng
		Title:	Director

 

10